Metropolitan News-Enterprise


Tuesday, December 10, 2013


Page 1


Court Revives Claim Against Museum in Nazi Art Theft Case




A California law extending the time in which a person who claims ownership to a stolen art work may sue a museum to recover the item is not preempted by federal primacy over foreign affairs, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

The panel reinstated claims by members of the Cassirer family, whose ancestors were wealthy and prominent German Jews before the rise of Nazism, to the ownership of a painting by Camille Pissarro that now belongs to a Spanish museum. The decision, however, leaves open the possibility of an as-applied due process challenge to the statute in question.

Claude Cassirer sued the Kingdom of Spain and the Thyssen-Bornemisza Collection Foundation, whose board is dominated by representatives of the government, in 2005. He claimed that the painting Rue Saint-Honoré, après-midi, effet de pluie, housed at Madrid’s Thyssen-Bornemisza Museum, was stolen from his grandmother, Lilly Cassirer, by a representative of the Nazi government of Germany in 1939.

He alleged that his grandmother, who inherited the work after the deaths of her father-in-law and later her husband, was forced to relinquish the painting upon nominal payment in order to leave the country.

The painting was sold several times, winding up in one of the world’s major private art collections, that of Baron Hans-Heinrich Thyssen-Bornemisza. The baron, who died in 2002, sold the entire collection to the Spanish government in 1988 for more than $325 million.

Late Discovery

Claude Cassirer alleged in his complaint that he was unaware of the painting being in the museum’s possession before 2000.

The kingdom and the foundation initially moved to dismiss the suit under the Foreign Sovereign Immunities Act. But U.S. District Judge Gary A. Feess ruled that the act’s expropriation exception applied, rejecting the contention that the exception only applied if the foreign sovereign was a party to the expropriation.

The Ninth U.S. Circuit Court of Appeals affirmed in a 2009 panel decision, and on rehearing en banc the following year.

Among the defenses raised in the case, which remained pending while the immunity issue was being litigated, was a constitutional challenge to Code of Civil Procedure § 354.3, the special statute of limitations for Holocaust-related art claims. Prior to the Ninth Circuit’s affirmance in the Cassirer case, the court found that section unconstitutional on the basis of field preemption, in Von Saher v. Norton Simon Museum of Art at Pasadena (9th Cir. 2009) 578 F.3d 1016.

New Law

Following Von Saher, the Legislature enacted § 338(c). The law says a suit for the recovery of stolen art work in the possession of a museum, gallery, dealer, or auctioneer is timely if it is brought no later than Dec. 31, 2017; if the theft occurred within the previous 100 years; and if suit is brought within six years of the plaintiff learning the whereabouts of the work and the factual basis for the claim.

The Legislature expressly made the law applicable to pending suits.

On remand, the parties agreed to dismiss the Spanish government from the suit, and the foundation agreed not to contest personal jurisdictional. The foundation moved to dismiss, arguing that § 338(c) is preempted for the same reasons as the earlier law, that allowing the foundation to be sued for possession of a work that its benefactor acquired, in good faith, years earlier violated due process, and that the law violated the First  Amendment by targeting museums for disparate treatment.

Claude Cassirer died in September 2010, not long after the en banc ruling. His heirs were substituted as plaintiffs.

Feess granted the motion to dismiss, agreeing that the new law impinged upon congressional prerogatives in the field of foreign affairs and that the case was time-barred under the three-year statute of limitations generally applicable to property claims.

Pregerson Opinion

But Judge Harry Pregerson, writing for the Ninth Circuit, said the new law was not preempted because it does not involve the courts in foreign policy decisions, and because it is not limited to claims involving foreign parties and thus “is not functionally equivalent” to § 354.3.

The judge went on to conclude that the defendants’ due process claim must be resolved on a fact-specific basis, and thus was not properly the subject of a motion to dismiss. He agreed with Feess that the resolution of the issue requires inquiry into the history of the painting’s transfer, whether the painting was stolen in the foundation’s chain of title, and whether the foundation was in uninterrupted and open possession for a substantial length of time.

Senior Judge Dorothy W. Nelson and Judge Kim M. Wardlaw concurred in the opinion.

Foundation lawyer Thaddeus Stauber told The Associated Press the foundation is considering asking for en banc rehearing.

“The foundation continues to maintain its rightful ownership of the painting,” Stauber said.

Stauber said the restitution Lilly Cassirer received from the German courts in the 1950a—about $13,000—has been a key issue in the twisted legal saga. Stauber claims that Lilly Cassirer gave up her ownership claims in agreeing to the German court settlement.

The family argues ownership rights weren’t given up and that the restitution was meant to compensate them for the loss of the painting, which was still unaccounted for at the time.

The case, Cassirer v. Thyssen-Bornemisza Collection Foundation, 12-56159, was argued in the Ninth Circuit by Stuart R. Dunwoody of Davis Wright Tremaine LLP’s Seattle office for the plaintiffs and by Stauber, of Nixon Peabody LLP in Los Angeles, for the foundation.

The state of California filed an amicus brief defending the law, and the California Association of Museums filed a brief supporting the defendant.


Copyright 2013, Metropolitan News Company