Heirs of Nazi victims get the High Court victory over stolen Pissarro

The US Supreme Court ruled that the heirs of a Holocaust survivor were trying to recover a painting by French Impressionist Camille Pissarro, which was stolen by the Nazis in 1939.

The question for the judges was which law federal courts should apply when dealing with claims brought under the Foreign Sovereign Immunities Act.

In a unanimous decision by Judge Elena Kagan, the judges said that state law, not federal, governs the decision on choice of law.

The decision is not the end of the dispute, which was remanded to the lower courts.

“The road to our decision has been as short as the hunt for Rue Saint-Honor√© was long,” Kagan said, referring to the controversial painting.

The case “highlights the long and tortuous path that those who make these claims face and the many procedural and jurisdictional barriers, on top of any substantive law or evidentiary challenges,” said Buchalters MC Sungaila, who has participated in similar Holocaust art restoration cases. in front of the judges.

‘Barely justification’

Vanderbilt law professor Suzanna Sherry said those allegations are not limited to Nazi-stolen property and that they could include any time foreign governments expropriate private property in violation of international law.

In these cases, “the issue of choice of law will often be decisive in terms of the countless different property regimes in different countries,” Sheery said.

Here, for example, the application of federal law led the lower court to pass judgment on the heirs of Lilly Cassirer, who handed over her long-lost job in exchange for an exit visa from Germany to England.

The Spanish government, through the Thyssen-Bornemisza Collection Foundation, eventually got the painting, and it is currently housed in the Madrid Museum.

Cassirer’s heirs, who had come to the United States, sued in a federal court to get the painting back. Although foreign entities are typically protected against cases in the United States, this case falls within one of the exceptions of the Foreign Sovereign Immunities Act.

After finding out that the case can proceed here, the question for the judges is which law to apply – federal or state law.

The U.S. Court of Appeals for the Ninth Circuit found that federal law should apply and ultimately ruled for the foundation.

Instead of finding that state law should apply, the judges stressed that the federal FSIA governs whether a foreign entity can be sued, but that does not affect the substantive law that applies when a case is before a U.S. court.

Instead, “when a foreign state is not immune from litigation, it is subject to the same liability rules as a private party,” the court said. Here it means California law.

An opposite rule could create discrepancies, as a painting in a private collection had to be returned, but not a painting in a state-funded museum.

The court said there was “little justification” for such a result, and sent the case back to the lower courts to apply the correct rule.

The ruling is a victory for Boies Schiller Flexner boss David Boies, who argued for the case remotely in January after testing positive for Covid-19 ahead of the hearing.

The case is Cassirer v. Thyssen-Bornemisza Fundraising FundU.S. Patent Nos. 20-1566.

© 2022 Bloomberg

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