After hearing more than two hours of arguments today (Wednesday) from two sets of lawyers for plaintiffs, as well as a response to the plaintiffs’ motion by the Massachusetts Attorney General’s Office, Judge John Agostini of Berkshire County Superior Court in Pittsfield reserved judgment on whether to grant requests for a temporary restraining order or preliminary injunction that would pause the Berkshire Museum’s controversial plans to sell works from its collection.
As told to me this afternoon by art-law attorney Nicholas O’Donnell, who is representing three of the plaintiffs, the judge expressed considerable doubt as to whether the complainants had legal standing that would qualify them to seek intervention from the court.
Enter the Massachusetts Attorney General’s Office, which late today filed an emergency motion asking the Berkshire Superior Court “to allow it to become a plaintiff if those already suing to halt auctions fail to meet the standard” for standing, as reported tonight by Larry Parnass of the Berkshire Eagle.
As it happened, my Sotheby’s catalogue that includes some of the Berkshire Museum’s consignments arrived in today’s mail. The cover lot, estimated to bring $20-30 million, was no surprise:
In a “spirited and well argued” session, the judge grilled the lawyers on the following three issues, according to O’Donnell, whose clients were two members and one former member of the museum:
—The first hour of questioning explored whether O’Donnell’s plaintiffs and those in the other lawsuit, who include descendants of artist Norman Rockwell, have standing. (The judge had decided to merge the two court challenges into one hearing.)
—Next, the judge sought testimony showing that the plaintiffs were “likely to prevail” in making a convincing case against the art sales—a necessary condition for granting a temporary restraining order or preliminary injunction. The judge asked Courtney Aladro, chief of the AG’s Division of Public Charities, to delineate “what standards the trustees should be held to,” recounted O’Donnell. “The judge asked, ‘What did the museum do wrong?’”
—Finally, the judge sought testimony on whether “interim harm” would be caused by a delay in the sales and whether there would be “irreparable damage” if the works ultimately were sold.
Both O’Donnell and Michael Keating, the Rockwells’ attorney, told me that the judge didn’t tip his hand as to how he was likely to rule. His decision is expected to be issued in advance of the Nov. 13 American art auction, in which the most important of the museum’s offerings are scheduled to go on the block.
For a more detailed, flavorful firsthand account of the hearing, see Andrew Russeth‘s report for ARTnews.
O’Donnell told me that the judge seemed “very interested in what the Attorney General thought.” We already know a lot about that from the brief she filed on Monday. Parnass reports that “rather than seek another hearing, the Attorney General’s Office asks that the court view the brief it filed Monday as ‘sufficient to serve as a request for the same injunctive relief.'”
Embedded in that brief are a few bombshells. But to my non-professional legal mind, there’s one crucial element that’s missing from the various filings.