Clara Lacey
On March 10, 2024, the Supreme Court vacated a unanimous Ninth Circuit decision which, applying Spanish law, had held that a state-owned Spanish museum was the rightful owner of an Impressionist painting stolen from a Jewish family by the Nazis.[1] The decision comes after California lawmakers passed legislation changing the California choice of law rules in order to strengthen the ability of California plaintiffs to succeed in claims for the return of their Nazi-looted artwork.[2] After nearly two decades of litigation, plaintiffs are hopeful for the case to finally reach a favorable conclusion.[3]
The painting in question is Camille Pissarro’s Rue Saint Honoré in the Afternoon, Effect of Rain. The plaintiff’s grandmother was forced to surrender the painting to the Nazis in order to obtain an exit visa from Germany in 1939. The family ended up in the United States, where their search for the painting after the war was unsuccessful. Ownership passed through several hands after that, until the painting was purchased in 1993 by the museum of Thyssen-Boremisza Collection Foundation, which is created and controlled by the Kingdom of Spain.[4]
In 2000, plaintiff learned that the painting was listed in a catalogue of the museum. He filed a petition with the museum and Spain the next year for the painting to be returned, which was denied. In 2005, he brought this lawsuit under the Foreign Sovereign Immunities Act (FSIA) in the U.S. District Court for the Central District of California. The FSIA provides a foreign sovereign immunity unless it falls within a specified exception for “rights in property taken in violation of international law,” which the courts below held applied to the Nazi confiscation of the painting.[5]
Cases like this about Nazi-looted artwork are usually complex and fraught with not only moral and historical dilemmas that can pang at our inherent sense of justice, but also legal difficulties that come from international matters brought against a state which implicate which country’s law to apply. Not only do different states have different rules regarding the statute of limitations on actions of replevin involved in these claims, but American law differs from European law in essential ways regarding acquisition of good title over personal property like art. The common law principle nemo dat quod non habet, which prioritizes a previous possessor as a the “true owner” over a good faith bona fide purchaser, stands in stark contrast to civil law. In countries like Spain, one may acquire good title through adverse possession. In this way, stolen art cases in particular highlight the significance of procedural rules in determining substantive outcomes.
The procedural history since the commencement of this litigation has, fittingly, also been complex. These issues all primarily focused on the choice of law question– whether Spain or California’s property law should govern the suit. It was clear that if California law applied, then the plaintiff would recover the painting because a thief cannot transfer good title; if Spanish law was deemed the appropriate law, the painting would remain with Spain as the museum would have acquired good title after three years of possession. But that decision then turned on yet another issue: which choice of law rule to apply to get there, California’s choice of law rule or a rule based on federal common law.
After going back and forth between the Central District Court of California and the Ninth Circuit on several appeals, the Ninth Circuit finally affirmed a holding in favor of the museum. The Supreme Court then granted certiorari in 2022, holding that the District Court should have applied California’s choice-of-law rule, not a federal common law rule. The court said that while the FSIA creates federal law to govern which lawsuits against foreign sovereigns American courts can or cannot decide, it does not affect the substantive law that applies if a foreign sovereign is not immune from a lawsuit. The choice of law rule applied must be the same as that which would apply in a suit against a private party, which in this case was the California choice of law rule.[6]
In January 2024, the Ninth Circuit on remand applied the California choice of law rule, which is a “governmental interest approach.” Applying that test, the court held that Spanish law should apply. It found that (1) Spain’s laws and California’s laws differ with respect to the ownership of stolen property, (2) there is a true conflict between Spanish and California law, and (3) Spain’s governmental interests would be more impaired by the application of California law than California’s interests would be by the application of Spanish law.[7] The last of these conclusions was found because no relevant conduct involving the painting happened in California, while Spain has an interest in promoting “reliance, predictability, and investment” in regulating conduct within its borders.[8] The court had previously certified this question to ask how the comparative impairment analysis should be applied, but the California Supreme Court declined to provide guidance.[9]
On March 10, 2025, the Supreme Court again granted a writ of certiorari to review the Ninth Circuit’s decision. The unanimous court issued a one-sentence order vacating the Ninth Circuit’s ruling and remanding the case to revisit plaintiff’s claims because of the changes in California law that occurred since the 2024 holding.[10]
In September 2024, Governor Gavin Newson put into effect a law which provides that “California substantive law shall apply in actions to recover fine art or an item of historical, interpretive, scientific, or artistic significance, including those covered by the Holocaust Expropriated Art Recovery Act of 2016, brought by a California resident or their heirs.”[11] The law itself references the 2024 Ninth Circuit case and explains that this law will discourage art theft and stolen art trafficking while creating clear standards for how these claims should be settled under California law.[12]
One of the Ninth Circuit judges on the panel said that although it went “against her moral compass,” she agreed with the ruling clearing the way for Spain to retain possession .[13] The California law seems to be responding to this criticism and working to align the rule of law and moral principles. Based on the law and its precise application to this case, it seems almost certain that the plaintiff will be able to reclaim the painting.
[1]Cassier v. Thyssen-Bornemisza Collection Foundation, No. 24-652, 225 WL 746324 (March 10, 2025).
[2]A.B. 2867, Cal. Leg., 2023-24 Reg. Sess. (Cal. 2024).
[3]Caroline Simpson, Supreme Court Vacates Ruling on Nazi-Looted Art Dispute, Law360
(March 10, 2025, 9:43 AM), https://www.law360.com/appellate/articles/2307481, https://perma.cc/F98S-ZBGB, https://web.archive.org/web/20250328150903/https://www.law360.com/appellate/articles/2307481
[4]Cassier v. Thyssen-Bornemisza Collection Foundation, 142 S. Ct. 1502 (2022) at 1504.
[5]Id.
[6]Cassier, 142 S. Ct. 1502 (2022) at 1504.
[7]Cassier v. Thyssen-Bornemisza Collection Foundation, 89 F.4th 1226 (9th Cir. 2024) at 1234-1245.
[8]Id. at 1244-1245.
[9]Cassier v. Thyssen-Bornemisza Collection Foundation, 69 F4th 554 (9th Cir. 2023) at 557-571.
[10] Cassier, No. 24-652, 225 WL 746324 (March 10, 2025).
[11]A.B. 2867, Cal. Leg., 2023-24 Reg. Sess. (Cal. 2024).
[12]Id.
[13]Kevin Rector, California enacts law reviving a Jewish family’s claim to Nazi-looted art, bucking 9th Circuit, Los Angeles Times (Sept. 16, 2025 5:38 PM), https://www.latimes.com/california/story/2024-09-16/california-enacts-law-reviving-jewish-family-claim-to-nazi-looted-art-bucking-9th-circuit, https://perma.cc/2GE7-XA43.