Cariou v. Prince

Filing 228

OPPOSITION TO MOTION for oral argument [225], on behalf of Appellee Patrick Cariou, FILED. Service date 04/17/2012 by CM/ECF. [582934][228] [11-1197]

PATRICK CARIQU,

Plaintiff-Appellee,
- against RICHARD PRINCE,

Defendant-Appellant,
GAGOSIAN GALLERY, INC., LAWRENCE GAGOSIAN,

Defendants -Cross- Defendants -Appellants.
:.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK

DECLARATION OF DANIEL J. BROOKS IN OPPOSITION TO
MOTION OF AMICUS CURIAE ANDY WARHOL FOUNDATION
FOR LEAVE TO PARTICIPATE IN ORAL ARGUMENT.
SCHNADER HARRISON SEGAL & LEWIS LLP..

140 Broadway, Suite 3100
New York, New York 10005-1101
[phone]
DANIEL J. BRooics
ERIC A. BODEN

of Counsel

Attorneys for Plaintiff-Appellee

DECLARATION OF DANIEL J. BROOKS IN OPPOSITION
TO MOTION OF THE ANDY WARHOL FOUNDATION FOR THE
VISUAL ARTS, INC. FOR LEAVE TO PARTICIPATE
IN ORAL ARGUMENT OF THIS APPEAL

DANIEL J. BROOKS, under the penalty of perjury, states as follows:
1.

I am a member of the Bar of this Court and of Schnader

Harrison Segal & Lewis LLP, counsel of record for plaintiff-appellee Patrick
Cariou. I submit this declaration, upon personal knowledge, in opposition to the
motion of amicus curiae The Andy Warhol Foundation for the Visual Arts, Inc.
("The Warhol Foundation") for "ten minutes of oral argument as am icus curiae in
addition to the time allotted to the parties.. .
2.

The Warhol Foundation has already filed two amicus briefs on

this appeal, urging reversal of the district court’s decision.
3.

In its motion, The Warhol Foundation offers more of the same

partisan advocacy that characterizes its two briefs, revealing itself to be an "amicus
reus, or friend of the defendant, [rather] than [an] amicus curiae." Sciotto v.
Marple Newtown School Dist., 70 F. Supp. 2d 553, 556 (E.D. Pa. 1999). The
Warhol Foundation’s description of itself as neutral, with an interest in this case
that is "the same as that of the public at large," is belied by its one-sided
presentation of the underlying issues and need not necessarily be accepted by the

Court. See United States v. Gotti, 755 F. Supp. 1157, 1159 (E.D.N.Y. 1991)
(rejecting arnicus brief from non-party claiming to be an "objective, neutral,
dispassionate ’friend of the court," when its submission demonstrated it "has
come as an advocate for one side. .
4.

Here, of course, The Warhol Foundation has already been

permitted to file not one, but two, briefs. Its motion makes it clear that permitting
oral argument from this non-party will only result in a repetition of the arguments
contained in those briefs, which, in any event, echo, and cite the same authorities
as, appellants’ briefs. Nor has The Warhol Foundation even attempted to show
that appellants’ able counsel, armed with the very same cases and commentaries,
will be unable to make the same points that The Warhol Foundation seeks to repeat
during the oral argument.
5.

Aside from the duplication and distraction inevitably resulting

from unnecessary oral argument by a non-party, considerations of fairness militate
against the granting of this motion. Counsel for the appellee has only been allotted
12 minutes of oral argument. Permitting The Warhol Foundation 10 minutes, in
addition to the 12 minutes allotted to appellants, would impede appellee’s ability to
respond in a meaningful way to what would be a coordinated attack on the district
court’s decision. Should the Court grant The Warhol Foundation’s motion,

2

appellee respectfully requests that his counsel’s allotted time be commensurately
increased so that the playing field will be level.
Pursuant to 28 U.S.C. § 1746, I declare under the penalty of perjury
under the laws of the United States of America that the foregoing is true and
correct.
Executed on April 17, 2012, at New York, New York.

Is! Daniel J. Brooks
Daniel J. Brooks
SCHNADER HARRISON SEGAL &
LEWIS LLP
140 Broadway, Suite 3100
New York, New York 10005
[phone]