Berserk in the Berkshires: Lawsuit Filed Against Berkshire Museum Sales UPDATED TWICE

As I previously wrote, the only realistic hope to stop Berkshire Museum’s misguided course would be legal action, either by the Massachusetts Attorney General’s Office (which is reviewing the case but has not yet announced whether it will act) or by opponents to the sale.

Now it’s happened.

This just in from Foley Hoag, the Boston law firm:

Foley Hoag LLP filed a complaint and motion for a temporary restraining order in Massachusetts Superior Court on October 20, 2017 on behalf of several plaintiffs, including the three sons of renowned artist Norman Rockwell. The motion, filed against the Trustees of the Berkshire Museum and naming Massachusetts Attorney General Maura Healey, as a necessary party, aims to halt the Museum’s plan to sell 40 significant works of art, including two paintings given to the Museum by Norman Rockwell.

The Complaint alleges that the Museum had contracted with Sotheby’s for a public auction in November before it announced its plans to the public, acting in breach of its fiduciary duties and trust without legal authority to sell the art.

Plaintiffs and Foley Hoag further allege the Museum’s planned sale is contrary to a Massachusetts statute establishing the Museum, which requires the Museum to maintain any gifts it receives “for the people of Berkshire County and the general public.” The Complaint further alleges that independent financial analysis of the Museum’s financial situation demonstrates that the Museum’s claim of financial necessity is grossly exaggerated.

Here’s a link to the full complaint.

In addition to Thomas Rockwell, Jarvis Rockwell and Peter Rockwell, the plaintiffs are artist Tom Patti, who has two works in the museum, and museum members James Lamme, Donald MacGillis, Jonas Dovydenas and Jean Rousseau.

Interestingly, one of the two lead attorneys for the plaintiffs is Martha Coakley, who was Massachusetts Attorney General when the collection of Brandeis University’s Rose Art Museum was threatened with complete dispersal.

In separate actions during the past week, both the Berkshire Museum and Sotheby’s had demonstrated that they were still hellbent on monetizing the public’s patrimony, notwithstanding the artworld’s and the public’s protests.

On Friday, Oct. 13, the Berkshire Museum abruptly canceled a meeting that had been scheduled to occur this week with the Mass Cultural Council, the state government’s arts agency. Having issued this Sept. 20 statement deploring the planned sales, the MCC would have tried at the meeting to thrash out alternatives to the planned sale of the cream of the museum’s art collection.

What might those alternatives be? Here’s what Greg Liakos, the council’s communications director, told me today:

We had contracted with the Nonprofit Finance Fund (NFF) to offer a deeper, independent analysis of the Museum’s finances in hopes of clarifying our collective understanding of its current condition and, if the Museum is willing, to look at alternatives to stabilize those finances without deaccessioning artwork. (We’ve worked with NFF and others to help other nonprofit cultural institutions in our portfolio facing financial stress, including Shakespeare & Co. and The Mount.)

Liakos added that the MCC had planned to discuss “possible future planning and/or capital grants from our Cultural Facilities Fund…

…and [would have offered] help getting access to other state programs like those offered by MassDevelopment, the state Executive Office of Housing and Economic Development, etc.”

Following up on Larry Parnass‘ Oct. 16 report of the meeting cancellation in the Berkshire Eagle, I asked Liakos for specifics on the “questions [MCC executive director Anita] Walker posed in an Aug. 30 meeting in Pittsfield,” which “museum leaders had planned to provide answers to.”

“There were several,” he said, “but the most important ones from our perspective had to do with the estimated costs of the Museum’s planned renovations—both the building and operating costs.” In response to the quoted comment by museum director Van Shields that MCC had “not put forth a concrete or viable alternative,” Liakos said that his agency had been hoping to do so at the canceled meeting.

In what could turn out to be a case of bad timing, Sotheby’s earlier today issued this press release for its Nov. 13 American art sale that headlines the Berkshire Museum’s two Norman Rockwells. The clear intention of the complaint and motion for a temporary restraining order is to derail the planned sales of the 40 consignments by the Berkshire Museum to this and several other Sotheby’s sales. But Sotheby’s lawyers may feel confident that the opponents won’t prevail. Time and a Massachusetts Superior Court judge will tell.

Sotheby’s and the Berkshire Museum have yet to respond to my requests for comment. If and when I know more, you’ll know more.

UPDATE—Here’s Sotheby’s statement:

Sotheby’s has reviewed the lawsuit filed against the Berkshire Museum and is confident that the claims are legally and factually flawed. We fully expect the court to confirm that the Museum’s Board of Trustees acted in accordance with its fiduciary duties and that the museum is well within its rights to deaccession and offer these works for sale.

We are looking forward to successful auctions that will ensure the future of the Berkshire Museum.

UPDATE 2—Here are the Berkshire Museum’s statements:

From Elizabeth McGraw, President of the Board of Trustees—

We believe we have strong legal grounds for our deaccessioning and we are confident in our New Vision plan which will allow this important local museum to continue to contribute to the educational and cultural life of this region for another century. Berkshire Museum provides unique educational experiences for local children, and will continue to make its extraordinary collection accessible to the community as we take the next steps needed to secure the future of this museum as a center of interdisciplinary, interactive learning true to the vision of founder Zenas Crane.

From attorney William Lee of WilmerHale, who represents the Berkshire Museum—

We are confident that the Museum has the right to go forward and that the lawsuit is factually and legally flawed. We will respond to the claims in court.

Moving right along, Sotheby’s has now posted online its detailed catalogue listings for the Nov. 13 American Art sale. Here’s the entry for the top lot—the Berkshire Museum’s prize Rockwell, “Shuffleton’s Barbershop.”