A federal judge has ordered lawyers to pay $2.5 million in sanctions for their persistence in a lawsuit regarding artistic attribution despite plenty of indicators their argument was doomed to fail, because it should have quickly become apparent the artist they were suing did not create a painting they wanted him to authenticate as an original work potentially worth millions.
In September 2016, Scottish painter Peter Doig prevailed in a lawsuit in which he asserted he didn’t create a work Robert Fletcher said he bought for $100 in 1976 while they claimed Doig had been incarcerated at Canada’s Thunder Bay Correctional Center. They claimed the artist had been convicted for LSD possession.
Doig, whose actual works have sold for up to $20 million, found himself in court as a result of Fletcher’s attempt to preserve the financial value of the desert landscape. In an April 2013 lawsuit, Fletcher and Bartlow Gallery alleged Doig’s denial was related to shame over the drug conviction. But Doig asserted he was in Toronto in 1976, has never been in prison and didn’t even start painting on linen canvas until 1979.
U.S. District Judge Gary Feinerman ruled in favor of Doig, pointing to the testimony of a Canadian woman who said the painting was produced by her late brother, identified as Peter Doige, whose signature matches the imprimatur on the painting.
Shortly after Feinerman’s verdict, Doig, along with Michael Werner, gallery employee Gordon VeneKlasen and lawyers from the Dontzin Law Firm, moved for sanctions against William Zieske, the attorney who represented Fletcher and Bartlow. Zieske withdrew as their attorney, leaving Fletcher to proceed as his own attorney, while Bartlow Gallery didn’t secure new representation.
More than six years later, on Dec. 30, 2022, Feinerman, with “sincere apologies for the substantial delay in resolving this difficult and unfortunate coda to the litigation — placing at risk Zieske’s professional reputation and involving large sums of money for both Zieske and plaintiffs,” substantially granted Doig’s motion.
According to Feinerman, the request for sanctions stemmed from June 2013, when attorney Mathew Dontzin served the plaintiffs with a demand to withdraw the complaint based on several pieces of evidence proving Doig couldn’t have created the painting and thus rendering their lawsuit frivolous. Although Feinerman said he lacked the “requisite level of confidence” to assert Fletcher, Bartlow and Zieske launched their legal campaign absent an objectively reasonable basis, he said the letter from Dontzin should have triggered “substantial doubt about their claims.”
Among the evidence was documents “strongly suggesting” Doig never attended Lakehead University in Thunder Bay and information from the Royal Canadian Mounted Police showing no criminal record for Doig. Meanwhile, Doige’s sister provided information strongly suggesting her brother — who did attend Lakehead concurrent with Fletcher — created the painting in question.
Feinerman recalled a September 2013 status hearing at which he asked Zieske if his clients wanted to stop the lawsuit, even reminding a lawsuit that starts out reasonable can become unreasonable. He said by May 2014, “it should have become indisputably clear to plaintiffs and Zieske that their claims stood no chance of success and, in fact, that the claims were factually meritless.” Yet even after that date, he continued, “developments only served to underscore the total implausibility of their claims and to evince their unwillingness to even entertain contrary evidence.”
Zieske argued against sanctions because Feinerman denied summary judgment in favor of Doig in April 2016, but Feinerman said the basis of that denial, “far from being a mystery, was exceptionally clear” — accepting plaintiffs’ evidence on its face showed a conflict with the defendants — and nonetheless is no shield against sanctions for pressing a frivolous claim.
Feinerman rebuffed the full request for sanctions, saying he wouldn’t punish for Doig’s allegations of pre-litigation extortion, failing to fully investigate the situation before filing the lawsuits, and allegedly altering their claims after seeing defense evidence, as well as a claim Zieske abused discovery.
“Still,” Feinerman wrote, “the other conduct cited by defendants underscores the conduct for which plaintiffs and Zieske are sanctioned, and it is consistent with the court’s determination that they either ignored or turned a blind eye to the fact that their claims were meritless.”
Feinerman further rejected Zieske’s argument he couldn’t respond to Doig’s itemized costs for defending himself in the lawsuit, explaining he told Zieske to assume everything after May 7, 2014, was in play. He also said Zieske was wrong to assert the hourly rates Dontzin’s firm charged Doig were unreasonable because of the case’s extraordinary nature.
Zieske did prevail on one point, complaining a single attorney billed 70 hours on April 1, 2016, at $575 per hour. Feinerman further agreed “the firm in some instances billed more than was reasonably necessary for certain tasks and engaged in some billing practices that preclude meaningful review of their reasonableness,” leading him to reduce the fees request by 20%, landing at $2.15 million, along with $67,909 paid to Agrawal Evans LLP, and half of Doig’s claims for nontaxable costs, bringing that award down to $305,199.