Supreme Court rules in case of French painting, Nazi, Spanish museum

Section of Rue Saint-Honoré in Pissarro in the afternoon, effect of rain

Source: The Supreme Court

The US Supreme Court on Thursday in a unanimous decision revived a lawsuit over ownership of a French painting – now owned by a prestigious museum in Spain – that a Jewish woman gave to the Nazis in 1939 to flee Germany.

The Supreme Court ruling gave new hope to the Cassirer family that they will be able to recover the painting by Camille Pissarro entitled “Rue Saint-Honoré in the Afternoon, Effect of the Rain”, owned by the Thyssen-Bornemisza Collection Foundation in Madrid .

For more than two decades, the foundation has refused to return the painting, believed to be worth tens of millions of dollars, to the descendants of Lilly Cassier, who were forced to hand it over to the Nazis in exchange for their release.

In the Supreme Court opinion, Judge Elena Kagan wrote that lower courts made an error in choosing a federal method of determining law — California property law or Spanish law — to determine whether the foundation was the rightful owner of the painting.

A previous trial in a federal district court in California that ordered the application of Spanish law to the case filed under the Foreign Sovereign Immunities Act resulted in a decision that the foundation was the legal owner.

The dispute over ownership of the painting will now return to that district court, which the Supreme Court said Thursday must use California state rule, not the federal method, to determine which law to apply in such a dispute.

“The path of our decision was as short as the hunt for the rue Saint-Honoré was long; our decision is as simple as the conflict angered its rightful owner,” Kagan wrote.

“A foreign state or entity in an FSIA [Foreign Sovereign Immunities Act] Complaint is liable like a private person … This means that the usual choice of law must apply. In a property dispute like this, that default rule is that of the forum state (here, California) — not a derivative of federal common law,” Kagan wrote.

But she also noted, “The fundamental question in this case – which this Opinion will not resolve – is whether the Cassirer family can get the painting back.”

One of the Cassirer family’s attorneys, Scott Gant of the Boies Schiller Flexner law firm, said that if the case returns to district court with the present verdict, the family will reapply for a second trial to be governed by California law.

Gant said there is “a major difference” between California and Spanish law on whether a buyer of stolen artwork can continue to own the property if they have a good faith belief that the art wasn’t stolen, which he said

“Under California law, even bona fide purchases of stolen property cannot be enforced in a property dispute,” Gant said.

“The application of California law will have a significant impact on the outcome of this case.”

Gant said he was hopeful, if not optimistic, that the foundation would return the painting without going to court again.

The lawyer said people should ask the Kingdom of Spain, which set up the foundation: “Why do you insist on keeping the property when there is no doubt that it was stolen from Lilly Cassirer by the Nazis?”

The Spanish embassy in Washington did not immediately respond to a request for comment.

Lilly’s grandson, Claude Cassirer, who was the original plaintiff in the case, died in 2010.

His son David Cassirer succeeded him as plaintiff in that case, as did the estate of Claude’s late daughter Ava, who died in 2018, and the Jewish Federation of San Diego.

“It’s a lucky day and a lucky day and it’s going to be a long time,” David Cassirer said in a phone interview with CNBC Thursday after the verdict.

“It’s very important to the family,” said Cassirer, a 67-year-old resident of Telluride, Colorado.

David Cassirer, great-grandson of Lilly Cassirer, poses for a photo in front of the Supreme Court in Washington on Tuesday, January 18, 2022.

Susan Walsh | AP

“The Supreme Court is sending out a message that I think will be heard around the world: you must not keep artwork stolen by the Nazis from Holocaust victims.”

“My father would have been thrilled by the verdict,” Cassirer said, “he always thought the greatest day of his life was … when he became a US citizen.”

Cassirer criticized the Thyssen-Bornemisza Collection Foundation for “not doing the right thing here” and said the museum must have known that the Pissaro had been looted by the Nazis.

On the back of the painting, which is on display in the Thyssen-Bornemisza National Museum, was a label from his family’s former art gallery in Berlin.

A lawyer for the foundation did not immediately respond to a request for comment.

Paul Cassirer, whose family owned a leading art gallery in Berlin and a publishing house, acquired the Impressionist artwork at the center of the case in 1900 from an agent for Pissaro.

More than two decades later, Lilly Cassirer, the daughter-in-law of Bruno Cassirer, Paul’s cousin and co-owner of the Berlin gallery, inherited the painting.

The painting hangs in Lilly Cassirer’s house in Germany

Source: The Supreme Court

“But in 1933 the Nazis came to power. After years of increasing persecution of German Jews, Lilly decided in 1939 that she had to do whatever was necessary to flee the country,” Kagan wrote.

“In order to obtain an exit visa to England…she gave the painting to the Nazis,” Kagan wrote.

Lilly and her husband Otto eventually ended up in the United States, as did their son Claude, after being freed from a French internment camp in Morocco in 1941, according to David Cassirer.

After the end of World War II, the Cassirer family searched for the painting but could not find it, although it was in a private collection in St. Louis, Missouri from 1952 to 1976.

“In 1958, after Lilly was legally declared the rightful owner, she agreed to accept compensation from the Federal Republic of Germany — approximately $250,000 in today’s dollars,” Kagan wrote in that decision.

In 1976 the painting was bought by Baron Hans Heinrich Thyssen-Bornemisza, descendant of the founder of a German steel empire. Until then, the baron had it hung up in his residence in Switzerland
Early 1990s, Kagan wrote.

The Baron later sold the painting and much of his remaining art collection to the Thyssen-Bornemisza Collection Foundation, an entity set up by the Kingdom of Spain. The kingdom, which funded the $300 million purchase of the collection, donated a palace in Madrid to the foundation to serve as a museum for the collection.

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In 1999, Claude, whose grandmother Lilly had died in 1962, learned from an acquaintance that Rue Saint-Honoré was in a catalog of the museum’s holdings.

In 2005, after other efforts to get the painting back from the foundation failed, Claude sued it in federal court in California, where he was living at the time. He claimed he was the rightful owner of Rue Saint-Honoré and entitled to its return.

The Foreign Sovereign Immunities Act normally grants immunity from lawsuits to foreign states or their bodies such as the Foundation.

But the lower US courts, which handled Claude’s case first, let him proceed on the grounds that “the Nazi seizure of rue Saint-Honoré brought Claude’s case against the foundation into the FSIA expropriated property exception.” Kagan firmly in the decision.

In order to determine which property law governs the case, the lower courts had to apply what is known as the choice of law rule.

The Cassirer family wanted to use the California choice of law rule, but the foundation advocated a rule based on federal common law.

The district court decided in favor of the federal variant. It cites precedent from cases before the US Circuit Court of Appeals for the 9th Circuit, the appellate court covering western states including California.

The 9th Circuit Court of Circuits was the only federal circuit court to use the federal choice of law rule to select applicable law in FSIA cases relating to non-state claims such as property, contracts and tort. All other federal appellate courts “apply the forum state’s choice of law rule,” Kagan noted.

Following the instruction of the 9th District Court to use the federal method, the District Court ruled after the trial that Spanish law would apply in the case.

And under Spanish law, lower courts had found “that the foundation was the legal owner [of the painting] because it bought Rue Saint-Honoré not knowing the painting was stolen and had owned it long enough to acquire ownership through possession,” Kagan noted in her decision.

Kagan wrote that the decision to use the federal option to determine applicable law in such a court proceeding was a mistake.

She pointed out that Section 1606 of the FSIA provides that in any judicial proceeding in which a foreign state is not entitled to immunity under that law, “the foreign state shall be liable in the same manner and to the same extent as a private individual in similar circumstances . “

“If a foreign state is not immune from lawsuits, it is subject to the same rules of liability (same
substantive law) as a private party,” Kagan wrote.

Thursday’s ruling means all federal courts must apply the choice of law rule for the state in which the lawsuits are filed when considering similar FSIA lawsuits.

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