Today I am pleased to announce that I have filed a brief in the Supreme Court of the United States as counsel of record for amicus curiae Mark B. Feldman, former U.S. Department of State Acting Legal Adviser. We filed the brief in the case of Cassirer et al. v. Thyssen-Bornemisza Collection Foundation (“TBC”). Cassirer is the long-running dispute over title to Rue St. Honoré, après-midi, effet de pluie (Rue St. Honoré, Afternoon, Rain Effect) by Impressionist painter Camille Pissarro. The painting once belonged to Lilly Cassirer, a Jewish woman in Berlin in 1939, from whom Nazi agents “bought” the painting. The case before the Supreme Court is not about whether the painting was stolen—it is undisputed that it was. Rather, the Supreme Court will review the Ninth Circuit’s decision that Spanish law, not California law, should govern the ownership rights.
Topics: Guelph Treasure, Lilly Cassirer, Foreign Sovereign Immunities Act, Supreme Court, SPK, Stiftung Preussischer Kulturbesitz, Hermann Goering, FSIA, expropriation exception”, sovereign immunity, UNESCO, Rue St. Honoré, Camille Pissarro, Baron Hans-Heinrich Thyssen- Bornemisza, Cassirer v. Thyssen-Bornemisza Collection, Welfenschatz, Jakob Scheidwimmer, Philipp v. F.R.G., Mark B. Feldman
(WASHINGTON-October 22, 2020) The heirs to the Jewish art dealers who were forced to sell the medieval devotional art collection known as the Welfenschatz (in English, the Guelph Treasure) to agents of Hermann Goering in 1935 filed their brief today in the Supreme Court of the United States. It can be viewed at this link. The Supreme Court is set to hear argument on December 7, 2020, on whether the Foreign Sovereign Immunities Act (FSIA) and its “takings clause” create jurisdiction over the heirs’ claims for restitution of the Welfenschatz—as all reviewing courts so far have held. The Welfenschatz is held by the Stiftung Preussischer Kulturbesitz (in English, the Prussian Cultural Heritage Foundation).
Topics: Third Reich, Guelph Treasure, Gestapo, Z.M. Hackenbroch, Prussia, Germany, Nazi-looted art, Foreign Sovereign Immunities Act, Markus Stoetzel, Supreme Court, Mel Urbach, SPK, Nuremberg race laws, Stiftung Preussischer Kulturbesitz, Hermann Goering, FSIA, NS Raubkunst, Sullivan & Worcester LLP, J.S. Goldschmidt, Gerald Stiebel, Prussian Cultural Heritage Foundation, Adolf Hitler, Nicholas M. O'Donnell, Alan Philipp, Welfenschatz, I. Rosenbaum, Paul Körner, Wannsee Conference, Jed Leiber, House of Brunswick (Braunschweig)-Lüneberg, Emily Haber, Wilhelm Stuckart, Final Solution
The U.S. Court of Appeals for the Ninth Circuit yesterday affirmed the 2019 judgment that allowed the Thyssen-Bornemisza Collection Museum in Madrid to retain Camille Pissarro’s Rue St. Honoré, après-midi, effet de pluie (Rue St. Honoré, Afternoon, Rain Effect) (1892), a painting sold under duress by Lilly Cassirer to a Nazi in 1939. Absent rehearing by the full Ninth Circuit or Supreme Court review, the decision may bring to an end the Cassirers decades-old effort to win restitution of a painting that no one disputes is Nazi-looted art, yet the museum refuses to return. The result turns on the highly deferential standard of review for findings of fact by the trial court about the state of knowledge by Baron Hans-Heinrich Thyssen-Bornemisza when he acquired the painting in 1976. Yet the Ninth Circuit’s lack of enthusiasm for this result fairly leaps off the page, however, first with its decision to issue an unsigned opinion not for publication, and by seconding the District Court’s disappointment in the ruling under review “that Spain and TBC’s refusal to return the Painting to the Cassirers is inconsistent with Spain’s moral commitments under the Washington Principles [on Nazi-Confiscated Art] and Terezin Declaration.” The Court of Appeals’ statement about Spain and the museum that “It is perhaps unfortunate that a country and a government can preen as moralistic in its declarations, yet not be bound by those declarations” is a reminder of the limitations of these moral imperatives that, ironically, many current possessors argue are sufficient to address the problem of Nazi-looted art. It is absolutely true that moral principles often do not have the force of law. It is equally true, however, that flouting moral principles warrants moral sanction. And as multiple judges of the United States have found, Spain deserves just that.
Topics: Terezin Declaration, Guelph Treasure, Thyssen-Bornemisza Collection, Rue St. Honoré après-midi êffet de pluie, Claude Cassirer, Cassirer, Foreign Sovereign Immunities Act, Washington Principles on Nazi-Confiscated Art, Stiftung Preussischer Kulturbesitz, FSIA, expropriation exception”, Baron Hans-Heinrich Thyssen- Bornemisza, Welfenschatz, A Tragic Fate, Reichskammer der bildenden Künste, Jakob Scheidwimmer, Reich Chamber of the Visual Arts, Madrid
On behalf of my clients seeking restitution of the Guelph Treasure, or Welfenschatz, we filed today our supplemental brief with the U.S. Supreme Court in response to the Brief of the United States as Amicus Curiae that the Solicitor General’s office submitted on May 26, 2020. You can read today’s brief here, and read more about the particular problems with the Solicitor General’s filing here, most notably the contention that the Nazis’ property crimes against German Jews should be considered a “domestic” issue that doesn’t implicate international law under the Foreign Sovereign Immunities Act (FSIA). It was particularly distressing that the brief was signed not only by the U.S. Department of Justice, but also the State Department.
The filing follows an increasing pattern of disregard for bipartisan Congressional action, in this case the 2016 Holocaust Expropriated Art Recovery Act. Similarly, the 2017 Justice for Uncompensated Survivors Act that was enacted specifically to counter Poland’s and others’ hostility to restitution for Holocaust era assets has been ignored. The JUST Act required that the State Department issue a report on other countries’ restitution progress no later that November 9, 2019, yet no report has been issued. The State Department has a dedicated page on the JUST Act...which simply lists the law (Poland's embassy has its own rather self-serving version too). Something very curious is going on with restitution at the State Department, all the more heartbreaking given the 80 years of leadership on the topic by the United States.
Late Tuesday evening—the day after Memorial Day no less—the United States Office of the Solicitor General filed a brief amicus curiae in our clients’ pending case against the Federal Republic of Germany and the Stiftung Preussischer Kulturbesitz for restitution of the Guelph Treasure (in German, the Welfenschatz). This brief was in response to the Supreme Court’s invitation in January that the SG file a brief expressing the views of the United States. In an unprecedented abdication of 80 years of leadership redressing Nazi-looted art, the Solicitor General argued that there is no circumstance in which a Nazi-forced sale victimizing a German Jew in the 1930s could constitute a violation of international law such the Foreign Sovereign Immunities Act would confer jurisdiction over either Germany or the SPK. The U.S. government has taken the position that only property claims against non-Germans suffice—even though, of course, the U.S. government has acknowledged in every relevant context since the early 1940s that Jews ceased to be full members of German society on the day Hitler assumed power: January 30, 1933. This is an historic disgrace. Germany has rightly been shamed for minimizing in court over the last five years the genocidal character of its persecution against Jews, but for the United States to do so the day after we rightly honored the hundreds of thousands of Americans who died to defeat Nazi Germany is appalling.
Topics: Guelph Treasure, Monuments Men, Foreign Sovereign Immunities Act, Washington Conference on Holocaust Era Assets, Supreme Court, Holocaust Victims Redress Act, Stiftung Preussischer Kulturbesitz, Hermann Goering, FSIA, Monuments Fine Arts and Archives Program, Washington Principles, Federal Republic of Germany, Welfenschatz, Military Government Law 59, Holocaust Expropriated Art Recovery Act, HEAR Act, Wannsee Conference, D.C. Circuit, Military Government Law No. 59, london declaration
The Appellate Division First Department in New York has affirmed the trial court’s ruling in Reif v. Nagy that the heirs of Viennese actor and Holocaust victim Franz Friedrich (Fritz) Grünbaum are entitled to the return of two Egon Schiele drawings, Woman Hiding her Face (1912) and Woman in a Black Pinafore (1911). The ruling is a momentous victory for the Grünbaum heirs, and features several recurring characters in many Nazi-looted restitution disputes. We were doubly gratified to see the First Department’s citation to our own case, Philipp v. F.R.G., 894 F.3d 406 (D.C. Cir. 2018) for the proposition that sales under duress are void and violate international law consistent with the policies of the Holocaust Expropriated Art Recovery (HEAR) Act of 2016. It is a landmark ruling and a testament to the perseverance of the Grünbaum heirs and their legal team.
Topics: Guelph Treasure, Cornelius Gurlitt, Galerie St. Etienne, Nazi-looted art, Foreign Sovereign Immunities Act, Galerie Gutekunst, Holocaust, Fritz Grünbaum, NS Raubkunst, Egon Schiele, Mathilde Lukacs, Franz Kieslinger, Anschluss, Welfenschatz, HEAR Act, Ankerwycke, A Tragic Fate, Law and Ethics in the Battle Over Nazi-Looted Art, Holocaust Expropriated Art Recovery Act of 2016, Woman in a Black Pinafore, Woman Hiding her Face, Seated Woman With Bent Left Leg (Torso), Reif v. Nagy, D.C. Circuit Court of Appeals, Eberhard Kornfeld, Philipp v. F.R.G., New York Law Journal, Gutekunst & Klipstein, Jonathan Petropoulos
The U.S. Court of Appeals for the D.C. Circuit today dismissed the petition to rehear en banc last year’s landmark ruling that the heirs of the art dealers who sold the Guelph Treasure (or Welfenschatz) may pursue their claims in U.S. federal court. Defendants the Federal Republic of Germany and the Stiftung Preussischer Kulturbesitz (the SPK, or Prussian Cultural Heritage Foundation in English) had argued that claims under the Foreign Sovereign Immunities Act’s expropriation exception such as these are not violations of international law and also require a claimant to exhaust remedies abroad, a position rejected by prior decisions of the D.C. Circuit and by today’s ruling as well.
Today’s decision confirms the first-of-its kind holding last year that a German state museum must face claims based on allegations of Nazi-looted art, a direct result of Germany’s failures through its so-called Advisory (often called Limbach) Commission to address seriously and comprehensively the state of Nazi-looted art in its national collections. In the five years since denying the Guelph Treasure claimants any meaningful attention, Germany has fumbled through the Gurlitt fiasco and attempted other various distractions like its new fitful attention to colonial art (with no real progress there either). Germany has repeatedly disparaged my clients by suggesting that the matter was already "decided on the merits" before Germany's Advisory Commission. This is false. The Advisory Commission renders non-binding recommendations to state museums and has been roundly criticized for its opinions in 2014 and 2015 in particular, when my clients were denied justice. There is no small irony in having to explain this in the context of Germany's request for a do-over after last year's ruling.
Topics: Third Reich, Guelph Treasure, Feist, Prussia, Germany, Nazi-looted art, Foreign Sovereign Immunities Act, SPK, Advisory Commission, Stiftung Preussischer Kulturbesitz, Hermann Goering, expropriation exception”, Nazi persecution, Boy Leading a Horse, NS Raubkunst, J.S. Goldschmidt, Prussian Cultural Heritage Foundation, forced sale, Zacharias Hackenbroch, Welfenschatz, I. Rosenbaum, Holocaust Expropriated Art Recovery Act, HEAR Act, Paul Körner, Staatliche Museen zu Berlin, Kunstgewerbemuseum
(WASHINGTON-July 10, 2018) The U.S. Court of Appeals for the D.C. Circuit has affirmed the right of the heirs to the so-called Guelph Treasure (known in German as the Welfenschatz) to seek restitution in U.S. courts for the value of the treasured art collection. The appellate court rejected Defendants’ arguments that U.S. courts lack jurisdiction, or that Germany’s treatment of its Jews in the 1930s should be immune from judicial scrutiny. While the Federal Republic of Germany itself was dismissed as a defendant, the actual possessor and key party in interest (the Stiftung Preussischer Kulturbesitz, or SPK) must now prove that a 1935 transfer of the collection by a consortium of Jewish art dealers to Hermann Goering’s minions was a legitimate transaction if they are to retain the collection.
Topics: Guelph Treasure, Gestapo, Z.M. Hackenbroch, Prussia, Germany, Nazi-looted art, Foreign Sovereign Immunities Act, Markus Stoetzel, Mel Urbach, SPK, Hermann Goering, FSIA, NS Raubkunst, Sullivan & Worcester LLP, J.S. Goldschmidt, Adolf Hitler, Nicholas M. O'Donnell, Welfenschatz, I. Rosenbaum, D.C. Circuit, Consortium, Genocide Convention, Reichstag, flight taxes, Baltimore Sun, Luftwaffe
A federal appeals court has upheld the growing consensus that the Foreign Sovereign Immunities Act (FSIA) confers jurisdiction over foreign state actors in possession of art allegedly looted by and/or overseen by the Nazis. Upholding last year’s District Court decision, the U.S. Court of Appeals for the D.C. Circuit affirmed the ruling in De Csepel v. Republic of Hungary that denied several Budapest museums’ motion to dismiss, while allowing the Republic of Hungary itself out of the case. This is the heirs second successful trip to the appellate court, where their claims were upheld in 2013. The case is the subject of a chapter in my newly-released book A Tragic Fate--Law and Ethics in the Battle Over Nazi-Looted Art (ABA Publishing).
Topics: Berlin, David de Csepel, Angela Maria Herzog, Thyssen-Bornemisza Collection, Foreign Sovereign Immunities Act, Baron Herzog, Budapest University of Technology and Economics, Hungarian National Gallery, SPK, Stiftung Preussischer Kulturbesitz, Budapest Museum of Fine Arts, FSIA, expropriation exception”, Cassirer v. Kingdom of Spain, Federal Republic of Germany, András Herzog, Welfenschatz, genocide
The decision on Friday to allow our clients’ claims to proceed against German and the Stiftung Preussischer Kulturbesitz for the restitution of the Guelph Treasure (or Welfenschatz) is ground-breaking in important respects, and a welcome part of a consistent progression in the law of sovereign immunity over claims for Nazi-looted art. As we noted in our initial reaction, it is the first decision in which a U.S. court has held that it has jurisdiction over Germany or an agency or instrumentality of it under the Foreign Sovereign Immunities Act (FSIA) for a claim to Nazi-looted or purchased art—though others have certainly tried—in this case finding the so-called expropriation exception applies. Critically, it recognizes that claims about forced sales in the early days of Nazi persecution indeed create jurisdiction. Moreover, the court agreed with our clients that Germany’s various excuses to avoid litigating the substance of a forced sale involving Hermann Goering based on pleas for deference or respect to the flawed Advisory Commission are no reason to dismiss the case.
Topics: Guelph Treasure, Germany, Nazi-looted art, Foreign Sovereign Immunities Act, SPK, Advisory Commission, Stiftung Preussischer Kulturbesitz, Hermann Goering, FSIA, Preemption, expropriation exception”, NS Raubkunst, sovereign immunity, Welfenschatz, HEAR Act