For the second time in less than four months, a complaint has been filed against the Metropolitan Museum of Art over its admissions fee policy. Whereas the November, 2012 action seeks injunctive relief to compel the Met to change its practices, the newest case has been filed as a class action and seeks money damages as well. The Museum has responded forcefully in a statement by Director Thomas P. Campbell challenging the new case.
In November, two plaintiffs (Theodore Grunewald and Patricia Nicholson) alleged that the Met’s voluntary admissions policy was both a fraud and a violation of the various laws and agreements between the Met and New York City that underlie the museum’s location in Central Park (which provide that the museum may stay rent-free so long as it is open to the public free of charge on multiple days each week), as well as of General Obligations Law § 349, New York’s prohibition against unfair and deceptive practices. The plaintiffs claimed not only that the Met’s signs suggest a mandatory (rather than optional) admission fee, but that the Met has intentionally misled the public to that effect.
The newest case is structured similarly, now on behalf of Filip Saska, Tomáš Nadrchal, and Stephen Michelman as putative representatives of a class (and represented by the same attorney as Grunewald and Nicholson). The first complaint was clearly designed to draw maximum publicity, but the Met chose a muted response. Clearly it has decided that a more public approach is now due. Thomas P. Campbell, the Met’s Director and CEO, issued a statement that makes a few critical points:
- The Met has never imposed an admissions fee;
- The recommended admissions policy was agreed to by the City of New York (undermining the plaintiffs’ arguments that the agreements with the city have been breached);
- The policy is clearly posted and explained.
As we noted here in November, the most obvious hurdle for the Grunewald/Nicholson plaintiffs was that it is hard to construe the signage about which the plaintiffs claim as being factually untrue, and a threshold question of a fraud claim is the falsity of the statement. Specifically, is a sign that says “Admissions Recommended” a false statement of fact, or rather a request? And even then, the plaintiffs’ reliance on the statements of fact that they allege are false also has to be reasonable. The cases’ arguments that as members of the public they are intended beneficiaries of the Met’s agreements with the City also seem to be somewhat tenuous, particular if the city agreed to them (a third-party beneficiary cannot prevail if the parties to the contract of which it is a beneficiary have performed the agreement).
As predicted in November, this issue seems unlikely to go away quickly.