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Time to Rethink: Court Extends Injunction Preventing Berkshire Museum Disposals

It’s time for the Berkshire Museum to face reality: Its pursuit of easy money through art disposals has backfired, devolving into a litigation exhibition with no end date, costly to both its reputation and what’s left of its financial wherewithal.

Horns of a dilemma: Wall of animal specimens at the Berkshire Museum
Photo by Lee Rosenbaum

In a two-sentence notice filed today, Massachusetts Appeals Court Judge Joseph Trainor disregarded the surprising request by the museum’s lawyers that proceedings to determine the legality of the museum’s planned art sales at Sotheby’s be allowed continue in the lower court, even while the Appeals Court injunction against sales remained in force. The injunction was intended to provide more time for the Attorney General’s Office to complete its investigation.

With these words, Judge Trainor unconditionally extended to Jan 29 the preliminary injunction to delay the museum’s planned art sales at Sotheby’s, which was to have expired Dec. 11:

The preliminary injunction and stay of the trial court proceedings entered on 11/10/17 are continued to Jan. 29, 2018. The Attorney General’s Office shall file a status report on, or before, Jan. 3, 2018, regarding the status of the investigation.

The Berkshire Museum responded with this statement:

We are disappointed proceedings have been delayed further, preventing this case from being resolved publicly and fairly. These delays benefit no one [except, perhaps, those members of the public who believe that the museum should retain for their benefit the cream of its art collection]. It is ironic that during this holiday season when the museum is visited and enjoyed by more families than ever, its future is placed in grave jeopardy [emphasis added].”

Speaking of “placing its future in grave jeopardy,” I sent the museum’s spokesperson and its lawyer the following question this morning:

Is WilmerHale [the law firm handing the museum’s case] providing counsel to the museum on either a pro bono or a contingency basis? If not, do the litigation fees keep mounting?

The spokesperson replied that the statement she had already sent me was “all I have for now.”

The strategy of the museum’s lawyers seems to have been to throw every conceivable argument at the question of whether the art sales should be allowed, hoping that one or more will stick. It’s time for the museum to close the spigot on this gush of legal verbiage and get down to the essential business of rebuilding its now tarnished reputation and putting its administrative house in order.

Craig Langlois & Nina Garlington, the Berkshire Museum’s acting co-executive directors

Nicholas O’Donnell, an attorney who filed a complaint in court against the sale on behalf of two members and one ex-member of the museum, today issued a statement responding to Judge Trainor’s injunction extension. He echoed my own thoughts in the last sentence:

My clients remain pleased that the Appeals Court has paused the Berkshire Museum’s intended sale to allow the Attorney General to conduct a thorough investigation. My clients believe firmly that the proposed sale violates the museum’s charter, and applicable policies and fiduciary duties.

As before, they hope that the museum will use this extended period to consider sustainable options [emphasis added].

Sotheby’s could help to realize that hope with some tough love, encouraging the museum to abandon its ill-fated deaccession gambit rather than persist in pushing for a disposal that has incurred strong opposition from museum professionals and the public. The last thing Sotheby’s needs is another reputation-damaging debacle like the Taubman sales, which were also orchestrated on CEO Tad Smith‘s watch.

Here he is, on the right, during a recent visit to the museum (from my Twitter feed):

As I previously wrote, the recently revealed auction consignment agreement appears to give both sides an easy out: It says there would be no fee for withdrawing works from sale if going ahead would subject Sotheby’s and/or the museum “to liability, including objections raised by an Attorney General [emphasis added].” AG Maura Healey has now raised serious objections.

Although it would be unusual for an auction house to turn away potentially lucrative business from a museum, this 2007 comment to me by Marc Porter, then president of Christie’s (and now its chairman, Americas) suggests that it’s not unthinkable:

We would counsel museums about what could be a norm in the culture with respect to the way in which cultural property is managed. And I think we’re an important voice in this. We have told institutions that their proposed method of deaccessioning was not something that we would recommend, and we have decided not to participate.

That said, Christie’s had infamously enabled this deplorable deaccession.

While we await further developments, Save the Art, the activist group opposing the Berkshire Museum’s planned art sales, plans to hold an outdoor rally on Friday outside the Harvard University location where the American Alliance of Museums will lead a working meeting [scroll to bottom] for museum professionals desiring guidance on how to explore non-sale options to improve their finances.

Although registration for the AAM-organized meeting has closed, I’m willing to bet that they’d make room at the table for the Berkshire Museum’s leadership.

an ArtsJournal blog