Art Law Report

Lawsuit Claims Metropolitan Museum’s Voluntary Admissions Policy is Deceptive

Posted by Nicholas O'Donnell on November 29, 2012 at 4:24 AM

A complaint filed against the Metropolitan Museum of Art over its admissions fee policy is gaining widespread coverage. Although the headlines center on the plaintiffs’ allegations of fraud, Theodore Grunewald and Patricia Nicholson (the two plaintiffs) also put forward several other legal theories.

The Met stands in Central Park as part of an agreement with the City of New York and 19th-century statutes that together provide that the museum may stay rent-free only so long as it is open to the public free of charge on multiple days each week. That covenant is expressly required as a condition of the lease, and any violation entitles the Department of Parks to take possession of the museum building.

At some point, the Met began soliciting voluntary donations from visitors even on those free days, donations that are the crux of the new lawsuit. The plaintiffs claim not only that the signs in the museum and the links on the website are misleading in that they suggest a mandatory (rather than optional) admission fee, but that the Met has intentionally misled the public to that effect. The Complaint also cites several city passes and tourism websites that tout the benefits of buying tickets, on the argument that such a benefit implies that only with a payment will a visitor be admitted into the museum.

The most prominent of the plaintiffs’ claims is for misrepresentation, or fraud as it is often called. As common as that word is, the elements of a legal claim for fraud are sometimes poorly understood; a practice that may seem unclear or deceptive is not necessarily fraud. The plaintiff must prove that the defendant made a statement of fact that the defendant knew to be false when he made it, for the purpose of inducing the plaintiff into doing something that that plaintiff reasonably did under the circumstances, to the plaintiff’s detriment. In other words, if the statement was true, if the reliance by the plaintiff was not reasonable, or if the plaintiff was not harmed, there can be no claim.

The biggest obstacle to this claim is that it is hard to construe the signage about which the plaintiffs claim as being untrue, and a threshold question of a fraud claim is the falsity of the statement. The plaintiffs have pleaded a myriad of subsidiary statements about the benefits of membership that may be a closer call, but accepting the plaintiffs’ allegations as true, the signs in the museum say “Admissions Recommended.” Is that a false statement? Even then, the plaintiffs’ reliance has to be reasonable. The plaintiffs cite to a survey of visitors claiming confusion (of unknown authorship or methodology, it should be said, and which in assessing the sufficiency of the plaintiffs’ claims the court must accept as true), likely in an effort to defend against dismissal, even if ultimately the court can make a ruling as a matter of law about the reasonableness of believing that an admission fee was compulsory rather than voluntary.

The plaintiffs also point to General Obligations Law § 349, New York’s prohibition against unfair and deceptive practices. Although not exactly the same as fraud, this law and others like it are generally interpreted not to prohibit acts that are simply unclear or misleading, but which evidence a pattern of deception that should not be tolerated in the marketplace.

From there the theories are more novel. The plaintiffs allege that as members of the general public (not even just as museum members) they are the intended beneficiaries of the Met’s contracts with the city. Although third-party beneficiaries of an agreement have standing to enforce that contract, oversight of a non-profit corporation like the Met complicates matters significantly. Ordinarily, no matter what the alleged misdeeds of a non-profit, it is the attorney general, not private citizens (even significant donors and members), that has standing to enforce the entity’s rules and by-laws. This claim seems dubious as a result.

The plaintiffs then allege a violation of the underlying statute requiring free admission and that the public be able to enter from Central Park. Again, even accepting the plaintiffs’ allegations that the laws had not been honored, their standing to sue to enforce them is extremely problematic.

The last claim is for an injunction to repair and reconstruct the Central Park entrance and to obtain the necessary environmental permitting. This claim necessarily depends of the success of the others.

The complaint was clearly designed to draw maximum publicity. Interestingly, the plaintiffs (who are only two, not as part of a class action) do not seek money damages (the admissions fees they paid), but rather an injunction compelling various changes to the Met’s policies. Expect a great deal of coverage as the case goes forward.

Topics: Theodore Grunewald, General Obligations Law § 349, Metropolitan Museum of Art, Patricia Nicholson, Central Park, fraud, Litigation, Museums, Admissions Fee

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About the Blog

The Art Law Report provides timely updates and commentary on legal issues in the museum and visual arts communities. It is authored by Nicholas M. O'Donnell, partner in our Art & Museum Law Practice.

The material on this site is for general information only and is not legal advice. No liability is accepted for any loss or damage which may result from reliance on it. Always consult a qualified lawyer about a specific legal problem.

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