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"Judge Slams MoMA, Guggenheim on Secret Holocaust Art Agreement"

By Intellectual Property Law, Esq.

That's a headline from Bloomberg today. A few notes:

1. The slamming in question took place in March. (Here's a NYT story at the time.) I'm not sure why it's news today. I guess the hook for the story is that the decision "has become the talk of the Holocaust restitution community."

2. I'm not sure why Judge Rakoff was so upset with the museums. The settlement, including a confidentiality provision, was reached on Feb. 2, the morning the trial was to have started. Judge Rakoff's written order notes that on March 6 he "directed the parties to submit letters stating whether they object to making the settlement agreement public and setting forth the grounds for any such objection. By letter that same day, the Museums informed the Court that they no longer had an objection to making the settlement terms public and that they were prepared to waive the confidentiality provision." It was the plaintiffs who refused.

3. It's worth pointing out that, despite the slamming, the Court left the confidentiality in place. As the order noted, "the Second Circuit strongly endorses the confidentiality of settlement agreements in virtually all cases." Allowing parties' to keep their agreements confidential encourages settlement, and there is a public interest in settlement of litigation.

4. Last, it's not clear why Judge Rakoff thinks it would be in the public interest to make this settlement (more) public. We already know the museums paid some money to the plaintiffs, and we also know the paintings will remain with the museums. Why do we need to know how much money the plaintiffs got? Why is that a matter of great public interest?

Full post as published by The Art Law Blog on June 18, 2009 (boomark / email).