Since the passage in 2016 of the Holocaust Expropriated Art Recovery (HEAR) Act, many commenters (here included) have grappled with what the implications of the law will be on the scope and frequency of future claims.  Even as litigants are faced with policy arguments about whether individual claims belong in U.S. courts—arguments that the HEAR Act should have put to rest—it is occasionally worthwhile to consider how prior cases would have been affected.  Such analysis can draw into relief why the law was such a significant step forward.  This week, news that a painting by Vincent Van Gogh once owned by Elizabeth Taylor will go to auction again provides one such example.  A beautiful painting in the collection of the biggest movie star in the world makes for a great sales pitch, but missing in the coverage is any mention of Margarethe Mauthner, a German Jew who owned the painting before fleeing the Nazi regime.  The exact circumstances under which she lost possession of the painting are unclear, but those circumstances might have had the chance to be determined had the HEAR Act been passed earlier.  The importance of that opportunity is worth considering as the law is assessed going forward. 

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.  

Two pending cases have invoked the new law

A recent article in the New York Times highlights the change that the recent passage of the Holocaust Expropriated Art Recovery (HEAR) Act of 2016 has had on disputes about the timeliness of claims for allegedly Nazi-looted art.  The odd part, however, is that the case cited by the Times is not one in which the HEAR Act has been invoked or argued, though it could be some day.  As far as we are aware, there has been briefing on the effect of the HEAR Act in two cases, my clients’ claim against the Stiftung Preussischer Kulturbesitz (SPK) and Germany in U.S. District Court in Washington, DC, and Laurel Zuckerman’s claim as representative of the Leffmann estate in U.S. District Court in Manhattan.  Only two months after its passage, the law is already changing the terms of debate.

The Holocaust Expropriated Art Recovery (HEAR) Act of 2016 has been pending for several monthsnow, and was recently recommended favorably by the Senate Judiciary Committee in September. The bill would create a uniform six-year statute of limitations for Nazi-looted art claims, harmonizing an otherwise patchwork state by state system.  While that consistency was laudable, our concern was that the bill as proposed would overrule New York’s important demand and refusal approach to statutes of limitations, with the effect that many otherwise timely claims in New York might become barred.  The bill’s text has been quietly amended to correct that, and in other interesting ways as well.  With the Presidential election just two weeks away, however, it remains anyone’s guess if the bill will become law before the new Congress is seated in January.

Two restitution related bills have advanced past the Judiciary Committee of the United States Senate: the Holocaust Expropriated Art Act (S.B. 2763, the HEAR Act), and the Foreign Cultural Exchange Jurisdictional Clarification Act, S.B. 3155.  Their advancement for consideration by the full Senate is interesting since in many ways they are at cross purposes with each other.  The analytical coverage of each has also been somewhat frustrating insofar as much of the reasons expounded by their proponents do not really describe what the bills would do.  The HEAR Act would not restitute any Nazi looted art, rather, it would harmonize as federal law the statute of limitations on such claims.  The Foreign Cultural Exchange Jurisdictional Clarification Act would not “reward” Russia or other foreign museums with art claimed by others, it would eliminate a jurisdictional scenario that has only happened once.  The fact is that both bills are of dubious merit because they are of limited effect, and may cause more harm than good.

Among the many challenges that litigants over Nazi-looted art face in the United States is a lack of uniformity.  Statutes of limitations vary from jurisdiction to jurisdiction, and interpretations of jurisdictional laws like the Foreign Sovereign Immunities Act differ from one Court of Appeals to another.  This is particularly challenging in the context of the Washington Conference on Nazi Looted Art of 1998 because private disputes are where the issue has meaning in the United States.  There is no national commission to address potentially looted art in public possession like those in Austria, Germany, or the Netherlands (however well or poorly some of those commissions perform) because there is very little art in national ownership about which the federal government has any power to decide.  Thus, in assessing U.S. compliance with the Washington Principles, it is often left to private litigants to argue about what the Principles mean in individual disputes.  Happily, appellate courts have begun to reject consistently the denialist defenses of foreign countries that wish to keep stolen art just because they say so, holding that the Washington Principles support the ability of heirs to pursue claims.  Yet the uneven landscape is still daunting.

A new bill introduced this week would address that, though its chances of passage into law in a contentious election season are hard to be optimistic about.