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KRAMER v. POLLOCK-KRASNER FOUND.

June 12, 1995

DAVID KRAMER, Plaintiff,
v.
THE POLLOCK-KRASNER FOUNDATION, THE POLLOCK-KRASNER AUTHENTICATION BOARD, INC., SOTHEBY'S, INC., and CHRISTIE, MANSON & WOODS INTERNATIONAL, INC., Defendants.



The opinion of the court was delivered by: HAROLD BAER, JR.

 HAROLD BAER, JR., United States District Judge:

 This tempest in the art world involves defendants' alleged monopolization of the market in Jackson Pollack paintings. Defendants moved, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, to dismiss plaintiff's antitrust and related claims. Defendants also moved for an order imposing sanctions on plaintiff's counsel under Rule 11 of the Federal Rules of Civil Procedure. For the reasons stated below, defendants' motions to dismiss are granted, and their motions for sanctions are denied.

 Factual Background

 Plaintiff David Kramer, a fine art and antiques dealer in Arizona, bought a painting privately for $ 15,000, which he alleges could be worth $ 10,000,000 if it were authenticated as a Jackson Pollock and sold at auction. Compl. PP 7, 9. Kramer contacted defendants Christie, Manson & Woods International, Inc. ("Christie's") and Sotheby's, Inc. and asked them to auction his painting. Christie's informed Kramer by letter dated January 19, 1993 that it would auction the painting if Kramer obtained authentication from defendant Pollack-Krasner Authentication Board, Inc. (the "Board"). Id. P 15. Kramer submitted his painting to the Board in April 1992. Two months later, the Board refused to authenticate it. Id. P 16.

 Late last year, Kramer sued the Board, the Pollock-Krasner Foundation ("Foundation"), Sotheby's and Christie's claiming antitrust violations pursuant to Sections 1 and 2 of the Sherman Act, 15 U.S.C. §§ 1, 2, and New York's Donnelly Act, N.Y. General Business Law § 340 (McKinney 1988) ("NYGBL"). Kramer also alleged common law unjust enrichment and interference with advantageous business relationships, as well as deceptive acts under NYGBL Section 349. Kramer alleged that the antitrust conspiracy, began at Pollock's death in 1956. Id. P 54. The goal of the conspiracy was to exclude certain authentic Pollock pieces from the accepted canon of his work, and thereby from the market, in an attempt to increase the value of Pollock paintings owned by the Foundation and auctioned by Christie's and Sotheby's. Id. P 7. Participants in the conspiracy include not only the named defendants, but also some of the nation's preeminent museums and galleries, the Yale University Press ("Yale"), the past and present trustees of the Pollock-Krasner Foundation and Authentication Board, and other parties as yet unknown. Id. P 12. Kramer alleged that to achieve the goal of this conspiracy, the defendants unreasonably restrained and dominated the "Pollock" submarket of the "modern and contemporary artists" market. Id. P 10.

 As factual support, Kramer claimed that: (1) the Foundation possesses a large stockpile of Pollock paintings, id. PP 3, 30; (2) the Board fails to conduct a reasonable investigation of paintings submitted for authentication or to employ the skills of competent persons to make their determinations regarding authenticity, id. PP 17, 30; (3) Christie's and Sotheby's together control 100% of the Pollock auction market, and auction only Pollock works authenticated by the Board or listed in the Jackson Pollock Catalogue Raisonne, (Yale, 1978) ("Catalogue Raisonne"), id. PP 15, 28, 29, 45(B); (4) the Catalogue Raisonne describes 1,064 "authentic" Pollock works, id. P 10(JJ), and was principally based upon information provided to Yale by the Foundation and the Board, id. P 16; (5) the Foundation and the Board gave Yale substantially all the information it received regarding Kramer's painting, resulting in its exclusion from the Catalogue Raisonne, id.; and (6) works other than Kramer's painting will be included in a revised edition of the Catalogue Raisonne. Id.

 Discussion

 A. Standard for Rule 12(b)(6) Motions

 When considering the sufficiency of a complaint under a Rule 12(b)(6) motion to dismiss for failure to state a claim, the court accepts as true all factual allegations in the complaint and draws inferences from these allegations in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236, 40 L. Ed. 2d 90, 94 S. Ct. 1683 (1974); Easton v. Sundram, 947 F.2d 1011, 1014-15 (2d Cir. 1991) cert. denied, 504 U.S. 911, 112 S. Ct. 1943, 118 L. Ed. 2d 548 (1992).

 
The issue [on a motion to dismiss] is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims. Indeed it may appear on the face of the pleadings that a recovery is very remote and unlikely but that is not the test.

 Scheuer, 416 U.S. at 236. Dismissal is warranted only if, under any set of facts that the plaintiff can prove consistent with the allegations, it is clear that no relief can be granted. Hishon v. King & Spalding, 467 U.S. 69, 73, 81 L. Ed. 2d 59, 104 S. Ct. 2229 (1984); Frasier v. General Elec. Co., 930 F.2d 1004, 1007 (2d Cir. 1991).

 B. The Antitrust Claims

 Defendants argue that the court should dismiss Kramer's Sherman claims because: (1) Kramer's market definition is incorrect as a matter of law; (2) Kramer's conspiracy allegations are conclusory; (3) Kramer fails to state a claim of monopolization or attempted monopolization; and (4) Kramer's "essential facilities" claim under Section 2 of the Sherman Act fails to plead the elements of that doctrine. I will address these arguments in turn. Because the New York Court of Appeals has held that the Donnelly Act was modelled on the Sherman Act and should be construed in light of federal precedent, X.L.O. ...


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