United States District Court, D. New Hampshire
Lawrence B. Gormley, Esq.
Jeffrey Christensen, Esq.
William B. Pribis, Esq.
J. McAuliffe United States District Judge
Andrew Hall, is a collector of post-war and contemporary art.
Over a two-year period beginning in 2009, he purchased
twenty-four works of art from the defendants, Lorettann
Gascard and her son, Nikolas Gascard. Hall says he purchased
some of those pieces directly from the Gascards, while others
were acquired indirectly through auction houses to which the
Gascards had consigned the works. And, says Hall, the
Gascards affirmatively represented that each of the
twenty-four works he purchased was an original piece produced
by the American artist Leon Golub. In early 2015, however,
Hall discovered that all of those twenty-four works are
action, Hall advances six common law and statutory claims
against the Gascards: fraud (count one); conspiracy to
defraud (count two); breach of warranty (count three); breach
of contract (count four); unjust enrichment (count five); and
unfair and deceptive trade practices, in violation of New
Hampshire's Consumer Protection Act (count six). The
Gascards move for summary judgment, asserting that they are
entitled to judgment as a matter of law as to each of
reasons discussed, the Gascards' motion for summary
judgment is granted as to Hall's UCC warranty claims.
Additionally, because Hall concedes that his Consumer
Protection Act claim and his common law breach of contract
claim fail to state viable causes of action, those claims are
ruling on a motion for summary judgment, the court is
“obliged to review the record in the light most
favorable to the nonmoving party, and to draw all reasonable
inferences in the nonmoving party's favor.” Block
Island Fishing, Inc. v. Rogers, 844 F.3d 358, 360
(1st Cir. 2016) (citation omitted). Summary judgment is
appropriate when the record reveals “no genuine dispute
as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed.R.Civ.P. 56(a). In
this context, a factual dispute “is ‘genuine'
if the evidence of record permits a rational factfinder to
resolve it in favor of either party, and ‘material'
if its existence or nonexistence has the potential to change
the outcome of the suit.” Rando v. Leonard,
826 F.3d 553, 556 (1st Cir. 2016) (citation omitted).
“[a]s to issues on which the party opposing summary
judgment would bear the burden of proof at trial, that party
may not simply rely on the absence of evidence but, rather,
must point to definite and competent evidence showing the
existence of a genuine issue of material fact.”
Perez v. Lorraine Enters., 769 F.3d 23, 29-30 (1st
Cir. 2014). In other words, “a laundry list of
possibilities and hypotheticals” and
“[s]peculation about mere possibilities, without more,
is not enough to stave off summary judgment.” Tobin
v. Fed. Express Corp., 775 F.3d 448, 451-52 (1st Cir.
2014). See generally Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 249 (1986).
factual background to this dispute is set forth in the
court's prior order (document no. 19) and need not be
recounted in detail. It is sufficient to note that Hall
purchased numerous paintings from Nikolas Gascard and his
mother, Lorettann Gascard, each of which was a purported
original work of the American painter Leon Golub. The
Gascards made various statements explicitly attesting to the
authenticity of each work and/or made historical statements
about the works' provenance that strongly implied they
were authentic, original works of Golub (e.g.,
“Acquired directly from the artist” or
“Acquired directly from the artist by descent to the
present owner”). They were not original works. Instead,
they were all high-quality forgeries - sufficient to fool
even sophisticated art houses (e.g., Sotheby's and
Christie's), as well as the (alleged) artist's own
son, Stephen Golub. See Email from Stephen Golub dated Nov.
4, 2010 (document no. 46-17) at 2. Moreover, Hall asserts
that both Lorettann Gascard and Nikolas Gascard knew that
each piece was a forgery when they sold it to him. In support
of that claim, Hall notes, for example, that Nikolas Gascard
admits that he fabricated the names for each work that was
sold to Hall. Nikolas also admits that he invented the date
on which Golub allegedly painted each of the works. See
generally Deposition of Nikolas Gascard (document no. 46-5)
at 124-29. Hall also points to other evidence demonstrating
that Nikolas Gascard misled various auction houses and
potential purchasers about how he and/or his mother came into
possession of various works. See, e.g., Id. at
total, Hall purchased twenty-four paintings from the Gascards
(either directly or through an intermediary, such as an
auction house), for a total purchase price well in excess of
$600, 000. Hall has settled claims against both Sotheby's
and Christie's. What remain, then, are his claims against
the Gascards arising out of his purchase of sixteen forged
paintings directly from them, and one purchased from Artnet
(on consignment from the Gascards), for a total purchase
price of approximately $468, 000.
support of their motion for summary judgment, the Gascards
advance several arguments. First, they say Hall's claims
are untimely and barred by the statute of limitations.
Second, they assert that Hall has not sufficiently
demonstrated that he justifiably relied upon the
Gascards' allegedly false statements regarding the
various works' provenance (indeed, the Gascards claim
that Hall had an independent duty to verify the authenticity
of each work and his reliance upon their various
representations of authenticity and/or provenance was neither
reasonable nor justifiable). Finally, they say that there is
no evidence of any intent to defraud on their part. In short,
the Gascards seem to be suggesting that they are as shocked
as anyone that all the works they sold to Hall (as well as
various other purchasers) over the years, for hundreds of
thousands of dollars, are forgeries.
Statute of Limitations.
asserts that it was not until 2015 that he first had reason
to suspect that at least some of the paintings he purchased
from the Gascards are forgeries. Prior to that, he says he
had no reason to doubt their authenticity. For example, he
points out that he hosted an event at his home in late 2010,
at which he displayed some of the fake works he had acquired
from the Gascards. Attending that event were a No. of Golub
“aficionados, ” including Golub's son,
Stephen, and Golub's former studio manager, Samm Kunce.
Neither man raised any question about the potential
authenticity of those works. See Exhibit O to plaintiff's
memorandum (document no. 46-17) at 2-3.
November of 2014, the Hall Art Foundation - a non-profit
organization operated by Hall - began planning an exhibition
of the works of Golub that Hall had acquired over the years.
As part of that preparation, the foundation's executive
director sent images of all the works proposed for exhibition
to the Nancy Spero and Leon A. Golub Foundation for the Arts.
He asked the Golub Foundation to verify the names and dates
of all the subject works. In February of 2015, the Golub
Foundation responded that although it had records relating to
most of those works, it had nothing relating to the pieces
that Hall had purchased from the Gascards. See Exhibit R to
plaintiff's memorandum (document no. 46-20)
(“Unfortunately, the Foundation does not recognize the
remainder of the works on your list”). That, ...