Suit against Berkshire Museum art sales headed for appeals arguments Sept. 4

By Larry Parnass

The Berkshire Eagle

Lawyers for the Berkshire Museum aren't quite done defending its art sales — even as those transactions near completion.

They'll come before three Massachusetts Appeals Court justices in early September, working to fend off a lawsuit against the museum and its trustees that dates back to the start of legal action 10 months ago.

If they succeed, they'll protect Berkshire Superior Court Judge John Agostini from seeing one of his most high-profile rulings overturned.

But if three Lenox residents prevail, they'll bolster their argument that the museum breached a contract with its own members.

Last fall, those residents — James and Kristin Hatt and Elizabeth Weinberg — sued to keep two of Norman Rockwell's most famous paintings in Pittsfield, as well as 38 other works.

Their Oct. 25 civil action joined one already filed by three of Rockwell's sons.

The Lenox trio promptly lost in Berkshire Superior Court, when Agostini said in a ruling Nov. 7 they lacked legal standing to bring their action as members of the museum.

But for a time, they and their attorney, Nicholas O'Donnell, had reason to hope that works would stay in Pittsfield.

"The Museum Members are not professional litigants," O'Donnell wrote of his clients, in the appeals court brief he filed in January. "They observed the public conversation and hoped the Museum would respond to reason."

Art sales scheduled to start last November were prevented through legal maneuvering led for the most part by lawyers working with Attorney General Maura Healey.

But then transactions went ahead this spring — worth at least $47 million so far to the museum — after attorneys with WilmerHale prevailed over initial objections outlined by Healey's staff.

Additional sales are underway, raising the question of whether there is anything left for the Lenox residents to gain — beyond pushing back over what O'Donnell decried in his appeals court brief as an unnecessary "liquidation" sale that violated the institution's compact with the community.

The appeals court will hear 15-minute arguments on both sides of the case at 9:30 a.m. Sept. 4 in the John Adams Courthouse in Boston. O'Donnell will speak first.

Felicia H. Ellsworth filed a brief on the museum's behalf Feb. 15. The Office of the Attorney General filed a letter with the court saying it alone provides oversight of the state's nonprofits.

A representative of Attorney General Maura Healey is expected to use some of the museum's 15 minutes to address the court.

The case will be heard by Justices Diana Maldonado, Gregory I. Massing and Eric Neyman.

Business focus

While Rockwell's sons filed their suit in Berkshire Superior Court, the Hatts and Weinberg wanted their case handled in the Business Litigation Session of Suffolk Superior Court.

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The cases were ordered to be combined and heard in Pittsfield last fall, to O'Donnell's disappointment.

He has said he filed with the Suffolk court for a reason. His case intended to argue that museum members can hold a nonprofit corporation to account, just as other parties can in the commercial world.

O'Donnell said a key element of his client's lawsuit remains valid.

"The claim that it brings is the rights of members to participate in the governance of the nonprofits in which they are members," he said. "It's a point not mooted by the sales."

A phone message seeking comment from the Hatts was not returned. The Eagle also sought comment from the museum.

When O'Donnell filed his brief in January, Healey's office was still investigating the museum's proposed sales.

"Things looked very different a month later," O'Donnell said.

In early February, Healey's office reached an agreement with the museum to allow sales to proceed under certain conditions.

Who's in charge

The museum's attorney argued in Agostini's Pittsfield court Nov. 1 that trustees are the only members. O'Donnell counters in his appellate brief that museum bylaws say trustees hold the power of a corporation, not that trustees are the only members.

That argument did not fly with Agostini.

In his appeal, O'Donnell faults Agostini on multiple grounds, including a claim that the judge considered material not put into evidence by the attorneys.

More broadly, the appeal claims that the museum's move to sell art would set a bad example for institutions that hold cultural assets in public trust.

"Such a dissipation of cultural property in service of short-term finance, if permitted, would be without precedent in American history," the brief states. "While other museums have attempted similar monetization of their cultural property to disastrous result, none have ever done so on the scale proposed here."

O'Donnell's brief contends that Agostini erred when he dismissed the Lenox plaintiffs' claims. Despite Agostini's ruling, O'Donnell argues that his clients hold standing and have "contractual injuries."

Like the Rockwell plaintiffs, the Hatts and Weinberg detailed aspects of the museum's history that they said restricted it from moving ahead with sales.

The O'Donnell brief claims the museum's leaders "violated statutory and geographic limitations, its bylaws and policies, and sought to conceal all of it from the Museum Members, the public, and the Attorney General until after the fact."

The brief also argues that the museum had more trustees than allowed and violated its collections policy when it signed a consignment contract with Sotheby's in June 2017.

One piece of O'Donnell's argument against the art sales, offered at the time as a warning, can now be viewed as a prediction: "Once sold, the art and the Museum's — indeed the Commonwealth's — cultural reputation will never recover."

Larry Parnass can be reached at, at @larryparnass on Twitter and 413-496-6214.