Following Suits

With Knoedler Gallery closed, disputes over a trove of paintings promoted as previously unknown Abstract Expressionist works have been playing out in court

Untitled, 1956, attributed to Mark Rothko.

As federal authorities, including the U.S. Attorney’s Office and the FBI, continue to investigate a group of Abstract Expressionist paintings, all of which were traced back to a Long Island dealer named Glafira Rosales, those involved in sales of the works have been grappling with a spate of lawsuits from distressed buyers.

A $25 million suit over the authenticity of a purported Mark Rothko painting is the latest fallout in the widening scandal, which has ensnared some of the most prestigious names in the New York art world.

The defendants in the Rothko suit are the Knoedler Gallery, which abruptly closed its doors late last year, and its longtime president, Ann Freedman, whose sudden departure from the gallery in late 2009 shocked art-world insiders. Freedman and her attorney, Nicholas Gravante Jr., of Boies, Schiller & Flexner, say the evidence will show not only that the dealer acted in good faith but that the works in question are authentic. They intend to file a motion to dismiss the case.

“Proving Ann Freedman’s good faith is hardly a challenge given the contemporaneous evidence showing that she extensively investigated the Rosales works, showed the works to multiple experts who affirmed their authenticity, and then fully disclosed everything she knew and did not know about the works to everyone she showed them to,” Gravante told ARTnews.

More recently, Richard Grant, executive director of the Diebenkorn Foundation and Richard Diebenkorn’s son-in-law, and other experts and heirs of the artist said they had questioned the authenticity of Diebenkorn drawings that were shown to them in 1993 and sold through Knoedler. They said that Freedman and the gallery had ignored their warnings about the works.

Gravante says that “definitive documentary evidence” exists proving that Freedman showed the works to Diebenkorn’s family members and that they authenticated the works.

The Rothko suit was brought in March by South Carolina–based collector Domenico De Sole, a former Gucci executive, as well as his wife, Eleanore, and their daughter Laura. In 2004 the De Soles purchased Untitled, 1956, seemingly a typical Rothko color-block abstraction. The deal was brokered by Freed­man in her capacity as president of Knoedler. The price was $8.3 million, including commission.

Before the purchase, according to their complaint, the De Soles were told “a compelling story” about the source of the painting: In the late 1950s David Herbert, an art dealer (since deceased) who knew Rothko personally, had arranged for a Swiss collector to purchase the work directly from the artist. When the collector died, his son and heir enlisted Knoedler to sell it.

The De Soles now believe that the story—the so-called “sales pitch”—was “a scam.” According to their complaint, Freedman and Knoedler had no idea, and still don’t know, where the work came from, other than that it was obtained from Rosales, the source of a supposed treasure trove of about 20 previously undiscovered works that Herbert had helped the Swiss collector amass. But, the De Soles’ claim asserts, “not one work . . . has a single piece of paper establishing its provenance before arriving at Knoedler.”

Attached as exhibits to the Rothko and other claims are letters between Freedman and several art experts, as well as written statements that support her contention that she did receive affirmation from others in the field about the quality of the works. The documents, for example, include three letters from National Gallery of Art curator Laili Nasr written on National Gallery of Art letterhead, confirming that if a supplement to the Rothko catalogue raisonné were published, the work would be included. Nasr declined to comment. Deborah Ziska, the gallery’s chief of press and public information, said in an e-mailed statement: “Our research on the works is ongoing and will take into account recent questions raised about their provenance.”

In a 2005 letter to Freedman, the Swiss art dealer Ernst Beyeler, who died in 2010, asked her if “the present owner of this sublime unknown masterwork would be inclined to lend it” for a Rothko exhibition that year. The painting was featured in the show.

The Rothko suit was the second claim against Freed­man and Knoedler in less than four months. Last December, a similar suit was brought by the Belgian-born, London-based hedge-fund manager Pierre Lagrange, who, in 2007, purchased a painting purportedly by Jackson Pollock for more than $17 million after hearing the same story about Herbert and the Swiss collector. Lagrange, too, now believes that he was duped and that the work is a fake. He is demanding his money back.

Knoedler closed a day after a negative scientific analysis report on the Pollock was received. Gallery officials said the events were unrelated and that the closing had been planned for some time.

However, at least one other purported Pollock whose source was Rosales had proved problematic for Knoedler and Freedman years earlier. In 2003 Goldman Sachs executive Jack Levy purchased a painting for $2 million, but when the International Foundation for Art Research did not authenticate the work, Levy asked for and received his money back.

Rosales, who is a target of the ongoing federal criminal investigation, has refused to identify the Swiss “mystery collector.” Further, various lawsuits related to Rosales-sourced works also note that her partner, a man named Jose Carlos Bergantiños Diaz, had been implicated in the sale of forged artwork in the past. According to the De Soles’ complaint, Rosales’s actions raise “the specter of the truth” that the collection is “rife with forgeries.”

Lagrange, and the two dealers—Jaime Frankfurt and Tim Taylor—who helped broker the sale, claim that Freedman promised them that the painting, which was not mentioned in the Pollock catalogue raisonné, would eventually be included in a supplement. According to Pollock-Krasner Foundation CEO Charles Bergman, there are no plans for a supplement. Freed­man told ARTnews that she never promised this, knowing that no supplement to the catalogue was imminent, but she added that she was attempting to persuade the foundation to issue a supplement. Attorneys for Freedman and Lagrange have also clashed about what various scholars and experts said when they were shown the Pollock, and what constitutes a stamp of approval, a denial, or inability to render an opinion.

Both the Rothko and the Pollock have now been subjected to forensic testing by a leading expert on materials analysis, James Martin, of Orion Analytical, who found in both instances certain materials that are “inconsistent and irreconcilable” with the claims that the works were painted by the respective artists.

In oral arguments on the Pollock case last December, Freedman testified that top paint makers often gave their products to artists to test years before making them commercially available. She and her lawyers also plan to challenge the extent of Martin’s knowledge of art history and his methodology.

Late last year Rosales paid more than $500,000 to settle a dispute over a Robert Motherwell “Spanish Elegy,” which Martin deemed a forgery after forensic testing. The Dedalus Foundation, which was founded by Motherwell, and the dealer who sold the work, Julian Weissman, had been sued by the buyer.

Initially, in 2007, when executives from Dedalus, including foundation president Jack Flam and treasurer Morgan Spangle, viewed the work in Weissman’s home, they issued a letter to him stating that “it is the opinion of the Foundation that the work is the work of Robert Mother­well,” albeit with a caveat that the opinion could “change by reason of circumstances arising or discovered by the Foundation after the date hereof.”

Weissman also received a letter from Spangle assuring him that the work would be included in the upcoming Mother­well catalogue raisonné, scheduled for publication this Sep­tem­ber. Based on these assurances, Weissman says, he sold the work to art dealer and adviser Marc Blondeau, through Blondeau’s Ireland-based company, Killala Fine Art, for $650,000.

However, as more unknown Rosales-sourced “Spanish Elegy” paintings began appearing on the market—seven in total—Dedalus Foundation officials began to have doubts about what they saw as stylistic and other anomalies and eventually enlisted Martin and his firm to test works and establish a baseline of undisputedly authentic works.

In early 2009 Flam informed Weiss­man that the foundation did not intend to include the painting in the upcoming catalogue raisonné, based on new information and its previously stated right to change its opinion. This ultimately prompted the suit from Killala.

In cross-claims filed by Dedalus against Weissman in June 2011, foundation officials asserted that Weissman misled them about the source of the painting, telling them it had come from a London collector and art patron named Sheikha Paula Al Sabah, instead of from the actual source, Glafira Rosales. Weissman responded that he never supplied an actual name and had always said that he did not know the name of the Swiss collector or his son.

Dedalus attorney Perry Amsellem says that the foundation “was soundly vindicated when the owner and sellers of the painting agreed to indelibly mark it a forgery while the defendant sellers Weissman and Rosales paid Dedalus $200,000 in damages for a suit the Foundation did not start. Notably, the painting was reportedly seized by the FBI as apparent evidence of a crime in connection with an apparent criminal investigation. Unfortunately, Dedalus is being attacked because some people don’t like the message.”

The Motherwell legal dispute has also exposed tensions among Dedalus executives. Art historian and critic Dore Ashton, who had been appointed to the board by Motherwell himself, resigned after 21 years, claiming that the Weissman suit was “brought on by irregularities in authentication procedures.” She criticized Flam and Spangle, stating that the “affirmations and reversals of authenticity were given without the consensus of the whole Catalogue Raisonné Committee. This was a significant violation of procedure, which caused the collector to sue both Weissman and the Dedalus Foundation for restitution.” She also denied ever looking at the paintings in question and calling them “laughable fakes,” as the Dedalus cross-claims against Weissman assert.

Ashton also addressed Dedalus’s dismissal of and subsequent legal action against former Motherwell assistant and longtime Dedalus secretary Joan Banach in 2008. Ashton said Banach’s removal from the board was “motivated by her challenge to Jack Flam for his reversal of Motherwell’s own opinion of his work.”

Dedalus executives deny this and say that Banach was dismissed for breaching her fiduciary duties in selling Mother­well works that she failed to document with the catalogue-raisonné project. They also allege that she converted and misappropriated artworks from Dedalus for personal profit.

The litigation has dragged on for years, with Dedalus recently making new allegations that Banach misappropriated archival material and caused false entries to be made in Dedalus inventory records. Banach’s attorneys said that they intend to move for sanctions on the grounds that these allegations are “frivolous” and “unsupportable.”

In a letter to Banach’s attorneys, Ashton backed Banach’s claims that Motherwell frequently gave gifts of artwork to his staff. “Motherwell—an extremely generous man—gave me several works of art (prints, drawings and paintings),” Ashton wrote. “Over the years I sold a few, with the artist’s consent, and later, after he died.” Ashton added, “None of the works that I sold had anything to do with the Dedalus Foundation.”

Eileen Kinsella is editor of the ARTnewsletter.

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