Justice Lowy to Berkshire Museum Attorney Lee at Massachusetts Supreme Court: “So in other words, I have to tell you, I’m watching two different movies.”

In 2017, the Berkshire Museum was sued multiple times because of the possible sales of 40 works of art at public auctions. The art has long left the building. The winning consignor, Sotheby’s auction house, received all property prior to the 2017 public announcement from museum leadership blowing its “New Vision” horn. The art remains on hold at Sotheby’s.

At high noon on March 20, 2018, in Courtroom 2 of the John Adams Courthouse in Boston, Massachusetts, Justice David Lowy presided over the ongoing Berkshire Museum deaccession litigation. Four attorneys, two for each side, were summoned before the Massachusetts Supreme Court to argue positions. Justice Lowy began the hearing by addressing the elephant in the room. He announced that because the Attorney General Office and the Berkshire Museum, former adversaries, petitioned the court together for necessary relief, he thought it was important to hear opposing views. Therefore, he invited amici to present their arguments, too.

(A third amicus brief by a former director of Museum Services at Bonhams auction house, Martin Gammon,  has since been filed and is under review.)

Naturally, this hearing was welcome news for opponents of the museum’s plans to liquidate a priceless core collection in favor of a makeover, still reeling from their perception that the Attorney General abdicated mightily February 9, 2018. Trustees, who believe the museum is broke and will shutter any day if not for this new strategy, were disheartened but determined.

Justice Lowy made the stunning announcement upfront that restrictions do apply, and are a given. The Office of the Attorney General (AGO) and the Supreme Court agree about standing. The museum maintains it has the right to liquidate. The only way that any art can be sold is if the legal contracts pertaining to the Berkshire Museum’s charter and mission and provenance for the art are abandoned because the museum successfully conveys its pending demise. Then it gets a do-over. The legal term is cy pres (pronounced say, pray. I prefer pray stay!)

IF sold, Norman Rockwell’s Shuffleton’s Barbershop, which has crystal clear provenance, was estimated  to fetch  the highest price at auction. Inexplicably, the petition before the court boasted of a breezy compromise between the AGO and Berkshire Museum: an anonymous museum will purchase the painting for 1)an undisclosed price (I guarantee that it’s less than public auction), 2) promises a temporary display in Massachusetts, at the Norman Rockwell Museum, and 3)eventually feature it as part of the mystery museum’s permanent collection. Where is the museum? What is the sale price and terms? If its destiny is beyond a Massachusetts border, why isn’t the Commonwealth protecting its resources?*

*Which museum committed funds for Shuffleton Barbershop  and can afford to pounce and avoid driving up the price at auction? Perhaps Crystal Bridges Museum backed by Wal-Mart heiress, Alice Walton, could strike again. Norman Rockwell is already represented in its collection. Is it worth it to add another? The Lucas Museum of Narrative Art could be a contender. George Lucas boasts an impressive Rockwell collection, including ideal examples with cinematic connections or narratives, like the stunning study for charwomen (in movie theater). Is that enough representation to let it go were Berkshire Museum Rockwells cleared to sell?

The other works of art could be sold, or not. One doesn’t get the impression that the AGO was stepping in for the underdog. Leave it to Norman Rockwell to capture the attention of a busy world to illustrate a simple maxim: do the right thing. If legal manuevering is necessary, like crazy zoning variances for unfair construction, most collections will be at a disadvantage. It’s up to the Massachusetts Supreme Court to remedy this balderdash & betrayal else risk breaking the bank of non profits across the country.

Justice Lowy asked that the attorneys focus their arguments on selling with restrictions: “Is it necessary and impossible or impracticable for the Museum’s charitable mission to continue?” All parties stuck to this request, and to their filed briefs more or less. I tried to capture word for word the moments when Justice Lowy interrupted rote statements. Justice Lowy has made no decisions, yet. Eventually, he will decide whether to allow the parties’ petition, deny it, or reserve and report which means bringing the case back to the full court.

Proponents side or Opponents side?

Upon arrival, where to sit at the courtroom felt like where to sit at a wedding. The Berkshire Museum Trustees, Director Van Shields, and those in favor of the Berkshire Museum deaccession sale sat together on the left side of the courtroom. Opponents, numbering 2:1, sat in the center, off to the right, and spilled into the hall. With every available chair claimed some were left standing in the back.

TRUSTEES few smiles - Boston MA John Adams Courthouse -Berkshire Museum deaccession case oral arguments before SJO Justice Judge Lowy_Mar 20 2018 _102144 © catherine ryan (12)
Berkshire Museum Trustees March 20, 2018 at Massachusetts Supreme Court (front row far left Director Van Shields seated next to Trustees Chair Elizabeth McGraw)

Up first – Attorney Nicholas M. O’Donnell

of Sullivan & Worcester LLP law firm and Erika Todd on behalf of ‘Berkshire Museum Member Plaintiffs’: James Hatt,  Kristin Hatt,  and Elizabeth Weinberg 

ATTORNEY O'DONNELL AMICUS GOES FIRST Boston MA John Adams Courthouse -Berkshire Museum deaccession case oral arguments before SJO Justice Judge Lowy_Mar 20 2018 _102144 © catherine ryan

O’Donnell excerpt- “Massachusetts stands alone, this decision puts Massachusetts alone …That this court, this petition, this hearing, may be the ONLY obstacle left to account for this action should be unimaginable. IF a conclusory report of operational deficits can support the liquidation for the sale…Make no mistake, I say the art market is watching–”

Justice Lowy cut in- “Maybe they are. I’ve certainly read your key points, Maybe not. Systemic issues that flow from this are not my focus…”

Continue reading “Justice Lowy to Berkshire Museum Attorney Lee at Massachusetts Supreme Court: “So in other words, I have to tell you, I’m watching two different movies.””

What will Justice Lowy decide and the room where it happens | Last stop for Berkshire Museum docket SJ-2018-065 at John Adams Courthouse #BostonMA Supreme Court

John Adams Courthouse Superior Court Boston MA_20180301_© C Ryan (9)
Front entrance John Adams Courthouse, Boston, MA. The Berkshire Museum case is under review by Supreme Court Justice Lowy

How did the Berkshire Museum brouhaha wind up in the highest court under SJO (Single Justice) review by Justice David A Lowy?

The Berkshire Museum in Pittsfield, Massachusetts, deemed it necessary to alter an original historic building and sell off its priceless core art collection in order to build a dream and survive. This controvertial move garnered attention and divided opinion.  The Trustees of the Museum explained that they hired a consultancy firm which confirmed this new direction (“New Vision”), via extensive public outreach* no less, so what gives? (*22 focus groups involving over 200 people is hardly extensive.) Opponents cried, “Foul!”, and pointed out questionable and perhaps shady fodder, i.e. would museum members and the Berkshire community have voted YES had they been told that the best works from the permanent collection must be sold off to make it happen? Also, the art was consigned to Sotheby’s June 13, 2017, but the Trustees altered the museum’s Charter after the consignment date and only then informed the “public”.  Timing is everything. There was even an infamous email with a ‘loose lips sink ships’ subject line.  We know these details because of dogged reporting by the The Berkshire Eagle, notably Larry Parnass, and a wide network. The story is urgent and compelling, the art world equivalent of a Spotlight-All the President’s Men-Pentagon Papers type investigation.

The first auctions were slated for November 2017. Shuffleton’s Barbershop by Norman Rockwell was to have been the Berkshire Museum star lot. Its presale estimate alone was 20 to 30 million. By the Fall of 2017, the museum was hit with multiple lawsuits, sued by the Massachusetts Office of the Attorney General, Norman Rockwell descendants, and various plaintiffs. Eventually, all were folded into #TeamAGO vs. the Berkshire Museum. On November 8th, the Lower Court ruled in favor of the Museum, clearing the legal right of way to auction. The Attorney General Office appealed to the State’s supreme judicial court to block the sale for more time to evaluate and investigate the case. Attorneys for the Museum fought that request vigorously, but were denied. On November 10, 2017, the AGO procured an injunction from Judge Trainor of the Massachusetts Appeals Court, scuttling any scheduled auction prior to December 11, 2017. Allowances for extensions to build the case were granted. On February 5th, the AGO switched teams and filed jointly with its former adversary, the Berkshire Museum, petitioning the court to apply cy pres and maintaining its opinion that indeed all the art is restricted:

“As detailed elsewhere (e.g., in its filings in the litigation referenced above) the AGO believes that all of the works of art deaccessioned and proposed for sale are subject to one or more restrictions that limit the Museum’s ability to proceed with its planned sale and use of proceeds to fund an endowment, pay for operating expenses and fund renovations. The Museum continues to believe no restrictions (beyond the Museum’s charitable purposes) apply.”

This alliance left many scratching their heads  and interested parties formerly #TeamAGO adrift. Although the Rockwell plaintiffs backed off and dropped their case, law firms Sullivan & Worcester and  Foley Hoag with Barker, Epstein & Loscocco solicited amicus status on behalf of their clients.

Sullivan & Worcester Berkshire Museum
Sullivan & Worcester blog post about their position

Immediately, the AGO and the Berkshire Museum filed opposition papers. They weren’t persuasive. The Justice granted the participation of the law firms which means that the SJ-2018-065 docket was vastly enlarged and enlightened on February 27, 2018, and I had to see. And share. (Although everything I was looking for and questioned was not there.) The attorneys disagree with the AGO and Berkshire Museum proposal, and request oral argument. The AGO and Museum responses were filed after I visited. Justice David A Lowy will make that decision. He can act on filed papers related to Docket SJ-2018-065, order a hearing, or pass the case back to the full court. What will he do? I’m crossing fingers that arguments will be heard, and with the full court (which meets the first week each month and is open to the public), especially after I considered the material in person.  The Berkshire Museum could inspire a Frank Capra-esque courtroom movie treatment one day.

In the meantime, the art remains in Sotheby’s possession and the auction house stands down as the case is sorted. The docket includes Sotheby’s contract.

For armchair lawyers and detail detectives: I offer a blizzard of documents, on the eve of the next Nor’Easter blizzard and hope I’ve peaked your interest. (Leaving my analysis aside for now.)  Scroll past this post’s “read more” indicator to see interior architectural photos I took of the stunning John Adams Courthouse, and to read some of the complete and unfiltered new filings and documents related to the Berkshire Museum case, specifically-

  • AMICI CURIAE Sullivan & Worcester LLP law firm on behalf of ‘Berkshire Museum Member Plaintiffs’: James Hatt,  Kristin Hatt,  and Elizabeth Weinberg, filed Feb 26 2018, case SJ-2018-065 (52 pages)
  • AMICUS CURIAE Foley Hoag and Barker, Epstein & Loscocco – attorney Michael B Keating of Foley Hoag with attorney Daniel Epstein of Barker, Epstein & Loscocco on behalf of clients: Tom Patti, who completed two commissioned installations for the Berkshire Museum entrance and reception areas–spaces that will be gutted if the historic building is disfigured for the New Vision; Marilyn Holtz Patti – resides and works in Berkshire County as does Tom Patti; Jean Rosseau and Jonas Dovydenas- residents of Stockbridge and Lenox; James Lamme, resident of Egremont; and Donald MacGillis, resident of Pittsfield, MA. (21 pages)
  • Sotheby’s Contract with the Berkshire Museum (9 pages)
  • Affidavit from Dan Monroe, Director of the Peabody Essex Museum opposed the Berkshire Museum sale (4 pages)
  • Massachusetts Cultural Council (MCC) provided major facility funding since 2000. Some related construction was completed by a board member and warrants scrutiny
  • links to prior GMG Berkshire Museum posts

Interior views John Adams Courthouse 

John Adams Courthouse Superior Court Boston MA_20180301_© C Ryan (2)
The John Adams Courthouse Great Hall is stunning. On the right side in this photos is a Daniel Chester French gilded sculpture of Rufus Choate

 

Continue reading “What will Justice Lowy decide and the room where it happens | Last stop for Berkshire Museum docket SJ-2018-065 at John Adams Courthouse #BostonMA Supreme Court”

Cy pres and mon-ey: Berkshire Museum #AGO greenlight sale & cue up Massachusetts SJO

Detail from Norman Rockwell Blacksmith's Boy Hell and Toe for Nov 1940 Saturday Evening Post, Collection Berkshire Museum to be sold at Sothebys

Cy pres petition it is! The Berkshire Museum had to demonstrate dire financial need to modify any restrictions on charter or mission, like selling its priceless art core and renovating its landmark building else risk withering and shuttering. Well, the museum has succeeded to the next round according to its website. Here’s their summary of the agreement between the Berkshire Museum and the Attorney General Office that was sent to the Single Justice Court. I have not seen a release from the AGO, yet. I’ll link to the actual document(s) soon.

Generally after a filing is ready to be reviewed, there are a couple of route options for a Single Justice. The SJO can act on the filed papers, order a hearing, or pass it back to the full court. What will the SJO decide with this one?

The Museum’s summary reads like a slam dunk for the Berkshire Museum New Vision position. An unnamed American Museum will acquire Norman Rockwell Shuffleton’s Barbershop at an undisclosed price (which should have been negotiated high enough to cover all fundraising goals if it was to happen at all. Public auction would have gone higher.) Regardless, whatever sale price was set, that purchase does not preclude further sales according to the light conditions. I suspect that’s to appease Sotheby’s, in possession of all the art and waiting for this to sort out.

Sotheby’s would rather auction that Rockwell. The Rockwell family is not part of this agreement, and was waiting to review the papers as it impacts their suit vs. the museum.

Which museum committed funds for Shuffleton Barbershop and can pounce? Lucas Museum of Narrative Art could be a contender: George Lucas and Steven Spielberg are major Rockwell collectors.  Perhaps Crystal Bridges Museum backed by Wal-Mart heiress, Alice Walton, strikes again. Both were two likely clients at Sotheby’s, too. The reputation and value of the art targeted for sale will continue to rise. Legal firms, auction houses, and collectors are poised and AGOs across the country are trending pro boards and trustee, since 2000. The leadership at the Berkshire Museum failed to raise its own money for its new vision, was unable to brand despite possessing masterpieces, celebrate its landmark building, and imagine innovative science and history programming built around Calders and Rockwells. Let’s give them more money and the art, too?

I wonder if there is a percentage of SJO decisions opposing agreements like this one, overturning a lower court ruling and now a proposed agreement with the AGO-state? The February 5th joint statement confirmed that the Berkshire Museum and AGO were at an impasse related to standing. Come on SJO!

Berkshire Museum summary of agreement filed with MA AGO to Single Justice

shuffleton-s-barbershop-1950read the summary Continue reading “Cy pres and mon-ey: Berkshire Museum #AGO greenlight sale & cue up Massachusetts SJO”

breaking news: JOINT STATEMENT from #BerkshireMuseum and Office of the Attorney General #AGO shuffling to Single Justice of the Supreme Judicial Court

Emily Snyder, spokesperson for the Massachusetts Office of the Attorney General and Carol Bosco Baumann for the Berkshire Museum convey a shared goal: “We are working together to resolve this matter, recognizing our shared responsibility for the collection of the Berkshire Museum and to the community the museum serves. We are committed to helping this museum secure its future.” 

Here’s the complete joint status report:

COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
2017-J-0510

Berkshire County, ss.
_________________________________________
THOMAS ROCKWELL, JARVIS ROCKWELL, PETER ROCKWELL,
TOM PATTI, TOM PATTI DESIGN LLC, JAMES LAMME, DONALD MACGILLIS, JONAS DOVYDENAS, and JEAN ROUSSEAU,
Plaintiffs,
v.
TRUSTEES OF THE BERKSHIRE MUSEUM and MAURA HEALEY, in her capacity as Attorney General of the Commonwealth of Massachusetts, Defendants.
CONSOLIDATED WITH  
JAMES HATT, KRISTIN HATT, AND ELIZABETH WEINBERG, individually and derivatively on behalf of the Trustees of the Berkshire Museum, Plaintiffs,
v.
TRUSTEES OF THE BERKSHIRE MUSEUM, et al., Defendants.
_________________________________________________________________________
On Appeal From Berkshire Superior Court
___________________________________________________________________________
Joint Status Report of the Attorney General and Trustees of the Berkshire

Date: 02/05/2018

The Substituted Plaintiff-Appellant Attorney General Maura Healey (“AGO”) and Defendant-Appellee Trustees of the Berkshire Museum (the “Museum”) submit this joint status report.

The AGO has now concluded its investigation into the decision by the Museum to sell 40 works from its collection. The additional time granted by this Court for the investigation permitted the AGO, with the Museum’s cooperation, to undertake additional review of inter alia over 1500 documents and interview further key Museum employees and board members. The AGO believes that the 40 works at issue are subject to restrictions, which the Museum does not believe exist. The AGO and the Museum have agreed to resolve these differences and will file a petition for judicial relief pursuant to the principles of equitable instruction, deviation and/or cy pres with the Single Justice of the Supreme Judicial Court on February 9, 2018 or shortly thereafter. The AGO will support the relief requested by the petition. In addition, the Museum will not sell any of the 40 works until the SJC acts on the petition or until the Berkshire County Superior Court enters final judgment regarding the AGO’s complaint in the matter captioned Rockwell et al. v. Trustees of the Berkshire Museum, No. 17-253 (allowing, if the Museum should prevail, for 7 calendar days post-judgment for the AGO to seek further relief pending appeal), should such proceedings again become necessary. The Museum and the AGO intend to file a motion in the trial court requesting that proceedings there be held in abeyance while the aforementioned petition is pending. As a result of these commitments by the Museum, the AGO does not seek any further injunctive relief or stay of Superior Court proceedings at this time.

shuffleton-s-barbershop-1950

Breaking news: #BerkshireMuseum investigation- Unopposed Motion as Attorney General Maura Healey requests a one week extension

The Arc and the Quadrant by Alexander Calder, collection of Berkshire Museum-- first public commission for Calder, a pair of sculptures for niche alongside museum theater
Alexander Calder’s first public sculpture commission was for the Berkshire museum (two sculptures for site specific niches alongside the theater)

Today, January 29, 2018 was the next milestone in the ongoing battle over the Berkshire Museum’s quest to deaccession. Attorney General Maura Healey (AGO) filed a request to push the AGO status report deadline to February 5, 2018.  And the “Defendant- Apellant, Berkshire Museum, does not oppose.” 

“Unopposed Motion for Extension of Deadlines
The Substituted Plaintiff-Appellant Attorney General Maura Healey (“AGO”) hereby requests a one week extension of the deadlines set by this Court on  January 12, 2018, such that the preliminary injunction and stay of the trial court proceedings entered on
11/10/17, as well as the AGO’s deadline for filing a status report regarding the status of the investigation, are continued to February 5, 2018. Counsel for Defendant-Appellant Trustees of the Berkshire Museum has informed the undersigned that Defendant-Appellant does not oppose the relief sought herein.” – Respectfully submitted, Dated: January 29, 2018

MA Appelate Court dockets RE#28: The preliminary injunction and stay of the trial court proceedings entered on 11/10/17 are continued to January 29, 2018. The Attorney General’s Office shall file a status report on, or before, January 29, 2018, regarding the status of the investigation or within 5 days of the completion of the investigation, whichever is earliest. (Trainor, J.) *Notice/attest/Agostini, J. – Dated: January 12, 2018 

Berkshire Museum on hold, but James Prendergast Library a go

On November 21, 2017, Sotheby’s (New York) will be holding a European sale and Christie’s (New York) will be holding an American sale. Both auctions feature works by artists with ties to Gloucester and neighboring shores, among them:

Christies Martin Johnson Heade 1819 to 1904 Haystacks oc 1878-1892 est 120 to 180000
Martin Johnson Heade (1819-1904) Haystacks, 1878-1892, oil on canvas, (Christie’s presale estimate $120,000-$180,000)
Paul Howard manship 1885-1966 Lying Doe cas 1932 est 300 to 500000
PAUL MANSHIP (1885-1966), Lying Doe, ca. 1932 (Christie’s presale auction estimate $300,000-$500,000)

There are a few Norman Rockwell works, including the classic What Makes it Tick (The Watchman), a 1948 commission for the watchmakers of Switzerland, oil on canvas. Christie’s presale estimate is 4 million – 6 million. Christie’s is offering a Cecilia Beaux 1916 portrait in its American online auction, ending tomorrow as well. It’s titled Mrs. Albert J Beveridge (Catherine Eddy/Lady Primrose) and measures 57 x 38. Bids open at $12,000 on this Beaux.

NORMAN~1.JPG

 

Sotheby’s Nov 21 Auction a tale of two AGOs

The Berkshire Museum story has several updates. As a reminder, the Massachusetts Appeals Court ruled last week that the Berkshire Museum could not sell its artworks on consignment with Sotheby’s until the courts settle. The Berkshire Museum is pushing for an accelerated court case. They have issued a press release which I’ve posted below the break. One trustee has quit in protest of the Museum’s intent to sell. The Massachusetts Attorney General office filed responses. It’s been reported that the AG is repeating unanswered requests for archives, financial papers and other material as well as questions related to museum contruction projects completed by another board member (speculating unconfirmed reports of conflict of interest.) Official filings and documents from both sides have been shared with media outlets. The injunction decision impacted Sotheby’s American and Impressionism & Modern art sales last week, and its European sale tomorrow only in that there are fewer lots for sale. The cover of tomorrow’s European sale catalogue featured a Berkshire Museum painting, Lot 18 now unavailable.

x LOT 18 Berkshire Museum Bouguereau featured on the cover of the Sotheby's catalogue 70 lots Nov 21 sale L'Agneau Nouveau-Ne THE NEWBORN LAMB oc 65 x 34 est 1500000 to 2mil.jpg
Sotheby’s lists Lot 18 as “upcoming” sale. Bouguereau L’Agneau Nouveau (The Newborn Lamb) oil on canvas, 65 in x 34 in (Sotheby’s presale estimate 1.5million to 2 million)

 

Additional Sotheby’s Berkshire Museum lots described as “upcoming”, on hold till the courts decide:

 

Sotheby’s European sale features fine art consigned from another public repository: the James Prendergast Library, Jamestown, NY. Unlike the Berkshire Museum, the library attempted to maintain its collection, but was unsuccessful. It did not receive as much press as the Berkshire Museum brouhaha. The New York Times ran a story this weekend, too little too late for any with aims to hold on. According to the article, the library had even lined up angel collectors willing to buy the great works to ensure they remained in Jamestown, NY.

Some critics of the sale are particularly upset that the library rejected a plan by two art patrons, Cathy and Jesse Marion of Houston who had proposed keeping the collection in Jamestown by buying about 40 of the works for $1.2 million and finding a new home for them in the city.” 

The New York State Attorney General’s office declined this proposal, instead requiring that the library sell at public auction.

“Mr. Rankin said the library had to pass on that offer because the New York State attorney general’s office, which oversees nonprofit organizations, had objected to a private sale without testing whether the paintings might actually bring in more if sold through public auction.”

The library founders made careful selections amounting to an encyclopedic world tour of artists and contemplative, dreamy scenes to enrich the experience of patrons of all ages. They are fascinating together. I love this beguiling and chatty magpie narrative!

James Prendergast Library Jehan Georges Vibert Le Nouveau commis oil on panel est 30 to 40000
James Prendergast Library collection: Jehan Georges Vibert Le Nouveau commis oil on panel. Sotheby’s Eurpean pre sale estimate is $30,000- $40,000

 

More works to be sold at Sotheby’s to benefit and from the James Prendergast Library collection

 

Continue reading “Berkshire Museum on hold, but James Prendergast Library a go”