Safflane Holdings Ltd. et al v. Gagosian Gallery, Inc.

Filing 83

AFFIDAVIT of Dara G. Hammerman in Support re: 80 MOTION for Default Judgment as to Charles Cowles.. Document filed by Gagosian Gallery, Inc.. (Attachments: # 1 Exhibit Exhibit A, # 2 Exhibit Exhibit B, # 3 Exhibit Exhibit C, # 4 Exhibit Exhibit D, # 5 Exhibit Exhibit E, # 6 Exhibit Exhibit F, # 7 Exhibit Exhibit G, # 8 Exhibit Exhibit H, # 9 Exhibit Exhibit K, # 10 Exhibit Exhibit L, # 11 Exhibit Exhibit M, # 12 Exhibit Exhibit N, # 13 Exhibit Exhibit O, # 14 Exhibit Exhibit P, # 15 Exhibit Exhibit Q)(Hammerman, Dara)

WITHERS BERGMAN LLP
Hollis Gonerka Bart (HB-8955)
Brian Ounefsky (BO-3554)
Oara G. Hammerman (OH-1591)
Azmina Jasani (AJ-4161)
430 Park Avenue, ioth Floor

New York, New York 10022
212.848.9800 (p)

212.848.9888 (f)
Attorneys for defendant Gagosian Gallery, Inc.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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Case No.: 11 CIV 1679 (DLC)

SAFFLANE HOLDINGS LTD., and
ROBERT WYLDE,
Plaintiffs,

-against-

AFFIDAVIT IN SUPPORT OF MOTION
FOR DEFAULT JUDGMENT

GAGOSIAN GALLERY, INC.,
Defendant.
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GAGOSIAN GALLERY, INC.,
Third-Party Plaintiffs,

-against-

CHARLES COWLES,
Third-Party Defendant.
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DARA G. HAMMERMAN, being duly sworn, deposes and says:
1. I am a member of

the bar of

the state of

New York and of

this Court and an

associate at the law firm of Withers Bergman LLP ("Withers"), attorneys for Defendant/Third-

Party Plaintiff Gagosian Gallery, Inc. (the "Gagosian Gallery," or "Defendant/Third-Party
Plaintiff') in this action.

document number: NY23802/0009-US-1313843/4

New York, I submit this affidavit on behalf of Gagosian

Civil Rules for the Southern District of

Gallery in support of

the Local

the Fed. R. Civ. P. and Rule 55.2(b) of

2. Pursuant to Rule 55(b)(2) of

Defendant/Third-Party Plaintiffs Motion for Default Judgment against

Charles Cowles ("Cowles" or "Third-Party Defendant").
3. Upon information and belief, Third-Party Defendant is not an infant, in the

military, or an incompetent person.
4. This is a third-party action by Gagosian Gallery against Cowles for

indemnification arising out of claims Plaintiffs Saffane Holdings, Ltd. and Robert Wylde (the

"Saffane Plaintiffs") asserted in the underlying action against Gagosian Gallery for allegedly
fraudulent and negligent misrepresentations as to the title and ownership of a painting by Mark

Tansey entitled, "The Innocent Eye Test" (the "Tansey Painting") that Cowles sold to the

Saffane Plaintiffs through Gagosian Gallery.
5. This Court has supplemental jurisdiction over the subject matter of this Third-

Party Complaint pursuant to 28 U.S.C. § 1367(a). The claims in this Third-Party Complaint are

so related and intertwined with the claims at issue in the lawsuit commenced by the Saffane
Plaintiffs against Gagosian Gallery in the United States Court, Southern District of

New York,

bearing Civil Action number 11 Civ 1679 (the "Saffane Action") and the lawsuit commenced by
The Metropolitan Museum of Art and Jan Cowles against the Saffane Plaintiffs in the United

New York, bearing Civil Action number ll-cv-3143 (the "Met

States Court, Southern District of

Action"), they form part of

the same case or controversy under Article III of

the United States

Constitution.
6. Annexed hereto as Exhibit A is a true and correct copy of the Saffane Action.
the Met Action.

7. Annexed hereto as Exhibit B is a true and correct copy of

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the Third-Party

8. Annexed hereto as Exhibit C is a true and correct copy of

Complaint filed against Cowles on July 15,2011 (the "Third Party Action").
the Summons in a Civil

9. Annexed hereto as Exhibit D is a true and correct copy of

Action directed to Cowles issued by the Clerk of the Court on July 15, 2011.
relevant excerpts from

10. Annexed hereto as Exhibit E is a true and correct copy of

the deposition of Charles Cowles dated July 13, 2011.
11. Annexed hereto as Exhibit F is a true and correct copy of the Affdavit of Service
dated October 6, 2011.

12. Attached hereto as Exhibit G is a true and correct copy of the Affidavit of Service

dated October 31, 2011 which was filed with the Court.
13. Annexed hereto as Exhibit H is a true and correct copy of the Clerk's Certificate
dated November 1,2011 acknowledging Cowles' Default.

the Settlement Agreement, has been sealed

14. Exhibit I, a true and correct copy of

the Settlement

pursuant to the Court's Order dated November 8, 2011, and a hard copy of

Agreement along with the Court's November 8th Order wil be submitted to the Court by hand in
accordance with the Court's instructions for submitting documents under seaL.

15. Exhibit J, the "Summary of Damages Paid by Gagosian Gallery to Plaintiffs in
Safflane Action for Tansey Painting" (the "Summary") prepared by Withers Bergman, has been
sealed pursuant to the Court's Order dated November 21,2011, and a hard copy of

the Summary

along with the Court's November 21st Order will be submitted to the Court by hand in
accordance with the Court's instructions for submitting documents under seaL.

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16. Annexed hereto as Exhibit K are true and correct copies of Withers' time entries

for the defense of the Saffane Action from August 31, 2010 through October 31, 2011.1 These
records were made and entered into this firm's biling system contemporaneously with the work
performed, and then biled to Gagosian Gallery on a monthly basis. Withers has reprocessed

these bills for the purposes of this Motion to reflect only the time it billed with respect to the
the Saffane Action and not with respect to work completed for the Third-Party

defense of

Action. Withers has also redacted from the attached bills privileged information concerning
Withers work product and attorney-client communications.
17. Annexed hereto as Exhibit L is a true and correct copy of a chart created for the
fees, costs and disbursements charged for the

Court's convenience showing the total amount of

the Safflane Action since August 31, 2010. Withers Bergman's total fees in defense

defense of

of

the Saffane Action amounted to $841,420.35. However, Cowles is only liable to Gagosian

Gallery for 82%2 of

these fees, which amounts to $689,964.69. Gagosian Gallery has also

incurred $16,162.03 in costs and expenses in connection with defending the Safflane Action.

However, Cowles is only liable to Gagosian Gallery for 82% of these costs and expenses, which
amounts to $13,252.86.

18. A review ofthe billing records reflect that Withers Bergman litigated this matter
efficiently and effectively, and solely to the extent necessary to respond to and defend Gagosian
Gallery against the Saffane Plaintiffs' claims in the Safflane Action.
i Withers Bergman's time entries include work performed on behalf of Gagosian Gallery just prior to the
commencement of this lawsuit, at which point the parties were working to resolve this matter in the hopes of
avoiding litigation.
2 Since 82% of

the damages paid by Gagosian Gallery was attributable to the Tansey Painting, Cowles is also liable
the fees charged to Gagosian Gallery, which represents the amount offees charged by Withers Bergman
with respect to the Tansey Painting.

for 82% of

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19. Withers Bergman attorneys and support staff have substantial litigation
experience in a wide range of matters. As such, this firm was able to utilize this experience by

minimizing the hours spent defending this litigation, which has lasted over a year and a half.

20. Hollis Gonerka Bart was first licensed to practice law in the fall of 1986 in the
State of

Texas. After moving to New York in 1989, Ms. Bart became associated as a litigation

attorney with the law firm of Schulte Roth & Zabel, was admitted to the New York Bar in 1990,

joined McGuire Woods

and has been practicing in New York ever since. In July 1996, Ms. Bart

(then Ross & Hardies) as a partner in the commercial litigation group. Ms. Bart joined the law

firm of Withers Bergman ("Withers") as a senior partner in 2005. In this capacity, she leads and
manages the commercial litigation and employment practice groups in the United States for

Withers. In total, Ms. Bart has 25 years of litigation experience. She is a seasoned litigator in
matters such as the instant action. Withers biled Ms. Bart's time at a rate of $725-$750 per hour
for work performed in connection with this action.
21. Brian Dunefsky is a 1992 graduate of Hofstra University School of Law, and is a

partner of Withers. Mr. Dunefsky's practice focuses on international and domestic business
litigation, and he has handled a wide range of complex matters for banks, financial institutions,

hedge funds, entrepreneurs, art galleries, and art collectors. Withers biled Mr. Dunefsky's time
at a rate of $675 per hour for work performed in connection with this action.

New York University School of

22. Chaya F. Weinberg-Brodt is a 1990 graduate of

counsel at Withers since 2006.

Law, and was admitted to the New York Bar in 1991. She is of

Ms. Weinberg-Brodt has extensive experience in the areas of complex contract, employment and

commercial litigation. Withers biled Ms. Weinberg-Brodts time at a rate of $595-$625 per
hour for work performed in connection with this action.
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document number: NY23802/0009-US-1313843/4

23. Sarah Cormack is a graduate of St. Hilda's College of Oxford and is admitted in

England and Wales. She is a partner at Withers who advises on tax, trusts and estate planning,
both onshore and offshore, for high net worth individuals with a focus on complex offshore

structures. Withers billed Ms. Cormack's time at a rate of $855 per hour for work performed in
connection with this action.
24. David Guin is a graduate of

Notre Dame Law School, and is a partner in the

corporate department at Withers. Mr. Guin focuses on securities law matters and has significant
experience representing clients with regard to matters governed by the Securities Act, the
Securities Exchange Act, the Investment Company Act, the Investment Advisors Act and the
Commodity Exchange Act as well as the rules of various self-regulatory organizations and stock

and commodity exchanges. Withers biled Mr. Guin's time at a rate of$695 per hour for work
performed in connection with this action.
25. Ralph Lerner is a graduate of

New York University School of Law, and is of

counsel at Withers. Mr. Lerner practices in the area of art law including dealing with auction
tangible personal property.

houses, consignment agreements and tax planning for items of

Withers biled Mr. Lerner's time at a rate of $825-$850 per hour for work performed in
connection with this action.
Washington University School of

26. Dara G. Hammerman is a 2003 graduate of

Law

and was admitted to practice law in New York in 2004. She is a senior associate at Withers.
Since 2003, she has handled a wide variety of commercial litigation matters, and since becoming
employed at Withers in 2008, has represented art galleries, companies and individuals in general

commercial disputes, art disputes, intellectual property disputes and fidicuary litigation. Withers

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document number: NY23802/0009-US-1313843/4

biled Ms. Hammerman's time at a rate of$525-$595 per hour for work performed in connection
with this action.

Fordham Law School and was admitted to

27. Alyssa Koerner is 2004 graduate of

practice law in New York in 2005. She was hired by Withers in 2006 and is an associate at the

firm. Ms. Koerner practices litigation and employment law and has broad-based experience in

complex commercial matters. Withers biled Ms. Koerner's time at a rate of $475-$500 per hour
for work performed in connection with this action.
Berkeley School of

28. Azmina Jasani is a 2007 graduate of

Law and was admitted to

Withers, where she represents clients

practice law in New York in 2009. She is an associate of

in a variety of complex civil litigation in state and federal court, with an emphasis in art law,
copyright and trademark infringement, derivative actions and employment discrimination.

Withers biled Ms. Jasani's time at a rate of $450 per hour for work performed in connection
with this action.
29. Jason Kleinman is a graduate of

New York University School of

Law, and an

associate at Withers. Mr. Kleinman provides tax, trust and estate planning advice, with a
particular emphasis on the U.S. income and transfer tax rules affecting non-U.S. residents.

Withers biled Mr. Kleinman's time at a rate of $395 per hour for work performed in connection
with this action.
the University of

30. Shannon Smith Retzke is a graduate of

Pennsylvania Law

School and the Wharton School at the University of Pennsylvania, and is an associate at Withers.
Ms. Retzke focuses on income tax legal issues. She advises on partnership tax planning for

closely held businesses as well as U.S. income tax planning matters for U.S. individuals.

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document number: NY23802/0009-US-1313843/4

Withers billed Ms. Retzke's time at a rate of $540 per hour for work performed in connection
with this action.
31. In order to effectively manage costs, certain aspects of this matter were often

assigned to paralegals. At Withers, paralegals are responsible for a wide variety of duties,

including substantive fact and cite checking and assisting in preparing for motions and

deposition, which saves client resources. For example, Dawn Sperrazza and Janice Johnson,
both senior paralegals with the firm, have worked in litigation for several years. Dawn Sperrazza
has a bachelor's degree and Janice Johnson has a paralegal certificate and is currently pursuing a

Bachelor of Arts degree at Hunter College. Irene Mikalef is also a paralegal at Withers who
assists the real estate team. Ms. Mikalef is currently pursuing a Bachelor of Arts Degree at St.

John's University. Withers biled Ms. Sperrazza's time at a rate of$225-$250, Ms. Johnson's at
a rate of$210-$225, and Ms. Mikalefs time at a rate of$275-$290 per hour for work performed
in connection with this action.
32. Ah- Young Lee is a former paralegal who was employed at Withers from May 24,

2010 through December 10, 2010. While at Withers, Ah- Young assisted the litigation team,

under the supervision of Hollis Gonerka Bart. Withers biled Ms. Lee at a rate of $195 per hour
for work performed in connection with this action.
33. In passing work down to the most cost-effective biller, legal assistants often
perform entry-level paralegal tasks. Laura Gosheff is a legal assistant employed by Withers with

over 25 years experience in the legal field. She is able to quickly and accurately perform a
variety oftasks at an inexpensive rate, including the loading of discovery onto an automated
New Jersey with a

database. Christina Leccese is a 2003 graduate of Ramapo College of

bachelor degree. Ms. Leccese has been a legal assistant at Withers for over five years, and is
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familiar with a variety of Gagosian Gallery matters. She often performs entry-level paralegal

tasks to help us manage costs for this client. Withers biled Ms. Gosheff s time at a rate of $115
per hour and Ms. Leccese's time at a rate of $75 per hour for work performed in connection with
this action.

34. In a further effort to keep costs at a minimum, two interns at Withers were also

assigned to work on the matter. Timothy Fitzmaurice, who was employed at Withers from June
22, 2010 through August 12, 2011, as well as Emily Blustein, who was employed at Withers
from May 23, 2011 through July 29, 2011, were given various entry-level paralegal tasks.

Withers biled both Mr. Fitzmaurice and Ms. Bluestein's time at a rate of $75 per hour for work
performed in connection with this action.
35. The foregoing hourly rates are similar to the rates typically charged by attorneys

and staff of commensurate skil and experience in similar actions in the Southern and Eastern
New York and in London.

Districts of

relevant excerpts from

36. Annexed hereto as Exhibit M are true and correct copies of

the deposition of John Good on September 23,2011.
relevant excerpts from

37. Annexed hereto as Exhibit N are true and correct copies of

the deposition of

Robert Wylde on September 15,2011.

38. Annexed hereto as Exhibit 0 is a true and correct copy of GG 112, an invoice for

the sale of the Tansey Painting dated July 31, 2009 to Safflane Holdings Ltd.
39. Annexed hereto as Exhibit P are true and correct copies ofPL 7, 16-17, email

correspondence dated July 30, 2009 between Robert Wylde and John Good, dated August 7,

2009 between Robert Wylde and Libby Parks, and dated August 12,2009 between Robert Wylde
and Nina Coticchia, concerning the delivery of

the Tansey Painting.
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document number: NY23802/0009-US-1313843/4

40. Annexed hereto as Exhibit Q is a true and correct copy of the New York Times

article entitled, Collector Sues Gagosian Gallery for Sellng Him a Painting Partially Owned by
Met, dated March 11, 2011.

ci~ /~

Dara G. Hammerman

Sworn to before me this
5 day of

December, 2011

N
cb TARY h\o. ~ru ~
JJ PUBLIC
TANIA MALAVE

Notary Public, State of New York
No. 01 MA6205864

Qualified in New York County i l:

Commission Expires May 11, 20..

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document number: NY23802/0009-US-1313843/4