The Cassirer heirs recently received another negative ruling in their lawsuit to recover a Nazi-looted painting by French Impressionist Camille Pissarro, but this case has not yet ended. The heirs indicated their intent to request a rehearing of the Ninth Circuit’s holding that, under Spanish law, title to the Pissarro is rightly held by the Spanish foundation that purchased it in the 1970s.
The outcome was largely determined by the “clear error” standard under which the appellate court was bound to affirm the lower court’s factual conclusions if “sufficient evidence” existed in support of those conclusions. In this case, it was determined that adequate evidence supported the lower court’s finding that the foundation lacked the necessary knowledge that the painting had been plundered by the Nazis at the time of its purchase.
The Cassirers’ Loss of the Pissarro
As discussed previously here, Lilly Cassirer’s experience is emblematic of Jews in Nazi-controlled Germany whose possessions were inventoried by a Nazi-appointed appraiser who then gave under-market ‘offers’ for prized artworks. In no position to refuse such an offer, Cassirer ‘sold’ Rue Saint-Honoré, après-midi, effet de pluie in 1939. In 1954, the United States Court of Restitution Appeals confirmed Cassirer was the owner of the painting; however, it was assumed the painting was “lost in the war”.
In 2000, Lilly Cassirer’s grandson, Claude Cassirer, learned the Pissarro was intact and held at a museum owned by the Spanish Thyssen-Bornemisza Collection Foundation (“TBC”). After Spain and TBC rejected a petition for return of the Pissarro, Claude Cassirer turned to the U.S. courts.
TBC’s ownership of the Pissarro
The difficulty experienced by the Cassirer heirs in recovering the Pissarro is rooted in its purchase by billion-dollar art collector Baron Thyssen-Bornemisza and the Baron’s subsequent sale of the painting to Spain and TBC. After Spain was dismissed from the U.S. suit in 2011, the heirs’ claims against Spanish-controlled TBC proceeded and survived summary judgment in 2017 because the Ninth Circuit found genuine issues of material fact existed as to whether TBC knew the Pissarro was plundered by the Nazis when TBC purchased it.
On remand from the Ninth Circuit, the first issue decided by the trial court was whether the Baron had good title to the painting when he sold it to TBC; he did not, according to the trial judge, due to the Baron’s lack of good faith. The next issue was whether TBC had actual knowledge the painting was looted by the Nazis at the time of its purchase from the Baron; the trial judge found “sufficient evidence” to show TBC did not have actual knowledge. Notably, evidence in the record also suggested TBC did have actual knowledge of the looting. Nonetheless, it was held that TBC would keep the Pissarro.
The heirs then appealed not just the trial court’s judgment but also the Ninth Circuit’s 2017 adverse holdings that included application of Spanish (not California) law and allowance of Spain’s acquisitive prescription (adverse possession) defense despite the Holocaust Expropriated Art Recovery (HEAR) Act’s prohibition against time-bars. Notably, had California law been applied, application of the acquisitive prescription defense would not have been at issue because California does not allow title transfers of personal property under this defense.
In its August 2020 memorandum, a three-judge panel from the Ninth Circuit denied the heirs’ request to review its prior holdings and, after reviewing the trial court’s findings of fact under the “clear error” standard and its conclusions of law de novo, affirmed the trial court’s judgment.
A ‘satisfactory’ result under legal and moral precepts
Noting Spain’s commitments as a signatory to the Washington Principles and Terezin Declaration, the Ninth Circuit panel presented a pointed question during oral argument: “why won’t Spain give the painting back?” As a Spanish-controlled entity, the response from TBC to this “very fair question” included a pronouncement that these non-binding moral principles are “guidelines” to inform the signatories’ “best practices”. This prompts several questions, such as how are Spain’s “best practices” informed by the Washington Principles’ provision that “expeditious” steps should be taken for resolution of Nazi-looted property when rightful owners or their heirs present their claims? And how does the outcome of the current case compare with the “just and fair” results envisioned by those Principles? Is it “just and fair” for a state-controlled entity to rely on legal technicalities such as the rules around acquisitive prescription?
The appellate court’s (unpublished) memorandum concluded by noting its chagrin at the “state of the law” and described Spain’s refusal to return the Pissarro as “inconsistent” with its status as a Washington Principles signatory – and its earlier signature of the Principles nothing less than “moralistic” preening.
The closing footnote of the panel’s memorandum appears to reflect its comment during oral argument that this case has yielded a “very unsatisfactory result”. Perhaps a rehearing by the Ninth Circuit, or even a compromised agreement between the parties, might bring a more ‘satisfactory’ conclusion for all involved.
 The HEAR Act is federal legislation enacted in the U.S. to provide parties like the Cassirers with a six-year term within which to bring a restitution suit regardless of “any defense at law relating to the passage of time”. HEAR Act Section 5(a), Pub. L. No. 114-308, 130 Stat. 1524 (2016). Appellants’ Brief, Docket No. 10-1 at 57-58; 17 August 2020 Memorandum, Docket No. 62-1 at 3.
 17 August 2020 Memorandum, Docket No. 62-1 at 9, FN3. (“The district court noted that Spain and TBC’s refusal to return the Painting to the Cassirers is inconsistent with Spain’s moral commitments under the Washington Principles and Terezin Declaration. However, the district court found that it could not force Spain or TBC to comply with these non-binding moral principles, which counsel for TBC characterized as ‘guidelines’. It is perhaps unfortunate that a country and a government can preen as moralistic in its declarations. But that is the state of the law.”)