COMMONWEALTH OF MASSACHUSETTS

BERKSHIRE, ss. SUPERIOR COURT DEPT.

Civil Action No. 1776CV00253

THOMAS ROCKWELL, JARVIS ROCKWELL,

PETER ROCKWELL, TOM PATTI, TOM PATTI
DESIGN LLC, JAMES LAMME, DONALD
MACGILLIS, JONAS DOVYDENAS, and JEAN
ROUSSEAU,

Plaintiffs,

v.

TRUSTEES OF THE BERKSHIRE MUSEUM and

MAURA HEALEY, in her capacity as Attorney
General of the Commonwealth of Massachusetts,

Defendants.

OPPOSITION OF THE TRUSTEES OF THE BERKSHIRE MUSEUM

TO THE PLAINTIFFS MOTION FOR TEMPORARY RESTRAINING
ORDER/PRELIMINARY INJUNCTION
 TABLE OF CONTENTS

Page

INTRODUCTION ...........................................................................................................................1

FACTUAL BACKGROUND ..........................................................................................................2

A. An Interdisciplinary Museum From The Beginning ................................................2

B. Benefactors Leave Berkshire County, Imperiling The Museum .............................4

C. The Board Charts A Path For The Museums Future ..............................................4

D. There Are No Restrictions On The Deaccessioned Works ......................................6

ARGUMENT ...................................................................................................................................7

I. Legal Standard .....................................................................................................................7

II. Plaintiffs Do Not Have Standing To Sue .............................................................................8

III. Plaintiffs Have Failed To Show That They Are Likely To Succeed On The Merits.........11

A. The Athenaeums Pittsfield Clause Does Not Apply .........................................11

B. The Museums Charter Allows It To Sell Property ...............................................12

C. The Museum Owns Shuffletons Barbershop Without Restriction....................13

D. Plaintiffs Have Failed To Demonstrate Inconsistency With The Museums

Statutory Purpose ...................................................................................................14

E. Plaintiffs Have Shown No Breach Of Fiduciary Duty...........................................17

IV. The Balance of Harms Weighs Against an Injunction.......................................................19

A. Plaintiffs Will Not Suffer Irreparable Harm ..........................................................19

B. An Injunction Would Irreparably Harm The Museum ..........................................19

V. No Injunction Should Enter Without A Sufficient Bond ...................................................20

CONCLUSION ..............................................................................................................................20

i
 TABLE OF AUTHORITIES

Page(s)

FEDERAL CASES

Boston Childrens Heart Foundation, Inc. v. Nadal-Ginard,

73 F.3d 429 (1st Cir. 1996) ......................................................................................................18

Cruickshank v. Cook,
2014 WL 2615364 (D. Mass. June 12, 2014) ..........................................................................17

Hessel v. Christies Inc.,

399 F. Supp. 2d 506 (S.D.N.Y. 2005)................................................................................19, 20

Lifespan Corp. v. New England Medical Center, Inc.,

2011 WL 2134286 (D.R.I. May 24, 2011) ..............................................................................17

STATE CASES

Ames v. Attorney General,

332 Mass. 246 (1955) ..............................................................................................................11

Anderson v. LAM Builders, Inc.,

2004 WL 2341338 (Mass. Super. Ct. Sept. 17, 2004) ...............................................................8

Attorney General v. Hahnemann Hospital,

397 Mass. 820 (1986) ........................................................................................................13, 16

Boston Athletic Association v. International Marathons, Inc.,

392 Mass. 356 (1984) ..............................................................................................................16

Brantley v. Hampden Division of Family & Probate Court Department,

457 Mass. 172 (2010) ..............................................................................................................11

Castricone v. Mical,
74 Mass. App. Ct. 591 (2009) ..................................................................................................20

Chase v. Pevear,
383 Mass. 350 (1981) ................................................................................................................9

Commonwealth v. Gagnon,
439 Mass. 826 (2003) ..............................................................................................................12

Degiacomo v. City of Quincy,

476 Mass. 38 (2016) ..................................................................................................................8

Dennis v. Buffalo Fine Arts Academy,

836 N.Y.S.2d 498 (N.Y. Sup. Ct. 2007) ............................................................................16, 19

ii
Dillaway v. Burton,
256 Mass. 568 (1926) ................................................................................................................9

Dinucci v. Dinucci,
45 N.E.3d 610 (Mass. App. Ct. Feb. 12, 2016) (unpublished) ................................................19

Doe v. Superintendent of Schools of Weston,

461 Mass. 159 (2011) ................................................................................................................7

First Bostonview Management, LLC v. Bostonview Corp.,

88 Mass. App. Ct. 89 (2015) ....................................................................................................16

Garland v. Beverly Hospital Corp.,

48 Mass. App. Ct. 913 (1999) ............................................................................................10, 11

Gatof v. Northland Investment Corp.,

2014 WL 5819364 (Mass. Super. Ct. Oct. 20, 2014) ..............................................................17

GTE Products Corp. v. Stewart,

414 Mass. 721 (1993) ................................................................................................................8

Lily of the Valley Baptist Church, Inc. v. Josey,

56 Mass. App. Ct. 1106 (2002) (unpublished).........................................................................17

Maffei v. Roman Catholic Archbishop of Boston,

449 Mass. 235 (2007) ................................................................................................................9

Marks v. Southcoast Hospitals Group, Inc.,

2001 WL 36398868 (Mass. Super. Ct. Dec. 30, 2011), affd, 84 Mass. App.
Ct. 1114 (2013) (unpublished) .................................................................................................18

Planned Parenthood League of Massachusetts, Inc. v. Operation Rescue,

406 Mass. 701 (1990) ................................................................................................................8

Trustees of Dartmouth College v. Quincy,

357 Mass. 521 (1970) ................................................................................................................9

Weaver v. Wood,
425 Mass. 270 (1997) ..........................................................................................................9, 10

STATE STATUTES

G.L. c. 12, 8 ..................................................................................................................................8

G.L. c. 180, 8A..............................................................................................................................6

1871 Mass. Acts Ch. 129 .................................................................................................................3

1932 Mass. Acts Ch. 134 .................................................................................................................3

iii
 RULES

Mass. R. Civ. P. 65 ....................................................................................................................8, 20

iv
 INTRODUCTION

The Trustees of the Berkshire Museum (the Museum) oppose Plaintiffs request for a

preliminary injunction. Plaintiffs lack standing to maintain this suit, and even if they could

pursue this litigation, cannot meet the requirements for the extraordinary remedy of a last-minute

injunction of an auction they have known about for two months, now only three weeks away.

In 1932, the state legislature incorporated the Museum by statute, creating a corporation

to establish an institution in Pittsfield to promote the study of art, natural science, and history.

But the future of this local gem is in jeopardy. In 2015, the Museums Board of Trustees

confronted an annual operating deficit of more than $1 million, an ever-shrinking endowment,

and a diminished donor base because of tough economic times. The conclusion was clear: if the

Museum continued on its trajectory, it would be forced to close within a few years.

Mindful of these harsh financial realities, the Board spent nearly two years assessing

options and consulting stakeholders across the community about how best to maintain and

sustain this local institution. The Board determined that the Museums best interests required not

only financial stability, but also investment to ensure the Museums long-term sustainability and

vitality for generations to come. As part of a New Vision arising from this process, the

Museum intends to renovate its facilities and provide visitors the opportunity to interact with and

experience the Museums holdings in innovative and inspiring ways. The Board further

concluded that this vision required a substantial infusion of funding$20 million for the

renovation and a $40 million endowment to permit sustainable operation going forwardthat is

not available through the Museums endowment or the regions capacity for charitable giving.

After receiving valuations from two auction houses, the Board determined that the New

Vision could be funded through the deaccession and public sale of 40 works of artdonated

without restrictionfrom the Museums collection of over 40,000 items. The Museum will
continue to hold more than 5,000 works of fine and decorative art, including works by John

Singer Sargent, Keith Haring, and important Hudson River School paintings, all of which the

Museum will have a greater ability to display following the renovation.

This was a difficult decision, and difficult decisions are not always popular. While

Plaintiffs may disagree with the Boards judgment, they have no standing to ask the Court to

second guess it. Even if they had standing, they have failed to show any likelihood of success on

the merits: the works at issue are free of any restriction, and the Boards decision-making process

was a model exercise of its fiduciary duties. Any delay in the upcoming auctionsscheduled

and announced months agowill irreparably harm the Museum by thwarting its efforts to ensure

lasting financial stability. The Court should deny the requested injunction.

FACTUAL BACKGROUND

A. An Interdisciplinary Museum From The Beginning

In 1903, inspired by the American Museum for Natural Science, the Smithsonian, and the

Metropolitan Museum of Art, Zenas Crane founded a museum in Pittsfield. See Garlington Aff.

5, 11. The fledgling museum held an eclectic set of artifacts: the body-suit worn by the first

explorer to reach the North Pole; pottery crafted in Asia; and early American paintings.

Garlington Aff. 14. The Museum was located behind the Berkshire Athenaeum, in a separate

building, with its own collection recorded in its own ledgers. McFadden Decl. Ex. B; Garlington

Aff. 8. The Athenaeum and Museum, while maintaining separate identities and collections,

operated under shared management during this period. McFadden Decl. Ex. B.

In 1932, the Legislature formally incorporated the Trustees of the Berkshire Museum

through an act creating the museum corporation for the purpose of establishing and

maintaining in the city of Pittsfield an institution to aid in promoting for the people of

Berkshire county and the general public the study of art, natural science, the cultur[al] history of

2
mankind and kindred subjects by means of museums and collections, with all the powers and

privileges ... set forth in all general laws now or hereafter in force relating to such corporations.

1932 Mass. Acts & Resolves Ch. 134 3 (McFadden Decl. Ex. D) (1932 Museum Act)

(emphases added). The Trustees were authorized to hold real and personal property for the

purposes aforesaid, and and all gifts, devises and bequests shall be devoted to such purposes

exclusively and used in conformity with the conditions made by any donor and expressed in

writing. Id. 4 (emphasis added).

Unlike the Athenaeums charter, the 1932 Act did not limit the Museums ability to

remove its property from Pittsfield. Compare 1871 Mass. Acts & Resolves Ch. 129 2, with

1932 Museum Act, 4.1 Indeed, the Museums ability to remove property from Pittsfieldand

indeed, to sell its propertywas exercised soon thereafter. In 1934, the Museum deaccessioned

and sold a painting to the St. Louis Art Museum, where it remains today. Garlington Aff. 10 &

Ex. E. The following year, the Museum sold at auction in New York approximately 25 items

that Zenas Crane had donated to the Museum prior to its 1932 incorporation. Id. 11 & Ex. F.

Since its incorporation, the Museum has steadfastly pursued its mission of promoting

the study of art, natural science, the cultur[al] history of mankind and kindred subjects. It

holds more than 40,000 items, approximately half of which are natural science specimens,

including fossils, minerals, a meteorite, representations of the Berkshire ecosystem, and an

aquarium with live fish and reptiles. Id. 14. The collection features artifacts from ancient

history (e.g., an Egyptian mummy) and American history (e.g., a Revolutionary War musket).

Id. Its galleries display art spanning many media and many centuries. Id. And the Museum

1
The Legislatures incorporation of the Athenaeum in 1871 authorized it to hold real and personal property
... and all gifts, devises and bequests, subject to any conditions made by any donor and expressed in writing, but
provided that no part of such real and personal property, or such gifts devises and bequests, shall ever be removed
from the town of Pittsfield. 1871 Mass. Acts & Resolves Ch. 129.

3
engages in extensive outreach and provides material support to the cultural and artistic education

of children of Berkshire County. Id. 16. All of this supports its formal mission: to bring

people together for experiences that spark creativity and innovative thinking by making

inspiring, educational connections among art, history and natural science. Klepetar Aff. Ex. B.

B. Benefactors Leave Berkshire County, Imperiling The Museum

In the year Zenas Crane founded the Museum, General Electric purchased an electric

machinery plant in Pittsfield. Klepetar Aff. 11. The company was a generous contributor to

the Museum. Id. More recently, however, businesses large and smalland benefactorshave

left the area; the last GE division in Pittsfield was shuttered in 2015. Id. Competition for scarce

donor dollars has also increased dramatically. The Berkshire Museum, one of the first museums

in the region, is now one of many significant cultural institutions.2

The combined effects of the regions economic contraction and increased competition for

donors has created severe financial strain. For a decade, the Museum has operated at an average

deficit of more than $1 million each year. Moynihan Aff. 13. Its operating deficit since 2007

exceeds $11.8 million, and it recorded an operating loss of more than $1.4 million in fiscal year

2016. Id. To fund its deficit, the Museum is eroding its endowment, which is declining at an

unsustainable pace. Id. As of June 30, 2017, the Museum held less than $500,000 in liquid

assets (excluding its endowment). See id. 18. If the Museum continues on its current

trajectory, it will, without question, be forced to close. Id. 19.

C. The Board Charts A Path For The Museums Future

Recognizing this tenuous situation, the Board began considering strategic alternatives to

2
The region boasts renowned art museums, including the Massachusetts Museum of Contemporary Art in
North Adams, the Norman Rockwell Museum in Stockbridge, the Clark Art Institute in Williamstown, and the
Williams College Museum of Art; cultural attractions such as The Mount, Tanglewood, and Jacobs Pillow; and the
Williamstown Theatre Festival, the Barrington Stage Company, and the Colonial Theater.

4
secure the Museums future. Klepetar Aff. 16. In 2015, the Board studied a possible merger

with the Hancock Shaker Village Museum, also in Pittsfield. Id. 20. Ultimately, the Board

concluded that the merger would not be in the Museums best interests. The process revealed,

however, that the Museums current business model was unsustainable, and that something had

to be done to keep the Museum financially afloat. Id. 21-23.

In the short-term, the goal was merely to survive. The Museum imposed a hiring freeze,

and contemplated limiting daily hours and/or closing its doors one to two days each week. Id.

25, 35. In the long-term, the goal was not only to survive, but also, in a changed and

challenging environment, to fulfill the Museums mission and continue to serve the community.

To that end, the Board began a robust two-year process. The Board convened three formal

advisory groups: (1) a Program Working Group composed of partner organizations in Berkshire

County; (2) a Stakeholder Advisory Board composed of individuals from Berkshire Countys

business, nonprofit, and philanthropic sectors; and (3) a Cultural Partner Working Group

composed of local leaders from environmental, historical, performing arts, and visual arts

organizations. Separately, the Board convened 22 focus groups involving more than 200 people:

local children; museum members, donors, and volunteers; young professionals; and business

leaders. The process was specifically designed to help the Board understand what the

community wanted from the Berkshire Museum, now and into the future. Id. 26-52.

The answer was clear: the Museums community wanted not simply another display of

fine art, but an institution that would engage them with a greater emphasis on science and

history. The process ultimately yielded the New Vision: a renovation of the Museums 114-year

old building and transformation of static galleries into teaching laboratories and accessible,

interactive community spaces. Garlington Aff. 20-21. In the newly refurbished space, more

5
artwork, as well as more objects and specimens from the collection, would be on view than ever

before. See id.

In addition to listening to what the community wanted, the Board also closely analyzed

how such a goal could be achieved. Between January 2016 and July 2017, the Board conducted

seven full-day meetings for a total of 60 hoursabove and beyond its regular Board and sub-

committee meetingsto discuss the New Vision. Ultimately, after careful consideration, the

Board determined that only a significant infusion of capital would ensure the Museums long-

term future, and that the only way to raise the necessary capital was to engage in deaccession.

Klepetar Aff. 48. Throughout this process, and to inform and advise its decision-making, the

Museum interviewed five consulting firms (id. 24), asked the Sothebys and Christies auction

houses to provide valuations for hundreds of items (id. 23), and sought legal advice (id. 33,

38). On July 12, 2017, 17 of the 18 voting Board members present voted to deaccession 40

items (one member abstained). Id. 52. The plan was publicly announced the same day,

including the proposed deaccessioning of artwork and Sothebys planned fall auction. 3 Local

elected officials and numerous community residents have voiced their support. Garlington Aff.

23 & Exs. J-L. On September 6, Sothebys announced that the first auction would be held on

November 13. Chinn Aff. 2.

D. There Are No Restrictions On The Deaccessioned Works

None of the 40 deaccessioned works contains any restriction on the Museums ownership

or disposition. From its inception, it has been the custom and practice of the Museum to record

3
Three weeks before making this announcement, the Museum provided a courtesy notice to the Attorney
General. Klepetar Aff. 50, Ex. E. As the notice indicates, the Museum does not believe that Attorney General
review under G.L. c. 180, 8A is necessary, as the Museum is not changing its mission or selling all or substantially
all of its assets. The Museum has subsequently responded to various requests for further information from the
Attorney General, whose staff has also visited the Museum.

6
all its accession of items through accession slips. Garlington Aff. 5. These records

document the circumstances of the Museums acquisition of each item, and any restrictions on

the Museums rights are clearly enumerated. For example, in 1994, the Museum received as a

gift the historic Pittsfield Town Clock. Its accession slip explicitly identifies the restriction that

the work must be offered to donor before deaccessioned. Id. Ex. A. By contrast, the accession

slips for the deaccessioned works contain no restrictions. Id. 7, 9 & Ex. B.

In or about 1958, Norman Rockwell donated Shuffletons Barbershop to the Museum.

See Compl. Ex. A. The accession slip shows no restrictions on the gift. Garlington Aff. Ex. B.

Museum Director Stuart Henry wrote a note of thanks to Mr. Rockwell, acknowledging the

artists generous gift and stating: We are delighted to have it for our permanent collection.

Compl. Ex. A. Subsequently, Mr. Rockwell acknowledged the Museums ownership of both

Shuffletons Barbershop and the other deaccessioned work by Mr. Rockwell, Shaftsbury

Blacksmith Shop, without suggesting any restriction. Garlington Aff. Ex. G (1966 letter

recognizing that you people own both works), Ex. H (1972 letter: It is very kind of you to

lend me the picture entitled Shuffletons Barbershop for the Brooklyn Museum show.).

ARGUMENT

I. Legal Standard

A party seeking a preliminary injunction must show that success is likely on the merits;

irreparable harm will result from denial of the injunction; and the risk of irreparable harm to the

moving party outweighs any similar risk of harm to the opposing party. Doe v. Superintendent

of Sch. of Weston, 461 Mass. 159, 164 (2011).4 The Court must balance the risk of irreparable

4
Although Plaintiffs purport to seek a temporary restraining order (TRO), their motion in fact seeks a
preliminary injunction indefinitely halting auctions set to begin on November 13. Memorandum In Support of
Motion for Temporary Restraining Order 18 (Pls. Mem.); see also Dkt. 7 (setting a hearing on plaintiffs motion
for temporary restraining order/preliminary injunction); Mass. R. Civ. P. 65 (distinguishing between TRO, which
may be obtained ex parte and last no more than ten days, and preliminary injunction).

7
harm to the plaintiff and defendant in light of [each] partys chance of success on the merits at

trial. Planned Parenthood League of Mass., Inc. v. Operation Rescue, 406 Mass. 701, 710

(1990) (internal quotation marks omitted). Given the stakes, a court is justified in requiring the

plaintiff to bear a slightly heavier burden. GTE Prod. Corp. v. Stewart, 414 Mass. 721, 724

(1993). Preliminary injunction is a drastic remedy that a court should not grant unless the

movant by a clear showing carries the burden of persuasion. Anderson v. LAM Builders, Inc.,

2004 WL 2341338, at *1 (Mass. Super. Ct. Sept. 17, 2004). If an injunction does issue, the

Court must condition any restraining order or preliminary injunction on posting of a bond for

the payment of such costs and damages as may be incurred or suffered by any party who is found

to have been wrongfully enjoined or restrained. Mass. R. Civ. P. 65(c).

II. Plaintiffs Do Not Have Standing To Sue

Plaintiffs cannot show they are likely to succeed on the merits because not one of the nine

named Plaintiffs has standing to assert the supposed breach of fiduciary duty, breach of trust,

and absence of authority in Count I of the Complaint. 5 Only the Attorney General has standing

to claim that a public charity has breached its fiduciary duty. See Degiacomo v. City of Quincy,

476 Mass. 38, 45 (2016) ([T]he duty of taking action to protect public charitable trusts and to

enforce proper application of their funds rests solely upon the Attorney General as the

representative of the public interests. (emphasis added)); G.L. c. 12, 8. The Attorney

Generals exclusive standing protects the Commonwealths charitable institutions from the

burden of responding to precisely this type of action. See Dillaway v. Burton, 256 Mass. 568,

5
Plaintiffs do not assert that Count II, apparently brought only by Tom Patti Design LLC, would justify
enjoining the auction. Count II only challenges movement of Mr. Pattis art installations to accommodate a
construction project, but as Plaintiffs concede, construction is not imminent. Pls. Mem. 17.

8
575 (1926) (Attorney Generals exclusive standing protects public charities fromproceedings

instituted by individualswho have no private interests distinct from those of the public).

Plaintiffs nonetheless claim special interests distinct from those of the general public.

Pls. Mem. 14. None of Plaintiffs asserted interests withstands scrutiny.

Plaintiffs Thomas, Jarvis, and Peter Rockwell (collectively, the Rockwell Plaintiffs)

insist that they are uniquely situated to argue that a thank you note written by the Museum

Director to their father Norman Rockwell shows a donor-imposed restriction on Mr. Rockwells

gift of Shuffletons Barbershop. Pls. Mem. 15. But even if there were a restriction to the

Museumthough there is none, see infra pp. 11-14it is the role of the Attorney General, not

private plaintiffs, to enforce such a restriction. See Weaver v. Wood, 425 Mass. 270, 275 (1997)

(the Legislature has determined that the Attorney General is responsible for ensuring that its

charitable funds are used in accordance with the donors wishes).

Unlike the Rockwell Plaintiffs, the plaintiffs in Maffei v. Roman Catholic Archbishop of

Boston, 449 Mass. 235 (2007) had standing because they claimed to personally have an

equitable reversionary interest in the property. Id. at 245. Private plaintiffs may have standing

where they assert a definite and enforceable private legal right to the property, whether through

reversion or otherwise.6 But the Rockwell Plaintiffs do not assert any reversionary interest in

Shuffletons Barbershop or any other work at issue. Mr. Rockwell gave the painting to the

Museum during his lifetimeit is not and was never part of his estateand neither deeded it to

a trust, nor imposed any gift over condition requiring its transfer under certain circumstances.

As Plaintiffs admit, Mr. Rockwell knew how to make a gift with restrictionsin fact he

6
See, e.g., Chase v. Pevear, 383 Mass. 350, 353-54 (1981) (Museum of Fine Arts, as remainderman, was a
party in proceeding seeking remedies against trustee); Trustees of Dartmouth College v. Quincy, 357 Mass. 521
(1970) (suit by college as beneficiary if city failed to comply with the terms of the trust).

9
specifically restricted the ability of the nearby Norman Rockwell Museum to sell his works, see

Compl. 33yet imposed no such restriction on his gifts to the Berkshire Museum. Thus, the

Rockwell Plaintiffs have no legally-enforceable special interest in that painting, let alone the

other works at issue. See Weaver, 425 Mass. at 278 (no standing where plaintiffs were not

beneficiaries in any legal sense).7

Plaintiffs James Lamme, Donald MacGillis, Jonas Dovydenas, and Jean Rousseau fare no

better by arguing that the Museum was established to benefit the people of Berkshire County.

Pls. Mem. 16. The Museum was incorporated to aid in promoting for the people of Berkshire

county and the general public the study of art, natural science, the cultur[al] history of mankind

and kindred subjects by means of museums and collections. 1932 Museum Act 3 (emphasis

added).8 Residents of Berkshire County have no greater claim of standing than the general

public. And even if the Museums mission were to serve only Berkshire County residents

though it is notPlaintiffs would still lack standing. See Garland v. Beverly Hosp. Corp., 48

Mass. App. Ct. 913, 914 (1999) (plaintiff sued charitable corporation established to provide

medical care to the residents of Gloucester, but his residence in Gloucester did not confer an

interestsufficiently distinct from that of the general public to grant him standing). Nor does

status as a Museum member or donor confer standing. 9 See Weaver, 425 Mass. at 277 (we have

never held that membership in a public charity, alone, is sufficient to give standing to pursue

claims that a charitable organization has been mismanaged or that its officials have acted ultra

7
See also Restatement (Second) of Trusts 391 (1959) (A suit can be maintained for the enforcement of a
charitable trust by the Attorney General or other public officer, or by a co-trustee, or by a person who has a special
interest in the enforcement of the charitable trust, but not by persons who have no special interest or by the settlor or
his heirs, personal representatives or next of kin. (emphasis added)).
8
Plaintiffs arguments regarding the 1871 Athenaeum charter do not alter the standing analysis, given that
the Athenaeum and Berkshire Museum are two different entities. See infra pp. 11-12. In any event, the enforcement
of a restriction on removing property from Pittsfield would lie with the Attorney General.
9
The Rockwell Plaintiffs and the Patti Plaintiffs do not allege that they are members of the Museum.

10
vires); Garland, 48 Mass. App. Ct. at 914 (donor status did not confer standing); Ames v.

Attorney Gen., 332 Mass. 246, 249 (1955) (allegations that plaintiffs have for many years been

actively interested in the arboretum and have contributed to it did not confer standing).

Mr. Patti also lacks standing to challenge the Boards exercise of fiduciary duty. At

most, the complaint alleges a contract between Mr. Patti and the Museum. Compl. 34. (In fact,

the contract is between the Museum and Tom Patti Design LLC. Garlington Aff. Ex. M.)

Plaintiffs allege no facts suggesting that the Museum owes any separate fiduciary duty to Mr.

Patti or his LLC. Nor does Mr. Pattis claim regarding his own works justify enjoining the long-

scheduled auction of other items.10

III. Plaintiffs Have Failed To Show That They Are Likely To Succeed On The Merits

Plaintiffs cannot meet the high burden of showing likely success on the merits. In

adopting the New Vision and approving a deaccession plan, the Board complied with the

Museums incorporating act and its bylaws, and acted well within its legal authority. Plaintiffs

have not shown a likelihood of success in proving otherwise.

A. The Athenaeums Pittsfield Clause Does Not Apply

Plaintiffs insist that the 1871 law incorporating the Berkshire Athenaeum, which states

that no part of [its] real and personal property, or ... gifts, devises or bequests, shall ever be

removed from the Town of Pittsfield, McFadden Decl. Ex. A, 2, somehow limits the

Berkshire Museums right to sell its property. That is incorrect, for the simple reason that the

statute incorporating the Museum contains no such limitation. 1932 Museum Act 4. Where

10
Whether or not Tom Patti Design LLC has standing to assert Count II is irrelevant to Plaintiffs lack of
standing on Count I. Plaintiffs must demonstrate standing separately for each form of relief sought. Brantley v.
Hampden Div. of Family & Probate Court Dept, 457 Mass. 172, 181 (2010) (internal quotation marks omitted).

11
the legislature has carefully employed a term in one place and excluded it in another, it should

not be implied where excluded. Com. v. Gagnon, 439 Mass. 826, 833 (2003).

Plaintiffs try to apply the Athenaeums Pittsfield clause to the Museum by asserting that

some deaccessioned works were acquired by the Athenaeum prior to 1932. Pls. Mem. 9

(emphasis added). But even on its own terms, that argument would not justify enjoining the

auction of items the Museum acquired after 1932, including the two Rockwell paintings. And

even as to earlier-acquired objects, the works the Museum intends to sell were never acquired

by the Athenaeum, but donated directly to the Museum after its 1903 founding and prior to its

1932 incorporation. That is evident from their accession slips (indicating donations to the

Pittsfield Museum or the Berkshire Museum), and because they are listed in the Museums

collections ledger (which dates back to 1903), not the Athenaeums. Garlington Aff. 8.

Moreover, even if the Pittsfield clause could be said to have limited the Museums

authority to sell items before 1932, that limitation was manifestly lifted in 1932, when the

Legislature incorporated the Museum without limiting its authority to dispose of property in any

way. Contemporaneous evidence and practice is in accord: in 1935, the Museum sold works

donated by Zenas Crane prior to 1932 at auction in New York. Id. 11 & Ex. F.

B. The Museums Charter Allows It To Sell Property

Plaintiffs separately argue that the 1932 Museum Act does not permit the Museum to

exercise any power of sale over its property. Pls. Mem. 10-11. Plaintiffs are wrong. The 1932

Act granted the Museum all the powers and privileges, and subject to all the duties, restrictions

and liabilities, set forth in all general laws now or hereafter in force relating to a body

corporate. 1932 Museum Act 3. Massachusetts law authorizes charitable corporations ... to

add to their by-laws the power granted to other (for-profit) corporations ... to sell, convey, lease,

exchange, transfer or otherwise dispose of ... any of its property. Attorney Gen. v. Hahnemann

12
Hosp., 397 Mass. 820, 827-28 (1986) (quoting G.L. c. 156B, 9(f)). The Museums by-laws

include the power to transfer property. Klepetar Aff. Ex. C, Art. III, 1 (empowering Board to

authorize the acquisition [and] transfer ... of its property.). The Board duly exercised that

authority through its vote on July 12, 2017. Klepetar Aff. 52.

C. The Museum Owns Shuffletons Barbershop Without Restriction

Plaintiffs argue that one of the 40 deaccessioned works is the subject of a restriction

imposed by the artist Norman Rockwell, who gave it to the Museum as a gift. Plaintiffs cannot

prove any such restriction. The accession slip for Shuffletons Barbershopthe formal record

of the giftdenotes no restriction whatsoever. Garlington Aff. 9 & Ex. B; compare Garlington

Aff. 6 & Ex. A (Pittsfield Clock accession slip reflecting express restriction).

Plaintiffs seek to conjure a restriction from a letter from Museum Director Stuart Henry

to Mr. Rockwell, which states in relevant part: I send to you the thanks of all of our Trustees for

your generous gift of the painting, Shuffletons Barber Shop. We are delighted to have it for

our permanent collection. Compl. Ex. A. Nothing in that letter states that the gift was

conditional, what the supposed condition was, or what would happen if the supposed condition

was not satisfied. Subsequent correspondence from Mr. Rockwell acknowledges the Museums

ownership of Shuffletons Barbershop without suggesting any restriction. Garlington Aff. 18.

Plaintiffs only argument appears to be that the words permanent collection somehow

connoted that the Museum was voluntarily agreeing to hold the work in perpetuity. Pls. Mem.

10.11 Plaintiffs insinuation that a Museum directors reference to a permanent collection

indicates a restriction on deaccession is unsupported and unsupportable. As experts in the field

11
On occasion, Plaintiffs even argue that the Museum was required to display the painting constantly, or
was forbidden from moving it outside Pittsfield. Pls. Mem. 7, 10. That understanding is belied by the frequent
display of the painting outside the Museum, including on one occasion in Brooklyn, New York, apparently at Mr.
Rockwells own request. Garlington Aff. 18 & Ex. H.

13
of museum curation and administration recognize, the phrase permanent collection has an

established meaning, referring to works that a museum acquires through its formal accession

procedures, as distinct from items on exhibition or loan or non-accessioned items that might be

used, for example, for display in staff offices or meeting rooms. Schaefer Aff. 5; Gerstenblith

Aff. 15. The fact that an object is in a museums permanent collection in no way suggests a

restriction on the museums ability to sell its work. Schaefer Aff. 6; Gerstenblith Aff. 16. In

fact, museums regularly engage in deaccession from their permanent collections. Schaefer

Aff. 7; Gerstenblith Aff. 11, 12, 16 n.14.

Plaintiffs themselves acknowledge that Mr. Rockwell was fully able to include express

restrictions in gifts of his artwork when he so chose. Compl. 33 (asserting that Mr. Rockwell

imposed a condition on gifts of artwork made to The Old Corner House). The fact that he did

not do so here is additional strong evidence that no such restriction exists.

D. Plaintiffs Have Failed To Demonstrate Inconsistency With The Museums

Statutory Purpose

Plaintiffs effort to present the Museums New Vision as inconsistent with its statutory

purpose depends on numerous misstatements and mischaracterizations of that purpose. Contrary

to the Plaintiffs assertion, the Museums incorporating statute is not confined to the display of

artwork. Rather, the Museum was incorporated for the purpose of (1) establishing and

maintaining in the city of Pittsfield; (2) an institution to aid in promoting for the people of

Berkshire county and the general public the study of art, natural science, the cultur[al] history

of mankind and kindred subjects; (3) by means of museums and collections. 1932 Museum

Act 3 (emphasis added); see also Klepetar Aff. Ex. D (2016 Restated Articles).

The Museums primary purpose is thus to maintain[] in the city of Pittsfield an

institutiona purpose that would be thwarted if the Museum continued on its previous,

14
financially-unsustainable path. That institution must aid in promoting for the people of

Berkshire county and the general public the study of art, natural science, the cultur[al] history of

mankind and kindred subjects. All three disciplinesart, history, and sciencehave always

been, and will continue to be, cherished parts of the Museums operations. For the last twenty

years, the Museums most popular special exhibits have focused on the technological or natural

worlds: Robot Zoo (1998), Reptiles (2005); Frogs (2009); Geckos (2011), and Butterflies (2014).

See Garlington Aff. 15. And in the years to come, the Museum will continue to promote the

arts: in a new atrium that allows the display of more artistic works, in a new gallery space

dedicated to exhibiting the work of contemporary Berkshire-based artisans, in integrated exhibits

that spur visitors to understand the artistic, historical, and scientific dimensions of a subject area,

and in a new space for changing exhibitions and special events. Garlington Aff. 20-21 & Ex. I.

Finally, the New Vision will address systemic problems with the Museums collection storage

areas and invest in collections management staff, who will ensure that the Museums collection

of works of art, history, and science will be accessible for generations to come. Garlington Aff.

22. Indeed, the New Vision is expected to allow the Museum to display more works of art than

currently possible. Garlington Aff. 21.

Plaintiffs contrary arguments rest on distorting the 1932 Museum Act. Using selective

quotation and mischaracterization, Plaintiffs suggest that the Museums sole purpose is

displaying art for study by the public in the city of Pittsfield (Pls. Mem. 10) and that the

1932 Act requires the Museum to maintain any gifts it receives for the people of Berkshire

County and the general public (Compl. 5). At another point, Plaintiffs rewrite the Act

entirely, urging that the Museum must serve as a permanent repository and public forum for the

cultural legacy of Pittsfield and Berkshire County (Pls. Mem. 14) and receive, hold, and

15
display works of fine art for the benefit of the people of Pittsfield, Berkshire County, and the

general public (id. 7). The Museums charter says nothing of the sort, and tellingly does not

state that it was formed to hold[] its collections in trust for future generations, as is the case for

the mission statements of other museums such as the Boston Museum of Fine Arts. 12

The manner in which the Museum fulfills its purpose is not set in stone. This is not a

situation where, for instance, a public charity whose purpose was running a hospital sought to

sell the entire hospital and become a grant-making institution. Hahnemann, 397 Mass. at 830.

Rather, this museum of art, history, and science seeks to remain a museum of art, history, and

science, but with stabilized finances resulting from the sale of a small fraction of its collection of

40,000 objects. Accord Dennis v. Buffalo Fine Arts Acad., 836 N.Y.S.2d 498 (N.Y. Sup. Ct.

2007) (table) (The proposed deaccession accounts for a very small portion of the Academys

assets, and the sale in no way constitutes a departure, or an ultra vires act, in violation of its

corporate purposes.).

Finally, Plaintiffs reliance on First Bostonview Management and Boston Athletic

Association is unavailing. Those cases held that a charitys officers could not, by themselves,

approve a transaction that changed the entitys very essence. Boston Athletic Assn v. Intl

Marathons, Inc., 392 Mass. 356, 366-67 (1984) (authority to enter into contract was beyond the

power of the board to delegate); First Bostonview Management, LLC v. Bostonview Corp., 88

Mass. App. Ct. 89, 94-95 (2015) (In a transaction involving the transfer of a major asset of a

charitable corporation, specific authorization from the board of directors is required, regardless

of the number of corporate officers involved.). Here, the transaction was approved not only by

officers, but by the Museums full Board by a unanimous vote. Klepetar Aff. 52. And in any

12
Museum of Fine Arts, Mission Statement (accessed Oct. 26, 2017), http://www.mfa.org/about/mission-
statement.

16
event, the transaction will not change the Museums very essence; it will remain an institution

promoting the study of art, science, and history, and do so more effectively than before. 13

E. Plaintiffs Have Shown No Breach Of Fiduciary Duty

The party claiming breach of fiduciary duty bears the burden of proving a breach.

Gatof v. Northland Inv. Corp., 2014 WL 5819364, at *2 (Mass. Super. Ct. Oct. 20, 2014). The

relevant standard of judgment is whether the Board discharged its duties in a manner [it]

reasonably believes to be in the best interests of the corporation, and with such care as an

ordinarily prudent person ... would use under similar circumstances. Cruickshank v. Cook,

2014 WL 2615364, at *2 (D. Mass. June 12, 2014) (quoting G.L. c. 180, 6C). This standard

incorporates the business judgment rule. Lifespan Corp. v. New Eng. Med. Ctr., Inc., 2011

WL 2134286, at *6 n.6 (D.R.I. May 24, 2011) (applying Massachusetts law). Review under

6C does not allow litigants to second-guess board judgments about a charitys best interests.

See Lily of the Valley Baptist Church, Inc. v. Josey, 56 Mass. App. Ct. 1106, at *3 (2002)

(unpublished) (no breach where [t]here [wa]s nothing to show that the defendants did not

believe that they were acting in the best interests of the church). Nor is it a vehicle for the

imposition of rigid procedural requirements where the Board has engaged in a thorough and

diligent process. Id. at *2 (short term, technical omissions did not rise to the level of a breach

of any fiduciary duty).14

Plaintiffs do not allege that the Board did not believe they were acting in the best interests

of the Museum. Nor have Plaintiffs shown any likelihood of success in demonstrating that the

Museum breached its duty of care. For nearly two years, the Board engaged in an exhaustive,

13
Plaintiffs assertion that this sale of 40 paintings constitutes the sale of substantially all of the Museums
assets (Pls. Mem. 14) is manifestly incorrect. The Museum will continue to own its building and tens of thousands
of objects, including over 5,000 works of fine art and decorative art. Garlington Aff. 14, 20.
14
Plaintiffs do not assert any violation of the duty of loyalty, e.g., that any Trustee stands to gain personally
from the deaccession or that the auction would produce anything but fair value for the Museum.

17
diligent process to develop and fund a New Vision for the Museum. The Trustees formed and

gathered input from advisory groups representing Berkshire Countys cultural, educational,

business, nonprofit, and philanthropic sectors, and from 22 focus groups reaching more than 200

people, including local children and donors, members, and volunteers. See Klepetar Aff.

29, 36. They engaged a respected non-profit consulting firm; they obtained and reviewed

valuations of selected works from the Museums collection from two respected auction houses;

they received guidance from counsel; they carefully considered alternatives to, and the

consequences of, deaccession. See id. 26-52. As a result of this processwhich included 60

dedicated hours of board meetingsthe Board identified a New Vision for fulfilling the

Museums purpose, and reluctantly determined that deaccessioning certain works was the only

way to not only maintain the Museum in the short term, but sustain its existence and mission in

the long term. Id. 44-52.

To the extent Plaintiffs suggest that this process is somehow inadequate or that the

voluminous information the Board considered was insufficient, these claims are unfounded and

legally inapposite. See, e.g., Boston Childrens Heart Found., Inc. v. Nadal-Ginard, 73 F.3d

429, 433 (1st Cir. 1996) (standard of care is simply good faith and reasonable intelligence);

Marks v. Southcoast Hosps. Grp., Inc., 2001 WL 36398868, at *19 (Mass. Super. Ct. Dec. 30,

2011) (same), affd, 84 Mass. App. Ct. 1114, at *19 (2013) (unpublished). Plaintiffs have not

identified, and cannot identify, any breach of the duty of the care. 15

15
As to Mr. Patti, it is unclear that he or his LLC even seek injunctive reliefPlaintiffs motion does not
request relief specific to his art installations and does not explain why Count II would justify enjoining the
deaccession of other works. In any event, Mr. Patti is not likely to prevail on the merits either. The Complaint
alleges ( 52-55) that the New Vision will modify his art installations contrary to his contract with the Museum.
But Article 2.7 of the contract expressly permits the Museum to move the installations following consultat[ion]
with the Artist and recites Mr. Pattis acknowledgement that he cannot veto or control the Museums decision to
move the works. Garlington Aff. Ex. M. But the Complaint only challenges the possibility that the Museum
mightat mostmove Mr. Pattis installations. Compl. 36; accord McFadden Decl. Ex. G at 4 (Museum
announcement that Mr. Pattis installations will be in new locations within the Museum). The Museum has
consulted with Mr. Patti about the movement of his work, as the contract envisions. Garlington Aff. 26.

18
IV. The Balance of Harms Weighs Against an Injunction

A. Plaintiffs Will Not Suffer Irreparable Harm

Plaintiffs have not shown that the planned auction will cause them irreparable harm. To

the extent they argue that they will be unable to assert their claims after the sale of the paintings,

[t]his argument is unpersuasive, as it incorrectly assumes that [plaintiffs] have a legal claim to

the 40 works. Dinucci v. Dinucci, 45 N.E.3d 610, at *2 (Mass. App. Ct. Feb. 12, 2016)

(unpublished). The fact that private citizens may not be able to compel a Museums Board to

comply with their preferences does not establish irreparable injury. 16 And their speculation that

these works may land possibly in private collections abroad, Pls. Mem. 17, states no

cognizable legal harm to Plaintiffs. If anything, Plaintiffs decision to wait over three months

after public notice of the planned deaccession before approaching the Court seriously

undermines any claim of urgency. Dennis, 836 N.Y.S.2d 498 (delay of three weeks following

notice of auction is another important element which tips the balance of the equities in

respondents favor); Hessel v. Christies Inc., 399 F. Supp. 2d 506, 520 (S.D.N.Y. 2005) (A

partys delay in moving for preliminary injunctive relief undercuts the sense of urgency that

typically accompanies such a motion. (citation and punctuation omitted)).

B. An Injunction Would Irreparably Harm The Museum

By contrast, the Museum, acting in compliance with all applicable legal requirements,

entered into an agreement months ago to sell 40 works at auctions beginning in less than three

weeks. Klepetar Aff. 52. The deaccession has been public knowledge since July 12, and the

Museum and Sothebys have informed the public and prospective purchasers since September 6

that auctions will begin on November 13. Any delay would cause the Museum irreparable harm.

16
As to Mr. Patti, whose claim relates to the Museums planned renovation and not to the sale of any works,
he cannot show imminent or irreparable harm because no movement of his works or renovation is imminent,
Garlington Aff. 26, as plaintiffs concede. Pls. Mem. 17.

19
 First, an injunction would harm the Museums reputation and good will by forcing it to

delay a sale it has stated will go forward and by fostering a public perception that the Museum

acted unlawfully when it plainly has not. See Castricone v. Mical, 74 Mass. App. Ct. 591, 594

(2009) (actual or potential harm to the innocent partys commercial reputation and good will

often prove incapable of reliable measurement and may qualify as irreparable injury); Hessel,

399 F. Supp. 2d at 520 (auction house would suffer harm if enjoined, including reputational

harm). Second, any delay could potentially depress the ultimate sale price. Currently, the art

market is strong, and months of preparation have maximized the potential for a strong sale price

in auctions beginning November 13. Chinn Decl. 2. But the market is unpredictable, and there

is no guarantee that the currently strong sales prospects will continue after a delay. Id. 9-10.

Further, delay and uncertainty are likely to raise concerns among potential purchasers, deterring

them from participation or lowering the price they are willing to pay. See id. 2.

V. No Injunction Should Enter Without A Sufficient Bond

For all the reasons noted above, no injunction should issue. In the event that the Court

decides to enjoin the sale of any work, however, it should condition its order upon the immediate

posting of a bond. Mass. R. Civ. P. 65(c). Such security is essential to make the Museum whole

in the event that delaying the auctions causes the Museum harm. See Chinn Aff. 2.

CONCLUSION

For the foregoing reasons, the Museum respectfully requests that the Court deny

Plaintiffs motion for a temporary restraining order and preliminary injunction.

20