Holocaust Art Restitution Litigation in 2010

February 2011Art & Advocacy, Volume 8

The year 2010 was an important and varied one for the restitution of looted art. Assertions of statutes of limitations and the Foreign Sovereign Immunities Act (FSIA) are highlighted in many of the year’s cases, in addition to some novel issues addressed in the cases described below. Also, a number of important European decisions addressed the restitution of Holocaust-era art. Together, these cases provide an overview of the field as it was shaped in 2010.

Grosz v. Museum of Modern Art, 2010 WL 5113311 (2d Cir. Dec. 16, 2010)

In 2009, the heirs of the German expressionist artist George Grosz filed suit against the Museum of Modern Art (MoMA) after engaging in a series of discussions beginning in 2003 over title to three Grosz paintings. The artist, who was forced to flee Germany in 1933, left behind a number of works, which he consigned to his art dealer in Berlin, Alfred Flechtheim. According to the heirs, after Flechtheim’s death in 1937, the Nazis subsequently took over Flechtheim’s gallery.

In New York, a replevin claim against a good-faith purchaser does not accrue until a true owner demands its return and that demand is refused. According to the heirs, the museum did not “refuse” their demand until April 12, 2006, the date that MoMA’s director rejected the heirs’ demand in a letter. The district court, however, found that letters from MoMA to the heirs, coupled with the museum’s retention of the paintings, constituted a refusal in 2003, even without an express statement by the museum. The case was, therefore, time-barred.

The heirs appealed to the Second Circuit, arguing that the district court misconstrued the settlement negotiations between the parties. Alternatively, the heirs argued that MoMA should be equitably estopped from using the statute of limitations as a defense because the heirs relied on the negotiations with MoMA in choosing not to file suit. The Second Circuit rejected the heirs’ claims, both affirming the lower court and holding equitable estoppel to be inapplicable, since “[t]he mere existence of settlement negotiations is insufficient to justify an estoppel claim.”

Museum of Fine Arts, Boston v. Seger-Thomschitz, 2010 WL 4010121 (1st Cir. Oct. 14, 2010)

In Museum of Fine Arts, Seger-Thomschitz demanded the recovery of a painting by Oskar Kokoschka, claiming to be the sole surviving heir of the painting’s true owner, who allegedly sold the painting under Nazi duress in 1938. In response, the museum brought a declaratory action to affirm its ownership of the work.

On a summary judgment motion, the district court held that Seger-Thomschitz’s claim was time-barred under the Massachusetts statute of limitations. Pursuant to Massachusetts law, where circumstances exist that prevent the plaintiff from reasonably knowing that she has been harmed, the state’s three-year statute of limitations does not start to run until an event occurs that would put a reasonable person on notice of the possible injury. Even with the application of this “discovery rule,” however, the court held that the claimant’s family had sufficient notice of possible injury since the 1940s.

On appeal, Seger-Thomschitz argued that, even if the district court had correctly applied the discovery rule, the circumstances of her claim justified displacing the limitations period with a federal common law laches defense. Seger-Thomschitz also argued that the Massachusetts statute of limitations is in conflict with, and is preempted by, the federal government’s foreign policy, which disfavors the application of rigid limitations periods to claims for Nazi-looted art. The First Circuit rejected Seger-Thomschitz’s argument, holding that there is no express federal policy disfavoring rigid timeliness requirements and, even if there were, the Massachusetts statute of limitations would not be preempted.

Dunbar v. Seger-Thomschitz, 615 F.3d 574 (5th Cir. 2010); petition for certiorari filed 2010 WL 5324003 (U.S. Dec. 21, 2010) (No. 10-839)

The possessor of another Oskar Kokoschka painting also brought a declaratory judgment action, seeking to preempt Seger-Thomschitz’s claim that the painting was looted by the Nazis. The plaintiff had been in possession of the painting in Louisiana for more than 30 years. Under Louisiana’s civil code, a party in possession of movable property for 10 years becomes the owner of that property, even where possession was acquired in bad faith. Where the injury relates to stolen art, the court must consider whether the claimant diligently tried to recover her art.

The Louisiana district court held that the possessor had acquired valid title to the work. The court rejected Seger-Thomschitz’s argument that Louisiana law should be supplanted to ensure compliance with the goals of the Holocaust Victims Redress Act, which provides that “all governments should undertake good faith efforts to facilitate the return of the private... property, such as works of art, to their rightful owners in cases where assets were confiscated from the claimant during the period of Nazi rule.”

In her appeal to the Fifth Circuit, Seger-Thomschitz extended her argument as she did in the case against the Museum of Fine Arts, contending that the state’s laws are preempted by U.S. foreign policy. As the First Circuit did in the Museum of Fine Arts case, the Fifth Circuit rejected Seger-Thomschitz’s argument. The court emphasized that Louisiana’s laws are “well within the realm of traditional state responsibilities.” A petition for writ of certiorari to the Supreme Court is pending in this case.

Von Saher v. Norton Simon Museum of Art at Pasadena, 592 F.3d 954 (9th Cir. 2010), petition for certiorari filed 78 USLW 3629 (U.S. Apr. 14, 2010) (No. 09-1254)1

In 2007, Marei von Saher, heir of noted Jewish art dealer and collector Jacques Goudstikker, initiated an action against the Norton Simon Museum of Art and the Norton Simon Art Foundation for the return of two monumental images of Adam and Eve by Cranach the Elder. The paintings had been part of Goudstikker’s gallery in the Netherlands, and were looted by Herman Goering just days after the Nazi invasion of Holland. The California district court dismissed the action, finding that a 2002 California law that extended the statute of limitations for claims brought for the recovery of Nazi-looted art against museums and galleries was unconstitutional.

Affirming in part, the Ninth Circuit found that by failing to limit the statute’s scope to museums and galleries located in California, the state legislature had enacted a law that did not address a traditional state interest. On this basis, the court determined that the statute was preempted by the federal government’s foreign affairs power. The Ninth Circuit, however, ruled that von Saher could replead under the general California statute of limitations for stolen cultural property. Von Saher filed a petition for rehearing, but the petition was denied. The Ninth Circuit stayed the issuance of its mandate pending a petition by von Saher for a writ of certiorari to the Supreme Court. On October 4, 2010, the Supreme Court issued an order inviting the Acting Solicitor General to file a brief expressing the views of the U.S. on the matter.

Bakalar v. Vavra, 619 F.3d 136 (2d Cir. N.Y. 2010)

In Bakalar, the district court applied Swiss law to the sale of an Egon Schiele drawing that the plaintiffs claimed was looted by the Nazis. The drawing was sold by a Swiss gallery to a New York gallery. Applying the traditional “situs rule,” the district court held that since the transaction occurred in Switzerland, Swiss law should apply, giving the New York gallery good title to the drawing. Unlike the U.S. rule, which provides that even a good-faith purchaser cannot acquire valid title to stolen property, Swiss law permits title to transfer to a good-faith purchaser.

On appeal to the Second Circuit, the court rejected the application of the situs rule in favor of an “interest analysis.” Pursuant to this analysis, the circuit court held that New York’s interest in ensuring that it did not become a haven for stolen property overrode any interests Switzerland may have had in the transaction. The circuit court also highlighted the fact that the drawing’s presence in Switzerland was fleeting; the property left the country almost as soon as it was purchased by the New York gallery. The Second Circuit vacated the lower court decision, holding that New York law, not Swiss law, should govern. The case was remanded to the district court for further proceedings.

In Re Flamenbaum, 899 N.Y.S.2d 546 (N.Y. Sur. Ct. 2010)

In In Re Flamenbaum, the Vorderasiatisches Museum in Germany sought the return of a thirteenth-century gold tablet in possession of the estate of Riven Flamenbaum. In 1913, the tablet was discovered during an excavation by German archaeologists in northern Iraq and thereafter was displayed at the Vorderasiatisches Museum. After World War II, an inventory by the museum revealed that the tablet was missing. Eventually, the tablet came into the possession of Riven Flamenbaum, a Holocaust survivor, who brought the tablet with him when he emigrated to New York in 1949. Upon Flamenbaum’s death in 2006, a dissatisfied heir contacted the museum and disclosed the tablet’s where-abouts, and the museum initiated its claim for the tablet’s return.

The facts showed that the missing tablet was never reported to legal authorities or listed on any international art registries, even after the museum learned that the tablet had been seen in the hands of a New York art dealer in 1954. The museum also failed to locate the missing tablet after the reunification of Berlin, an event that, the court noted, would have alleviated any potential political and financial constraints imposed under Soviet rule. Moreover, the museum’s delay prejudiced the plaintiffs such that the death of Flamenbaum precluded any means of determining the accurate provenance of the tablet. Based on these findings, which demonstrated a lack of requisite diligence, the museum’s claim was barred by the doctrine of laches, despite having established a timely claim under the statute of limitations.

Cassirer v. Kingdom of Spain, 2010 U.S. App. LEXIS 16707 (9th Cir. Cal. Aug. 12, 2010); petition for certiorari filed (U.S. Dec. 10, 2010) (No. 10-786)

Cassirer involved a dispute over the ownership of a Pisarro painting that a Nazi agent allegedly confiscated in Germany. After a series of transfers, the painting was eventually purchased by Baron Hans-Heinrich Thyssen-Bornemisza, who sold his entire art collection to Spain in 1993. The plaintiff initiated an action, naming Spain and the Thyssen-Bornemisza Collection Foundation, an instrumentality of Spain, as defendants. The defendants invoked the FSIA, 28 U.S.C. § 1605, as a defense to the claim. Under the FSIA, foreign states are immune from the jurisdiction of U.S. courts, unless one of the enumerated exceptions to the law applies. One such exception provides that where property has been expropriated in violation of international law, a foreign state will not be immune where the rights to such property are at issue. In Cassirer, the court considered for the first time whether this exception should apply where the foreign government involved in the litigation was not the entity that expropriated the property in violation of international law.

The district court determined that the defendants should not be immune from suit, even though Germany, not Spain, was responsible for the looting. The court explained that the FSIA only requires an unlawful taking, but not necessarily by the holder of the property at the time of the suit. The decision was affirmed on appeal to the Ninth Circuit. The appeals court also held that an exhaustion of remedies is not required as a prerequisite to jurisdiction under the FSIA, but left open the possibility that a court could, in its discretion, impose an exhaustion requirement in connection with a determination on the merits. A petition for writ of certiorari to the Supreme Court is pending.

Agudas Chasidei Chabad v. Russian Federation, 2010 U.S. Dist. LEXIS 78552 (D.D.C. July 30, 2010)

Chabad v. Russian Federation is another case that discusses both the expropriation exception and exhaustion under the FSIA. The claimants in Chabad sought the return of thousands of religious books, manuscripts, and other materials that had been seized by the Soviet Union from Agudas Chasidei Chabad. The district court held that the expropriation exception precluded the defendant’s immunity from suit under the FSIA. The court also held that Chabad was not required to exhaust Russian domestic remedies before bringing the action in the U.S. because the remedy provided under Russian law—the right to purchase the property, instead of restitution of the property—would be inadequate.

The district court’s decision allowed the case to proceed in a U.S. court. In a unique turn of events following the district court’s decision, Russia announced that it would no longer participate in the lawsuit. Consequently, on July 10, 2010, the district court issued an opinion ordering a default judgment against Russia, essentially reaffirming findings from prior decisions in the case. It is still unclear whether the claimant will be able to enforce a judgment against Russia.

Freund v. Societe Nationale des Chemins de Fer Francais, 2010 U.S. App. LEXIS 18717 (2d Cir. Sept. 7, 2010)

In the third case to tackle the issue of sovereign immunity, Holocaust survivors and their heirs brought suit against the Republic of France, the French national railway, and the French national bank seeking compensation for the expropriation of their personal property during forced railroad deportations to holding camps in France and Nazi concentration camps. The district court held that all of the defendants were immune from suit under the FSIA. The plaintiffs appealed only the lower court’s decision as to the French national railway.

On appeal, the Second Circuit affirmed, explaining that whereas the complaint alleged that the national bank was the depository for the funds looted from the Jews, there was no basis for finding that the national railway retained any of this property. Under the FSIA, stolen property or any property exchanged for such property must be owned or operated by the defendant in order for the expropriation exception to apply. 28 U.S.C. § 1605(a)(3). Accordingly the railway was immune from suit under the FSIA.

Alperin v. Vatican Bank, 365 Fed. Appx. 74 (9th Cir. Cal. 2010)

In the fourth case to discuss the FSIA, survivors and descendants of victims of the Holocaust sued the Vatican Bank for allegedly profiting from assets looted by the Nazi-supported Croatian Ustasha Regime. After finding that the Vatican Bank was a foreign sovereign, the district court examined whether one of the FSIA exceptions applied. The district court determined that neither the expropriation exception nor the commercial activity exception applied.

The Ninth Circuit upheld the district court’s decision on both grounds. The expropriation exception could not apply because the plaintiffs failed to allege that the property allegedly taken had a jurisdictional nexus to the U.S. at the time of the suit, and that it was presently owned by the Vatican Bank. The commercial activity section could not apply because the acts allegedly carried out by the defendants, including the Vatican Bank’s purported trade in the U.S. market of gold that was enhanced by the Ustasha Treasury, were too tangentially related to be considered the basis for the suit.

The Ninth Circuit denied a petition for panel rehearing and rehearing en banc, and further ordered that no additional petitions for rehearing or rehearing en banc be filed.

De Csepel v. Hungary, Complaint (D.C. July 27, 2010) (No. 1:10-cv-012161)

The most recent restitution case involving the FSIA is De Csepel v. Hungary, currently pending before the District Court for the District of Columbia, in which the heirs of Baron Mor Lipot Herzog are seeking the return of more than 40 works of art held by the Hungarian government since the end of World War II.

The heirs allege that, despite years of negotiations and international appeals for the return of the artwork, the Hungarian government has refused to return the items from the Herzog collection. The heirs also allege numerous violations of international customary and treaty law that may preclude the Hungarian government from asserting immunity under FSIA, including: (i) the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, ratified by the U.S. and Hungary, under which the government’s seizure of the art collection constitutes an act of genocide; and (ii) the 1947 Treaty of Peace between Hungary and the Allies, which gives the Hungarian government only a custodial interest in the artworks, with ownership rights remaining with the true owner. Among their claims, the heirs have also demanded a full accounting of all the looted art from the Herzog collection held by Hungary, making this the first time a request of this nature has been made in an art restitution suit. The Hungarian government filed a motion to dismiss the case on February 16, 2011.

Netherlands Restitutions Commission, Recommendation RC 1.96

In May 2010, the Dutch Restitution Commission recommended the return of a Jan Brueghel painting to the estate of Dr. Max Stern, a prominent Jewish art gallery owner who was forced to sell his artwork to escape Nazi persecution in Germany. Stern was forced to auction the majority of his collection for a fraction of the works’ fair market value, and then use a substantial portion of those funds to pay the escape tax imposed by the Third Reich and obtain an exit visa for his mother. Although Stern was able to set up another gallery in England, he was forbidden to trade in Germany, had no place of business, and had limited capital. After World War II, the Brueghel painting was returned to the Netherlands and was displayed at the Noordbrabants Museum. The Commission determined that, while it was difficult to conclude precisely how Stern lost possession of the painting, the circumstances under which the painting was sold were “so menacing and dangerous” as to be deemed a duress sale.

Netherlands Restitutions Commission, Recommendation RC 1.99

In October 2010, the Dutch Restitution Commission also recommended the return of a Jan van de Velde II painting to the heirs of Curt Glaser, a noted German art historian of Jewish descent who was forced to auction his extensive art and book collection in order to escape Nazi persecution. In recommending the return of the painting, which was housed in the Rijksmuseum as part of the Dutch national art collection, the Commission concluded that Glaser lost possession of the painting involuntarily, because the proceeds from the auction of his artwork were used to fund his flight from Germany to the U.S. The Commission also found that any prior compensation provided to the heirs by the German government was not an impediment to their restitution claim and did not require the heirs to pay the original purchase price of the painting, since the funds were used to escape Nazi persecution.

U.K. Spoliation Advisory Panel Decision, 2009

In contrast to the above cases, the U.K. Spoliation Advisory Panel did not recommend returning eight drawings currently in possession of the Samuel Courtauld Trust to the heirs of Curt Glaser. The drawings were bequeathed to the Courtauld in 1978 by Count Antoine Seilern of Austria, who had purchased the paintings at an auction of Glaser’s collection in 1933. The panel found that Glaser sold the collection not only because of Nazi persecution, but also because of the death of his wife. As a result of this finding, the panel determined that Glaser’s mixed motivations weakened the moral strength of the restitution claim. The panel also concluded that Glaser was able to sell the works at reasonable market prices and that prior compensation by the German government acted as a further barrier to returning the artwork to the heirs.

Glaser’s heirs are currently seeking reconsideration of the panel’s recommendation. They have provided supplemental evidence in the form of expert reports that further highlight the extent and severity of Glaser’s persecution under the Third Reich. The additional evidence also provides a more detailed analysis of the depressed sales prices from the auction of Glaser’s collection and shows that only a minimal portion of the prior compensation by the German government is attributable to the artwork at issue. Moreover, the new evidence indicates that if the drawings are restituted pursuant to German law, the compensation would be returned to the German government. As a result, the heirs allege that the German government’s compensation for the collection should not prevent restitution. It remains to be seen whether the new evidence will persuade the panel to alter its initial recommendation.


The cases decided in 2010 demonstrate that although World War II ended more than 65 years ago, to this day the U.S. and Europe are still developing the laws necessary to determine the rights of claimants and possessors of Nazi-looted art.

1  Herrick, Feinstein LLP represents the plaintiff in this action.