Lawsuit aims to halt Berkshire Museum sale of artwork

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PITTSFIELD — Three sons of artist Norman Rockwell went to court Friday to stop the auction of 40 works owned by the Berkshire Museum, including two donated by their father.

Their action represents the clearest challenge to date of the museum's plan, announced in July, to sell art to improve its balance sheet and to renovate its South Street facility.

In a court filing, the Rockwells joined with community members to seek a temporary restraining order barring a Nov. 13 auction by Sotheby's on the grounds that it is not allowed under state statute and would violate what they see as the museum's duty to act in the public interest.
A spokesman for Sotheby's said the challenge is unwarranted and will fall short.

"Sotheby's has reviewed the lawsuit filed against the Berkshire Museum and is confident that the claims are legally and factually flawed," said Darrell Rocha of Sotheby's.

The museum says it must sell the works to enable it to keep operating in a time of declining donations. It plans to use proceeds from the auction, which could be as high as $75 million, to pursue a building renovation related to its "New Vision" project. The museum says it would also add roughly $40 million to its endowment.

Elizabeth McGraw, president of the museum's trustees, said in a statement Friday night she expects the sale to go ahead as planned.

"We believe we have strong legal grounds for our deaccessioning and we are confident in our New Vision plan," McGraw said.

The museum has retained William F. Lee of the Boston law firm WilmerHale to represent it at the hearing.

"We are confident that the museum has the right to go forward," Lee said in a statement provided by the museum, adding, "We will respond to the claims in court."

The plaintiffs seek a Nov. 1 hearing on their motion for a temporary restraining order. The case will be heard before Judge John Agostini in Berkshire Superior Court.

Rockwell role

The action was taken on behalf of Thomas, Jarvis and Peter Rockwell, whose father donated the two paintings expected to bring the highest bids at Sotheby's auction of American art in New York City next month.

Members of the Rockwell family, including Peter Rockwell, appealed to the attorney general's office last week to prevent the sale of "Shuffleton's Barbershop" and "Blacksmith's Boy — Heel and Toe" and works by other artists.

Plaintiffs also include Tom Patti, an artist with two works in the museum collection, and Berkshire County residents James Lamme, Donald MacGillis, Jonas Dovydenas and Jean Rousseau — all of whom are museum members.

The plaintiffs are represented by the Boston firm Foley Hoag LLP. The lead attorney is Michael Keating; two other members of the firm are assisting, including former Attorney General Martha Coakley.

Keating said donors to the museum believed their gifts would stay in Pittsfield.

"They never expected this stuff would end up in Dubai," he said.

Sotheby's buyers, the complaint notes, live around the world. "Once sold, it is highly unlikely that any of the pieces will remain in Berkshire County or in a public institution where they can be seen and enjoyed," the complaint states.

The current attorney general, Maura Healey, is named as a party of interest in the complaint, a move that will require her office to respond to the motion for a temporary restraining order, according to Lamme, the Egremont plaintiff who is serving as local legal counsel.

Keating said the plaintiffs hope to win more time for Healey's office to review the legality of the sales.

The case harkens back more than a century, to an act of the state Legislature in 1871 that specified that items in the collection of the Berkshire Athenaeum would never be removed from Pittsfield. Later acts by the Legislature spun off the museum as a freestanding entity, but Keating argues the restrictions remained in place.

The museum maintains the works headed to auction are "unencumbered."

Though the museum filed new articles of incorporation with the secretary of state's office in January 2016, Keating said he will argue that restrictions in place for decades cannot be erased that easily.

"They cannot change previous restrictions," he said.

Rather, he said later acts of the Legislature would have to specify that the restrictions were being removed.

An injunction, Keating said, would prevent "irrevocable harm" being inflicted on the plaintiffs — if the auction proceeds as planned.

The sale must be suspended, he said in a telephone interview, "until we get into the guts of this."

Breach of duty

The plaintiffs allege the museum is acting in breach of its fiduciary duties.

Keating said plaintiffs are challenging whether trustees did all they could to seek alternatives to selling the works.

The complaint also questions whether the trustees are portraying the museum's financial situation accurately and whether the institution did enough to let the public know about its condition.

"We don't think the trustees acted appropriately," Keating said.

The auction house, meantime, feels the deal is on solid ground.

"We fully expect the court to confirm that the museum's Board of Trustees acted in accordance with its fiduciary duties and that the museum is well within its rights to deaccession and offer these works for sale," said Rocha, the Sotheby's spokesman. "We are looking forward to successful auctions that will ensure the future of the Berkshire Museum."

On the issue of donor intent, Keating noted the existence of a Sept. 23, 1958, letter that former museum director Stuart Henry sent to Norman Rockwell. The letter thanks the artist for "Shuffleton's Barber Shop," saying, "We are delighted to have it for our permanent collection."

Keating said that letter is meaningful in determining donor intent. "The promise was certainly advanced," he said, believing the wording represented a pledge by the museum to keep the painting.

Early contract

The action alleges the museum reached a contract with Sotheby's to sell the art in November, eight months before it explained its plans to the public.

"This has been done without the transparency it should have received," Lamme said of the auctions. "We're trying to get people at least to stop and think about this. We've tried everything."

While the complaint asserts that the museum would not be harmed "should its auction be briefly delayed," Keating said he has not seen its contract with Sotheby's and does not know whether it would pay a financial penalty for withdrawing from the Nov. 13 sale.

"I would want to address that when the matter comes up," he said of the possible penalty. "They did that at their own peril."

Healey's office has been reviewing the legality of the sale. Friday's court filing will now compel that office to weigh in, publicly, in advance of the first auction.

"She has to come in and file a position," Lamme said of Healey's office.

Lamme said he and the other plaintiffs represent a variety of Berkshires residents.

"These are people across the county who are concerned about a very, very serious loss," he said.

What they see as a loss others, view as opportunity.
McGraw, the museum board president, said the sale will allow it to "contribute to the educational and cultural life of this region for another century."

She said the museum will continue to make what she called "its extraordinary collection" available to visitors "as we take the next steps needed to secure the future of this museum as a center of interdisciplinary, interactive learning true to the vision of founder Zenas Crane."

Reach staff writer Larry Parnass at 413-496-6214 or @larryparnass.


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