Speedy trial sought as Sotheby’s holds on to Berkshire Museum art

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PITTSFIELD — Lawyers for the Berkshire Museum want a speedy court review so that artworks pulled from auction this week can be brought to market as soon as possible.

In a filing Tuesday, the museum's legal team, led by William F. Lee, said "the AGO-induced delay has already put the Museum at risk" and could cost it millions of dollars if planned auctions, now postponed, fail to bring buyer interest or falter due to an economic downturn.

The delay came Friday, when Appeals Court Justice Joseph A. Trainor granted the Attorney General's Office a preliminary injunction stopping sales by Sotheby's until at least Dec. 11.

In a brief filed Tuesday in Berkshire Superior Court, the museum's lawyers asked the court to set the date for an expedited trial and asked for a status conference on the case as soon as possible.

"The Museum is prepared to proceed to trial now," Lee wrote in the six-page brief.

Meantime, Sotheby's has confirmed that prized pieces of the Berkshire Museum art collection, including two paintings by Norman Rockwell, will not return to Pittsfield as the legal fight plays out.

"The works will remain at Sotheby's until further notice," said Darrell Rocha, a spokesman for the auction house.

Legal steps


While Monday's planned auction of American art owned by the museum was halted by court order, that is action is temporary. The Attorney General's Office must prevail in a fuller court proceeding — or the sales will go forward.

The museum's brief Tuesday asks that the Pittsfield court review come soon enough to clear the works for sale at Sotheby's major spring auction, the next event deemed suitable for the pieces.

The request adds a new layer to the legal battle. The museum's filing seeks to resolve it at the Superior Court level, while the Attorney General's Office asks to be heard at the Appeals Court, where it can take months for a legal issue to be resolved.

Lawyers need to push for quick action because it can normally take months for a legal issue to be resolved by the Massachusetts Appeals Court in Boston.

The Appeals Court has the discretion to give the attorney general's team more time to complete its review of the museum's planned sales.

In an order entered late Friday, Trainor said the state can move to extend the injunction if it provides "a date certain by which the investigation will be completed."

The road to appeal started Monday, when the attorney general filed formal notice in Berkshire Superior Court seeking relief from the decision Judge John A. Agostini reached Nov. 7.

That procedural step was required to get the case moved to the next level in Boston.

The attorney general had first hoped to prevail in Pittsfield and get the sale halted. Instead, the office lost that round.

After hearing more than two hours of argument Nov. 1, Agostini last week denied the attorney general's request for an injunction stopping the sale of works by Rockwell and other artists.

In all, the Pittsfield museum's deaccession of art was estimated to bring more than $60 million in bids at Sotheby's this year and next year. The institution says it needs the money to shield itself from financial losses and to pursue a building project allowing it to emphasize science and nature programming.

With the first auction just three days away, the museum was hit Friday with what its board president called a "setback." That came when the attorney general's team sought and won recourse in the appeals court.

The state's lawyers say the museum's board failed its "duty of care" responsibility for the collection and acted unreasonably.

In a response filed Tuesday, the museum refuted the state's claims and asserted again that trustees hold the right to sell the 40 works marked for deaccession.

And its lawyers said the institution could be hurt if those sales are sidelined for too long.

On that point, they quoted Agostini himself, drawing language from his decision not to grant the injunction: "A change in the national economy would be disastrous for the Museum ... [and] potentially jeopardize millions of dollars of charitable funds."

On the issue of timing, the museum alleged in one of its Tuesday filings that the attorney general's case is inconsistent. While it has claimed to need more time to review the legality of the museum deaccession, the state did not mention, in a cross-claim filed in court last week, that its investigation is ongoing.

And in that filing it asked the court to grant a motion for a permanent — not temporary — injunction, suggesting that it has reached a conclusion.

Court process

In the weeks and months ahead, it will be up to more than one justice to decide whether the sales are allowed, if the case is heard at the appeals level.

Anne Thomas, an assistant clerk with the appeals court, said Tuesday the attorney general was expected to request a transcript of the Nov. 1 Pittsfield court hearing. After that, the record of the case was to be assembled and forwarded to the Appeals Court, where it would eventually be heard by three justices.

Those justices preside in the John Adams Courthouse on Pemberton Square in downtown Boston. The famed courthouse, a few blocks east of the Statehouse, is the headquarters of the state judicial system and is home to the Supreme Judicial Court.

Thomas said the attorney general would be expected to enter an appeal with the Boston court.

Attorneys on both sides would then file briefs related to the dispute.

"Whether there's argument or not depends on the judges," Thomas said.

Unless the court moves specifically to expedite the case, it can take several months for the process to play out, she said.

The parties can request extensions of up to 120 days to file briefs, Thomas said. Opposing counsel can object to requests for extensions.

"These cases can take a while," she said.

But in this case, the museum is seeking faster action in the lower court.

Though the preliminary injunction barring the art sales runs until Dec. 11, the Attorney General's Office can move to extend that period, Thomas said.

Auction timing

Sotheby's auctions are held throughout the year at its locations around the world, but the major sales traditionally take place in November and May.

On Friday, the firm said it was disappointed the injunction had been granted, despite what it termed "the carefully reasoned opinion issued by Judge Agostini."

Two paintings by Rockwell and five other pieces headed to Monday's auction were removed from display by the time Sotheby's opened to the public Saturday. The lots advertising the works were removed from online catalogs.

In a statement, Sotheby's said again that it believes the museum has the right to sell the art. "We remain confident that they will prevail in their plans to ensure a bright future for the Berkshire Museum in support of the community of Pittsfield and Western Massachusetts," the statement said.

Agostini granted motions to impound documents in the case, including the actual consignment contract between the museum and Sotheby's.

The museum faces what the Attorney General's Office has described as significant financial penalties if it were to withdraw on its own from the art sales. It isn't clear whether those penalties come into play when a court intervenes.

The Eagle this week renewed requests to the museum for details on the financial impact if the auctions do not take place. No information was provided.

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


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