Jamie Lee
On December 18, the Supreme Court heard arguments for a case involving Camille Pissarro’s Rue St. Honoré, après-midi, effet de plui (1897), a painting that has been the center of a 17-year-long dispute. The work – which Justice Breyer called “a beautiful painting”[1] – was purchased by the Cassirer family directly from Pissarro’s exclusive agent and was later passed down to Lilly Cassirer Neubauer. She held it in her possession until 1939, when she was forced to relinquish it to the Nazis in exchange for $350 (which she never received) and exit visas that she and her husband needed to flee Germany. In 1954, upon Lilly’s attempt to recover the painting, the U.S. Court of Restitution Appeals declared her the rightful owner but had no information on the painting’s whereabouts. She received a $13,000 settlement from the German government, but never waived her right to the painting should it ever resurface.[2] Unbeknownst to the Cassirer family, the painting had made its way to California and was acquired by a German gallery owner who consigned it to the Knoedler Gallery in New York City. It then sold to a St. Louis collector Sydney Shoenberg for his private collection. Upon Shoenberg’s death, it was purchased by Baron Hans Heinrich von Thyssen-Bornemisza in Switzerland. Together with the Kingdom of Spain, the Baron established the Thyssen-Bornemisza Collection Foundation in 1993. In a $350 million deal, the Baron sold most of his art collection, including the Pissarro painting, to the Foundation. The collection was housed in a palace in Madrid where the painting remained until the time of this dispute.
Lilly’s grandson Claude, who first filed this suit in a federal district court in California, held on to the memory of the painting hanging in his grandmother’s parlor. Throughout his life, he made consistent efforts to locate it. In 1999, he received word that the painting was in the possession of the Thyssen-Bornemisza Collection and contacted them to request its return. After several failed attempts to have the painting returned, Claude brought suit under the Foreign Sovereign Immunities Act (FSIA) in 2005, alleging common law claims under the laws of California (where he had been a resident for the past twenty-five years). The court rejected TBC and Spain (Defendants)’s arguments that the FSIA’s expropriation exception[3] did not apply because the Nazis had taken the painting in violation of international law and TBC engaged in substantial commercial activity in the States to sustain jurisdiction under the FSIA. The defendants also argued that the expropriation exception did not apply because it was Germany, not Spain, that violated international law in taking the painting.[4]
The Ninth Circuit upheld the district court’s FSIA jurisdiction under the expropriation exception.[5] They rejected the argument that the exception did not apply because it was Germany that stole the painting. On remand, the case returned to both the district court and Ninth Circuit on statute of limitations claims.[6] By 2015, it was back in district court, where the Cassirer’s claims were dismissed and ownership of the painting was given to TBC. The district court applied federal common law choice of law principles – following Ninth Circuit precedent – and decided the case under Spanish substantive law. According to Spanish law, TBC’s adverse possession of the painting for a period of six years entitled them to lawful ownership.
If California’s choice of law standard had been applied, it would require that the court “carefully evaluat[e] and compar[e] the nature and strength of the interest of each jurisdiction in the application of its own law to determine which state’s interest would be more impaired if its policy were subordinated to the policy of the other state.”[7] California follows common law rule that a thief can never transfer good title, rejects adverse possession for personal property, and provides that the statute of limitations on claims against museums holding stolen art (six years) begins to run only upon “actual discovery.” California law also requires consideration of interests such as US law and diplomatic agreements such as the Washington Principles and Terezin Declaration, which are inconsistent with Spain’s law when applied to Nazi looted art because it seeks to resolve such disputes based on their merits instead of Spain’s general adverse possession rule.[8] This means that depending on the court’s interpretation, California’s choice of law principles could hypothetically lead to a judgment under California state law or Spanish law. After considering both standards of choice of law, the district court concluded that Spain’s interest “would be substantially more impaired” because it had a “strong interest in regulating conduct that occurs within its borders…”[9] Regardless which choice of law standard was applied, Spanish law applied, and since it was undisputed that TBC had possessed the painting for six years prior to the claim, the court granted summary judgment in favor of the defendants.[10]
On appeal to the Ninth Circuit, the Cassirers argued that if California choice of law rules were properly applied, the law to determine the judgement would be California substantive law.[11] They also stated that even if the Ninth Circuit’s federal common law standard was applied, this standard also called for application of California substantive law. The Ninth Circuit recognized that California substantive law would require return of the painting to the Cassirers. However, it decided the case on federal common law choice of law standards instead, which follows the Restatement (Second) of Conflict of Laws, and held that Spanish substantive law applied. Yet, the Ninth Circuit reversed the award of summary judgment to TBC because it concluded that while district court had correctly decided to apply Spanish law, it had applied it incorrectly. Evidence presented by the Cassirers created a genuine issue of material fact as to whether TBC was an “encubridor” – an accessory to the Nazi’s theft of the painting.[12] If TBC or the Baron had actual knowledge that the painting was stolen – or were willfully blind to this fact – the holding period required for adverse possession would be twenty-six years instead of six. This detail was dispositive, since TBC had held the painting for less than twenty-six years prior to the claim. The case was remanded on this question, and the district court found that while the Baron had “actual and concrete reasons for suspicion” and had not purchased the painting in good faith – and thus did not pass good title to TBC – this was not enough to constitute “actual knowledge.” According to the court, while the Baron’s and TBC’s failure to investigate “may have been irresponsible… it certainly was not criminal.”[13] It was ordered that TBC could keep the painting. Appealed once again, the case made its fourth trip to the Ninth Circuit where this judgment was affirmed. The Cassirers then filed their petition for Writ of Certiorari.
As the complex procedural history indicates, it took many rounds between the lower courts for this case to land before the Supreme Court justices. At oral arguments, David Boies (representing Cassirer) argued that the FSIA requires a foreign state to receive the same treatment as a private individual except where the statute provides otherwise,[14] and under that application, California law should apply. Thaddeus J. Stauber (representing TBC) argued that California’s connection to the case was limited to the filing, which was only a result of Claude Cassirer residing there at the time. Stauber also warned that U.S. foreign relations could be damaged unless disputes against foreign states were decided under “a federal regime that is intended to ensure fair and uniform treatment, regardless of where in the United States” suit was brought.[15] Chief Justice Roberts’ response was, “Welcome to the United States – that’s how the courts work.”[16] Justice Thomas questioned whether this would allow foreign states to evade legal liability despite Section 1606 requiring them to receive the same treatment as private individuals. Justice Sotomayor was skeptical about the defendant’s claim that California law and federal law would both lead to the same destination – application of Spanish law. She challenged Stauber, “You’re afraid of something. You’re afraid that they’re right, that some aspect of California law can hurt you, correct?”[17]
The issue before the high court turns on first, a choice of law question and second, a legal test for whose law should be applied under the correct choice of law standard. Despite its complex history and cultural value, the painting itself was only referenced once by the justices. (Justice Breyer refused to let the beauty of the painting go unnoticed as he noted, “I think everyone can agree that this is a beautiful painting.”[18]) Somehow, this fascinating story of Pissarro’s work and its survival during Nazi Germany, its journey(s) across the Atlantic, and its miraculous re-discovery, the long-standing litigation has transformed it into a story about choice of law. The Supreme Court is expected to return a decision by the end of June.[19] The outcome is difficult to predict, given both sides faced difficult questions during the hearing. The judgment will decide much more than ownership of Pissarro’s masterpiece; it is certain to impact future litigation against foreign states and hopefully clear up some of the uncertainties surrounding adjudication under the FSIA.
[1] Tierney Sneed, Pissarro painting confiscated by Nazis at center of Supreme Court arguments, CNN POLITICS (Jan. 8, 2022), https://www.cnn.com/2022/01/18/politics/pissarro-nazi-supreme-court/index.html.
[2] Sarah Cascone, The U.S. Supreme Court Will Offer the Final Word in a Two-Decade Battle Over a Nazi-Looted Pissarro Painting, ARTNET NEWS (Dec. 20, 2021), https://news.artnet.com/art-world/supreme-court-will-hear-nazi-looting-case-over-disputed-pisarro-2050684.
[3] 28 U.S.C §1605(a)(3).
[4] Cassirer v. Kingdom of Spain, 461 F. Supp. 2d 1157, 1178-79.
[5] Cassirer v. Kingdom of Spain, 580 F.3d 1048 (9th Circ. 2009) was decided by a 3-judge panel. Subsequently, the case was heard en banc in Cassirer v. Kingdom of Spain, 616 F.3d 1019, 1032 (9th Cir. 2010).
[6] Cassirer v. Thyssen-Bornemisza Collection Found., 737 F. 3d 613, 621 (9th Cir. 2013).
[7] Cassirer v. Thyssen-Bornemisza Collection Found., 153 F. Supp. 3d 1148, 1156 (C.D. Cal. 2015) (quoting Kearny v. Salomon Smith Barney, Inc., 39 Cal. 4th 95, 107-08 (Cal. 2006)).
[8] Cassirer v. Thyssen-Bornemisza Collection Found., No. 2:05-cv-03459, Dkt. 251 at 1-2, 18-20, 36; Id. at 16, 30, 45-48.
[9] Supra, note 7 at 1158, 1159.
[10] Id at 1160,1168.
[11] Cassirer v. Thyssen-Bornemisza Collection Found., 862 F. 3d 951 (9th Circ. 2017) at 960-61.
[12] Id. at 981.
[13] Cassirer v. Kingdom of Spain, No. 2:05-cv-03459-JFW-E, Dkt. 621 at 29.
[14] 28 U.S.C. §1606
[15] Harper Neidig, Supreme Court grapples over fate of artwork stolen by Nazis, THE HILL (Jan. 18, 2022), https://thehill.com/regulation/court-battles/590218-supreme-court-grapples-over-fate-of-artwork-stolen-by-nazis?rl=1.
[16] Sarah Cascone,‘Can Everyone Agree This Is a Beautiful Painting?’: A Divided U.S. Supreme Court Reviews a Rare Art Case Over a Nazi-Looted Pissarro, ARTNET NEWS (Jan. 19, 2022), https://news.artnet.com/art-world/supreme-court-pissarro-case-2061185.
[17] Id.
[18] Supra, note 1.
[19] Supra, note 15.