Friday, September 17, 2010

UPDATE: "Judge rejects AG's plan for Fisk art"

How did this happen, you might ask, given that AG Cooper did pretty much exactly what Chancellor Lyle told him to do? She'd previously rejected the Crystal Bridges Agreement as written and instructed the Tennessee Attorney General to come up with an alternative that would "enable the public- in Nashville and the South- to have the opportunity to study the Collection...," which the Court of Appeals had determined was O'Keeffe's intent and the Chancery Court had subsequently adopted. Apparently Fisk just happened to be the Nashville institution randomly chosen as the recipient and it was never O'Keeffe's intention to actually benefit Fisk itself. The proposal to relocate the Collection to the Frist Center in Nashville should therefore have been music to the Chancellor's ears.

Not so.

In yet another turn of events in the ongoing saga, it now appears that O'Keeffe did care about Fisk after all (!) and that by not mentioning Fisk the Court of Appeals had not necessarily meant to imply that O'Keeffe's intention was solely to benefit Nashville and the South. I'm glad to see that the Court has come to its senses and acknowledged that O'Keeffe didn't randomly choose Fisk as the recipient of a collection estimated to be worth $74 million simply because it was in Nashville. But I'm amazed at the Court's reluctance to admit its change of heart and the fact that it is exceedingly difficult for courts to determine a donor's intent with any kind of certainty. The latest decision states that the Court of Appeals had not decided or instructed the Chancery Court on "what the donor's intent was with respect to Fisk" (pages 4-5) which completely contradicts what the Chancellor said in her previous decision at page 13: "the Court has been instructed by the Court of Appeals that the purpose of the gift is clear. That purpose is to "enable the public- in Nashville and the South- to have the opportunity to study the Collection [....] Using this purpose as the benchmark, the Court must next compare the Crystal Bridges solution to see if it closely approximates Ms. O'Keeffe's purpose." The Fisk saga is now the perfect case example for illustrating the shortcomings of cy-près relief and the evidentiary issues related to donor intent.

In practical terms, this means it's back to the drawing board with respect to the Crystal Bridges Agreement which needs to be revised to more closely approximate O'Keeffe's purpose. At least the Chancellor was proactive and instructed the parties as to what revisions are required (see pages 2-4 and Exhibit 2 of the decision). Essentially, the proposed revisions to the Joint Ownership Agreement between Fisk and Crystal Bridges boil down to minimizing the risk of divesting Fisk and Nashville of the Collection. The Collection will go to Arkansas for 6 months of the year but there's little doubt it's coming back to Nashville for the other six.

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