Last week, the Metropolitan Museum of Art announced that a settlement has been reached in the lawsuits challenging the Museum’s admissions policy as illegal and deceptive. The Museum’s announcement is only partially true. The complete truth is that the Museum reached a tentative deal to settle one of the lawsuits. And that proposed settlement is subject to a two-phase Court approval process. The class action lawyers didn’t even request the first phase approval (which has not even been considered yet) until three days after the Museum had already announced that the supposed settlement had been reached.
My firm’s clients (Theodore Grunewald and Patricia Nicholson) and I, who, in November 2012, filed the original lawsuit to stop the Museum from its improper practices, intend to oppose the proposed settlement on the strongest possible terms. As discussed below, the proposed settlement would not provide any substantive relief to members of the class, the general public or the citizens of New York – especially our schoolchildren, whereas the Museum, under the proposed deal, would be permitted to continue engaging in precisely the self-benefitting behavior that precipitated the lawsuits in the first place.
Worse, the proposed settlement has an automatic, one-way (in favor of the Museum) sunset provision, excusing the Museum from complying with any of its (mostly meaningless) terms after just 6½ years. Meanwhile, under that same deal, all of the Museum’s liabilities to members of the class (essentially, everyone who purchased an admission ticket to enter the Museum from March 5, 2007 to present) would be irrevocably discharged and released. Thus, even if the proposed deal were to provide any meaningful benefit to the public (and it doesn’t), the benefit would be temporary, whereas the loss of the people’s rights would be permanent.
Still worse than that, the Museum may not even have to wait the 6½ years before violating the proposed settlement. By its terms, the Museum reserves the right to obtain unspecified “governmental approvals” on the day after the proposed settlement were finalized to completely nullify it. And this could all happen without Court approval. Thus, even the 6½ years provision is illusory.
The details below clearly demonstrate that the proposed settlement is fundamentally unfair and would not accomplish any of the objectives that the lawsuits sought to achieve. Here are several examples:
1. The first priority in the lawsuits was to require the Museum to comply with its Lease and a New York State Statute, both of which require free admission to the Museum five days per week. The lawsuits also demanded that public school teachers receive free admission on all days of the week, because the Museum’s Lease expressly requires it. While the Museum has cried poverty throughout the litigation, admissions fees represent a modest portion of its annual budget.
The genesis of the Statute to provide free admission to the public came about through a proposal made by the Museum’s own trustees. Specifically, the trustees proposed to provide visitors with free admission most days of the week (and teachers with free admission on all days of the week) provided that the Museum receive certain funding from City and State taxpayers to pay for the free admission, plus free rent for the Museum Building in Central Park. Based upon that deal, the Statute was passed.
The members of the general public have always lived up to their end of the bargain and, as a result, the Museum has been the beneficiary of hundreds of millions of New York City taxpayer dollars. Also true to the bargain struck, the City has never charged the Museum a dime for rent. However, the Museum has broken its promise to provide free admission to the public; indeed, the Museum charges admission every day of the week in violation of New York State law and the Statute the Museum’s own trustees proposed and negotiated.
The proposed settlement of the class action lawsuit would change absolutely none of this, resigning visitors to continue paying admissions fees permanently. Meanwhile, the Museum would receive a complete and irrevocable release and discharge of all liability. Thus, the proposed deal does not come close to achieving the principal objective of the lawsuits.
A few reporters have suggested that the Courts have ruled that there is no right to free admission and that, therefore, there is no purpose to continuing the lawsuit. Those reporters, however, are wrong. Despite the Museum’s repeated demands, no Court has ever ruled that the Museum is entitled to charge admission. Instead, the Courts have ruled that, although the Statute (which entitles the public to free admission) remains in effect, these particular plaintiffs (our clients and members of the class) supposedly do not have the right to enforce it. Thus, the Courts have ruled that, while the Museum may be breaking the law, our clients have no standing to complain about it. Our clients are appealing that determination, but those representing the class action decided to settle this lawsuit before our appeal is heard.
We understand why the Museum is trying to steamroll forward with the proposed settlement — after all, the Museum wants this case over and to obtain its discharge of liability before the appeals court has had the opportunity to rule. We do not understand, however, why the class plaintiffs cut this deal and so quickly. By agreeing to the proposed settlement, the class plaintiffs would resign millions of people to paying admissions fees for their “free admission.”
2. Leaving free admission aside, another of the objectives of the lawsuits was to require the Museum to clarify its admission policy which, studies confirm, is grossly deceptive. The signature “achievement” of the proposed settlement — revisions to the sign above the cashiers — is supposed to address this problem, but it doesn’t. By the proposed settlement, the Museum would change its sign from “Recommended Admission” to “Suggested Admission” (Exh. G to Proposed Consent Decree) — hardly a significant modification. Moreover, last July, three advertising experts, whose jobs are to create signs that fairly communicate information to the public, determined that a similar version of the revised sign that the proposed settlement would authorize the Museum to use is misleading, confusing and unlikely to resolve the complaints made to the Museum over the years.
Thus, the revised sign would not confer any benefit to the class or the general public and would not address (much less change) the deceptive nature of the Museum’s admission policy.
3. In addition to the signage, the lawsuits challenged the manner in which the Museum’s admission fee policy forces people to pay full price if tickets are purchased online or through third-party vendors. The proposed settlement would not change this practice. Although patrons are supposed to be informed that they can pay a lesser amount if they wait to buy their tickets from the cashiers at the Museum entrance (who knows whether this will happen), the Museum is free to make the process of buying those reduced-price tickets from the cashiers completely intolerable, such as by again creating long lines, delays, closed entryways, and other impracticalities that will resign visitors to pay full price even if told that they can pay less. Visitors may just pay full price so that they don’t have to spend the first hour at the Museum waiting to pay a fee that, by law and agreement, they should never have had to pay at all.
4. Worse, as discussed above, the Museum, on the day after the proposed settlement were approved, would be able to unilaterally nullify it without permission from the Court, scrap the new sign, and slap a mandatory admission fee for all visitors just by obtaining unspecified “governmental approvals” (Proposed Consent Decree, ¶11(e)). Thus, the Museum could permanently destroy the settlement the day after it were to become final.
5. Even if the Museum were unable to obtain these unspecified “governmental approvals” (whatever they are), it would, as also discussed above, be completely excused from complying with any portion of the settlement after just 6½ years (Proposed Consent Decree, ¶11(i)). So, the best that can be said about this proposed settlement is that visitors to the Museum, who are entitled to free admission five days per week in exchange for free rent and the tens of millions they pay the Museum in taxpayer dollars every year, may have the “benefit” of a new, confusing sign for up to 6½ years — that is assuming that the Museum were not to nullify the entire deal the day after the Court were to approve it (which, as discussed above, is entirely possible).
These are but five of the many reasons why we intend to oppose the proposed settlement. And we encourage every New Yorker to join us. While we understand that some New Yorkers give money to the Museum and pay full price because they wish to do so, there are far too many people for whom the admission fees are too expensive, even for a single visit. And there are others who would visit the Museum many times a year – which was the original plan for the Museum – but they cannot do so because of the entry fees. The original lawsuit was filed to end the Museum’s improper practices in violation of the Statute, Lease and consumer protection statutes. And, unfortunately, the proposed settlement would not resolve any of these issues.
Copies of the Proposed Settlement Agreement and Proposed Consent Decree can be accessed by clicking this link. We encourage people to object to the settlement as unreasonable, unfair and inappropriate, as it does not confer the members of the class, including and especially the people of New York, with any meaningful benefit whatsoever.