Nazi victims’ heirs get high court win over stolen Pissarro

The question for the justices was what law federal courts should apply when hearing claims brought under the Foreign Sovereign Immunities Act.
Image: Stefani Reynolds/Bloomberg

The US Supreme Court ruled for the heirs of a Holocaust survivor seeking to regain a painting by French impressionist Camille Pissarro that was stolen by the Nazis in 1939.

The question for the justices was what law federal courts should apply when hearing claims brought under the Foreign Sovereign Immunities Act.

In a unanimous ruling by Justice Elena Kagan, the justices said state law, not federal, guides the choice-of-law decision.

The ruling isn’t the end of the dispute, which was remanded to the lower courts.

“The path of our decision has been as short as the hunt for Rue Saint-Honoré was long,” Kagan said, referring to the painting in dispute.

The case “highlights the long and winding road faced by those who bring these claims, and the many procedural and jurisdictional hurdles, on top of any substantive law or evidentiary challenges,” said Buchalter’s M.C. Sungaila, who has participated in similar Holocaust art recovery cases before the justices.

‘Scant justification’

Vanderbilt law professor Suzanna Sherry said that these claims aren’t limited to Nazi-stolen property and that they can include any time foreign governments expropriate private property in violation of international law.

In those cases, the “choice-of-law question will often be outcome-determinative given the myriad different regimes of property law in different countries,” Sheery said.

Here, for example, the application of federal law led the lower court to rule against the heirs of Lilly Cassirer, who surrendered the long-lost work in exchange for an exit visa from Germany to England.

The Spanish government, through the Thyssen-Bornemisza Collection Foundation, eventually obtained the painting, and it currently sits in Madrid museum.

Cassirer’s heirs, who had made their way to the US, sued in federal court to get the painting back. Although foreign entities are typically protected from suits in the US, this case falls within one of the Foreign Sovereign Immunities Act’s exceptions.

Having found that the case can go forward here, the question for the justices is what law to apply—federal or state law.

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

In finding instead that state law should apply, the justices emphasized that the federal FSIA governs whether a foreign entity can be sued, but it doesn’t affect the substantive law that applies once a case is in a US court.

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

A contrary rule could create inconsistencies in that a painting in a private collection would have to be returned but not a painting in a state-sponsored museum.

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

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

The case is Cassirer v. Thyssen-Bornemisza Collection Foundation, US, No. 20-1566.

© 2022 Bloomberg

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Can we please have our diamonds back your Majesty? Oh wait! Just keep them safe … you know what it’s like down here.

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