The National Law Review recently summarized key lessons gleaned from Hoffman v. L&M Arts, et al., No. 15-10046 (5th Cir. Sept. 28, 2016), regarding the drafting and construction of confidentiality provisions for the sale of artwork.
Hoffman involved a claim for breach of a confidentiality provision in a Letter Agreement between Marguerite Hoffman, a wealthy art collector seeking to sell her “Untitled” 1961 Mark Rothko oil painting, and L&M Arts, a broker which was acting as an intermediary between Hoffman and the buyers, Studio Capital, Inc. and David Martinez.
The Letter Agreement included the confidentiality language: “All parties agree to make maximum efforts to keep all aspects of this transaction confidential indefinitely.” In addition, the Letter Agreement required the buyers to not hang or display the painting for six months after the sale.
Several years later, the buyers auctioned the painting, which appeared on the cover of the Sotheby’s catalog and sold for more than $31 million. In response, Hoffman sued L&M Arts, and the buyers for breach of the confidentiality provision of the Letter Agreement.
On appeal, the Fifth Circuit Court of Appeals, among other things, found that the Letter Agreement was not breached and ruled in favor of L&M and the buyers. Read the full opinion here.
National Law Review’s key lessons:
- Confidentiality provision may be used to keep the sale of artwork secret, but have to be limited in scope so as to not be deemed an unreasonable restraint on the sale of property. A significant factor with respect to enforceability of such provisions is the length of the restriction.
- Confidentiality provisions should clearly define its scope including date, time or geographic restrictions, as well as what each party to the transaction can and cannot do.
- The parties to a transaction should always ensure that every party is bound by the confidentiality provisions, or, at the very least, include an indemnity provision for the breach of a third-party buyer when an intermediary is used.
- In case of breach of the confidentiality provisions, parties should clearly draft the remedies and damages that may follow.
Read the full story here.