COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT
2017-J-0510
Berkshire County, ss.

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.

CONSOLIDATED WITH

JAMES HATT, KRISTIN HATT, AND ELIZABETH WEINBERG,
individually
and derivatively on behalf of the Trustees of the
Berkshire Museum,
Plaintiffs,
v.

TRUSTEES OF THE BERKSHIRE MUSEUM, et al.,
Defendants.

On Appeal From Berkshire Superior Court

The Attorney General's Status Report
and Motion to Extend the Injunction

Date: 12/6/2017
Courtney M. Aladro (BBO No. 671104)
Emily T. Gabrault (BBO No. 682555)
Andrew M. Batchelor (BBO No. 673248)
Assistant Attorneys General
Office of the Attorney General
One Ashburton Place
Boston, MA 02108
(617) 963-2545
Courtney.Aladro@state.ma.us
Emily.Gabrault@state.ma.us
Andrew.Batchelor@state.ma.us
INTRODUCTION

Pursuant to the Orders issued by this Court on

November 10, 2017, Defendant-Appellant Attorney

General Maura Healey ("AGO") hereby files this status

report on its appeal and moves to extend the current

injunction and stay until January 29, 2018. The AGO

will complete the ongoing investigation by January 29,

assuming Defendant-Appellee Trustees of the Berkshire

Museum (the "Museum") produces outstanding documents

and makes its witnesses available for interviews

according to the timeline proposed by the AGO.

STATUS OF THE AGO'S APPEAL

On November 10, 2016, the AGO noticed its appeal

from a decision of the Superior Court denying a motion

for preliminary injunction that sought to enjoin the

Museum from taking the extraordinary step of selling

40 works of art that amount to substantially all of

the value of its fine art collection at auction,

including two iconic paintings by Norman Rockwell.

That same day, the AGO asked this Court for an

injunction pursuant to Mass. R. App. P. 6(a) . The

Court allowed this motion, enjoining the Museum from

selling the art collection until at least December 11,

2017. The Court also ordered the AGO to "file a

status report on or before December 11, 2017,

regarding the status of the appeal." Dkt. 11.

1
The AGO reports as follows: On December 6 , 2017,

the AGO docketed its appeal from the Superior Court's

denial of the preliminary injunction motion. The

AGO's Appellant's Brief is due on January 16, 2018.

EXTENSION OF THE INJUNCTION

On November 10, 2016, this Court also ordered

that "[t]he injunction shall expire on December 11,

2017. Prior to the expiration of the injunction, the

Attorney General's Office may move to extend the

injunction with a date certain by which the [AGO's]

investigation will be completed." Dkt. 12. The AGO

hereby moves for an extension to January 29, 2018 in

order to complete its ongoing investigation into the

Museum's proposed sale of its art collection.

As this Court is aware, as soon as the Museum

advised the AGO that it had elected to sell 40 works

of art to finance a "New Vision" and fund its

endowment, the AGO began its investigation of the

proposed transaction in its role as the regulator of

public charities. That investigation included such

issues as ensuring that the Museum's board complied

with its fiduciary obligations and determining if

there were any charitable trusts or restrictions that

would limit the Museum's proposed sale of its art.

When private plaintiffs initiated the Superior

Court action, the AGO made clear that its

investigation was incomplete, filed claims based on

2
the information then available, and moved for a

preliminary injunction. Although the Superior Court

denied injunctive relief, on November 10, the single

justice issued a preliminary injunction to halt the

sale and a stay of Superior Court proceedings while

the AGO's investigation was ongoing.

Since this Court's November 10 Orders, the Museum

and the AGO have worked to narrow disagreements as to

the scope of the investigation into the issues

discussed above and the responsiveness of the Museum's

productions. In response, the AGO continues to work

with the Museum to narrow its requests. The Museum,

despite the disagreements, has maintained that it will

cooperate with the investigation, and continues to

produce documents, producing some as recently as

December 1, 2017.1

The AGO requested that the Museum provide all

outstanding documents by December 11, 2017, and then

make witnesses available for interviews shortly

thereafter. The interviews will be inefficient or less

effective unless held after the outstanding documents

are provided.

Assuming that the Museum provides the outstanding

material by December 11, 2017 and makes the witnesses

1 Nonetheless, the Museum has separately initiated
an appeal from this Court's stay of the Superior Court
(Docket No. 2017-P-1523).
3
reasonably available for interviews before January 22,

2018, the AGO will conclude its investigation on or

before January 29, 2018. See Exhibit 1 (letter from

the AGO listing outstanding requests as of November

30, 2017); Exhibit 2 (December 5, 2017, letter from

the AGO further narrowing Exhibit 1).2

2 Of course, this timeline is dependent on the
Museum because the Museum opted for, and has
participated in, a cooperative investigation.
Previously, the Museum and the AGO discussed the
authority of the AGO to initiate a Superior Court
proceeding for court approval issue a Civil
Investigative Demand ("CID") pursuant to G.L. c. 12,
§ 8H, and the Museum maintained that the CID process
was unnecessary because the Museum would cooperate
with the AGO. The AGO accepted that position.
Cooperation is the AGO's standard practice for
investigating charities and the best path towards a
prompt conclusion of this investigation. Moreover, the
process is moving towards closure despite the existing
disagreements about scope and compliance.
The Museum, however, has not yet committed to
producing the outstanding documents by December 11,
2017. If the Museum does not produce the outstanding
documents by December 11, or if the Museum and the AGO
have not agreed upon a schedule for witness interviews
by January 5, 2018, to be completed by January 22,
2018, the AGO will notify this Court. In the
alternative, if the Museum ceases to cooperate with
the investigation, the AGO can pursue a CID in
Superior Court through the separate statutory process,
but given the current investigation and the order of
the single justice, that route may delay matters at
this stage. Although it is clear that neither the AGO
nor the Museum is fully pleased with the other's
positions during this investigation, it is also clear
that we have advanced this investigation towards the
finish line as outlined above.
4
CONCLUSION

The AGO hereby moves to extend the current

injunction and stay until January 29, 2018 in order to

enable the completion of its investigation.

Respectfully submitted,
MAURA HEALEY
ATTORNEY GENERAL

By: /s/ Emily T. Gabrault
Courtney M. Aladro (BBO No. 671104)
Emily T. Gabrault (BBO No. 682555)
Andrew M. Batchelor (BBO No. 673248)
Assistant Attorneys General
One Ashburton Place
Boston, MA 02108
(617) 963-2545
Courtney.Aladro®state.ma.us
Emily.Gabrault0state.ma.us
Andrew.Batchelor@state.ma.us

Dated: December 6, 2017

5
CERTIFICATE OF SERVICE
I, Emily T. Gabrault, hereby certify, under the
penalties of perjury that on December 6, 2017, I filed
the foregoing with the Clerk of the Appeals Court via
the Court's electronic filing service and served by
email and first-class mail on counsel of record listed
below:
Michael B. Keating
FOLEY HOAG LLP
155 Seaport Boulevard
Boston, MA 02210

Nicholas M. O'Donnell
SULLIVAN & WORCESTER LLP
ZAG/S&W LLP
One Post Office Square
Boston, MA 02109

William F. Lee
WilmerHale
60 State Street
Boston, MA 02109
I further certify that the foregoing document was
served by email and first-class mail on this day with
Associate Justice John A. Agostini of the Superior
Court for Berkshire County.

/s/ Emily T. Gabrault
Emily T. Gabrault, AAG

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EXHIBIT 1

7
T H E COMMONWEALTH OF MASSACHUSETTS
OFFICE OF THE ATTORNEY GENERAL
ONE ASHBURTON PLACE
B OSTON, MASSACHUSETTS 02108
MAURA HEALEY (617) 727-2200
A HOKNKY G ENERAL wwv.inass.gov/ago

VIA EMAIL November 30, 2017

Felicia H. Ellsworth, Esq.
WilmerHale
60 State Street
Boston, MA 02109

Re: Investigation of Berkshire Museum's Planned Sale of 40 Works of Art

Dear Felicia:

Thank you for your November 29 letter and the additional information provided. We look
forward to further production from the Museum in response to our requests.

As you know, we have been investigating the Museum's plans since receiving its initial notice of
the deaccession and planned sale in a June 22, 2017 letter. Unfortunately, that letter did not
provide our office with a complete picture. For example, the letter did not include any
information about restrictions on items acquired before 1932, of which counsel for the Museum
and at least one Board member was aware (though we understand the full Board was not). In an
attempt to clarify questions and complete the narrative, over the course of the last several
months, we requested documents related to the Museum's plans, at times needing to repeat
certain requests in response to incomplete production. We have been making and continue to
make every effort to move as expeditiously as possible notwithstanding the Museum's
incremental provision of necessary information.

We have also been transparent with the Museum throughout this process and specifically advised
the Museum in October that our investigation was not complete. Nonetheless, the Museum
elected to proceed with plans to sell these 40 items in November. In accordance with the AGO's
statutory and common law authority, as well as Justice Trainer's Orders of November 10 and 20,
we are attempting to complete our investigation into the proposed sale and the application of
charitable assets. The Museum's continued characterization of certain documents as irrelevant to
our investigation and refusal to produce such documents that are responsive to our requests
hinders our ability to complete our investigation and resolve this matter swiftly.

Cs
Felicia Ellsworth, Esq.
November 30, 2017
Page 2

Though we disagree with most of the remaining points raised in the preamble of your letter, we
reserve our positions and right to provide a more fulsome response while we focus on proceeding
with our investigation.

Regarding your November 29 response to our November 15 requests:

3) All documents related to auction houses (such as Christie's and/or Sotheby's), from 2010 to
the present, including but not limited to correspondence M'ith the auction houses (or their
representatives) and internal documents concerning the decision to work with the auction
houses.

Reserving its rights to seek information prior to 2014, the AGO agrees to revise the
relevant time period for this request to: "from 2014 to the present." This includes, as
noted in the request, correspondence with auction houses and internal documents
concerning the decision to work with the auction houses.

4) All board meeting minutes or materials presented, provided or reviewed by the Board, TDC,
or Gary J. Moynihan in assessing the financial state of the Museum from 2010 to present. If any
documents were not reviewed by all three, please identify which documents were reviewed by
whom.

The AGO agrees to proceed as described in your November 29 letter, reserving its rights
to seek information prior to 2012.

5) All documents related to the Museum's exploration of alternatives to deaccessioning,
including but not limited to the proposed Hancock Shaker Village merger and any other
partnerships or mergers that were explored from 2010 to present.

At this time, we do not require any additional documentation in response to this request.

6) All documents related to any deaccessioning of art undertaken by the Berkshire Museum,
including but not limited to the deaccessionings in 1934 and 1935 (referenced in 10 and 11 of
the Garlington Affidavit) and the 2008 deaccession.

As stated in my November 28 letter, the AGO's requests for documents related to the
Museum's deaccessions and sales in 1934, 1935 and 2008 remain unchanged. The AGO
will consider narrowing the remainder of Request No. 6 upon review of the summary
chart described in your November 29 letter.

7) All documents related to the Collections Committee, including but not limited to notices of
meetings, agendas, minutes, notices of donations, materials presented at Collections Committee
meetings and/or reports by the Collections Committee from 2006 to the present.

The AGO looks forward to Collections Committee minutes and materials from 2008, and
understands that the Museum has produced those same types of materials from 2014 to
present. The AGO's requests for all documents related to the Collections Committee,
including notices of meetings, agendas, notices of donations, materials presented at

2
Felicia Ellsworth, Esq.
November 30, 2017
Page 3

Collections Committee meetings and/or reports by the Collections Committee remain
unchanged for 2008 and 2014 to the present. We will consider narrowing Request No. 7
upon review of the summary chart referenced under Request No. 6 above.

8) All board meeting minutes or materials presented, provided or reviewed by the Board relating
to collections policies and/or the Collections Committee from 2006 to the present.

The AGO will consider narrowing Request No. 8 upon review of the summary chart
referenced under Request No. 6 above.

10) All documents, board meeting minutes, or materials presented, provided or reviewed by the
Board relating to fundraising, including executed and contemplatedfttndraising efforts, plans,
activities, events/campaigns, from 2010 to present.

The AGO looks forward to the Museum's production of "additional documents," which
we anticipate to be fully responsive to this request.

12) All documents related to the selection, engagement of and payments to Hill Engineering,
including but not limited to documents related to potential conflict of interest of board member
Jeff Noble.

The AGO has not yet narrowed this request and looks forward to information the
Museum plans to produce.

14) Confirm that the Museum has produced to the AGO copies of all files referenced in para. 9
of the Garlington Affidavit.

We had originally requested all materials referenced in para. 9 of the Garlington Affidavit
on August 18 ("Gift instruments for the 40 pieces which have been selected by the
Museum to be deaccessioned [and] [a]ny additional materials or documentation the
Museum reviewed when determining whether the pieces were subject to any
restrictions."). In response, the Museum produced accession slips on August 23. It was
not until the AGO visited the Museum and met with Museum officials on September 12
that we became aware that additional files existed. These files include object files,
director files, curatorial files, and "Zenas Crane" files. When we asked for the remainder
of these files, we were again provided with an incomplete set in late September.1 It was
not until late October that we understood that we had access to the remainder of the files
responsive to the request we had made months ago.

Though we appear to have misunderstood your description of materials the Museum
considered in its 18-month review, we look forward to speaking with Museum staff. We
would like schedule interviews with Jason Verchot, Logan Recchia and William Blaauw.

1 Note that at our September 12 meeting, we had agreed to prioritize files related to items acquired after 1932 given

the Museum's seeming acknowledgement of our concerns about the Museum's ability to sell items acquired prior to
1932. It is our understanding that the Museum later pulled items acquired prior to 1932 fiom the fall auction in
response to our concerns and in consideration of a cy pres petition.

3
Felicia Ellsworth, Esq.
November 30, 2017
Page 4

Please let us know their availability. Please also let us know if you represent Maria
Mingalone.

As noted before, we anticipate that we will need to conduct additional interviews in order to
complete our investigation. We would like to interview Board Chair Elizabeth McGraw, Board
member Ethan Klepetar, and (health permitting) Executive Director Van Shields. We may also
want to meet with additional Board members, employees, and/or affiants that we identify after
review of the Museum's full production. Given that we will not be able to meet with any of
these individuals until the Museum completes its production of materials responsive to our
requests, we request that the Museum agree to complete production pursuant to the above by
December 11 so that interviews may be scheduled soon thereafter.

Courtney Aladro
Chief, Non-Profit/Public Charities Division
Office of the Attorney General

Cc: William Lee, Esq.
Mark Fleming, Esq.
Andrew Dulberg, Esq.

4
EXHIBIT 2

8
<t\
T H E COMMONWEALTH OF MASSACHUSETTS
OFFICE OF THE ATTORNEY GENERAL
ONE ASHBURTON PLACE
B OSTON, MASSACHUSETTS 02108
MAURA HEALEY (617) 727-2200
A ITORNHY G I;NKRAI. www.mass.Eov/aco

VIA EMAIL December 5, 2017

Felicia H. Ellsworth, Esq.
WilmerHale
60 State Street
Boston, MA 02109

Re: Investimtion of Berkshire Museum's Planned Sale of 40 Works ofArt

Dear Felicia:

Thank you for the Museum's continued production of documents, including a summary chart of
deaccessions that took place at the Museum between 2006 and the present. After reviewing the
summary chart, and reserving the right to seek additional documents, the AGO reiterates the
requests set forth in its letter of November 30, 2017, but agrees to narrow requests 6, 7, and 8 as
follows:

6) All documents related to any deaccessioning of art undertaken by the Berkshire Museum,
including but not limited to the deaccessionings in 1934 and 1935 (referenced in UK 10 and 11 of
the Garlington Affidavit) and the 2008 deaccession.

All documents related to the Museum's deaccessions and sales in 1934 and 1935, and all
documents related to the deaccessions that took place on April 28, 2008.

7) All documents related to the Collections Committee, including but not limited to notices of
meetings, agendas, minutes, notices of donations, materials presented at Collections Committee
meetings and/or reports by the Collections Committee from 2006 to the present.

All documents related to the Collections Committee from the year 2008 and also from
2014 to present. The AGO understands that the Museum has already produced many of
these materials. Please let us know if there are additional documents responsive to this
request that have not yet been produced.

Ci
Felicia Ellsworth, Esq.
December 5, 2017
Page 2

8J All board meeting minutes or materials presented, provided or reviewed by the Board relating
to collections policies and/or the Collections Committee from 2006 to the present.

Board meeting minutes or materials presented, provided or reviewed by the Board
relating to collections policies and/or the Collections Committee from the year 2008 and
also from 2014 to present. The AGO understands that the Museum has already produced
some of these materials and looks forward to additional production responsive to this
request.

In addition to the narrowed requests, we reiterate our interest in meeting with Jason Verchot,
Logan Recchia and William Blaauw as soon as possible. Consistent with the discussion on our
November 27 call regarding our document requests, please let us know when it would be
convenient for our team to come to the Museum to meet with these individuals and have them
guide us through the archive search referenced in ^(9 of the Garlington Affidavit. Please also
confirm whether or not you represent Maria Mingalone.

Sincerely,

Courtney Aladro
Chief, Non-Profit/Public Charities Division
Office of the Attorney General

Cc: William Lee, Esq.
Mark Fleming, Esq.
Andrew Dulberg, Esq,

2