Tag: cy pres

What a low blow: Justice Lowy clears contested Berkshire Museum art for auction

Posted on by Catherine

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.”

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Justice Lowy MEMO OF UNDERSTANDING

page 1 MEMO OF UNDERSTANDING Justice Lowy Berkshire Museum and AGO April 5 2018

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. “

Reaction from Save the Art – Save the Museum (STA-STM)

“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.”

Patiner flight into egypt featured in 1953 article celebrating Berkshire Museum 50th celebration
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.

I wonder what happened to the marble swans over the Berkshire Museum elliptical pool designed by A. Sterling Calder, father of the sculptor, Alexander Calder, and resident of Richmond, Massachusetts, less than 20 minutes away from Pittsfield?  Continue reading “What a low blow: Justice Lowy clears contested Berkshire Museum art for auction” →

Doors open for #BerkshireMuseum case John Adams Courthouse

Posted on by Catherine

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.

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Continue reading “Doors open for #BerkshireMuseum case John Adams Courthouse” →

Berkshire Museum court case today – order for oral arguments as follows

Posted on by Catherine

John Adams Courthouse Superior Court Boston MA_20180301_© C Ryan (8)_105946 (1)

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.

Continue reading “Berkshire Museum court case today – order for oral arguments as follows” →

Breaking News: This isn’t just another lost cause- Justice Lowy has scheduled a Hearing for Berkshire Museum litigation

Posted on by Catherine

John Adams Courthouse Superior Court Boston MA_20180301_© C Ryan_105912

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.

Catch up on the case Continue reading “Breaking News: This isn’t just another lost cause- Justice Lowy has scheduled a Hearing for Berkshire Museum litigation” →

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

Posted on by Catherine
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 

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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” →

Massachusetts Attorney General assent letter for Berkshire Museum battle

Posted on by Catherine

Here’s the complete official doc while awaiting Single Justice ruling. More to come.

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EXHIBIT A

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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

Continue reading “Massachusetts Attorney General assent letter for Berkshire Museum battle” →

Cy pres and money: Berkshire Museum #AGO greenlight sale & cue up Massachusetts SJO

Posted on by Catherine

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 money: 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

Posted on by Catherine

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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