By Paul Motter Last April Park West Gallery, the purveyor of "Fine Art Auctions" aboard several cruise ships, brought a defamation lawsuit against Fine Art Registry, a Phoenix-based company that registers works of art in order to establish a history. In the art world, the history of a work of art is known as its "provenance."
Fine Art Registry is not in the business if authenticating works of art. That is done by legal art appraisers. But Fine Art Registry knows the accepted methods of authenticating and appraising art, and they have claimed that Park West Gallery, especially in its cruise ship art auctions, does not follow those guidelines.
Park West objected to the allegations by Fine Art Registry and filed a defamation lawsuit asking for $46 million dollars in damages. The case was eventually heard by a jury trial in Michigan, home state of Park West.
A jury of eight Michigan citizens took five and a half weeks to finally render an opinion - presumably based upon the evidence and according to the orders given by the judge. In the end the jury ruled that Fine Art Registry had not committed defamation and awarded Park West nothing. In a counterclaim filed by Fine Art Registry, alleging trademark violation under the Lanham Act by Park West Gallery, the jury agreed that Park West had created a web site that infringed on the trademark of Fine Art Registry.
The jury awarded Fine Art Registry a judgment of $500,000 to be paid by Park West.
But last week, August 17, a Michigan judge, Lawrence Zatkoff, threw out the jury decision. Park West put out a press release saying "The U.S. District Court of the Eastern District of Michigan granted Park West Gallery a new trial in its defamation case against Fine Art Registry (FAR). Park West Gallery filed the motion based upon what they claim was "severe misconduct on the part of FAR and their Counsel."
"We are pleased with the judge's ruling," the attorney Rodger Young, lead counsel for Park West Gallery is quoted as saying in the Park West press release. "These types of decisions are extremely rare, and the Court's decision sends a clear message about the severity of the actions of the Defendants and their Counsel."
Yes, it is extremely rare - especially in cases where the defendant is acquitted of the charges brought by the plaintiff. In a criminal case a judge is not allowed to set aside an acquittal verdict by a jury, because that would constitute double jeopardy, forbidden in our system of jurisprudence.
But this is a civil case. The judge issued a 55-page order for a new trial in which he basically nullified the entire original trial. He vacated the jury's verdict with respect to the nine claims asserted by Park West against the Fine Art Registry; essentially saying that the jury's finding that Fine Art had NOT committed defamation is no longer valid. He also threw out the $500,000 judgment in favor of Fine Art Registry in the Lanham Act counter-claim.
Finally, the judge ordered a new trial on all of these claims.
Here is the odd thing about this turn of events. The judge who just overturned essentially the entire trial, reversing every judgment the jury made, was the same judge who presided over the trial.
If Lawrence Zatkoff felt the behavior of Ms. Franks was so egregious wasn't it his duty and obligation to deal with that during the trial? He does claim he tried. The press release quotes his order, " ... the misconduct of Franks and counsel for the FAR defendants was egregious, frequent and ongoing ... permeated the entire trial ... (a)nd unfortunately occurred with regularity during trial, including on both occasions that Franks testified ... Franks and counsel for the FAR Defendants not only continued to engage in such deliberate, intentional and highly and unfairly prejudicial conduct, the severity of their transgressions actually increased following the Court's March 30, 2010 comments and admonitions."
Okay, so the judge felt the defendants conduct was egregious. But he still let the trial go forward and allowed the jury to render a verdict.
Teri Franks, owner of Fine Art Registry, felt she was facing a handicap because the case was to be heard in the home district of Park West Gallery. She had to uproot and relocate to Michigan for the six-week duration. But at the same time she was glad for a jury trial. I am guessing the idea of a local judge hearing a case brought against her by such a rich and powerful local business put some fear into her. I know it would for me.
But in the end the judge got the final word anyway. The jury ruling was ignored - a waste of time and money.
At the Fine Art Registry web site Teri Franks, the owner and lead witness for Fine Art Registry says, "All we did was tell the truth. In a defamation lawsuit, the truth is the defense." That certainly makes sense to me.
According to the legal statutes for defamation in Michigan Park West not only had to prove that the statements made by the Fine Art Registry were false, but that Fine Art knew the statements were false.
Sounds to me that the judge is saying he is incompetent, given the wording of his order vacating the verdicts. He admits his inability to control the trial, and yet he let it go to the jury. He has the power to stop a trial at any point if he feels the need to do so. Yet he didn't. Instead, several months later he suddenly realizes he erred and orders a new trial. Incredible. Another life time appointee who has no business still being there.
Teri Franks needed that money to pay her lawyer's fees. When you have to fear a judge overturning a jury decision you have lost America. This is like O.J. all over again.
Yeah, Mike. I get what you are saying. Where is the honor? Where is the self-respect we used to have in the way we do business?
Some people will do anything for their kids, teach them manners, and go to church, and never cheat on their wife, but when it comes to money it's like "can I get away with it? then anything goes."
Teri Franks had to pay for all her witnesses to fly to Port Huron, Michigan. Pay for their flights, hotels, meals - to pick them up. It cost a ton.
You know it was just a harassment lawsuit anyway (which is illegal) to shut her up, and THE JURY AGREED - MR. ZITKISS. You are a disgrace to your profession and our Constitution. Didn't you take a vow?
It is pretty obvious why Park West wanted him as a judge - the Internet is just chock full of incredibly insane rulings he has made. They knew he would do anything if he foind it "compelling" enough.
An $800,000 award to a little old lady who found a nickel in an indian casino and claims she was harassed by the casino who claimed it was theirs. They let her have the nickel, but she sued when they pointed her to the wrong bus home.
Tossing out another jury verdict about a high school kid who claimed sexual harassment at a high school when he was sexually assaulted in the ninth grade. "The teachers had responded to every complaint" said Zotkoff.
He even tossed out a case where someone was trying fight someone trying to invoke Sharia law as a reason to bail out AIG. (Michigan has a number of Arab-Americans).
Just last month he had a sentence pre-determined for a woman in his hand before the jury came in with their verdict. He had wrongly based it on the criminal history of another person, it was discovered, but he didn't change his mind.
These are all things I just quickly buzzed through on the web, I could be wrong in some, but there are a lot of people who think this guy is whacko, obviously.
Maybe Stacy the retired judge (I think thats his name on here) in Colorado can shine some light on this.
I do know that there are reasons that a judge shouldn't take action during a trial. It can very well be more damaging to the process or to the parties involved to act during the trial as opposed to waiting til someone files the motion after the trial.
Trials, when you disect them, have alot of layers. Strategy and skill. Rather that speaking up or going after someone, it may be better to wait for them to hang themselves with their own words or actions.
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As a retired attorney, I just can't comment on a case where I have not read pleadings, transcripts, testimony records, or orders. Yet, I have read that there have been other law suits against Park West by buyers, and PW hasn't been so lucky as it is in this case right now. Just what I have read.
In any event, with all the publicity on this and other boards, I see no reason why a cruise ship guest with any common sense would fail to regard the ship's art auction with extreme suspicion. The reported "hard sell" should give them fair warning. Good, fairly priced goods sell themselves. And then, the idea of any art auction on a cruise ship is a silly idea. I go on a cruise to FORGET what my home and office look like, not to buy accessories for them. Three days into a cruise, and I cannot describe the art presently in my living room. I go on a cruise to separate myself from my ordinary life -- don't you?
With respect to all:
I agree with Babe Ruth. I'm another retired attorney who has tried a great many jury trials. I offer no opinion on the case, because I have not seen the pleadings, did not hear the evidence, and don't know the facts. I do however know how trials and appeals work.
In our system of justice, it is the job of the jury to hear the evidence, weigh it, and determine the facts, including the credibility of witnesses and sorting out disputed facts -- and render a verdict, based on the law applied to those facts furnished by the court (the judge) in the court's instructions.
Any time a judge nullifies a jury's verdict because he finds they muffed the job of determining the facts, an appellate court will take a very hard look at that -- because neither the trial court or an appellate court has any business substituting its view of disputed facts for the jury's determination. On the other hand, legal questions (as opposed to fact questions) are purely the province of the court, (judge) and no jury is entitled to substitute its view of what the law ought to be for what the law actually is. That is for the trial court (the judge) initially to determine upon briefs of counsel, to be reviewed by the appellate court on appeal.
It is VERY difficult for anyone notthoroughly familiar with both the facts and the law in any given case to have an unbiased opinion about it one way or another. Certainly the press is seldom if ever a good source of information.
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The only reason I am not sure is because some of the data is too technical for me.
But I do know two things:
1) it is rare for a judge to do this - and...
2) the more money you have the more "justice" you get in this country
(OJ Simpson, Roman Polanski)
Rich - it also sounds like he should have entered the judgement and if it needed to be appealed then so be it, But to nullify the jury proceedings is like tearing down a house to find a leak in the roof.
For cruisers like me, who have purchased occaisional art pieces on board over the years, we never purchased them as anything but something nice for the home. What we purchased, we are still appreciating.
Our high price, was really a low, as pricing is concerned. Never did I buy anything for investment, or for resale. We have seen art auction groupies on ships, that buy Erte, or Rembrant, for 1000's of dollars, and, they smile, with stars in their eyes...oy
This art sale, in the guise of an auction, was always suspect, but, What we bought , is a pittance compared to many. I don't think we overpaid. IN a gallery at home, I think prices would be quite comparable.
Princess, has their own gallery,and we did buy from them...What they sent us, Walmart would be ashamed to sell. The condition of what we received was unreal...Mind you, with pneumonia,and no voice, I fought for a refund..I ended up getting the art for free, plus a free picture..I had to have a local gallery try and fix the "ART"...
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It seems to be contagious.. That is judges over ruling decisions by juries, citizens of the United States. They tell you to do it right, have your voice heard, you get the backing or decision and some judge decides to legislate from the bench instead of following the law.
We have cruised many times and have learned to skip the so called Auction listed in the newsletter. I almost bought into the art that will appreciate in value over time (yeah right). Thank God I did not get caught up in the bidding. First time cruisers are the marks. I tell my friends to just ignore it, the sales pitch and framing specials are not worth your time. Just find something that really is ship board entertainment. When the cruise ships stop making money on these auctions they will disappear.
Can someone please explain to me why these "auctions" are still allowed on cruises?
The consensus here (and elsewhere) is that both the "art" offered and the sales practices employed are at best suspect and at worst, fraudulent. No doubt Park West et al pay the cruise lines money to occupy the space and conduct the "auctions" onboard, but at what point do the lines realize that their reputations suffer from the association?
It's not like PW is selling crack cocaine, knock-off Vuitton handbags, or pornography, but some businesses are more reputable than others and - in light of the on-going controversy surrounding Park West - it surprises me that companies which rely so heavily on reputation (I mean, cruise lines literally have your life in their hands at sea) don't understand how it undermines customers' perceptions of their's as a quality product.
Can someone please explain to me why these "auctions" are still allowed on cruises?
Because they are a major revenue generator.
Also, the cruise lines have contracts and they don't want to break them before the end date. That would be costly since Park West and whatever other auction companies there are would have grounds to sue.
Royal Caribbean is not going to renew their Park West contracts and will let them expire. The end dates are "by ship" and so it will take several months to cascade across the fleet.
Park West is very litigious - but as David said, the cruise lines are letting the contracts expire.
The new Cunard Queen Elizabeth will not have Park West onboard. Oceania also dropped them a long time ago, and they are not on the new Celebrity Eclipse. I'm pretty sure Oasis and Allure don't have them either.
The only new ship to still have them is NCLs Norwegian Epic., which has the largest Park West Operation at sea yet - six salespeople. I was a little surprised when I saw that, but I magine they made a deal NCL could not refuse.
The reason they are still on is because it only takes a few suckers on every cruise for them to make huge amounts of money.
It is a shame - I will say that I do not think Park West is like a criminal organization - I have seen them refund money to people who are not satisfied, but really, in the long run when you look at the big picture - with them selling questionable prints at way-inflated values (based on what people find when they get home and try to re-sell the prints) - it is a fact that several people have spent over $50,000 in "art" and been told not soon later by people in the business that what they bought was essentially worthless.
There is no justification for that no matter how much the company makes for the cruise lines - it is a disgrace.
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