On November 24, 2020, parties to the 5Pointz litigation filed a Stipulated Settlement Agreement Resolving Plaintiffs’ Motion for Attorneys’ Fees and Costs (the “Agreement”), under which the defendant real estate developers agreed to pay over $2 million in attorneys’ fees and court costs to counsel for the aerosol artists of “5Pointz,” Eisenberg & Baum LLP.
The Agreement is the latest (and likely final) development in the seven-year dispute over destruction of the famed 5Pointz art space, previously covered on this blog. In February 2020, the Second Circuit Court of Appeals unanimously affirmed the decision of the District Court for the Eastern District of New York to award the artist plaintiffs $6.75 million in statutory damages for the defendants’ “willful” destruction of the artists’ public art work. The appeals court upheld the lower court’s finding that the defendants destroyed works of “recognized stature” under the Visual Artists Rights Act (“VARA”). The defendants, including Jerry Wolkoff’s G&M Realty, then filed a petition for certiorari to the U.S. Supreme Court, which that Court denied on October 5, 2020. In their petition for certiorari, the defendants argued that the “recognized stature” standard under VARA was unconstitutionally vague, and that the statutory damages award was “grossly excessive” in violation of their due process rights.
Eisenberg & Baum, a New York City-based law firm, began representing the 5Pointz artists in 2014, replacing the artists’ prior counsel, Roland Acevedo and Jeannine Chanes. The artists filed a Motion for Attorneys’ Fees on October 30, 2020, requesting fees incurred by both the Eisenberg & Baum team and their prior counsel, but the parties ultimately reached a negotiated resolution of the issue. Under the Agreement, Eisenberg & Baum will receive $2,011,000 and the artists’ prior counsel will receive $159,000. While the parties have agreed to “amicably resolve fully the issue of attorneys’ fees and costs,” the Agreement makes clear that it does not affect the underlying judgment or interest therein.