I was pleased for the opportunity to chat with Larry Perel of KCRW in Santa Barbara about the significance of the recent ruling that the Thyssen-Bornemisza Museum in Madrid is the owner of Rue St. Honoré, effet de pluie by Camille Pissarro—notwithstanding that there was no dispute that it had been looted from the Cassirer by the Nazis. You can listen to the full audio of the radio broadcast here. I discussed the Cassirer case, the more recent decision by the United States Supreme Court not to hear further appeal of Marei von Saher’s lawsuit against the Norton Simon Museum, and other current issues concerning the restitution of Nazi-confiscated art claims. You can read more background on these cases here at the Art Law Report, or in A Tragic Fate—Law and Ethics in the Battle Over Nazi-Looted Art.
Topics: Nazi-looted art, Marei Von Saher, Camille Pissarro, Art Law Report, A Tragic Fate, Thyssen-Bornemisza Museum, Rue St. Honoré effet de pluie, Nazi-confiscated art, Larry Perel, KCRW, Santa Barbara, Madrid
The U.S. Court of Appeals for the Ninth Circuit has upheld the judgment against Marei von Saher on her claims against the Norton Simon Museum in Pasadena to recover Adam and Eve by Lucas Cranach the Elder. The Cranachs belonged to Von Saher’s father-in-law Jacques Goudstikker, a renowned Dutch Jewish art dealer who fled the Netherlands. Yesterday’s decision was the latest in a complicated case, holding that the claim could not proceed because it would conflict with a judgment made by the Dutch government—in a case about paintings that no one disputes were looted by the Nazis but which the Norton Simon refuses to return. Notably, the Ninth Circuit upheld the dismissal entered two years ago by the District Court, but for different reasons. Where the trial court had held in 2016 that Von Saher was not entitled to the paintings by applying substantive Dutch post-war law, the Ninth Circuit yesterday held that it could not entertain the question because it involved a so-called “Act of State,” a doctrine under which courts will decline to review certain kinds of cases that implicate sovereign acts. It was not a complete surprise—the appeals court had hinted at the possibility of applying the doctrine back in 2014 when it remanded the case on one of its multiple trips to the appellate court—but was a curious application of it to a sale by the Dutch government, an act that is quintessentially commercial, not sovereign. It remains to be seen what Von Saher will do next. Von Saher is a complicated dispute that deserved its day in court, not the back of the hand out of “respect” for an “official” act that never actually happened, or an official act that this most recent decision actually contradicts.
Topics: Guelph Treasure, Alois Miedl, Act of State, Jacques Goudstikker, Nazi-looted art, Hermann Goering, Restitution, Marei Von Saher, Ninth Circuit, HEAR Act, A Tragic Fate, George Stroganoff, Commisssie Rechtsverkeer in oorlogstijd, Royal Decree 133, Royal Decree A6, CORVO, Royal Decree 100
Just as it appeared that the first trial in years would begin next month on a claim of Nazi-looted art, the much publicized Von Saher case has come to an end with a judgment that entered yesterday. The U.S. District Court awarded the Norton Simon Museum summary judgment on the claims to ownership of Adam and Eve by Lucas Cranach the Elder, ending pending further appeal a nearly decade-old litigation. Over the years, the Von Saher case has made new law about statutes of limitations, constitutional law, and the scope of U.S. foreign policy as it impacts the courts. Like the Cassirer case last year, it is a bitter blow for the claimants who labored for years to recover the paintings and for whom it appeared their day in court had arrived. This is all the more so because there was no dispute in the briefing that the paintings had been expropriated by Hermann Göring’s rapacious henchman.
I’ve been talking quite a bit to friends, colleagues and clients about the impact of last week’s decision in the Cassirer v. Thyssen Bornemisza case. The New York Times had a follow up article yesterday which was an interesting treatment of the various themes at work in the case and in restitution cases in the United States generally these days. In fact, I think the effect is mostly limited, except to the extent that the decision assumes and treats as uncontroversial important principles about sales under duress and is a case that resolved title under the Foreign Sovereign Immunities Act (FSIA). As we predicted, the Times article makes clear that the museum has absolutely no intention of giving the painting back, but did float the idea of some recognition of the historical circumstances, which is progress (certainly compared to other instances in which obvious circumstances of duress are denied).
Topics: Lilly Cassirer Neubauer, Terezin Declaration, Thyssen-Bornemisza Collection, Rue St. Honoré après-midi êffet de pluie, Jacques Goudstikker, California Code of Civil Procedure § 354.3, Nazi-looted art, Foreign Sovereign Immunities Act, Washington Conference Principles, Bakalar v. Vavra, Fritz Grünbaum, FSIA, adverse possession, expropriation exception”, Restitution, Marei Von Saher, sovereign immunity, Egon Schiele, Jakob Schweidwimmer, World War II, Foreign Sovereign Immunities, Restatement (Second) of Conflict of Laws § 222, Altmann v. Republic of Austria, Camille Pissarro, foreign affairs doctrine, Ninth Circuit Court of Appeals, Museums, Baron Hans-Heinrich Thyssen- Bornemisza, 28 U.S.C. § 1605
One of the longest running art restitution litigations in the United States has been dismissed for a second time, with another appeal likely to follow. The heirs of Lilly Cassirer Neubauer have been pursuing the return of Camille Pissarro’s Rue St. Honoré, après-midi, êffet de pluie from the Thyssen-Bornemisza Collection in Madrid for more than ten years, but on June 4, 2015 the U.S. District Court in Los Angeles ruled that the Spanish museum has acquired full title to the painting by adverse possession. The key aspect of the decision is the court’s resolution of the choice of law question, namely, should California law or Spanish law apply to the question of who owns the painting? After a lengthy analysis the court determined that Spanish law applies, and that the museum has possessed the painting long enough to have become the owner regardless of the fact that it was sold under duress. So now a case that has already been to the Ninth Circuit Court of Appeals twice will almost certainly head back a third time. The court concluded its decision by appealing to the parties to “pause, reflect, and consider whether it would be appropriate to work towards a mutually-agreeable resolution of this action, in light of Spain’s acceptance of the Washington Conference Principles and the Terezin Declaration, and, specifically, its commitment to achieve “just and fair solutions” for victims of Nazi persecution.” But it is hard to see why that would happen. Notwithstanding the dictates of the Washington Principles, the Collection has been quite content to resist the claim. Now that it has won, it is hard to imagine it suddenly taking a different view.
Topics: Lilly Cassirer Neubauer, Terezin Declaration, Thyssen-Bornemisza Collection, Rue St. Honoré après-midi êffet de pluie, Jacques Goudstikker, California Code of Civil Procedure § 354.3, Nazi-looted art, Foreign Sovereign Immunities Act, Washington Conference Principles, FSIA, adverse possession, expropriation exception”, Restitution, Marei Von Saher, sovereign immunity, Jakob Schweidwimmer, World War II, Foreign Sovereign Immunities, Restatement (Second) of Conflict of Laws § 222, Altmann v. Republic of Austria, Camille Pissarro, foreign affairs doctrine, Ninth Circuit Court of Appeals, Museums, Baron Hans-Heinrich Thyssen- Bornemisza, 28 U.S.C. § 1605, Welfenschatz
The U.S. District Court in Los Angeles has denied yet another motion by the Norton Simon Museum in Pasadena to dismiss claims by Marei von Saher to ownership of the Lucas Cranach paintings Adam and Eve. Ruling on the most recent argument that the claim was brought too late, the court held that the case was within California’s often-revised statute of limitations. Remarkably, even though last year’s remand from the Ninth Circuit raised the question of the application of the Act of State Doctrine, that issue went mentioned but unresolved. That could mean yet another motion before the case can proceed to trial (or even discovery).
Topics: Netherlands, Norton Simon Museum, Nazi Germany, Von Saher, Nazi-looted art, California Code of Civil Procedure Section 338, Pasadena, Adam, conflict preemption, Lucas Cranach, Cranach, Restitution, field preemption, Marei Von Saher, Statute of Limitations, Goudstikker, Los Angeles, World War II, Von Saher v. Norton Simon Museum, Cassirer v. Kingdom of Spain, Museums, Eve, California Code of Civil Procedure 354.3
The Norton Simon Museum in Pasadena’s efforts to bring an end to the claim by Marei von Saher to Lucas Cranach the Elder’s Adam and Eve failed yesterday, as the United States Supreme Court declined to hear the museum’s appeal from the decision last year by the Ninth Circuit Court of Appeals that restored the claims. The Supreme Court denied what is called a writ of certiorari, which is a discretionary appeal from a lower court. The high Court can accept cases on appeal from final judgments (as would be the case had the museum prevailed) or, as here, what are called interlocutory appeals—appeals of matters still in process. The Ninth Circuit decision revived Von Saher’s case and sent them back to the District Court for litigation, and the Norton Simon’s petition asked the Supreme Court to intervene and put an end to it. The overwhelming proportion of certiorari petitions are denied, interlocutory appeals even more so (courts favor hearing appeals of final judgments to avoid piecemeal adjudications). This is the second certiorari petition in the case: in 2011, Von Saher was on the losing end of a petition when her case had been dismissed under an earlier version of California’s statute of limitations.
Topics: Legislation, Dutch Secretary for Education Culture and Science, Norton Simon Museum, Alois Miedl, Lilly Cassirer, Norton Simon Art Foundation, Rue Saint-Honoré après-midi effet de pluie, Jacques Goudstikker, George Stroganoff-Scherbatoff, Hermann Goring, Restitution, Marei Von Saher, Jr., World War II, act of state doctrine, Cassirer v. Kingdom of Spain, Lucas Cranach the Elder, Camille Pissarro, Soviet Union, foreign affairs doctrine, California Section 354.3 of Code of Civil Procedur, Von Saher v. Norton Simon Museum of Art
As the ball teeters above Times Square, and the Glühwein begins to mull on the Art Law Report stove (don’t forget the cinnamon!), a gimmicky but apropos act of reflection is to look back at the biggest stories of 2014, both in art law generally and for yours truly and Sullivan & Worcester LLP. In highly subjective, unverifiable, and immediately criticizeable order, here they are. Thanks as always for reading, and best wishes for in interesting, prosperous New Year. If you agree, disagree, or otherwise, please continue to stay in touch and carry the conversation forward.
Topics: Comedy Central, Deaccession, Schwabinger Kunstfund, Charitable Foundations, National Gallery of Art, Knoedler, Cornelius Gurlitt, Blogs, authentication, authenticity, parody, William Corcoran, Moral Rights, Above the Law, Germany, George Washington University, Glühwein, Nazi-looted art, Gurlitt Collection, Norton Simon, Graffiti Art, Superior Court, Cy Pres, Washington DC, VARA, Detroit Institute of Arts, Bankruptcy, Corcoran College of Art + Design, Dumb Starbucks, Preemption, Asher Edelman, DIA, Restitution, Marei Von Saher, Artmentum GmbH, Bavaria, Sullivan & Worcester LLP, World War II, Copyright, Times Square, Art Fairs, Kunstmuseum Bern, Corcoran Gallery, Ninth Circuit Court of Appeals, Museums, Raubkunst, Detroit Bankruptcy, Fair Use, Münchner Kunstfund, Foreign Cultural Exchange Jurisdictional Immunity, Graffiti, Civil Forfeiture, Art Law Report
I am quoted at length in an article about the recent Von Saher decision: "Fight Over Paintings Looted by Nazis May Finally Get Trial Thanks to 9th Cir." by Nicholas Datlowe, published by Bloomberg BNA’s United States Law Week. The article covers the overall background and importance of the decision, and has quotes from the plaintiffs’ attorneys who now can return to the trial court to try to press their claim (and respond to the likely forthcoming act of state defenses, as discussed here previously). It also analyzes the dissent in the June 6, 2014 opinion by Judge Kim McLane Wardlaw, who would have upheld the trial court dismissal under the foreign affairs doctrine.
Topics: Bloomberg BNA, 82 U.S.L.W. 1944, Dutch Secretary for Education Culture and Science, Norton Simon Museum, Alois Miedl, Lilly Cassirer, Norton Simon Art Foundation, Rue Saint-Honoré après-midi effet de pluie, Jacques Goudstikker, Howard N. Spiegler, Fred Anthony Rowley, George Stroganoff-Scherbatoff, Hermann Goring, Harry Pregerson, Restitution, Marei Von Saher, Jr., World War II, act of state doctrine, Cassirer v. Kingdom of Spain, United States Law Week, Lucas Cranach the Elder, Camille Pissarro, Dorothy Wright Nelson, http://www.bna.com., The Bureau of National Affairs Inc., Kim McLane Wardlaw, Soviet Union, foreign affairs doctrine, California Section 354.3 of Code of Civil Procedur, Von Saher v. Norton Simon Museum of Art
The U.S. Court of Appeals for the Ninth Circuit restored on June 6, 2014 the claims by Marei von Saher against the Norton Simon Museum in Pasadena for the paintings Adam and Eve by Lucas Cranach the Elder. The appeals court followed its decision in Cassirer v. Kingdom of Spain in December of last year, concerning the painting Rue Saint-Honoré, après-midi, effet de pluie by Camille Pissarro that was owned at one time by Lilly Cassirer, a Jewish collector who fled Germany in 1939. While the panel of judges vacated the Von Saher dismissal that was premised on the idea that California’s revised statute of limitations was unconstitutional (instead finding that the law and claims withstand that scrutiny), the divided 2-1 panel sent the case back to the district court to determine if the claims were nonetheless barred under the “act of state doctrine”. One dissenting judge would have upheld the dismissal on the grounds that the case would call into question Von Saher’s compensation from the Dutch government such that that would violate the foreign affairs doctrine. That split on the act of state doctrine partially answers the lingering question of why Von Saher, argued the same day as Cassirer concerning the same California law, had gone undecided six months after Cassirer was resolved.
Topics: Dutch Secretary for Education Culture and Science, Norton Simon Museum, Alois Miedl, Lilly Cassirer, Norton Simon Art Foundation, Rue Saint-Honoré après-midi effet de pluie, Jacques Goudstikker, Howard N. Spiegler, Fred Anthony Rowley, George Stroganoff-Scherbatoff, Hermann Goring, Harry Pregerson, Restitution, Marei Von Saher, Jr., World War II, Foreign Sovereign Immunities, act of state doctrine, Cassirer v. Kingdom of Spain, Lucas Cranach the Elder, Camille Pissarro, Dorothy Wright Nelson, http://www.bna.com., Kim McLane Wardlaw, Soviet Union, foreign affairs doctrine, California Section 354.3 of Code of Civil Procedur, Von Saher v. Norton Simon Museum of Art