Appeals Court justice extends injunction on Berkshire Museum art sale

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PITTSFIELD — A legal fight over art sales by the Berkshire Museum is now officially court business in 2018.

A justice with the Massachusetts Appeals Court on Wednesday granted state investigators more time to review the museum's planned deaccession of 40 works of art.

The Attorney General's Office last month secured a 30-day preliminary injunction that upended planned sales at Sotheby's the week of Nov. 12.

The injunction expired Monday, but has now been extended until Jan. 29, in an order entered by Justice Joseph A. Trainor.

The museum's lawyers had argued against giving the attorney general more time, calling its review "wholly unauthorized," "entirely unfair and unjustified" and "languid."

In a filing Monday, the museum told Trainor it had offered to accept an extended injunction if the state would support a lifting of a stay on proceedings in Berkshire Superior Court.

That offer was not accepted, the museum said, and attorneys complained that the attorney general is "now operating in a situation of complete unilateral advantage, as the Museum not only stands enjoined, but [is] also completely unable to advance the progress of the litigation that the AGO itself filed in the Superior Court."

Emily Snyder, a spokeswoman for the attorney general, said her office is pleased by Trainor's order. She said it will provide enough time for attorneys to finish their investigation.

"In the meantime, we urge the Berkshire Museum to work constructively with us on alternatives to help secure the future of the museum," Snyder said.

The museum said it is disappointed by the extension and the continued halt on proceedings in Berkshire Superior Court, which its lead attorney said prevents the case from being resolved "publicly and fairly."

"These delays benefit no one," said William F. Lee, of the Boston law firm WilmerHale. "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."

Short leash

Though Trainor's order Wednesday went against the museum, it does keep the attorney general's team on a short leash. It requires the state to provide a status report on its probe on or before Jan. 3.

Nicholas M. O'Donnell, a Boston attorney representing three plaintiffs in a civil action seeking to block the sales, welcomed Trainor's action.

"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," O'Donnell said in an email to The Eagle. "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."

In its filing this week, the museum's lawyers suggested that the delay in proceedings at the trial court level will not change the eventual outcome.

The trial court, they wrote, "fully weighed the relevant factors, and there is no reason to think that the AGO is likely to succeed in showing that the Superior Court abused its discretion."

The museum seeks to use proceeds from the art sales, as much as $60 million, to increase its endowment and to renovate its facilities. It has said that it risks closing in several years due to a structural deficit if it doesn't repair its finances.

Generally accepted museum practices require that funds raised from deaccession and sale be used only for the good of a collection.

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


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