The lawsuit involving film producer Joe Simon-Whelan’s 24-by-20-inch Andy Warhol silkscreen self-portrait from 1964, branded twice on its back with denied stamps by the Andy Warhol Art Authentication Board, has entered a new phase that may cost millions in lawyers’ fees. Simon-Whelan has chronicled this legal saga on his Web site, myandywarhol.com, and it has inspired a penetrating 2006 BBC documentary. In the latest development, on May 26, U.S. District Judge Laura Taylor Swain issued a 19-page ruling in Manhattan green-lighting Simon-Whelan’s pursuit of a class action.

The May decision stemmed from the film producer’s 2007 complaint alleging a "20-year scheme ... to restrain and monopolize trade in the market for Warhol works" on the part of Vincent Fremont, the exclusive sales agent for Warhol; the Andy Warhol Foundation for the Visual Arts and its authentication board; and a number of past and present foundation and board members. Ronald D. Spencer, an attorney at the Manhattan law firm Carter Ledyard & Milburn, which represents the Warhol institutions, denies such a scheme, pointing out that of the 1,200 applications made each year, the board rejects only 15 to 18 percent of them. "How [could] that turndown [rate] possibly affect the Warhol market in any way?" he asked.

Judge Swain’s ruling has opened the door for a discovery process, involving witness depositions and document gathering with subpoena power, that may take more than 18 months to complete. "It allows us to get inside the doors of the foundation," says Brian C. Kerr, one of the plaintiff co- counsels, "and we’ll be asking them to produce a series of documents relating to what we claim to be a long conspiracy to control the market."

The judge rejected as grounds for dismissing the suit the seemingly ironclad submission agreement indemnifying the authentication board and foundation from liability, which Simon-Whelan, like all applicants seeking certification of their Warhols, signed before his work’s examination. She explained her decision by stating that "the plaintiff has sufficiently alleged that he was fraudulently induced into signing" the document.

The type and size of the class action is still at issue. As the ruling currently stands, only those who bought Warhols directly from the foundation can be part of the suit. Using Spencer’s numbers, if those who bought from dealers or at auction were to become eligible, more than 1,600 owners could claim treble damages. At press time, Art+Auction learned that a major art world luminary who owns another self-portrait from this series is expected to join the action.

Although Judge Swain affirmed Simon-Whelan’s allegation that the double stamping of the painting "prevented him from competing as a seller in the lucrative market for authentic Warhols" and "was sufficient to frame an antitrust injury," she rejected the "price-inflationary aspects of the [alleged] conspiracy," since the filmmaker didn’t purchase his painting from the foundation and the foundation never sold it. That reasoning makes the case all the more of a tightrope-walking exercise for his attorneys, who are amending their complaint to convince the judge of the relevance of its financial component.

Explaining his motives, Simon-Whelan says: "The Warhol Foundation has asked me to spend years of my life and virtually my entire savings researching a painting which, despite all of the evidence, they had no intention of authenticating. This is not how Andy or the close associates he appointed to run his foundation would have behaved." He goes on to note that "by failing to give reasons for their decisions, it is impossible for scholars, critics, historians or owners such as myself to respond. I would like for a more open and transparent process, including [on the authentication board] someone with firsthand knowledge of Warhol’s working methods."