## Facts

- Joe Simon-Whelan owned a painting he believed was created by Andy Warhol and, in December 2001, decided to sell it.
- At that time, the Andy Warhol Foundation for the Visual Arts, Inc. and the Andy Warhol Art Authentication Board, Inc. (together, the authenticators) were central to the market practice of authenticating Warhol artworks.
- Art-world advisers told Simon-Whelan to submit the painting to the Board before attempting a sale.
- The Board evaluated submissions using three outcomes: authentic (by Warhol), inauthentic (not by Warhol), or no current opinion.
- The Foundation issued Warhol’s catalogue raisonné (a comprehensive catalogue of works) and owned many works attributed to Warhol.
- In December 2001, Simon-Whelan submitted his painting to the Board for review; the Board found it inauthentic and invited him to resubmit with additional documentation.
- Simon-Whelan resubmitted the painting; in July 2003, the Board again rejected the painting’s authenticity.
- Simon-Whelan sued, alleging the authenticators operated the authentication process in a self-serving way—pressuring owners to submit works and then authenticating or rejecting works to benefit the Foundation’s economic interests, including by refusing to authenticate works the Foundation had not been able to acquire.
- He alleged this conduct amounted to a conspiracy to restrain trade and an effort to monopolize the Warhol market, and that it hindered his ability to sell the painting and reduced its value.
- The authenticators moved to dismiss on the ground that the complaint did not adequately plead a federal antitrust claim.

## Issues

1. Whether Simon-Whelan plausibly alleged antitrust standing and antitrust injury based on the authenticators’ repeated denial of authenticity and the alleged resulting harm to his ability to sell and to the painting’s value.
2. Whether the complaint sufficiently pleaded a Sherman Act theory (conspiracy/restraint of trade and monopolization/attempted monopolization) by alleging a cognizable relevant market, market power, and exclusionary conduct rather than only harm to a single artwork owner.

## Decision

- The court granted the authenticators’ motion to dismiss.
- The court concluded the complaint did not adequately plead the elements necessary to proceed on the asserted federal antitrust theories, including antitrust injury and a plausible theory of competitive harm in a properly alleged market.

## Legal Principles

- A private antitrust plaintiff must plead antitrust injury—harm of the type the antitrust laws address—rather than only personal economic loss from the challenged conduct.
- Sherman Act claims must be supported by nonconclusory allegations identifying a relevant market and, for monopolization-type theories, facts supporting market power and exclusionary (as opposed to merely unfavorable) conduct.
- Allegations that a defendant’s conduct reduced the value or saleability of a single asset do not, without more, state a competitive injury to the market as a whole.
- Conclusory assertions of a conspiracy or unlawful market control are insufficient at the pleading stage without factual allegations that make an agreement or an anticompetitive scheme plausible.

## Conclusion

Simon-Whelan alleged that the Warhol Foundation and its Authentication Board used the Warhol authentication process to control the Warhol market and to harm owners whose works the Foundation did not control, including by twice rejecting his painting and thereby impairing its sale and value. The court dismissed the action at the pleading stage, holding that the complaint did not adequately allege antitrust standing and a plausible Sherman Act violation supported by a properly pleaded market, market power, and harm to competition rather than only harm to Simon-Whelan’s individual economic interests.


Simon-Whelan v. Andy Warhol Foundation for the Visual Arts, Inc., 2009 WL 1457177 (2009)