Legal Bills: Who's paying the freight for the Berkshire Museum?
PITTSFIELD — Since hit with lawsuits in October, the Berkshire Museum has mounted a vigorous legal defense of its plan to sell 40 of its most prized works of art.
It's hardly a cheap defense. So, who's paying?
The museum won't say, but a report of a recent social media post from a trustee, since deleted, might tip its hand.
First, though, about that legal bill.
One person familiar with the case estimates that billings to date by the museum's attorneys would easily be "north of $1 million."
The Eagle asked Carol Bosco Baumann, the museum's spokeswoman, whether it is getting help paying legal expenses from Sotheby's, the auction house hired to handle the sale, or from any other outside source.
"The Museum's arrangement with its attorneys is confidential," Baumann said.
The legal expenses to date are certainly less than the amount of money the museum stands to raise from the sale of just two of the works — the paintings that artist Norman Rockwell donated to the Pittsfield museum when it was under the care of his friend, Stuart Henry.
Sotheby's has estimated that Rockwell's works alone could bring $40 million at auction.
When two groups of plaintiffs came forward in October to challenge planned auctions, the museum tapped a premier Boston law firm, WilmerHale. Its lawyers researched and wrote briefs and came out in force Nov. 1 for a hearing in Berkshire Superior Court. Within a week, they were victorious, rebuffing an attempt to halt the sales.
That was just the start. The Attorney General's Office won the next round, at the Massachusetts Appeals Court.
Since then, the firm's attorneys — guided by William F. Lee, one of the most acclaimed intellectual property lawyers in the country — have been in an all-hands-on-deck mode.
They are steering the museum through increasingly complicated litigation, while helping it handle an investigation by the Attorney General's Office into the propriety of the art sales.
That's all coming to a head in less than two weeks. Attorney General Maura Healey has said her office will conclude its investigation by Jan. 29, the same day a renewed preliminary injunction blocking art sales expires.
Whatever happens, that's not likely to be the end of the museum's legal problems. Disputes arising from the proposed art sale are expected to be heard by a three-judge panel of the Appeals Court, in a process that normally takes well more than a year.
Lee, of WilmerHale, asked for that appellate process to be "expedited." He was turned down once on that, but given the right to renew his request.
Top lawyers like Lee are able to bill at well more than $1,000 an hour, The Wall Street Journal and Fortune magazine reported in 2016. The publications said elite lawyers are now charging as much as $1,500 an hour for their services.
In several instances over the past few months, the museum's legal team has made the point that delays resulting from the litigation and investigation are compounding the institution's financial crisis — the very reason trustees gave for resorting to a sale of artworks.
"The AGO's roadblocks threaten the museum's future, preventing the museum from securing the financing needed to allow the museum to continue to contribute to the economic, educational, and cultural life of the community," the museum said in a Dec. 11 statement.
The week before, the WilmerHale team, in a filing to the Appeals Court, wrote: "This delay comes at a severe cost: the Museum's precarious financial position must be addressed immediately."
The museum has not said publicly that current legal expenses are worsening its financial condition.
Darrell Rocha, a spokesman for Sotheby's, declined to comment on the question of the museum's legal bills, saying the museum's response applied for both groups.
Sotheby's has a previous relationship with WilmerHale. The firm's New York City office represented the auction house in a 2011 dispute involving a Khmer statue that Sotheby's planned to sell. The government of Cambodia claimed that the piece been stolen from the country; U.S. authorities brought a forfeiture action. The case was settled before trial and the statue went back to Cambodia.
While the museum isn't commenting on its financial relationship with WilmerHale, a hint of what's happening behind the scenes appears to have leaked out onto a popular social media page in the Berkshires.
In a Jan. 11 thread on Mark Tomasi's Facebook page, in which two museum trustees offered comments, one of them seemed to indicate that someone had thrown the institution a lifeline on its legal costs.
Tomasi posts frequently about the museum's art sale, and his page is popular with people who support the deaccession.
Eric Korenman, a museum trustee, had posted a remark critical of opponents of the art sale, calling them "nattering nabobs," a reference to a famous comment by Vice President Spiro Agnew. That then put Korenman in mind of Agnew's onetime boss, President Richard Nixon.
Korenman posted a quote that read: "Nixon's the kind of guy that if you were drowning 50 feet off shore, he'd throw you a 30 foot rope. Then [Secretary of State Henry] Kissinger would go on TV the next night and say that the President had met you more than half-way."
That moved Daniel Bellow, a critic of the art sale, to post a question to Korenman: "Who's paying your legal bills while you hunker in your bunker?"
Bellow told The Eagle that Korenman replied to the effect that someone had indeed thrown the museum a "50-foot rope."
But that post was later deleted, according to Bellow. On Wednesday, the thread showed Bellow's question about legal expenses, followed by his own question, prompted, it appeared, by a missing post. Bellow had asked: "Who would that be?"
The museum board's president, Elizabeth McGraw, was also part of that online conversation Jan. 11. She offered a "second" to a post by Tomasi that made light of the group called "Save the Art."
"I move we start calling that sham show of stately status what it really is: Save The Art For The Other Museum. Can we second that motion?" Tomasi asked. That post appears to be in reference to speculation that art sale opponents hope to see the ownership of works shift to another institution.
While McGraw's post could be seen Wednesday, nothing was visible between Bellow's two questions to Korenman.
Baumann said Wednesday that the museum did not know of any missing post by Korenman.
"The only social media post of which we are aware, with a reference to a 50-foot rope, is attached," she wrote in an email, which contained an image of the thread.
In the course of litigation, one instance of McGraw's preference for secrecy entered the court record.
In a May email to fellow trustees, McGraw asked that they not speak about the museum's proposed art sale, which was announced two months later, on July 12.
The subject line of McGraw's email read, "loose lips sink ships."
Larry Parnass can be reached at firstname.lastname@example.org, at @larryparnass on Twitter and 413-496-6214.
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