Sullivan Files Supreme Court Amicus Brief with former State Department Legal Adviser in Nazi-looted Art Case | Sullivan & Worcester

Today I am pleased to announce that I have filed a lawsuit with the United States Supreme Court as an attorney for amicus curiae Mark B. Feldman, the former acting legal advisor to the US State Department. We have the application in the Cassirer et al. submitted. v. Thyssen-Bornemisza Collection Foundation (“TBC”). Cassirer is the longstanding dispute over the title of Rue St. Honoré, après-midi, effet de pluie (Rue St. Honoré, afternoon, rain effect) by the impressionist painter Camille Pissarro. The painting once belonged to Lilly Cassirer, a Jewish woman in Berlin in 1939, from whom Nazi agents “bought” the painting. The case before the Supreme Court is not about whether the painting was stolen – that is undisputed. Instead, the Supreme Court will review the Ninth Ward’s decision that Spanish law, not California law, should govern property rights.

The legal issue the court has approved is whether federal courts can create their own common law for such cases under the Foreign Sovereign Immunities Act (the “FSIA”). As we explain in the brief, the Ninth District Court’s decision should be overturned as it has blurred the lines in the FSIA about who can be sued on the basis of their actual liability. Section 1606 of the FSIA, which provides that a sovereign defendant is “liable in the same way and to the same extent as a private individual in similar circumstances …”. In fact, it means that the creation of different choice-of-law rules for sovereign defendants is clearly against the text of the FSIA. The courts should have used California’s choice of law rules (and California law). The application of Spanish law ensured that TBC prevailed, a result that was to be reversed.

I was delighted to work with Professor Feldman, a former acting legal advisor to the State Department who was involved in the drafting of the FSIA and the U.S. implementation of UNESCO, to explain why the following result is directly related to the endorsement of the law by the Executive is at odds, and what Congress intended.

As we explained in our letter, this finding violates Section 1606, which was added to the FSIA at the urging of the executive branch. An earlier version of the FSIA had been proposed in 1973, excluding Section 1606, and its addition was essential to assist the Ford administration. This executive support (which was missing in 1973) was in turn essential for the law to be passed.

In addition, Professor Feldman was directly involved in the adoption and management of the Convention on the Prohibition and Prevention of the Illicit Import, Export and Transfer of Cultural Property, November 14, 1970, TIAS 7008, 823 UNTS 231 (commonly known as the “UNESCO Convention” ), which was implemented by Congress in 1983. Between the UNESCO Convention, Customs Acts, and the National Stolen Property Act, as well as the Washington Principles on Art Seized by the Nazis and successive international commitments, the Ninth Ward disregards the international consensus and obligation to refuse to trade in looted cultural property.

Our briefing explains this rich legacy and why the result cannot stand for this reason as well.

The story of the case is downright labyrinthine, but the critical points are these:

• Lilly Cassirer was a Jewish woman who owned the painting and lived in Berlin. In 1939 a Nazi named Jakob Scheidwimmer approached her to “buy” the painting. Under circumstances that had long been recognized as unlawful, Cassirer transferred the painting to Scheidwimmer and fled Germany.
• After baron Hans Heinrich Thyssen-Bornemisza had moved through the commercial art market, he bought the painting in 1976. At a time plagued by indifference to the provenance plundered by the Nazis, the baron exercised practically no care at all.
• In 1993 the baron sold his extensive art collection to the Kingdom of Spain, which founded the Thyssen-Bornemisza Collection Foundation (TBC), in which it has been part since then.

Rue St. Honoré hangs in Lilly Cassirer’s house in Berlin. Photo courtesy of the Cassirer family.

A few years later, Claude Cassirer (Lilly’s son) asked TBC to return the painting. TBC refused, and Claude sued TBC and Spain in US federal court, invoking the expropriation exemption component of sovereign immunity set out in section 1605 (a) (3) of the FSIA. Spain and TBC have never asserted the legitimacy of the 1939 sale or denied that the taking was contrary to international law. The case was dismissed, appealed, reopened, dismissed and re-appealed as we have dealt with here.

In 2019, the Ninth District confirmed the recent dismissal and ruled that although the baron’s failure to conduct due diligence meant that he could not claim to be a “bona fide buyer”, Spanish law provides that the so-called Statute of Limitation, also known as Adverse Possession, Acquired Title with TBC. In simple terms, this means that if a recipient of otherwise stolen property keeps it public long enough, he becomes the owner. The ninth district noted that TBC had completed a seven-year term by publicly exhibiting the painting.

The case now pending before the Supreme Court is not about whether the painting was stolen or whether TBC complies with elements of Spanish law. It’s about how the Ninth District decided which law to apply. For anyone who has not yet survived civil procedural law while studying law, this can quickly become very confusing. Anyone who has it still can. The question relates to the so-called “federal law”. In 1938 the Supreme Court issued a decision in the Erie R. Co. v. Tompkins. Erie believed that when a federal court hears a diversity case (a case brought before a federal court because of the nationality of the parties, not because a federal law or constitutional issue is at stake), the federal court shall indicate the law of the where it sits. To make matters worse, there are substantive state law (what is a theft) and there are rules on governing law (how to decide between the disputed laws, e.g. in a case between a citizen of New York and Massachusetts).

What does all of this have to do with Nazi-looted art or the FSIA? The FSIA does not establish any liability for foreign sovereign defendants, it sets the rules for when they can be sued. The Ninth District ruled that a federal court should apply federal common law in FSIA cases (regardless of Erie) due to the policy of uniformity and predictability of the FSIA in cases against foreign defendants.

Readers may rightly wonder where this case stands in relation to our ongoing proceedings against the Prussian Cultural Heritage Foundation (SPK), which maintains the Welfenschatz that relatives and ancestors of my clients handed over to agents of the Prussian state in 1935 on behalf of Hermann Göring. Earlier this year, the Supreme Court ruled that the so-called “domestic take-off” rule from the FSIA’s expropriation exemption (under which Cassirer and our case were negotiated) basically excludes the expropriation of a government’s property from its own nationals.

The simplest answer is that while TBC and Spain were otherwise ahead of Washington principles and international obligations, they at least had the decency and rudimentary morals not to enforce domestic revenue control over Nazi-era revenues, as the SPK continues to do does. This responsibility was resolved years ago.

The reader can judge for himself the difference between Germany – which was responsible for the Nazi era – and Spain – whose own fascist era remained troubled but did not cause the Holocaust – and proudly assert the right of the Nazi government to oppress Jews and to rob in Germany with impunity. For these reasons, the SPK recently renewed its motion to dismiss our proceedings, which we will oppose later this year, among other things because the victims of the Welfenschatz kidnapping were not Germans under international law at the time.

https://www.jdsupra.com/legalnews/sullivan-files-supreme-court-amicus-6148831/