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Members of the Berkshire Museum Pledge to Continue Fight Against Liquidation of the Museum’s Art Collection

Posted by Nicholas O'Donnell on February 13, 2018 at 2:45 PM

(Boston, MA, February 13, 2018) Sullivan & Worcester LLP clients and Berkshire Museum members James Hatt, Kristin Hatt, and Elizabeth Weinberg sharply denounced today the agreement that was announced Friday evening between the Berkshire Museum and Attorney General Maura Healey’s office to permit the sale of every one of 40 works of art that the members—and AG Healey—sued last year to prevent.  Only two weeks after filing a 50-page brief in the Massachusetts Appeals Court that detailed numerous violations of the Trustees’ fiduciary duties and specific restrictions on the 40 works of art, the Attorney General’s office has filed its assent to the Museum’s request to modify its governing charter to permit the immediate sale of Norman Rockwell’s Shuffleton’s Barbershop to an unnamed buyer, and to allow the sale of the 39 remaining works thereafter without any further oversight of the governance of the Museum.

Partner Nicholas M. O’Donnell, attorney for the members, said, “My clients are stunned at the complete reversal by the Attorney General’s office in barely two weeks.  The petition to which the Attorney General’s office has agreed claims to have convinced it that the Museum’s financial condition is indeed perilous, yet the office chose not to require any change in the governance or management of the institution by the board that will now be entrusted with a $50 million windfall.”

Added O’Donnell, “My clients will challenge the proposed change to the Museum’s charter that was filed last week, as well as continue their case already pending before the Appeals Court.  At first blush the Museum’s petition to eliminate the restrictions on its collections cannot meet its burden that the institution’s continued operation is ‘impossible or impracticable’ and that this sale is ‘as near as possible’ to the original purpose of the museum, as the statute requires.  Ironically, it was the Attorney General’s office that made this very point on January 16, 2018 in its Appeals Court brief that ‘the Museum’s failure to select the less harmful, reasonably practicable, alternative mode of action’ (other than a sale) was one of the core violations of the Trustees’ fiduciary breaches.”

For their part, the Hatts expressed deep disappointment: “This proposed outcome abandons the protective duty and oversight that the museum’s members expected from the Attorney General’s office.  This resolution does not even attempt a compromise and instead liquidates the core holding of the Museum into funds to be used with no oversight.  We will oppose this petition if the Attorney General refuses to require transparency and accountability of decision making for and on behalf of the community of the Museum’s members to protect the members’ interests from any further dissipation of the Museum’s mission.”


Initially chartered by statute in 1871, the legislature placed geographic restrictions on the collection of what was then known as the Athenaeum, requiring its display within Pittsfield.  Paper manufacturer Zenas Crane and his family endowed it with its land and significant artwork in the early 20th century.  The legislature chartered the entity that now constitutes the museum in 1932 as the Trustees of the Berkshire Museum. 

The artwork proposed for sale includes masterpieces by Norman Rockwell and Frederic Edwin Church, and by several members of the Hudson River School whose work is inextricably connected to the Hudson River watershed in which Pittsfield is located.  Shuffleton’s Barbershop is widely considered Rockwell’s greatest work.  In the summer of 2017, The Berkshire Museum announced what it termed a “New Vision,” pointing to the sale proceeds of the artwork as the financial foundation of its plans.

The professional museum community is overwhelmingly opposed to the Berkshire Museum’s plan to sell art to support operations and capital improvements and monetizing the Berkshire Museum’s extremely important collection of American art. 

The member plaintiffs sought a preliminary injunction in the Superior Court in October, which a trial court judge denied on November 7, 2017.  That ruling is on appeal.  The Massachusetts Appeals Court stopped the sale on November 10, 2017 in response to an emergency motion by the Attorney General, and recently extended the prohibition in successive orders until February 5, 2018.  On that date, the Attorney General’s office announced it had reached a tentative agreement with the Museum, which was announced on February 9, 2018.

Topics: Deaccessioning, Sullivan & Worcester LLP, Nicholas M. O'Donnell, Berkshire Museum, Maura Healey

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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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