New Gagosian Lawsuit Alleges Lichtenstein Switcheroo

News might not have broken last week that the lawsuit between Larry Gagosian and collector Robert Wylde had been settled

"Girl in Mirror" (Photo courtesy of Christie's)

News might not have broken last week that the lawsuit between Larry Gagosian and collector Robert Wylde had been settled for $4.4 million if a second lawsuit had not emerged from it. This one was filed last week by lawyers for Jan Cowles, the 93-year-old mother of Charles Cowles who, according to that lawsuit, sold a painting to the dealer by Mark Tansey that was, in fact, partially owned by the Metropolitan Museum of Art (that painting is now fully owned by the museum). The new lawsuit seeks some $14 million from Mr. Gagosian for various alleged misdeeds in the sale of Roy Lichtenstein’s Girl in Mirror, a porcelain-enamel-on-steel work from 1964. It alleges that Mr. Cowles never had the authority to sell the painting, and accuses Mr. Gagosian of misrepresenting the state of the painting when he sold it. Multiple editions of the painting exist, and the complaint, in effect, accuses Mr. Gagosian of using a condition report for another edition of Girl in Mirror as proof that the Cowles version was damaged.

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The complaint alleges that sometime between August and December of 2009, Mr. Gagosian sold Girl in Mirror for $2 million, well below the $3 million low price set by Mr. Cowles when he first consigned the painting to Mr. Gagosian in October 2008. Mr. Gagosian, the complaint says, attributed the lackluster price to the fact that the painting was damaged, a claim the complaint finds dubious.

The complaint says that, in the course of paying Mr. Cowles his portion of the Lichtenstein sale, Mr. Gagosian also increased his commission. The court documents have it that the original agreement was for Mr. Gagosian to sell the painting for over $3 million with a commission of $500,000. Instead, in the plaintiff’s scenario, he sold it for $2 million and took a $1 million commission. This would mean that, while Mr. Cowles had expected to receive $2.5 million from the sale, he only received $1 million. The complaint implies that Mr. Cowles, a dealer and former Artforum publisher, took this deal because he was broke, quoting a 2009 New York Times article in which Mr. Cowles says, of the art market, “It’s shocking how bad business has been.” To add some perspective, another work from this Lichtenstein series sold at Christie’s in the fall of 2010 for $4.9 million.

The complaint says that Mr. Gagosian’s intake notes on the Lichtenstein painting describe “no significant damage.” It also states that Mr. Gagosian hauled the painting to his booths at both Frieze in 2008 and Art Basel in 2009, which he might not have done with a less-than-perfect work.

A dealer familiar with Lichtenstein’s work and market told The Observer that condition is crucial to the prices one might hope to attain for enamel works by Lichtenstein because “most” of them are not in good condition. Girl in Mirror is generally considered to exist in eight editions, though Clare Bell of the Roy Lichtenstein Foundation said that inventory records for the Leo Castelli Gallery, where Lichtenstein showed in the 1960s, say that there may be 10 versions of the work, some of them original proofs. Ms. Bell also said that not all of the editions are numbered. One version of the painting hung in Gagosian’s Madison Avenue gallery for the summer 2008 show “Roy Lichtenstein: Girls” and, according to the complaint, Gagosian employee John Good testified during the Tansey litigation that at one point in the period covered by the lawsuit the gallery was in possession of two Girl in Mirrors–one damaged, one in good condition.

The complaint describes a scenario in which Mr. Gagosian provided a fake condition assessment when subpoenaed by Ms. Cowles’s lawyers for evidence that the painting was in fact damaged. Mr. Gagosian apparently provided a one-page report from Amman+Estabrook Conservation Associates that detailed a Girl in Mirror with “numerous dark inclusions and small pits in the yellow field,” among other problems. According to the complaint, Ms. Cowles’s lawyers then subpoenaed Amman+Estabrook, which provided a four-page version of that report. The last page of this version features an invoice that says “the work was examined in the owner’s home: Agnes Gund, 765 Park Avenue,” which would suggest that Mr. Gagosian gave Ms. Cowles’s lawyers a condition assessment for a version of the painting not owned by Ms. Cowles, but instead owned by Ms. Gund, a highly esteemed contemporary art collector and philanthropist. Through a spokesman, Ms. Gund declined comment for this piece.

Shortly after the complaint was filed, lawyers for Gagosian responded with an affidavit that disputed the validity of this last page of the condition report, saying that it was accidentally generated by a computer error and erroneously submitted to the Cowles’ lawyers.

The condition report submitted by Mr. Gagosian was for the correct Girl in Mirror, Amman+Estabrook partner Elizabeth Estabrook says in the affidavit, but the last page, the invoice that says Ms. Gund owned the evaluated Girl in Mirror, “was mistakenly produced from our company’s back up file.” The false invoice, Ms. Estabrook says, referenced evaluations that the company made for a different Lichtenstein work owned by Agnes Gund, titled Masterpiece (1962). The allegedly false invoice was said to have been created from two other invoices from those Amman+Estabrook evaluations. They are included in the affidavit, dated May 15, 2008 and July 25, 2008 and both addressed to Andy Avini at Gagosian. The affidavit also makes reference to repairs that reportedly took place before the Cowles Girl in Mirror was examined on Dec. 5, 2008.

Gagosian Gallery asked that the following statement from Amman+Estabrook’s lawyer Robert Solomon be run in full.

“In a sworn statement, Elizabeth Estabrook, co-principal of Amman+Estabrook, has confirmed that the condition report she prepared in December 2008 detailed the condition of the Lichtenstein work previously owned by Jan Cowles entitled, Girl in Mirror, after it had been restored. To an art person, that process left the work visibly discolored. It is no wonder then, that to the untrained eye of a shipper, the work seemed to him to be in ‘[o]verall good condition.’

Invoices issued to Gagosian Gallery in 2008 also clearly show that the services Amman+Estabrook performed in relation to a work owned by Agnes Gund had nothing to do with any edition of Girl in Mirror, which was on enamel, and instead pertained to a Lichtenstein work on canvas entitled, Masterpiece, 1962, which Ms. Gund had loaned to Gagosian Gallery in 2008. As there was nothing nefarious or fraudulent about the condition report, only an honest mistake in Amman+Estabrook’s document production, continued prosecution of the defamatory statements on which Jan Cowles bases her fraud claim exposes her and her counsel to monetary and other sanctions.

Bottom line: Jan Cowles has no viable claim against Gagosian Gallery or its owner, Larry Gagosian, whom she apparently has sued as deep pockets in hopes of recouping at least something on the massive debt her son (whom she has not sued) purportedly cannot repay her in full.”

The allegedly false invoice, the one that references a Girl in Mirror owned by Ms. Gund, is dated Dec. 5, 2008, like the rest of the condition report, and addressed to Derek DeGreer at Gagosian. Exactly how this last invoice was created is unclear.

“I’m too old to explain how computers do things like that,” Mr Solomon told The Observer over the phone. “It was one of those things where it just mashed together two separate reports and they don’t know how it happened. I certainly don’t know how it happened.”

The Gagosian affidavit does not, in its description of the events, say where the Cowles Girl in Mirror was examined.

Parties on both sides were hesitant to speak on the record, among them Gagosian Gallery.

“As to the Tansey, we’re pleased that the painting has been returned to the museum,” said Mr. Baum, the lawyer for Ms. Cowles. “And as to the Lichtenstein, we think the complaint speaks for itself.”

Correction 1/26 An earlier version of this story misstated Mr. Cowles’ role at Artforum.
Update 10/4 Mr. Solomon has since revised his statement.

New Gagosian Lawsuit Alleges Lichtenstein Switcheroo