Second lawsuit seeks to halt Berkshire Museum art sale

Three Lenox residents have filed a lawsuit seeking an injunction against the Berkshire Museum's planned sale of artworks beginning next month. The suit, filed in Boston, is the second aimed at stopping the auction.

PITTSFIELD — A second legal front opened Thursday in the fight over sales from the Berkshire Museum collection.

And in new court filings of its own, the museum contends nothing stands in the way of it selling 40 works. Though that plan runs counter to accepted museum practice, officials of the Pittsfield institution call it key to securing its future.

Nothing restricts the museum from putting the works in new hands, its leaders say.

Still, in the second legal challenge in a week, three residents of Lenox filed suit in Suffolk Superior Court to halt the sales, claiming planned auctions would irreparably harm the Pittsfield museum.

The Boston court set a Wednesday hearing date, the same day a judge in Pittsfield is scheduled to listen to a separate legal argument filed last week by relatives of artist Norman Rockwell and by other community and museum members.

All stand opposed to sales of 19 works of art now set to begin Nov. 13 at Sotheby's in New York City, the first of four auctions that week of pieces once housed at the 39 South St. museum in Pittsfield.

Twenty-one other works initially identified for auction no longer have sale dates, museum officials say, as Sotheby's reconsiders the order in which it will bring the pieces to market.

Plaintiffs in the new action are James and Kristin Hatt, and Elizabeth Weinberg, all of Lenox. Their suit names museum trustees as defendants.

Nicholas M. O'Donnell, of the Boston law firm Sullivan & Worcester LLP, represents the plaintiffs in the suit filed Thursday. He said he is prepared to argue that as a corporation set up by an act of the Legislature, the nonprofit museum holds a contract with its members, just as a for-profit company does with its shareholders.

O'Donnell told The Eagle he will argue the museum breached its contract with its members by exceeding the terms of its charter when it decided to remove works of art that a founding document said should forever remain in Pittsfield.

The museum says it needs proceeds from the sale of artworks to fix a roughly $1 million yearly hole in its balance sheet and to ensure its future.

But O'Donnell's suit argues the planned sales by Sotheby's, including two paintings by Rockwell that could alone bring bids of $40 million, will change the museum's identity.

"This is a fundamental change and destruction of its charter to be an art museum," he said.

The suit argues the museum broke a contract with members when it did not engage with them about possible sales from the collection.

The deaccession of works, the action claims, is unjustified and not supported by outside reviews of the museum's financial condition.

O'Donnell cited evidence that Mark Gold, an attorney for the museum, has for years advocated for the deaccession of collections, in defiance of widely held museum practice.

"Simply put, the Liquidation Sale is a solution in search of a problem," the suit says.

By that, O'Donnell said he means to challenge actions taken by Executive Director Van Shields to "monetize" pieces from the collection and use proceeds for other purposes, including banking money to help cover future operating costs.

"It's a lazy solution to the financial challenges of running a non-profit museum," O'Donnell says in the suit, and represents what he terms a "pattern of museum mismanagement."

The first count in the suit alleges trustees violated their duty to serve the interests of the museum's members. Since the museum was incorporated by an act of the Legislature, it is obligated to treat its members as a private company would its shareholders, O'Donnell maintains.

A second count argues that the plaintiffs, as current and recent members of the museum, have a right to challenge the trustees' move because they believe the institution itself is not providing proper stewardship of its assets.

If the sales go through, the suit argues, "the museum will be shunned and retract into an empty shell of an institution."

Museum's filing

As the Lenox plaintiffs got on a court docket Thursday, the museum itself struck back with a brief and affidavits in support of the deaccession.

William F. Lee of WilmerHale, the Boston firm representing the museum, said trustees have acted responsibly.

"Any claims to stop the museum's plans are without merit," Lee said in a statement., echoing his view last week of the Rockwells' claim.
Elizabeth McGraw, the trustees' president, said Thursday her board carefully weighed the institution's situation when it decided after years of study to sell the artworks.
"We undertook our fiduciary duty with diligence, transparency and great seriousness of purpose," she said in a statement.
"Every aspect of our plan will result in the Berkshire Museum's continued growth ... as a magnet for adults, children, art lovers, history and science enthusiasts," McGraw said.
In a shift, the museum plans to emphasize multimedia and interactive exhibits, paying for a renovation in part with proceeds from art sales.
In its own statement Thursday, Sotheby's said it sees the claims in the new lawsuit as "factually flawed and without merit," the same view it took of the first lawsuit.
Darrell Rocha of Sotheby's said the auction house believes the Boston court will decide trustees did what they needed to do "to secure the museum's future, consistent with the founding principles of the institution."
Last Friday, after the first legal challenge, McGraw said she believes the museum sits on "strong legal grounds for our deaccessioning."
In that earlier action, three sons of Norman Rockwell — Thomas, Jarvis and Peter Rockwell — say their father intended for the museum to keep two paintings that he donated, "Shuffleton's Barbershop" and "Blacksmith's Boy — Heel and Toe."
Members of the family met this month with lawyers in the office of the attorney general, which is reviewing the legality of the museum's planned sales. They shared a 1958 letter to Norman Rockwell from a former museum director saying the painting would join the "permanent" collection.
But in its statement Thursday, the museum pointedly said it is free to sell "Shuffleton's Barbershop," calling it a work that "is not and was never subject to any restriction prohibiting its sale."
Joining the Rockwells as plaintiffs were Tom Patti, an artist with two works in the museum collection, and Berkshire County residents James Lamme, Donald MacGillis, Jonas Dovydenas and Jean Rousseau.
As of now, their motion for a temporary restraining order against the sale is scheduled to be heard at 11 a.m. Wednesday before Judge John Agostini in Berkshire Superior Court.
That lawsuit names trustees as defendants. Attorney General Maura Healey is cited as a party of interest and her office is expected to provide information to the court.
Reach staff writer Larry Parnass at 413-496-6214 or @larryparnass.