“Presented every two years, the Commonwealth Awards shine a spotlight on the extraordinary contributions the arts, humanities, and sciences make to education, economic growth and vitality, and quality of life in communities across Massachusetts. The Commonwealth Awards ceremony also presents an opportunity for the Massachusetts nonprofit cultural sector to gather, assert its value, and make the case for public investment in its work.
Past winners include leading artists, writers, and scholars such as Olympia Dukakis and David McCullough; world-renowned institutions like Jacob’s Pillow Dance Festival and the Peabody Essex Museum; and social innovators like the Cambridge Science Festival and the Barr Foundation.”
The city of Gloucester received a Commonwealth Award in 2015.
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Berkshire Eagle just received the JFK Commonwealth Award. Berkshire Eagle 2019 arts coverage included the outstanding work by Larry Parnass on the Berkshire Museum deaccession story. Well done!
Stay tuned for the MCC announcement of the winner of the 13 finalists.
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The 1929 painting, Chop Suey, by Edward Hopper, sold for $91,875,000 (including auction and buyer premiums) on November 13, 2018. It was the premiere lot at Christie’s November sale of American art, and provided quite a return for the heirs dispensing the Barney A. Ebsworth marquee collection. A native of St. Louis, Ebsworth made his fortune in the travel industry (Royal Cruise Lines). He maintained ties with museums across the country because of his stellar collection. Reportedly, Ebsworth promised to gift the painting to the Seattle Art Museum about 2007 and contradicted those statements in later years. Even if it’s spelled out directly, wills and contracts can be broken.
The hammer price for Chop Suey was 85 million net which fell squarely within its presale auction estimate range of 70 million to 100 million. The buyer is unknown. There was a bidding war, and initial rumors suggest it was acquired for a public collection.
Hopper’s prices have raced since 2000. Hopper’s former record at auction was 40.5 million- also at Christie’s– for East Wind Over Weehawken, a 1934 oil painting sold on November 26, 2013. That sale toppled Hopper’s prior record of $26.9 million (for Hotel Window).
Just ten years ago, one of Hopper’s large Gloucester houses drawings, Prospect Street Gloucester, 1928/1929, sold for 2 million from yet another Christie’s sale. Hopper’s 1934 oil painting Sun on Prospect Street has been part of the Cincinnati Art Museum collection as a result of the Edwin and Virginia Irwin Memorial since 1959.
At 8.4 million, Cape Ann Granite was a savvy purchase from the sales last spring.
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No surprise! Here’s the Lucas Museum of Narrative Art press release about the Berkshire Museum deaccession. George Lucas already paid a record breaking price– 46 million–back in 2013 for Saying Grace, one of his numerous major Rockwells. Shuffleton’s Barbershop could have surpassed that price; the market won’t know unless Lucas opts to sell it at a public auction some future date.
(photo above – Norman Rockwell, Saying Grace, collection Lucas Museum Narrative Art)
John La Farge, Magnolia, 1859–60. Estimate $200,000–300,000.
Charles François Daubigny, Paysans allant aux champs (Le Matin). Estimate $70,000–100,000.
Henry Moore, Three Seated Women, 1942. Estimate $400,000–600,000.
Alexander Calder, Double Arc and Sphere, executed circa 1932. Estimate $2,000,000–3,000,000. (*oddly just one of a site specific commisioned pair for the Berkshire Museum)
Francis Picabia, Force comique, 1914. Estimate $800,000–1,200,000.
Adriaen Isenbrant, The Temptation of Adam and Eve. Estimate $150,000–200,000.
William Bouguereau, The Newborn Lamb, 1873. Estimate $1,500,000–2,000,000. (**November cover lot pulled from sale last fall)
Alberto Pasini, Faubourg de Constantinople, 1877. Estimate $700,000–1,000,000.
Adriaen Isenbrant, The Flight into Egypt. Estimate $150,000–200,000.
William Bouguereau, Les deux sœurs, 1884. Estimate $2,000,000–3,000,000.
Norman Rockwell, Blacksmith’s Boy – Heel and Toe, 1940. Estimate $7,000,000–10,000,000.
Frederic Edwin Church, Valley of Santa Isabel, New Granada, 1875. Estimate $5,000,000–7,000,000.
Rembrandt Peale, George Washington. Estimate $200,000–300,000.
Norman Rockwell, Shuffleton’s Barbershop, 1950. Acquired privately by a nonprofit American museum.
(the Vuillard and 25 more aren’t listed at this time)
press release from Lucas Museum APR 11, 2018
Lucas Museum Announces Acquisition of Norman Rockwell’s ‘Shuffleton’s Barbershop’
Museum ensures iconic masterwork remains in public view
Los Angeles, CA (April 11, 2018) – The Lucas Museum of Narrative Art today announced the acquisition of Norman Rockwell’s masterwork Shuffleton’s Barbershop. The 1950 painting, which had been in the collection of the Berkshire Museum in Pittsfield, MA, has been the subject of considerable attention in recent months.
“As a museum dedicated to celebrating visual storytelling, we are honored to become the public steward of this major work,” said Don Bacigalupi, Founding President of the Lucas Museum. “Norman Rockwell is one of our nation’s most important storytellers, and this cultural treasure will continue to be seen and enjoyed by the public in an American museum, where it will be a source of inspiration for generations to come.”
The Lucas Museum recently broke ground and launched construction in Los Angeles, and is expected to open to the public in 2022.
Shuffleton’s Barbershop, revered as one of the most iconic works of Rockwell’s storied career, will join an expansive collection of works by the artist, including Saying Grace (1951) and After the Prom (1957).
These works will be featured prominently on public view to allow museum visitors to explore the power and importance of visual storytelling. The Lucas Museum will engage visitors of all ages in educational programs that highlight prominent examples of narrative art in a variety of mediums, periods and cultures.
With the acquisition, the Lucas Museum announced a cross-country partnership whereby Shuffleton’s Barbershop will be on long-term loan to the Norman Rockwell Museum in Stockbridge, Massachusetts, for public display commencing later this year and extending into 2020. The Lucas Museum will also explore opportunities to loan the painting to other museums in Massachusetts and elsewhere in order to maximize public access to this beloved work of art.
“We are immensely grateful to the Lucas Museum of Narrative Art for ensuring that Norman Rockwell’s masterpiece Shuffleton’s Barbershopwill continue to be available to and enjoyed by the public. We thank the Museum for generously loaning the painting to the Norman Rockwell Museum while the Lucas Museum is under construction in Los Angeles,” stated Laurie Norton Moffatt, Norman Rockwell Museum Director and CEO. “It is especially meaningful for the people of Berkshire County who will have the opportunity to enjoy this masterpiece for a few more years, knowing that it will remain in the public realm. We look forward to continuing to work with our friends at the Lucas Museum to create educational opportunities and appreciation of the narrative art of illustration, including ongoing collection-sharing.”Continue reading “And the Mystery Buyer of Berkshire Museum Shuffleton’s Barbershop by Norman Rockwell is…Lucas Museum of Narrative Art”→
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Justice Lowy’s JUDGEMENT was released April 5, 2018. The Museum may sell Shuffleton’s Barbershop, and — via Sotheby’s– the remaining 39 works free of any restrictions.
“The museum has satisfied its burden of establishing that is has become impossible or impracticable to administer the Museum strictly in accordance with its chartiable purpose, thus entitling the Museum to relief under the doctrine of equitable deviation. Accordingly the court allows the Museum’s request for equitable relief to sell the designated artwork.”
Justice Lowy MEMO OF UNDERSTANDING
Reaction from Sotheby’s Auction House:
“We are very pleased that the court approved the agreement reached between the Berkshire Museum and the Massachusetts Attorney General. We look forward to working with the museum to ensure a bright future for the people of Pittsfield and Western Massachusetts.” Judge Lowy’s decision came in just in time to meet the auction’s press deadline clearing for art sales this spring, else sales would have been pushed back till the fall at the earliest. The catalogue pages are ready from last fall’s prep.
Reaction from Elizabeth McGraw, President, Berkshire Museum Board of Trustees:
“This is great news for the people of Berkshire County and everyone who visits the Berkshire Museum for one-of-a-kind experiences in history, art, and science. We recognize this decision may not please those who have opposed the museum’s plans. Still, we hope people will be able to move forward in a constructive way to help us secure and strengthen the future of this museum, at a time when our community needs it more than ever. “
“Save the Art-Save the Museum continues to oppose the sale of the Berkshire Museum’s art treasures and its unrestricted use of the resulting funds. We also regret the judge’s disregard of the public trust in which the museum held its collections. The impending sale will not only diminish Pittsfield as a city claiming to be of cultural import to Berkshire County, but will reverberate destructively for years through collections similarly held in trust throughout the state and country. As a group, we will make a more detailed statement after meeting in person to consider the loss to our community and its impact.”
1953
Have a look back at an inspiring 1965 Berkshire Eagle profile about Berkshire Museum Director Stuart C. Henry, and an earlier feature from the Berkshire Evening Eagle, published Thursday, Aug. 20, 1953, heralding the Berkshire Museum’s 50th anniversary. Both convey the museum’s seamless blend of high art, science, community and education.
Amy Stewart, Second Assistant Clerk for the Massachusetts Supreme Judicial Court for the County of Suffolk, confirms that Justice Lowy has allowed a third Amici Curiae filed by Martin Gammon related to the Berkshire Museum case. Gammon has a new book coming out “Deaccessioning and its Discontents: A Critical History,” (Cambridge, MA: MIT Press, 2018). He has long art world experience, and is an antiques roadshow appraiser and a former director of Museum Services at Bonhams auction house. Although he is opposed to the current deaccession agreement reached by the Attorney General and the Trustees of the Berkshire Museum, and backs off from the panic, Gammon articulates some sell-off, specifically:
“Consequently, if the court were to warrant a limited sale of the European and non-Western works, and that in turn proves to be insufficient for supporting operations in the course of time, then the trustees could then petition the court and consider some of the core American works for potential sale, but then they should be offered in a collaborative process through the auspices of the AAMD to other public institutions first, as the likelihood of another museum willing to acquire them is high, and they would in most cases remain in the public trust.”
Gammon underscores the irregularity of any deaccession planning with no curators on staff as is the case with the Berkshire Museum. One of the paintings Gammon muses a curator may have considered selling was the now infamous cover lot yanked back on the eve of the Sotheby’s November 21, 2017 sale: LOT 18 L’Agneau Nouveau (The Newborn Lamb), oil on canvas, presale estimate 1.5 to 2 million)
A poignant counter perspective was expressed in a Letter to the Editor on March 13, 2018: Crane gifts to museum would be painful loss, (aka “beyond the Rockwells) by David Peter Moser, a former resident of Pittsfield who benefited from amazing enrichment programs developed between the museum and community organizations
To the editor: I am saddened by the potential loss of Berkshire County’s cultural assets, those being the gifts Zenas Crane made during his lifetime to his Berkshire Museum. Often overlooked in the press are those gifts associated with former Massachusetts governor and senator Winthrop Murray Crane, subject to being deaccessioned for cash. Governor (1900-1903) and senator (1904-1913), Winthrop Murray Crane and his family also donated works that are among the 40 to be sold, acquired over the last century as his heirs wanted to honor their direct ancestors and the mission of the Berkshire Museum. A native son of Dalton, both businessman and statesman, Winthrop Murray Crane is equally revered as part of this area’s proud heritage. Sen. Crane’s wife, Josephine Boardman Crane, and daughter, Louise Crane, gave art treasures either directly or through their nonprofit foundations. Louise Crane had no descendants.
Works include:William-Adolph Bouguereau’s “La Bourrique/The Horseback Ride;” Girolamo Troppa’s “Apollo and Satyr;” Thomas Wilmer Dewing’s “Two Ladies in a Drawing Room/The White Dress;” George Henry Durrie’s “Hunter in Winter Wood;” Adriaen Isenbrandt’s “Adam and Eve/The Temptation;” Augustus Saint-Gaudens’ “Diana of the Tower; ” Henry Moore’s “Three Seated Figures;” Edward Vuillard’s “Deux femmes dans un interieur;” and Edwin Lord Weeks’ “Indian Prince, Palace of Agra.”
The Josephine and Louise Crane Foundation, now located in Falmouth., has assets of over $70 million and gave $500,000 during the 2007 Berkshire Museum Capital Campaign. Attempts to reach out to the Winthrop Murray Crane ancestors regarding their feeling towards the Berkshire Museum’s intended renovation plans and deaccessioned artworks have gone unanswered.
As an aside, I thank Josephine Boardman Crane for also establishing the Junior Naturalist Program at the Berkshire Museum, which was an important part of my childhood learning experiences growing up in Pittsfield during the 1970s with Woody Bousquet and Thom Smith. My experiences, enhanced by visits to the Berkshire Museum as well as later hiking excursions through the hills of the Catskills and Berkshires with Woody, compelled me to study art history in college at Tufts University. Memories of the paintings by Hudson River School artists’ depictions of our beloved mountain ranges remain clear. Science, nature, history and art interconnected through paintings — treasures “once” known at the Berkshire Museum in Pittsfield.“- David Peter Moser
Moser was compelled to detail the strong accession stories and local community support for the Berkshire Museum 39– the works of art off the beaten press path. Justice Lowy asked about them, too.
Gammon filed one day ahead of the March 20th public hearing where parties and amici presented oral arguments. Although Gammon will not have an opportunity to present oral argument, Justice Lowy will read and consider this file along with all the other documents. No further information is available at this time.
03/28/2018 #24 Notice to counsel/parties regarding paper #18 file
MOTION For Leave To File A Brief Of Amicus Curiae filed by Martin Gammon. (No Certificate of Service included). (3/27/18: “Per the within, Motion is ALLOWED WITHOUT HEARING” (Lowy, J.))
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Save the Art – Save the Museum Continues to Seek Transparency from the Berkshire Museum and Attorney General
PITTSFIELD, Mass. (March 28, 2018) – Save the Art – Save the Museum has helped to achieve a major goal of saving the Berkshire Museum’s 40 most valuable artworks from immediate auction. We re-dedicate ourselves now that the issue is before the courts, and will continue our efforts to SAVE THE ART and SAVE THE MUSEUM for ours and future generations..
In Boston on Tuesday, as lawyers for both sides stated their cases before Judge David Lowy of the Massachusetts Supreme Judicial Court, the Berkshire Museum reiterated its requirement for $55M, but again offered no documentation or proof to justify this vast sum. The intent of Zenas Crane, Norman Rockwell, and others who donated these treasures to the Berkshire Museum could not be clearer; they wanted them to be forever available for the pleasure, inspiration and education of the people of Pittsfield and Berkshire County. To sell them is to sell our cultural heritage.
Save the Art – Save the Museum believes the Berkshire community has a right to a candid reckoning of why we and all future generations must be denied these cherished and irreplaceable artworks. We continue to invite the Museum trustees to engage in dialogue with the community about alternatives to this drastic action.
The public deserves full transparency from the Berkshire Museum and the Massachusetts Attorney General. We call on the Supreme Judicial Court to reject the agreement and to order that the Attorney General conclude the investigation with a complete, published report.
“Those, like me, who were caught off-guard by the astonishing deal (now awaiting court validation) cut last month by the Berkshire Museum and Massachusetts Attorney General Maura Healey feel justifiably blindsided by the AG’s about-face. With scant explanation, she pivoted from a seemingly adversarial stance towards the museum’s deaccessions of the cream of its collection to acceptance of the shameful sell-offs, notwithstanding the fact that they would run afoul of professional standards and would violate what the AG had deemed to be restrictions prohibiting sales of about half of the 40 deaccessioned works.” – Lee Rosenbaum, CultureGrrl
“In a 20-minute interview March 14, Healey responded both to questions about her handling of the museum’s proposed art sales and questions about whether her past ties to WilmerHale constitute at least an appearance of a conflict of interest. She rejected questions that her office was in any way in conflict. “With respect to any conflict of interest, we followed the rules. We didn’t have a conflict here and the results speak for themselves,” Healey said.” – Larry Parnass, Berkshire Eagle
Save the Art – Save the Museum (STA) is a citizens’ group that started as a grassroots effort on social media shortly after the Museum announced plans for its sale in July 2017. Members meet regularly to organize opposition to the deaccession, educate the public about viable alternatives, and raise funds to support legal efforts. STA acts on behalf of more than 1,500 people who have joined its Facebook group dedicated to preserving the cultural heritage of the Berkshire Museum imperiled by this sale, and thousands of other local residents who also object, many of whom have flooded the local newspaper with letters urging the Museum to change course and bring back the art.
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.
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.
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
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…”
People are streaming in and filling seats like guests at a wedding– proponents of the sale like Berkshire Museum director Van Shields and Trustees are seated together on the left.
Attorneys greet and shake hands like team captains before a big game.
Courtroom 2 at John Adams Courthouse is quiet now but come noon today the Berkshire Museum deaccession art case will have it’s next day in court, this time the highest in the Commonwealth.
Attorneys for Parties (The Trustees Berkshire Museum and Massachusetts AGO) vs. Amici (Patti and Hatt groups) will present as follows:
Amici will go first Tom Patti and Hatt groups, then AGO, and Trustees last. Justice Lowy can decide to allow the patries’ petition, deny it, or reserve and report which means bringing the case back to the full court.
Huge step and opportunity. Justice Lowy has scheduled a hearing on Tuesday March 20 for counsel and parties! High noon. This is not to the full court; first stop is before the Single Justice. Justice Lowy has allowed 10 minutes each for oral argument.
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 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
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
Here’s the complete official doc while awaiting Single Justice ruling. More to come.
EXHIBIT A
VIA EMAIL February 9, 2018
William F. Lee, Esq. WilmerHale 60 State Street Boston, MA 02109 Re: Sale of Works of Art by Trustees of the Berkshire Museum
Dear Attorney Lee,
Thank you for your and the Trustees of the Berkshire Museum’s (the “Museum”) continued cooperation while the Attorney General’s Office (“AGO”) investigated the proposed sale of 40 of the Museum’s most valuable works of fine art in order to fund a “New Vision.” As the AGO indicated to the Museum last September, after reviewing the proposed sale of all 40 items and planned use of proceeds ($76 million or more based on auction estimates), the AGO concluded that the objects that have been deaccessioned and offered for sale are subject to restrictions that prohibit the Museum from selling them in the manner proposed absent court approval lifting or modifying the restrictions. As we have also discussed, and as we outline further in this letter, while we continue to believe that these restrictions apply, the investigation has led us to agree with the Museum that it would be impracticable for the Museum to continue its operations without a sale, subject to, however, certain guidelines. Therefore, the AGO is prepared to support the Museum in its request to the Supreme Judicial Court for approval to sell up to 40 items subject to certain agreed-upon sale parameters.
Proposed Sale:
The Museum first provided notice of the planned sale on June 22, 2017. The notice indicated that the Museum was proposing to sell 40 works of fine art from its collection in order to fund a “New Vision,” which will include the creation of a $40 million “endowment” and dedicate $20 million to facilities upgrades and repairs. Over the course of further communications with the AGO pertaining to the AGO’s investigation, the Museum asserted that it is in dire financial need and requires a significant capital infusion in order for the Museum to be able to continue to fulfill its charitable mission. Further, the Museum asserted that the only way it could achieve that necessary capital infusion was by selling the identified 40 of works of fine art from its permanent collection. The Museum stated that it had come to this decision as part of a two-year process undertaken by the Board of Directors to consider alternative directions for the Museum that would create a more sustainable financial future for the Museum.
-page 2 of 5-
AGO Investigation:
Upon receipt of the Museum’s June 22, 2017 notice letter, the AGO undertook a careful investigation of the Museum’s plans. As part of this review, the AGO requested and reviewed over 2300 documents bearing on the Museum and its Board’s decision-making process as well as donor intent and restrictions on objects donated or bequeathed to the Museum. These documents included, inter alia, board materials, minutes and agendas, committee materials, meeting minutes and agendas, board retreat materials. Museum policies and procedures, other internal Museum and board communications, files associated with each of the artworks that the Museum plans to sell, archival director files, and other historical files. The AGO also interviewed Museum employees, board members, and third party witnesses regarding, inter alia, the Museum’s history, the Board’s efforts to date to stabilize the Museum’s finances, the Board’s decisionmaking process related to deaccessioning and selling art from its collection, the Museum’s consideration of alternatives to selling art to revitalize the Museum, the intent of donors, and employee experience at the Museum.
In addition to the AGO’s review of documents and interviews with witnesses, the AGO also worked to understand all components of the Museum’s decision. In doing so, the AGO consulted with and relied on experts to provide the AGO with information regarding museum industry best practices, the Museum’s finances, and the impact of a decision to deaccession and sell art from a museum’s permanent collection.
The AGO is charged with review of the proposed sale for compliance with charities law, including an assessment of such factors as whether there are any restrictions that limit or prohibit the Museum from selling the chosen objects and whether, if such restrictions exist, it is impossible or impracticable for the Museum to fulfill its charitable mission and meet the intent of the donors without seeking court approval to lift or amend those restrictions. A summary of our conclusions related to this part of our review is described below.
1. Restrictions On The Works of Art Proposed for Sale
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. In light of certain findings from the AGO’s investigation described below, and in an effort to avoid unnecessary expenditure of charitable and government resources on litigation to determine which view of the restrictions would ultimately be found to be legally correct, the AGO and the Museum have agreed on a framework for requesting authorization for a sale under specific conditions. First, all of the 40 works of art identified for sale have been, until recently, part of the Museum’s permanent collection. These works of art constitute most of the monetary value of the Museum’s fine art collection and have historically been devoted to fulfilling the art component of the Museum’s three-part mission. The Museum has also long represented itself to donors and the public as an art museum (even though not solely an art museum). Further, the Museum policies and professional affiliations in place at the time the objects were selected for deaccessioning reflect a commitment by the Museum to hold its art for art puiposes, and
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!
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.
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Christie’s and Sotheby’s held dueling LIVE auctions on November 21, 2017. Christie’s American sale offered 93 lots resulting in $34,131,500 total sales, nearly 7x the total sales of Sotheby’s which featured less than 67 lots because the Berkshire Museum lots were pulled from the sale. Sotheby’s* failed to sell more than 1/2 of the first 45 lots. I’ll update after the sales have ended. *Sotheby’s sale is now closed. The auction house sold just 34 of 67 lots, total sales (including Buyer’s Premium) were $5,858,250. Christie’s sold 72 of 91 lots today.
It turns out that the James Prendergast Library deaccession (see prior GMG post) would have made more money and kept the art in Jamestown if they had not brought the art to market at Sotheby’s. Here are the three of nine paintings to find collectors; two went under estimate.
SOLD $320,000 under estimate
SOLD $55,000 under estimate
SOLD $32,000 over estimate
One of Sotheby’s best lots today was a Dame Laura Knight which sold for $560,000, right within its estimate range.
Hammer prices unless otherwise indicated:
Christie’s Lot 15 Norman Rockwell What Makes it Tick, a 1948 oil on canvas, sold for 6.2million (just above its pre sale high estimate, 4 million to 6 million) which came to $7,287,500 after buyer’s premiums were factored. Rockwell’s Returning from Camp fetched 1.9 million. A Winslow Homer Tynemouth watercolor fetched a hammer price of $170,000, above its presale estimate range of 100,000-150,000. The Martin Johnson Heade failed to sell; the Milton Avery self portrait went for $45,000 at the gavel drop; and the Paul Manship sculpture was unsold, bidding failing to climb past $240,000 (pre sale estimate was $300,000 to $500,000.)
Norman Rockwell. Girl Returning from Camp. 1940. Christie’s presale estimate is 2 million – 3million
Milton Avery, Self Portrati and Still Life (a double sided work) oil on board, ca.1930s, 20 in x 15 in (Christie’s presale estimate is $60,000-$80,000)
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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:
Martin Johnson Heade (1819-1904) Haystacks, 1878-1892, oil on canvas, (Christie’s presale estimate $120,000-$180,000)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.
Milton Avery, Self Portrati and Still Life (a double sided work) oil on board, ca.1930s, 20 in x 15 in (Christie’s presale estimate is $60,000-$80,000)
Cecilia Beaux, 1916 portrait of Mrs. Albert J Beveridge Christie’s online American auction ends Nov 21 2017 bids open at $12,000
Norman Rockwell. Girl Returning from Camp. 1940. Christie’s presale estimate is 2 million – 3million
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.
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 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
The November 13, 2017 evening art sales –counting buyers’ premiums–totaled nearly $500,000,000 between two major NYC auction houses: Sotheby’s American Art sales were $19,407,375 and Christies Impressionism and Modern Art sales were $479,000,000 million.
The Sotheby’s sale was unusual because 7 of its 84 star lots were withdrawn just before the auction, a result of the Berkshire Museum litigation. (The combined conservative value of potential sales for the museum lots was $30,000,000 at the low presale estimate range. If the art is sold in the future its value will be more because of the increased familiarity.) Other Sotheby’s lots went unsold. Two Norman Rockwell works surpassed their estimates. Of note for Gloucester artists fans, Paul Manship’s sculpture heavily surpassed its estimate. One Milton Avery sold within its estimate range while a second went unsold. There was a selection of original and rare Paul Manship sculpture for sale in Gloucester this summer (here’s the link).
detail of Paul Manship (1885-1966) Diana, 1921, which sold for $975,000 at Sotheby’s on November 13, 2017 (hammer Price with Buyer’s Premium) Sotheby’s presale estimate was $400,000-$600,000
Christies sale night had several surprises including records for Leger ($71,000,000)
and a gorgeous Vuillard,
and big bidding for Van Gogh ($81,000,000 million).
Christies superstar Fall lot is still to come and in all the news: Salvator Mundi –attributed to Leonardo da Vinci– will be sold in the contemporary sale alongside Warhol tomorrow. It’s been for sale since it was rediscovered in the oughts, but no museum purchased it and experts debate its hand and condition. The opening bid for the “lost Leonardo” will be $100,000,000. A Jean Michel Basquit sold for $110,500,000 last May. Christie’s marketing hype video “The Last da Vinci…”
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GloucesterCast 252 With Cat Ryan, Kim Smith and Joey Ciaramitaro Taped 11/12/17
When you subscribe you need to verify your email address so they know we’re not sending you spam and that you want to receive the podcast. So once you subscribe check your email for that verification. If you don’t see it, check your spam folder in your email acct so you can verify that you’d like to get the GloucesterCast Podcast sent to you for listening at your convenience..
Topics Include:
Timestamped Topics (click the timestamps to go directly to that topic on the podcast) include:
01:01 Free Tickets To Cape Ann Community Cinema – Share this post on Facebook for a chance to win two free tickets to Cape Ann Community Cinema, The Cinema Listings are always stickied in the GMG Calendar at the top of the blog or you can click here to go directly to the website
01:33 Election Results- Unbelievable! City Is Poised For Greatness. Congratulations To Sefathia, Councilors At Large Melissa Cox, Paul Lundberg, Jen Holmgren, Jamie OHara, Ward Councillors Scott Memhard, Ken Hechtorino, Steve (Stinky) Leblanc, Val Gilman and Sean Nolan.
On Friday November 10, 2017, Massachusetts Attorney General Maura Healy responded to Judge Agostini’s November 7th decision greenlighting Sotheby’s sale. The Massaschusetts AGO appeal reversed the decision, ultimately procuring an injunction from Judge Trainor, Massachusetts Appeals Court. This 11th hour move will not be the last word on the case, though it scuttles any scheduled sale prior to December 11 (with allowances for extensions to build the case.)
Meanwhile, on Monday, November 13, 2017, collectors can purchase Martin Johnson Heade’s Crimson Topaz Hummingbirds and 76 major American paintings at Sotheby’s. The Sotheby’s sale originally featured 84 lots. Norman Rockwell’s Shuffleton’s Barbershop, and 6 more of the Berkshire Museum 40, will not be sold, yet.
No bidding No sales for these 7 Berkshire Museum Sotheby’s lot 10 – lot 16:
Albert Bierstadt Connecticut River Valley Claremont NH temporarily remaining collection Berkshire MuseumAugustus Saint Gaudns Diana of the Tower temporarily remaining collection Berkshire MuseumGeorge Henry Durrie Hunter in Winter Wood temporarily remaining collection Berkshire MuseumJohn La Farge Magnolia temporarily remaining collection Berkshire MuseumNorman Rockwell Blacksmith’s boy 1940Thomas Wilmer Dewing The White Dress temporarily remaining collection Berkshire Museum
This one you can buy; it’s not from the Berkshire Museum. Martin Johnson Heade Crimson Topaz Hummingbirds Nesting near a Palm tree oil on canvas, 13 x 11, ca1865, Sotheby’s presale estimate is $150,000 to $250,000. Heade painted Newburyport and area great salt marsh scenes
LARRY PARNASS, investigations editor for the Berkshire Eagle – Photo by Catherine Ryan © 2018
read the summary 
Good Morning Gloucester 