Foley Hoag Legal Team Saves Artists' Work From Auction Block in Gallery Bankruptcy Case

Attorneys convince Massachusetts Supreme Judicial Court that artists’ paintings are entitled to protections of the Fine Arts Consignment Statute

September 17, 2014

Foley Hoag LLP has successfully represented a group of artists seeking the return of their paintings from a bankrupt Cape Cod art gallery.

Partner Andrew Schwartz, head of Foley Hoag’s Bankruptcy and Restructuring Group, argued successfully before the Massachusetts Supreme Judicial Court (SJC) that the Massachusetts Fine Art Consignment Statute, G. L. c. 104A, does not require a written statement of delivery as a prerequisite to the formation of a consignment.

In the underlying bankruptcy proceedings of Wynne Fine Art Gallery in Chatham, the trustee attempted to sell consigned paintings to pay off the gallery’s creditors. Foley Hoag challenged this sale on the ground that the paintings, as consignments under G. L. c. 104A, were not property of the bankrupt estate. The bankruptcy trustee maintained that a written agreement was required to prove that the paintings were consignments under this statute. The bankruptcy court referred the question to the SJC for clarification.

Foley Hoag represented many of the artists through its work with the Volunteer Lawyers for the Arts of Massachusetts. The Arts & Business Council of Greater Boston recognized the firm’s efforts by honoring Andrew Schwartz and Joshua Pemstein with its Robert B. Fraser Award for Pro Bono Excellence for their work on the case.

“The SJC’s decision not only enables our clients to get back what is rightfully theirs, but it helps protect all artists’ interests in their consigned art work in Massachusetts,” said Schwartz.

Michael Licker, Julia Amrhein and Lisa Popadic also were part of the Foley Hoag team.

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