Back in May, we reported on a lawsuit where Phoenix-based Global Fine Art Registry (FAR) was awarded $500,000 after Park West Galleries, Inc. was accused of violating the Lanham Act in setting up a Internet smear campaign against FAR (“Don’t click here: Art group wins damages for dealer’s dubious tactics”).
On Aug. 12, Hon. Lawrence P. Zatkoff of U.S. District Court for the Eastern District of Michigan vacated the jury’s verdict and ordered a new trial. He said that FAR founder Theresa Franks and counsel Donald L. Payton and Jonathan H. Schwartz “engaged in persistent misconduct in front of the jury throughout the trial, and it would be fair to characterize the misconduct as ‘contumacious conduct.’”
For one, Zatkoff wrote, “counsel violated the Court’s in limine ruling regarding other legal disputes involving Plaintiff.”
Then, “Franks’ complaints that Plaintiff’s counsel was taking things ‘out of context’ and giving the jury only ‘bits and pieces’ are indicative of how she repeatedly attempted to prejudice the jury regarding rulings Plaintiff had appropriately obtained from this Court. … [T]here were many other times (both when she was called by Plaintiff and by her own counsel) that Franks’ testimony went far beyond what was appropriate or acceptable.”
And, during defendants’ opening statements, 15 newspapers and television stations that had written articles or aired shows about Plaintiff’s art cruises were mentioned. Because of that, “Plaintiff suffered the stigma in the jury’s eyes each time Plaintiff had to object to such reports during testimony,” and “the reading of the media reports was improper in light of the manner in which the FAR Defendants subsequently attempted to introduce them.”
As well, the court imposed sanctions against counsel for the FAR Defendants. Schwartz was fined $5,000 for asking twice, against the judge’s orders, what a witness would think “if Park West wins this trial, Fine Art Registry is done.” Payton also was reprimanded in the trial, with the judge saying, “I counseled you before about the manner in which you have been handling this case and I am afraid I have to counsel you again. You continue to make improper, inflammatory remarks during the course of this trial.”
The upshot?
“[T]he Court: (1) vacates the jury’s verdict with respect to the nine claims asserted by Plaintiff against the FAR Defendants, (2) vacates the jury’s verdict on the Lanham Act counter-claim filed by FAR against Plaintiff, and (3) orders a new trial on the nine claims asserted by Plaintiff against the FAR Defendants and the Lanham Act counter-claim filed by FAR against Plaintiff.”
Guess this is what they mean when people talk about suffering for your art.
UPDATE: Crain’s Detroit Business reported Sept. 16 that neither Park West nor FAR will appeal the judge’s ruling, and instead will await a new trial, as Zatkoff has ordered.
Park West attorney Rodger Young briefly appealed a portion of Zatkoff’s ruling that had preserved a small portion of the April jury verdict pertaining to Bruce Hochman, owner of California-based The Salvador Dali Art Gallery. But he said he expects to withdraw that appeal, as the dealer has settled with Hochman.
Meanwhile, Payton is still representing several art buyers in a separate lawsuit against Park West filed at Oakland County Circuit Court. It remains pending before Circuit Judge Nanci Grant.
