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News Flash: Massachusetts Attorney General Files Appeals Court Motion to Enjoin Monday’s Berkshire Museum Sales

Major update here.

Now it gets really interesting.

The Massachusetts Attorney General’s Office has just filed a motion for an injunction pending its appeal of the Superior Court decision to allow Berkshire Museum’s art sales this Monday at Sotheby’s. You can read the full Appeals Court filing here.

Berkshire Museum’s star Rockwell as the cover lot in Sotheby’s American art sale, Monday 11/13

The AGO says its investigation “is not yet complete, but cites “the court’s abuse of discretion through clear errors of law.” The museum, the AGO says, would “breach the charitable trusts pursuant to which the museum holds the artwork” if the sales were to occur. The AGO alleges that “the sale of the museum’s most preeminent and valuable and would be a violation of the museum’s duty of care” and that its “unreasonable $60-million [fundraising] goal…far exceeded its $25.6 million needed to sustain operations.”

William Lee, the museum’s attorney in this case, provided this response:

We are disappointed that the Attorney General has decided to continue legal action that threatens the future of the Berkshire Museum, particularly after a very clear legal decision rejected the arguments the Attorney General repeats in this misguided appeal. Continuing this litigation jeopardizes vital educational, cultural and economic resources in a struggling community, placing the special interests of a portion of the well-funded arts community over people, especially young people, really in need. We look forward to the swift resolution of this matter by the Appeals Court.

Here’s the comment from Nicholas O’Donnell, attorney for some of the plaintiffs seeking to stop the sales:

In our view, the Attorney General’s petition explains well the important components of the Superior Court’s ruling that warrant reversal on appeal, which support an injunction against the sale until that appeal is resolved.  My clients support the Attorney General’s petition and are hopeful that the Appeals Court will enjoin Monday’s sale.  We continue to review our own options with respect to appealing the November 7 ruling.

Here’s the response from Sotheby’s, which must be gnashing its collective teeth at the AGO’s last-minute maneuver, just one business day before the scheduled sale:

It is regrettable that the Attorney General’s Office, rather than take heed of Judge Agostini’s extensive and carefully reasoned decision, and despite its own unqualified admission that the Berkshire Museum’s Trustees have acted in good faith, has now, three days after that decision was issued, filed an 11th-hour appeal rehashing the same arguments that were so thoroughly rejected by the court.

Sotheby’s remains confident that the sales will go forward beginning Monday and that funds will be raised to allow the Berkshire Museum to serve its community for generations to come.

I’m no lawyer, but I told a news outlet that interviewed me yesterday that, although it pained me to say it, Judge John Agostini‘s decision to allow the sale was probably right (as I previously suggested here) from a legal (but not moral or ethical) standpoint, based on the evidence before the court.

That said, I also think that the AGO correctly argued that it had not been accorded sufficient time to review all the relevant documents, given the museum’s belated production of what the AGO had requested months before. I still believe that only explicit written no-sales stipulations from donors will save the day. So far, we’ve not seen any.

The other long-shot possibility is that the Berkshire Museum and Sotheby’s decide to fold their hand an bow to the weight of public and professional opinion. That unlikely occurrence would turn its win-lose into a win-win.

an ArtsJournal blog