The Supreme Judicial Court of Massachusetts (the state’s highest court) recently issued a surprising decision that permits claims against Harvard arising out of a series of daguerreotypes taken of the plaintiff’s ancestors in the 19th century by famed professor Louis Agassiz to proceed. While the SJC affirmed the dismissal of the plaintiff’s property claims that sought outright ownership, the court reinstated claims for emotional distress. The decision held that the manner in which an educational institution responds to a grievance about something in its possession may itself be actionable in the context of the institution’s relationship to the historical facts. In stretching the bounds of the traditional causes of action for negligent or reckless infliction of emotional distress to reach a sympathetic set of facts, however, the SJC has effectively abolished limits on museum liability for collections created under problematic circumstances where the response to such claims is attacked creatively enough. The issue is not whether the result is fair to Harvard, or whether the plaintiff’s family deserves recognition and justice for what was done—they do. The problem with cases that are hard or impossible to limit is that they may lead to socially positive outcomes in one instance, but can be weaponized in the next. In an era when all manner of actors are politicizing what universities should or shouldn’t teach, this opinion creates innumerable opportunities for mischief. As a result, it raises First Amendment and Due Process concerns that Harvard might plausibly petition the Supreme Court to address.
Topics: due process, Supreme Judicial Court, SJC, Harvard, First Amendment, Museum of Fine Arts Boston, NAGPRA, Tamara Lanier, negligent infliction of emotional dismiss, Louis Agassiz, Daguerreotype, Renty Taylor, Delia Taylor, MFA, reckless infliction of emotional distress, Philip Guston, Drew Gilpin Faust
After four months of silence, the Berkshire Museum suddenly demanded last week that my clients dismiss their still-pending lawsuit over the governance of the museum by claiming that the April decision by the Single Justice of the Supreme Judicial Court that lifted the binding restrictions that the sales of its art collection would have violated somehow put an end to my clients’ case (which has been scheduled for oral argument on September 4, 2018 in Boston). By letter on Tuesday, I explained that the museum was quite mistaken indeed. Yesterday, the museum escalated and filed a request that Appeals Court simply dismiss the appeal, and actually accused my clients of acting in bad faith. The museum also saw fit to put the text of the letter into a press release that it circulated widely through its public relations team.
This afternoon we filed our response, the text of which is reproduced below. Put simply, while the lawsuit quite explicitly sought to stop the sale of the museum’s art collection, the fact that some of the works have already been sold does not begin to answer the questions that the lawsuit raised.
My clients look forward to the argument after Labor Day.
Sullivan & Worcester LLP's Art and Museum Law Group has published an important new client advisory about Massachusetts's fine arts consignment statute, G.L. c. 104A. With the recent decision in Plumb v. Casey et al. by the Supreme Judicial Court, it is more important than ever to understand what the law requires and provides. Certainly if a transaction has any connection to Massachusetts (whether through buyer, seller, agent, estate executor, etc.), or even if it is just in a state with a consignment statute whose courts may look to this opinion for guidance, we hope our readers will find the advisory helpful.
Topics: Legislation, consignment, Commonwealth of Massachusetts, Supreme Judicial Court, SJC, Bankruptcy Court, Sullivan & Worcester LLP, consignor, G.L. c. 104A § 2, Art and Museum Law Group, G.L. c. 104A § 1, U.C.C.-1 statement, U.C.C. Secretary of State, Plumb v. Casey, Chapter 7, Uniform Commercial Code
The Supreme Judicial Court, the high court of the Commonwealth of Massachusetts, has answered a certified question from the Bankruptcy Court about the interpretation of Massachusetts’s fine art consignment law, G.L. c. 104A. The case, Eve Plumb et al. v. Debra Casey, SJC-11519, originated with an art dealer’s bankruptcy and the claim by the trustee in that bankruptcy that the artwork in the dealer’s possession belonged to that bankrupt dealer, not the artists. The SJC has interpreted the 2006 amendments to the law for the first time and clarified the roles of everyone involved. In full disclosure, I did some work for two of the artists (Dylan Stark and Robert Stark) at an early phase of the Bankruptcy Court proceedings. Eve Plumb, now an artist but also well known as the actress who played Jan Brady on The Brady Bunch, was another of the artist-claimants. In sum, once an artist delivers a work of art for sale for the purpose of exhibition or sale, it is a consignment, and the seller/consignee holds it in trust for the artist, regardless of the consignee’s own circumstances.
Topics: Legislation, consignment, United States Supreme Court, The Brady Bunch, Jan Brady, Allyson Wynne, Commonwealth of Massachusetts, Debora Casey, Supreme Judicial Court, SJC, Bankruptcy, Wynne Fine Art Inc., Eve Plumb, Bankruptcy Court, consignor, G.L. c. 104A § 2, Kenneth Wynne III, G.L. c. 104A § 1, U.C.C.-1 statement, U.C.C. Secretary of State, Chatham, Chapter 7, Uniform Commercial Code, certified question, Dylan Stark, Robert Stark, Eve Plumb et al. v. Debra Casey, Jim Grace, SJC-11519, Arts and Business Council