Court Revives Suit Against Museum Over Artwork Stolen by Nazis

Monday, June 9, 2014

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Court Revives Suit Against Museum Over Artwork Stolen by Nazis

By KENNETH OFGANG, Staff Writer

The Ninth U.S. Circuit Court of Appeals Friday reinstated a long-running lawsuit accusing the Norton Simon Museum of Art of harboring artwork stolen by the Nazis, saying a ruling for the plaintiff would not contravene U.S. foreign policy.

The panel sent the case back to the U.S. District Court for the Central District of California, where Judge John Walter has previously dismissed it twice.

Marei Von Saher, a Connecticut resident, filed suit in 2007, following the collapse of mediation over her claim that she and her family are the rightful owners of “Adam and Eve,” a diptych painted by famed German artist Lucas Cranach the Elder in the 16th century.

Von Saher’s late husband, Eduard “Edo” Von Saher, was the son of Jacques Goudstikker, a Dutch Jew who was one of Europe’s leading art dealers in the years leading up to World War II. Goudstikker fled Holland when the Nazis invaded in 1940, but was killed in an accidental fall aboard the ship.

His widow, Desiree Goudstikker, and their son eventually came to the United States and became citizens, having left behind their gallery; hundreds of art works, many of them by famous painters; and valuable real estate. Young Edo Goudstikker became Edo Von Saher after his mother remarried.

Russian Revolution

The parties agree that Jacques Goudstikker purchased the wood panels at an auction in Berlin in the 1930s. But while Von Saher claims that her father-in-law acquired good title from the Soviet government, the foundation charges that he knew that Cranach’s work had been wrongfully expropriated from the wealthy and powerful Stroganoff family after it fled the Russian Revolution.

The museum and foundation say museum benefactor Norton Simon lawfully acquired the panels for $800,000 from Commander George Stroganoff-Scherbatoff, who renounced his hereditary title, became a U.S. citizen, and served in the Navy during World War II. Von Saher claims that the diptych, which has been exhibited at the museum for more than 30 years, was never part of the Stroganoff collection.

The Goudstikker properties were seized by the Nazis, and much of the artwork, including the diptych, wound up in the personal collection of Hitler’s second-in-command, Herman Goering. Along with other confiscated property discovered by the U.S. Army at the end of the war, the art was sent to a central collection point in Munich and was later turned over to the Dutch government.

Von Saher recovered about 200 paintings and artifacts from the Dutch government in recent years, valued at tens of millions of dollars.

In her suit against the museum and its supporting foundation, the defendants argued that the lawsuit was untimely, and that their ownership of the panels was lawful.

Timeliness Claimed

The plaintiff countered that the suit was timely both under Code of Civil Procedure §354.3, which established an extended deadline for suits over artwork and the like looted during the Holocaust era, and §338(c), which allows the victim of art theft to sue for return of the property up to three years from the date the plaintiff learns or reasonably should have learned that the defendant is in possession of it.

Walter declared that §354.3 was preempted by federal law, and that the action was untimely under §338(c). In its ruling in Von Saher v. Norton Simon Museum of Art at Pasadena (2010) 592 F.3d 954, the Ninth Circuit upheld Walter’s ruling on §354.3, but remanded so that the plaintiff could attempt to plead additional facts showing that the action was not barred by §338(c)

Six weeks after the Ninth Circuit ruled, the Legislature amended §338(c) to extend the statute of limitations from three to six years for claims concerning the recovery of fine art from a museum, gallery, auctioneer or dealer, and to provide that a claim for the recovery of fine art does not accrue until the actual discovery of both the identity and the whereabouts of the artwork. The amendments were explicitly made retroactive.

On remand, the defendants did not attack the amended statute of limitations, but argued that the plaintiff’s claims, and the remedies she sought, were contrary to U.S. foreign policy. Walter agreed, citing the solicitor general’s amicus brief in opposition to Von Saher’s certiorari petition challenging the Ninth Circuit’s ruling on §354.3.

The government argued in that brief that under policies established at the end of the war, the United States agreed to honor the outcomes of bona fide, internal processes established by European governments with respect to restitution to those whose properties had been looted or subjected to forced sale by the Nazis.

Friday’s Opinion

But Senior Judge Dorothy W. Nelson, writing for the Ninth Circuit Friday, said that ownership of “Adam and Eve” was never the subject of an internal restitution process in the Netherlands.

Von Saher’s mother-in-law, Nelson explained, could have filed a claim by the July 1, 1951 deadline established by the Netherlands. Her decision not to do so was unsurprising, Nelson wrote, because any process conducted by the Dutch at that time would have been “a sham.”

The judge explained that the Dutch government in that period was hostile to claims of Jews to looted property, having taken the “astonishing position” that the transaction between Goering and the Goudstikker gallery didn’t involve coercion.

Nelson wrote:

“Based on Von Saher’s allegations that (1) [Desiree Von Saher, the plaintiff’s mother-in-law] chose not to participate in the initial postwar restitution process, (2) the Dutch government transferred the Cranachs to Stroganoff before [Desiree Von Saher] or her heirs could make another claim and (3) Stroganoff’s claim likely was not one of internal restitution, the diptych was never subject to a postwar internal restitution proceeding in the Netherlands. Thus, allowing

Von Saher’s claim to go forward would not disturb the finality of any internal restitution proceedings—appropriate or not—in the Netherlands.”

On remand, however, the district judge will have to rule on an issue that has never been decided in the case—whether the plaintiff’s claims are barred by the act-of-state doctrine, the appellate jurist wrote.

Nelson explained that the conveyance to Stroganoff may have been an act of a foreign sovereign, and thus entitled to deference by U.S. courts. On the other hand, she wrote, if the conveyance was “purely commercial,” an exception to the doctrine might apply.

Judge Harry Pregerson concurred in the opinion.

Judge Kim Wardlaw dissented, writing:

“In my view, Von Saher’s attempt to recover the Cranachs in U.S. courts directly thwarts the central objective of U.S. foreign policy in this area: to avoid entanglement in ownership disputes over externally restituted property if the victim had an adequate opportunity to recover it in the country of origin….The majority fails to acknowledge the Executive’s clear determination that the Goudstikkers had an adequate opportunity to assert their claim after the war.”

New York lawyer Lawrence M. Kay argued for Von Saher in the Ninth Circuit, with Donald S. Burris of Burris, Schoenberg & Walden, LLP assisting with the briefs. Fred A. Rowley Jr. of Munger, Tolles & Olson LLP argued for the Norton Simon, and, Deputy Attorney General Catherine Z. Ysrael authored the state’s amicus brief supporting the plaintiff.

The case is Von Saher v. Norton Simon Museum of Art at Pasadena, 12-55733.