United States District Court, D. New Hampshire
Lawrence B. Gormley, Esq.
Jeffrey Christensen, Esq.
William B. Pribis, Esq.
J. McAuliffe United States District Judge.
prevailed in this civil art fraud case, and he now seeks an
award of reasonable attorney's fees necessarily incurred
in vindicating his rights. Defendants object.
plaintiff, Andrew Hall, bought a No. of paintings directly
from defendant Nikolas Gascard, and a few paintings from
others that Nikolas put into the art market. Hall thought the
paintings he bought were works by the late artist Leon Golub.
He thought so primarily because Nikolas unequivocally
represented that the works he sold to Hall were by Golub and,
based on Nikolas's representations, the other sellers
also represented that the works they sold were by Golub. The
trial evidence, however, was quite persuasive: the paintings
purchased by Hall were crude fakes. Leon Golub did not create
was also some credible evidence pointing to defendant
Lorettann Gascard as the suspect most likely to have created
the fakes. Lorettann was an art history professor and artist,
who studied under Golub decades ago, and who claimed a
long-standing friendship with Golub before he died. But
Hall's counsel did not (understandably) press the
question of who created the works, focusing instead on their
inauthenticity and the Gascards' knowing and intentional
involvement in selling them.
defense was anemic, resting almost entirely on
defendants' testimony and cross-examination of Hall's
art expert. The Gascards recounted Lorettann's
intermittent personal relationship with the artist and her
interest in his work; suggested that her former husband
(Nikolas's father) had an interest in Golub's work as
well, and that perhaps he had obtained the suspect paintings
from the artist or from others; suggested that perhaps his
sister, Nikolas's aunt, also collected art to some extent
and perhaps acquired some of the Golub paintings from her
brother, or from others. The aunt died in Europe and, the
Gascards claimed, she left the suspect paintings at issue,
and other ostensible Golubs (a total of 40 or 50 works), in
her apartment closet, where the Gascards found them when they
went to settle her affairs. The aunt left her estate to
Nikolas. Nikolas's father (then deceased) had also left
his estate to Nikolas. The “Golub works, ” then,
whether belonging to the aunt or Nikolas's father, were
said to be part of Nikolas's inheritance.
defendants testified that they brought the paintings to New
Hampshire from Europe when they returned home. They claimed
to have rolled them up and wheeled them on a cart through an
airport to a Lufthansa Airlines check-in counter, where the
airline graciously took charge of the rolled paintings,
wrapped them, and presumably put them in the plane's
cargo hold. The paintings would have weighed approximately
250 pounds or so, and, given the unfortunate circumstances
surrounding the aunt's death and the delayed discovery of
her body, the paintings were impregnated with a noticeable
stench. Yet, defendants insisted, they experienced no
difficulty transporting the paintings out of Europe, then
through U.S. Customs, and to their home in New Hampshire.
said they thought (and still think) the works were by Golub.
They began liquidating the collection in a way that would
bring the best prices, i.e. a few at a time.
counsel methodically challenged every aspect of
defendants' narrative, exposed many misrepresentations
made about the works' provenance, and offered
uncontradicted expert opinion evidence that the works were
crude fakes. The jury had little difficulty in expeditiously
rejecting the defense and returning a verdict in Hall's
favor against Nikolas for fraud and against both Nikolas and
Lorettann for conspiracy to commit fraud. Hall was awarded
$465, 000.00 in damages, the full amount paid for the works.
a diversity of citizenship case in which New Hampshire law
applies. New Hampshire generally follows the “American
Rule” with respect to awards of attorney's fees.
Under the American Rule parties to litigation pay their own
fees. Harkeem v. Adams,117 N.H. 687, 690 (1977).
“Underlying the rule that the prevailing litigant is
ordinarily not entitled to collect his counsel fees from the
loser is the principle that no person should be penalized for
merely defending or prosecuting a lawsuit. An additional
important consideration is that the threat of having to pay
an opponent's costs might unjustly deter those of limited
resources from prosecuting or defending suits.”
Id. (citing Tau ...