Art Law Report

Herzog Heirs’ Claims Against Hungary Survive Dismissal Under FSIA

Posted by Nicholas O'Donnell on March 24, 2016 at 12:22 PM

Expropriation Exception Saves Case, But District Court Holds Commercial Activity Exception Does Not Apply, Claims to Two of the Paintings at Issue are Dismissed as Well

The ongoing litigation between the heirs of Baron Mor Lipot Herzog and several state owned Hungarian museums has produced a new decision interpreting the scope of the Foreign Sovereign Immunities Act (FSIA), a frequent tool used to seek jurisdiction over Nazi-looted art claims brought in U.S. federal court. Relying on Supreme Court and D.C. Circuit cases in the last few months, the U.S. District Court held that claims for all but two of the paintings at issue can proceed under the FSIA’s “expropriation exception” codified in 28 U.S.C. § 1605(a)(3), but that the FSIA’s “commercial activity exception”—which the D.C. Circuit had held applicable in 2013 to the same case—could not be invoked based on the facts in the record developed in discovery. De Csepel v. Republic of Hungary, 2016 U.S. Dist. LEXIS 32111 (March 14, 2016).

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Topics: David de Csepel, commercial activity exception, Hungary, Foreign Sovereign Immunities Act, Budapest University of Technology and Economics, Hungarian National Gallery, Budapest Museum of Fine Arts, expropriation exception”, Restitution, World War II

Restitution of Constable Painting at the Tate Moves Ahead Again

Posted by Nicholas O'Donnell on September 16, 2015 at 10:02 AM

After putting on hold its prior recommendation back in March of this year, the United Kingdom Spoliation Advisory Panel has recommended that the Tate Gallery in London should return Beaching a Boat, Brighton by John Constable to heirs of Budapest-based (and Jewish) Baron Ferenc Hatvany. The Art Newspaper reports that the Spoliation Panel concluded that the 1946 export license at issue in the springtime uncertainty (located from the Budapest Museum of Fine Arts) was insufficient to overcome the conclusion that title to the looted painting had not passed lawfully.

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Topics: John Constable, Soviet, Budapest, Worcestershire, Hungary, London, The Art Newspaper, Beaching a Boat Brighton, Nazi-looted art, Red Army, Mrs P.M. Rainsford, Broadway Art Gallery, Budapest Museum of Fine Arts, Restitution, World War II, Baron Ferenc Hatvany, Tate Gallery, Museums, United Kingdom Spoliation Advisory Panel

Glass Half Full or Half Empty? Detailed Report Published on Worldwide Efforts to Restitute Nazi-Looted Art Since the 1998 Washington Conference

Posted by Nicholas O'Donnell on September 11, 2014 at 6:35 AM

After the 1998 Washington Conference on Holocaust Era Assets and the eponymous Washington Conference Principles on Nazi-Stolen Art that came out of it, it is hardly surprising that a recurring theme has been to assess the progress of those nations that participated and signed on. Equally unsurprisingly, those assessments are usually more anecdotal than empirical, and usually arise out of a particular case or cases in the context of that country’s response.

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Topics: Graham Bowley, Macedonia, Netherlands, Terezin Declaration, Mussolini, Latvia, Dr. Wesley A. Fisher, Hungary, ICOM, Bulgaria, Commission for the Compensation of Victims of Spol, Germany, Bavarian Minister of Culture, Nazi-looted art, Die Welt, Belarus, Lex Gurlitt, Washington Conference on Holocaust Era Assets, France, Dr. Ruth Weinberger, Romania, Baron Mor Lipot Herzog, Winfried Bausbeck, Belgium, Slovakia, Vichy, World Jewish Restitution Organization, Bundesrat, Washington Conference Principles on Nazi-Stolen Ar, Gurlitt, WJRO, NS Raubkunst, Restitution, International Council of Museums, Norway, United States, Luxembourg, Looted Art, World War II, St. Petersburg, Poland, beschlagnahmte Kunst, Ukraine, Austria, Serbia, Conference on Jewish Material Claims Against Germa, Italy, Bosnia, New York Times, Monika Grütters, Slovenia, Estonia, Museum and Politics Conference, National Gallery, Museum of Fine Arts, entzogogene Kunst, Czech Republic

New York Man Sues Germany For Liebermann Found With Gurlitt, but Allegations Face Real FSIA and Pleading Challenges

Posted by Nicholas O'Donnell on March 6, 2014 at 1:53 AM

When I spoke in Heidelberg in January at the Institute for Jewish Studies conference “Appropriated Art—the Gurlitt Case,” one of the points I stressed in discussing U.S. restitution litigation was that the longer the Gurlitt case went unresolved (and do not be distracted by the “Voice of Russia” article that is being circulated as “Holocaust victims’ heirs to reclaim Nazi-looted artwork if Gurlitt bill passsed”­—it is not remotely a simple or likely as that), the more certain it would be that litigation would follow in the U.S. Gurlitt himself and his legal team have done their part recently to make any meaningful agreement impossible, and in the absence of unilateral action by Germany (which would probably be illegal), it has now come to pass. The first civil claim related to paintings seized from Cornelius Gurlitt’s apartment has now been filed by David Toren in the U.S. District Court for the District of Columbia against the Free State of Bavaria and the Federal Republic of Germany.

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Topics: Focus, Schwabinger Kunstfund, Voice of Russia, Hildebrand Gurlitt, Cornelius Gurlitt, Breslau, Hungary, de Csepel, Max Liebermann, Germany, Silesia, Gurlitt Collection, Foreign Sovereign Immunities Act, Appropriated Art the Gurlitt Case, Hans Sachs, Baron Herzog, bailment, Madame Soler, Entartete Kunst, FSIA, Mendelssohn-Bartholdy, conversion, Bavaria, David Toren, Zwei Ritter am Meer, Free State of Bavaria, 28 U.S.C. § 1605(a)(2), Looted Art, Foreign Sovereign Immunities, Pinakothek der Moderne, Hochschule für Jüdische Studien, Altmann v. Republic of Austria, Freistaat Bayern, Ersessene Kunst¬—der Fall Gurlitt, Picasso, Riders on the Beach, Federal Republic of Germany, Raubkunst, David Friedmann, Institute for Jewish Studies, Münchner Kunstfund, Heidelberg

DC Circuit Reinstates All Claims that Were Dismissed in Herzog Case Against Hungary-UPDATED

Posted by Nicholas O'Donnell on April 23, 2013 at 9:35 AM

The DC Circuit Court of Appeals has reinstated the entire set of claims brought by the Herzog heirs against the Hungarian National Gallery, the Budapest Museum of Fine Arts, the Museum of Applied Arts, and the Budapest University of Technology and Economics. The appellate decision focuses on the claim that an agreement was reached after WWII to hold the paintings for their owners, not the claims relating to their wartime fate. In so doing, the court pushed to the side a whole range of defenses for sovereign defendants that have been increasingly successful. The court also reinstated claims to ownership of 11 works whose title was previously litigated, in an opinion that sets a low bar for collateral attacks on foreign judgments.

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Topics: commercial exception, David de Csepel, Nazi Germany, Angela Maria Herzog, Hungary, WWII, Viktor Orban, res judicata, Julia Alice Herzog, Budapest University of Technology and Economics, Baron Mor Lipot Herzog, Hungarian National Gallery, Jori Finkel, Budapest Museum of Fine Arts, Adolf Eichmann, FSIA, expropriation exception”, Restitution, 28 U.S.C. § 1605(a)(2), 28 U.S.C. § 1605(a)(3), World War II, Foreign Sovereign Immunities, Alison Frankel, András Herzog, Janos Lazar, Museum of Applied Arts

Von Saher claim against Norton Simon Museum dismissed as preempted under foreign affairs doctrine.

Posted by Nicholas O'Donnell on April 5, 2012 at 12:09 PM

Raising another hurdle to restitution claims, the U.S. District Court in Los Angeles against the Norton Simon Museum to the remnants of the famed Jacques Goudstikker collection, on the grounds that her case is preempted by the United States’ foreign affairs doctrine. In an unusually apologetic decision, the court ruled that regardless of the merits of her claims, the law of foreign affairs makes the dispute inappropriate for resolution by civil litigation.

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Topics: Terezin Declaration, Culture, Norton Simon Museum, Hungary, Thyssen-Bornemisza Collection, Jacques Goudstikker, Cassirer, Hungarian National Gallery, George Stroganoff-Scherbatoff, Holocaust Victims Redress Act, Restitution, Marei Von Saher, and Science, effet de pluie, World War II, Foreign Sovereign Immunities, Lucas Cranach the Elder, Rue St. Honoré, Camille Pissarro, Dutch Secretary for Education, Göring, Soviet Union, Washington Principles, American Ins. Ass’n v. Garamendi, Dunbar v. Seger-Thomschitz, Adam and Eve, California Code of Civil Procedure 354.3

Full Appeal of Herzog Heirs' Case Against Hungarian Museums Allowed

Posted by Nicholas O'Donnell on December 8, 2011 at 5:53 AM

As discussed earlier in the Art Law Report, the Herzog heirs’ case against several Hungarian national museums survived dismissal (apart from their claims to 11 paintings whose ownership was litigated in Hungary previously). The remaining question was how much of the case would be heard on appeal: only the narrow question of Hungary’s sovereign immunity, or other parts of the decision on the defendants’ motion to dismiss (asserting, in part, that the claims were too old, that the claims were barred as acts of state, and that the United States is not the proper forum).

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Topics: Hungary, Baron Herzog collection, Restitution, Statute of Limitations, World War II, Foreign Sovereign Immunities

Herzog Case Against Hungarian Museums Focuses on Issues to Be Appealed

Posted by Nicholas O'Donnell on October 5, 2011 at 1:15 PM

With the recent decision in the Baron Herzog case dismissing some claims but allowing the bulk of the case to go forward, the next step is determining what issues can be appealed now.

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Topics: Hungary, Holocaust, Baron Herzog collection, Restitution, Statute of Limitations, World War II, Foreign Sovereign Immunities

Hungarian World War II Restitution Case Will Go Forward

Posted by Nicholas O'Donnell on September 15, 2011 at 8:15 AM

The United States District Court has allowed significant parts of the claim brought by claimed heirs of Baron Mor Lipot Herzog to go forward. The decision is significant for several reasons. First, it is the most prominent restitution case currently at the trial level, and the case will now proceed into discovery of the facts. Second, the judge turned away a strong statute of limitations argument, which has been the strong trend in recent restitution cases. On the flip side, the judge found for the defendants on eleven paintings that were the subject of prior litigiation.

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Topics: Hungary, Holocaust, Baron Herzog collection, Restitution, Statute of Limitations, World War II, Foreign Sovereign Immunities

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About the Blog

The Art Law Report provides timely updates and commentary on legal issues in the museum and visual arts communities. It is authored by Nicholas M. O'Donnell, partner in our Art & Museum Law Practice.

The material on this site is for general information only and is not legal advice. No liability is accepted for any loss or damage which may result from reliance on it. Always consult a qualified lawyer about a specific legal problem.

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