Art Law Report

Barnes Foundation Relocation Under Attack Again but Unlikely to Come Out Differently

Posted by Nicholas O'Donnell on July 5, 2012 at 1:13 PM

The Barnes relocation, and challenges to it, are both in the news again. Apparently former Barnes CEO Kimberly Camp—who held that office when much of the push was made to justify the need to relocate to Center City in Philadelphia—posted a blog entry about the financial condition of the Foundation at the time. She writes:

“The Barnes has always belonged in Merion. Its circumstance required its relocation. That circumstance was not bankruptcy. I shared that fact with a reporter a few weeks before the opening, and he told me that I had dropped his jaw. Bankruptcy was not the reason we filed the petition to move the Foundation to the city. At the time the petition was filed, the Barnes Foundation had a cash surplus and we had no debt - none. But, saying so made the rescue so much more gallant.”

News soon came that the Friends of the Barnes, who had challenged the alteration to the Foundation that permitted the move, had renewed its petition to reopen the case challenging the move. Given the centrality of the Barnes’s arguments that financial circumstances compelled the move, the Friends argue that Camp’s statements are “absolutely contrary to the position and information presented by the Barnes Foundation” during court hearings in 2003 and 2004.” Thus, they say, the case should be revisited.

The Friends’ renewed efforts have received much coverage in recent days, including thoughtful posts from Lee Rosenbaum and Donn Zaretsky. Our take, however, is a little to the side of that. That is to say, even if the Friends were correct about the substantive importance of Camp’s statements, it does not alter the legal basis on which the Friends were turned away again and again from challenging the Barnes’s relocation. Namely, the Pennsylvania courts ruled repeatedly that private interests like the Friends have no standing to challenge the administration of a trust. In fact, the court was so frustrated by the necessity of having to repeat this point that the last time it refused to reopen the case it awarded the Foundation its attorneys’ fees—from the Friends. Whatever the fallout from Camp’s statements, it seems hard to imagine that this development would alter any court’s analysis of the standing question that it has addressed on so many occasions.

Whether or not falling short of bankruptcy or actual insolvency is inconsistent in any important way with the reasons the Barnes advanced is a different question, but one that the Attorney General is likely the only one with standing even to raise.

Topics: Donn Zaretsky, Lee Rosenbaum, Kimberly Camp, Cy Pres, Collections, Friends of the Barnes, Barnes Foundation

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