Unanimous verdict from US Supreme Court in Nazi-looted art case: the long-running Cassirer case continues

Posted on: April 25, 2022 by

The seventeen-year title dispute over a Parisian winter streetscape by Camille Pissarro has now tilted in favor of the heirs whose German-Jewish ancestor was forced to part with the masterwork during the Holocaust. On 21 April 2022, the United States Supreme Court unanimously vacated a judgment by the Ninth Circuit Court of Appeals that had affirmed a California district court award of title of the Pissarro to a Spanish-controlled Foundation by applying Spanish law. The case has now been remanded for application of California’s ‘choice of law’ rule, which holds the potential to further tilt the scales of justice in favor of the heirs.

The Impressionist work at issue is Rue Saint-Honoré in the Afternoon, Effect of Rain, created by Pissarro from a hotel window in Paris’ 1st arrondissement in the late 1800s. In 1900, the bustling place du Théâtre Français scene was sold by the artist’s agent to the Cassirer family gallery. During the horrific days of the Third Reich, Lilly Cassirer took the painting off the wall of her Berlin apartment and sold it in order to escape with her life. Years later, the Thyssen-Bornemisza Collection Foundation came into possession of the work despite red flags that arguably pointed to its Nazi-looted history.

This case was filed in 2005 by the Cassirer heirs for recovery of the Pissarro from the Kingdom of Spain and the Foundation it controls, which possesses and manages the Pissarro. From the beginning, Spain and the Foundation argued they should not be in an American court because, as foreign sovereigns, they were allegedly immune from suit under the Foreign Sovereign Immunities Act of 1976 (FSIA). Only Spain prevailed on this argument and was dismissed from the case. The heirs’ state property claims were allowed to proceed to trial against the Foundation under the expropriation exception of the FSIA because the lower court held the Nazi taking of the Pissarro violated international law.

The petition for certiorari recently before the Supreme Court was filed by the heirs on the sole issue of whether a court in a FSIA case dealing with non-federal (state property) claims should apply the ‘choice-of-law’ rule of the forum state (California) or federal common law. The lower court’s application of federal common law for ‘choice of law’, which then allowed for application of Spanish substantive law, was held to be in error. Justice Elena Kagan wrote that only “minimally reasoned Ninth Circuit precedent” supported that decision (p.4-5). “[T]he Ninth Circuit’s use of a federal choice-of-law rule in FSIA cases has been a solution in search of a problem, rejecting without any reason the usual role of state law.”(p. 8)

During oral argument that lead to the Supreme Court’s decision, the Foundation’s counsel, Thaddeus Stauber, disavowed the notion that the Foundation was asking for “special treatment”; Stauber argued the Foundation sought only “fair and balanced treatment, but always acknowledging the fact that we are a foreign state.” (p. 44) The opening paragraph of the Court’s opinion makes plain its response – the treatment to be afforded Spain and any other foreign state coming into a U.S. court under like circumstances will be as though it was not a “foreign-state actor”:

“The question presented is what choice-of-law rule the court should use to determine the applicable substantive law. The answer is: whatever choice-of-law rule the court would use if the defendant were not a foreign-state actor, but instead a private party. Here, that means applying the forum State’s choice-of-law rule, not a rule deriving from federal common law.” (p.1, emphasis added)

This decision revives the hope that the Cassirer heirs may again possess the Pissarro taken from their family nearly a lifetime ago. In this next phase, if California’s choice of law leads to application of California property law as the heirs contend, the Foundation will not be at an advantage as it was under Spanish law in the prior proceedings. For, unlike Spanish law (which applies a doctrine of “acquisitive prescription”), California law does not provide a mechanism for “a good-faith purchaser of stolen property …[to]… prevail against the rightful pre-theft owner”. (p. 7)

Counsel for the heirs David Boies called the recent decision a victory not just for the Cassirer family but also “for all who care about justice”. Another of the heirs’ attorneys, Scott Grant, proffered his hope that the Foundation and Spain might abandon “its longstanding refusal to do what is just”.

Yet, the Foundation remains stalwart in its position. Despite acknowledging that hellish circumstances caused by the Third Reich brought Lilly Cassirer to sell her family’s heirloom, the Foundation continues its fight for the Pissarro. According to its 22 April 2022 press release, the Foundation is “confident” and “convinced” that the prior district court ruling favorable to the Foundation will be affirmed in this next phase of the case. Time will tell whether the Foundation’s confidence is properly placed.

More detail on the saga of the Cassirer matter has been covered in prior blog posts here and also will be included in an upcoming issue of Art Antiquity & Law.


Image: Camille Pissarro, Rue Saint-Honoré, après-midi, effet de pluie (1897); credit: ©Wikimedia Commons