The news broke this morning that Ann Freedman and Mr. &
Mrs. De Sole had reached a settlement of the lawsuit between them. Freedman’s attorney Luke Nikas told the New York Times that “Ann is pleased to be able to reach this
settlement…From the very beginning of these cases, Ann never wanted to keep a
penny of the profits she made…[from the sales of the fakes].” Remind me to hire Nikas if I never need to
explain a horrible mistake in public, that is certainly one of the nicer things
one could say about the settlement.
(Although the Times got the scoop over the weekend about the settlement, I would like to point out the ongoing heroic efforts of our art press in this trial. Artnet has had a recap of today's events up since 7 PM).
(Although the Times got the scoop over the weekend about the settlement, I would like to point out the ongoing heroic efforts of our art press in this trial. Artnet has had a recap of today's events up since 7 PM).
Naturally, the
details of the settlement are strictly confidential, and the judge (I was told)
made it clear to the jury this morning that they should draw no conclusions
about the settlement one way or another as the case is still proceeding against
8-31, the holding company that owns Knoedler.
I missed the morning session, but was able to attend the afternoon
proceedings.
While the jury was
told not to draw any conclusions, that certainly did not stop the rest of us
from doing just that. Freedman has claimed
for years now that she too was a victim and that she was delighted that this
case is going to trial so as to clear her name.
Settling at this juncture does the exact opposite. From my perspective, then, the only logical
way of interpreting the settlement is that Ann Freedman caved in because the
trial was not going well for her. It
seems to me very unlikely that the De Soles (who do not seem to be under any
financial pressure whatsoever) would have felt that way about the trail, since
a number of the witnesses, such as Jack Flam and James Martin, performed well
for them last week. Seeing as Freedman
had to know that all this would come out, I do wonder what took her so long to
settle. I assume that she and her attorneys
had access to the gist of the testimony that was going to be presented in
advance of the trial, but maybe they thought they could spin it. Or maybe Freedman was being unrealistic and
it took the experience of the trial to change her mind. At any rate, this is all speculation. The fact is, she is no longer a direct party
to these proceedings, except that she will testify soon.
I have to admit,
when I read about the settlement this morning, I was very concerned that the
whole thing would settle and we wouldn’t get to hear from her, but that does
not seem to be the case. We might get
her as early as tomorrow. It is odd that
Luke Nikas is no longer sitting at the defense table. He was always sort of the Good Cop to Charles
Schmerler’s gruffness. Schmerler also
did all of the objecting, allowing Nikas to benefit without having to look so
mean. It is just weird that is so much
empty space on the defense’s side now. I must say, I have wondered all along how the
two separate plaintiff’s defense strategies might have differed, especially in
light of the fact that Knoedler and Freedman parted ways very abruptly and not
on good terms. Now that she has a firm
grip on just how much she will have to pay out of her own pocket, her testimony
may be different from what it would have been had she still been part of the
suit. At any rate, the good news, at
least from my rather selfish point of view, is that the show goes on.
While I missed
the morning session, I was told it consisted of the rest of the videotaped
testimony of EA Carmean. Carmean, it
will remembered, seemingly discarded all criticality or discernment as a scholar when
he started taking Knoedler’s money, becoming instead a fierce advocate for the
authenticity and beauty of the Rosales fakes.
I don’t want to say too much about testimony I didn’t hear, but I was
told he simultaneously claimed that he did a lot of work for Knoedler and thus deserved
his income, but very little of his time was spent researching the Rosales
collection.
LAILI NASR
Laili Nasr, who
has been at the National Gallery in Washington DC since 1995 working on Mark
Rothko catalogs raisonne, gave testimony this afternoon (February 8,
2016). She began helping with the
catalog raisonne of work on canvas, and she is now leading the effort to complete
the catalog raisonne of Rothko works on paper.
As usual with the unpaid witnesses in this matter, Nasr looked miserable
and the facts of her involvement in this case have damaged her professional
credibility, although not to the extent of some of the others that have come
before her.
Her testimony
centered on two letters that Nasr wrote, on National gallery stationary, to Ann
Freedman in October 2002 and November, 2003 after Nasr saw the two Rothko fakes
that came from Rosales (one of which was sold to the De Soles and the other to
the Hilti Foundation). The letters refer
to the dates and the dimensions of each and both letters specifically say that
the paintings “will be included” in the supplement to the Rothko catalog
raisonne of works on canvas, should one be published, with a “comprehensive
catalog entry.”
While the letters
do indicate that no such supplement was immediately forthcoming (it has never
actually been published and plans for it have been dropped), there is nothing
else in them that qualifies the statement about such an inclusion in any
way. Nasr just straight-up told
Freedman, in clear, unambiguous language that they were in…no ifs, ands or
buts. Today, Nasr tried to characterize
these as “thank you notes”, sort of a gracious way of acknowledging Freedman’s
kindness to her in receiving her at Knoedler and showing her the works in
question when Nasr happened to be in New York.
She also indicated that it was an “unusual” letter for her to write, in
that the language used was atypical for her and that she generally never wrote
directly to dealers about specific paintings in letters such as this.
Nasr never
researched any of the facts that Freidman alleged…didn’t look into Alfonso
Ossorio or David Herbert, for example, but rather just did a very cursory
initial examination, added them to her database of possible works and left it
at that. She or her staff did seem to
ask to have some additional documentation, which Freedman promised to
provide---Freedman said she was in the process of getting all that. Nasr also asked for access to Knoedler’s own
archives to help her do further inquiries, but this was never granted. However, rather than pursue any of this
further, the whole thing was dropped. Her
focus, Nasr said, was and is to get the catalog of the works on paper finished,
she wasn’t even working on works on canvas at this point.
Despite the lack
of ongoing research into the works, Nasr claimed that Freedman called her often
during the time period these letters were written to pester her about their
inclusion the then-planned supplement to the Rothko works on canvas catalog
raisonne. Nasr claims to have tried to
put Freedman off, telling her “it was too soon” to make such a determination
and that she was only “considering” it.
Nasr also noted that with respect to the works on paper catalog raisonne
that she is working on, she is deliberately waiting until the last minute to
make authentication decisions, so as to have as much information as possible
available to inform her assessments, she would never make a determination
without a lot of research.
So why on earth
did she write these letters? If she wasn’t
even working on a catalogue of Rothko’s paintings, what possessed her to put
such text down on official letterhead? Nasr
never exactly said, outside of trying to spin them as “thank you notes” and to
say that she never imagined that these letters “would have a life of their own”
and that Freedman would ever tell anybody else about them. She repeated that it was unusual for her to
communicate with a gallery in this manner and that the actual words were ones
she didn’t typically use. She stared at
them as if she had never seen them before.
The defense
shredded her “thank you note” excuse.
These letters were written months after her visits to Knoedler and
really don’t seem at all like the polite, bland notes that Nasr wanted them to
read as. They are way too specific. The exact words about the supplement and so
forth also appear verbatim in an email that Nasr wrote to Christopher Rothko’s
administrative assistant. The Rothko
family had been contacted about an image use permission for one of the fakes
and wanted to know what Nasr knew. The painting was in, she said, and again
used the “comprehensive catalog entry” line.
Here Nasr again
said that the language was so strange…she knew the people in the Rothko office
and spoke to them all the time, she wondered aloud from the stand why she would
use such formal words, it didn’t make sense to her. But she did not dispute writing the email and
the defense could now make the point that while the language might seem unfamiliar
to her, Nasr had used it on at least three occasions.
On cross
examination, the defense also showed a 2002 fax that Nasr had sent to Freedman
praising the Hilti ‘Rothko’ and comparing it
to the artist’s Seagram Building series in the colors used. While Nasr here backpedaled and stated that
such a comparison could have been made “looking at two postcards” it was
another instance the defense will be able to point to that Freedman was given
the impression that Nasr thought the work was authentic.
There was also a
close look at the matter of Nasr’s name appearing on the list of people who had
“viewed” the painting. This is a very
closely related document to the one sent to the De Soles when they bought their
fake, but in this case it was actually distributed at the ADAA fair in 2002,
where the fake Rothko sold to the Hilti Foundation was exhibited. Nasr’s name is one of the people on that list
and quoted Nasr as saying that the painting would be in the supplement.
Nasr had picked
up this list while at the fair and noticed her name on it. She recalled thinking it was odd for a
gallery to hand out such a list an art fair and did not like seeing her name
used in this manner. She said she had
never authorized Freedman to use her name in this way. However, Nasr did nothing about it. Nasr did
not complain to Freedman at the booth, and she didn’t do anything about
it. Why?
Because, Nasr said, Freedman was a very powerful woman and her gallery
was in a position to be very helpful in terms of access to other Rothko works
and she didn’t want to alienate her.
I have written
before that there is a very uneasy relationship between galleries and catalog
raisonne projects. Dealers and scholars
must interact in these matters—without such collaboration, the book will be
incomplete—but the opportunity for corruption is thus introduced.
The answer to the
Nasr letters is undoubtedly lurking somewhere in this part of the equation. I simply don’t buy the idea that Nasr was so naïve
as to think that the letters would not be used by Knoedler to sell the
works. Was she trying to gain favor with Freedman for
some reason? Was there someone else at
the National Gallery who caused this letter to be drafted and sent, which is
why Nasr found the language so strange? Is she taking the blame for someone
else’s mistake somehow? Or was Nasr
intimidated by Freedman, who obviously could be quite demanding, and simply wrote
the letters to make Freedman go away?
The plaintiffs’
redirect questions focused on the fact that Freedman never told Nasr that she
had already gotten 19 paintings from the same source as the ‘Rothkos’, or that
IFAR had been unable to authenticate a ‘Pollock’ or that John Elderfeld had
cast aspersions on some of the ‘Diebenkorns’.
Had she known any of this, Nasr wouldn’t have written the letters. Like
many others in the art world, Nasr said she “trusted” Ann Freedman and thus
gave the works the “benefit of the doubt.”
Maybe this is the answer, then…the considerable reputation of the
gallery had everybody falling all over themselves to be part of an exciting art
world discovery.
In short, I think
this was one that went the defense’s way.
Unlike the positive reinforcement of some of the Rosales works from
hired help like Stephen Polcari and EA Carmean, Laili Nasr received no
compensation from Knoedler and no other factors would otherwise suggest that there
was a quid pro quo. Indeed, she is a
person who has spent 15 years working on books that authenticate Mark Rothko’s
art and she wrote two letters and a fax that plainly state that these things
were OK. Additionally, she saw Knoedler
publically using her name and the quote about it being included and never
challenged them. Here is at least one
instance where Ann Freedman can point to and argue with success that one of the
foremost experts gave her an assurance upon which she relied.
Nasr’s letters
left a lot of people shaking their head in the courtroom during the break,
myself included. The letters were indeed
unusual. Nasr commands a great deal of
respect and is known to be very careful, so this is probably the exception that
proves the rule. It just happened to be
a very public one.
Ruth Blankschen
After the break
for the last part of the day, Ruth Blankshen, a CPA who, since 2007, has been
the Chief Financial Officer for Knoedler, LLC.
She is CFO of Hammer Galleries, as well, and has the same job for 8-31
Holdings, which owns the two entities. I
must say I was surprised. I thought
Knoedler went out of business, but it appears to still be a going concern.
She is a hostile
witness for the plaintiffs, obviously, since her boss is on the hook for $24
Million if they lose this case. She
tried to run out the clock a bit by being difficult, making the attorney
questioning her spend 10 minutes establishing that Knoedler pays her salary but
she does a lot of work for 8-31 as well.
The general
thrust of the questions seemed to be to establish that 8-31 and Knoedler were
not operated at an arms-length, despite the various corporate documents that
require them to be. Money seemed to flow
between them without invoices and 8-31 did not perform the services it was
supposed to. This makes sense; the
plaintiffs want the jury to start thinking of them as one entity. If 8-31 tries to play it like Ann Freedman
was concealing wrong-doing from them, the fact that they shared office space,
phones and email, and pushed money around freely will undermine that.
Blankschen will
be on tomorrow as well and is sure to try and drag it out some more. This is probably damaging stuff, but it can
be made to seem both boring and technical and I think she will try to do just
that.
Thanks for the great post on your blog, it really gives me an insight on this topic.
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