## Facts

- Plaintiffs were individual owners of artworks attributed to Keith Haring whose works allegedly lost value after the Keith Haring Foundation and its officers declined to authenticate them or characterized them as non-authentic.
- The Foundation, a New York not-for-profit associated with Haring’s legacy, allegedly exerted substantial influence over the market for Haring works through its authentication activities and public statements.
- Plaintiffs alleged the Foundation sent communications accusing at least one plaintiff of marketing non-authentic works and threatening legal action if the conduct continued.
- Plaintiffs challenged statements made in a separate lawsuit’s pleading (the “Miami Complaint”) and a related press release, alleging these statements deterred galleries and buyers, chilled exhibitions, and reduced the marketability and value of plaintiffs’ artworks.
- Plaintiffs asserted federal antitrust claims (and parallel state antitrust claims), a Lanham Act false advertising claim, and New York claims including defamation, conspiracy to defame, trade libel, tortious interference with prospective business relations, prima facie tort, and unjust enrichment.
- Defendants moved to dismiss under Federal Rule of Civil Procedure 12(b)(6) after consolidation of related actions and amendment of the complaint.

## Issues

1. Whether plaintiffs plausibly pleaded a Sherman Act (and state antitrust) violation, including a properly defined relevant market and competitive harm amounting to an unreasonable restraint of trade or monopolization.
2. Whether the challenged statements and communications qualified as “commercial advertising or promotion” and materially false commercial representations actionable under the Lanham Act.
3. Whether New York defamation and related claims were barred by litigation privilege, failed the “of and concerning” requirement, or otherwise lacked required elements.
4. Whether plaintiffs adequately pleaded trade libel special damages, tortious interference with sufficiently specific prospective relationships and wrongful means, prima facie tort (including disinterested malevolence), and unjust enrichment.
5. Whether the court should exercise supplemental jurisdiction over the state-law claims after dismissing the federal claims.

## Decision

- The court granted defendants’ Rule 12(b)(6) motion and dismissed the complaint in its entirety, closing the case.
- The court dismissed the federal antitrust claims for failure to allege an unlawful restraint of trade or monopolization in a legally cognizable relevant market and for insufficient conspiracy allegations.
- The court dismissed the Lanham Act claim because the challenged statements were not “commercial advertising or promotion” and were not plausibly pleaded as materially false commercial representations causing cognizable competitive injury.
- The court dismissed defamation and related tort claims because statements in the “Miami Complaint” were absolutely privileged, and the press-release statements were not adequately “of and concerning” the plaintiffs.
- The court dismissed trade libel and other economic-tort theories for failure to plead special damages with the required specificity and for lack of concrete allegations of lost transactions.
- The court dismissed tortious interference, prima facie tort, and unjust enrichment for failure to plead required elements, including specific interfered-with relationships, wrongful means, disinterested malevolence, and enrichment at plaintiffs’ expense.
- The court exercised supplemental jurisdiction and dismissed the state-law claims on the merits.

## Legal Principles

- Antitrust pleading requires a plausible relevant market and plausible allegations of anticompetitive conduct causing competitive harm; market influence from authentication activities alone does not establish an antitrust violation.
- Coordinated actions by an entity and its agents may be insufficient to plead an agreement among separate economic actors for conspiracy-based antitrust liability absent specific facts showing an agreement to restrain trade.
- Lanham Act false advertising liability generally requires statements made in “commercial advertising or promotion,” not merely litigation-related statements or authenticity communications lacking a promotional commercial character.
- Under New York law, statements in pleadings made in the course of judicial proceedings are absolutely privileged if material and pertinent and cannot support defamation liability.
- Defamation claims require statements “of and concerning” the plaintiff; generalized statements about counterfeits or authenticity disputes may fail this requirement.
- Trade libel and similar economic-injury torts require pleading special damages with specificity (e.g., identifiable lost sales or customers), not generalized allegations of diminished value.
- Tortious interference with prospective business relations requires identification of specific prospective relationships and wrongful means; prima facie tort requires disinterested malevolence as the sole motive; unjust enrichment requires a plausible enrichment at plaintiff’s expense warranting restitution.

## Conclusion

The court dismissed all claims arising from the Foundation’s authentication-related conduct and public/litigation statements, holding that plaintiffs failed to plead viable antitrust or Lanham Act theories and failed to satisfy New York law requirements such as litigation privilege, “of and concerning,” and specific special damages.


Bilinski v. Keith Haring Found., Inc., 96 F. Supp. 3d 35 (S.D.N.Y. 2015)