by Anissa Patel
Since 1993, Rue Saint-Honoré, après-midi, effet de pluie, an oil painting by the French impressionist master Camille Pissarro has been hanging at the Thyssen-Bornemisza Collection Foundation’s Museum (the “Museum”) located in Spain. The painting was originally purchased in 1898 by Julius Cassirer, a member of a wealthy Jewish family once living in Germany. Since the original purchase by Cassirer, the Rue Saint-Honoré has been in possession by a number of different owners and institutions. For over 40 years, the painting remained in the Cassirer family until Lilly Cassirer, the widow of Julies Cassirer’s son Fritz was forced to sell the painting to the Nazis in 1939.
As persecution of Jews living in Nazi Germany increased, Lilly and her husband had to seek permission by German authority to take their possessions when fleeing the country, which included the painting. Although before granting permission, the Nazi government enlisted the assitance of an art dealer named Jakob Scheidwimmer to appraise the painting. After appraisal, Scheidwimmer refused to allow Lilly to take the painting out of the country and demanded that she sell it to him for $360. Out of fear of being unable to leave Germany, Lilly complied. She never received the funds that were promised.
The painting was eventually smuggled into the U.S. after the war and subsequently sold by a Beverly Hills gallery in 1951. From there, the painting was purchased by Baron Hans Heinrich von Thyssen-Bornemisza, a Swiss art collector and the heir to a German steel empire. In 1993, Thyssen-Bornemisza sold his collection of more than 775 paintings for $340 million to Spain. The paintings were to be exhibited at the Thyssen-Bornemisza Collection Foundation’s Museum, a then newly developed museum in Madrid.
Upon her death, Lilly Cassirer left the rights of the painting to her grandson Claude Cassirer. Claude Cassirer had been searching for the painting “that [once] hung on the wall of his grandmother Lilly’s apartment in Berlin” for decades. In 2000, Cassirer received a phone call from an acquaintance that the painting that he and his wife had been searching for had finally been found hanging in a Spanish museum. He then petitioned Spain’s Minister for Education, Culture and Sports (who was also the chair of the Foundation’s Board), requesting the return of the painting. His request was denied. In 2005, he then filed a suit in a federal court in Los Angeles to recover the painting, now valued at $30 million. The lawsuit originally filed by Cassirer in 2005 has managed to span almost 20 years, finding its way to the highest court in the United States. On January 18, 2022 the Supreme Court heard a last-chance appeal from the Cassirer family to have the painting returned to them from Spain.
On April 22nd, 2022, in a unanimous ruling on procedural issues, the Supreme Court ruled in favor of the heirs of Cassirer. The final opinion from Supreme Court Justice Elena Kegan stated that “a court should determine the substantive law by using the same choice-of-law rule applicable in a similar suit against a private party.” This decision establishes that in an ownership dispute between two separate countries, the applicable choice-of-law rule that the court should apply is not the one in which the defendant was a foreign-state actor, but instead a private party.
Ultimately, the question at the heart of this case was one of ownership, and whether Claude Cassirer was the rightful owner of the painting that once belonged to his grandmother, Lilly Cassier. However, the numerous transfers of the painting over the span of decades complicated the case. The main issue reviewed by the Supreme Court was whether the lower federal courts used the correct law when they decided the case originally. The Thyssen-Bornemisza Collection Foundation claimed that the federal district court was correct to apply the Spanish doctrine of “acquisition prescription”, which transfers ownership after six years of passion if the possessor did not actually know the property was stolen. However, the heirs of the painting argued that in the same manner that if the government museum “were a private museum”, California’s choice of law rules would apply, which would result in the Thyssen-Bornemisza Collection Foundation being liable in the same manner as a private museum.
Claude Cassirer had originally filed the action in federal district court against the Kingdom of Spain and the Thyssen-Bornemisza Collection Foundation to recover the Pissarro once owned by his grandmother. In the original court document, Cassirer alleged that the painting was taken from his grandmother in violation of international law in 1939 by an agent of the government of Nazi Germany. However, the district court motioned to dismiss the complaint because it determined that the case was out of its personal jurisdiction, there was lack of standing, and because there was an issue of jurisdiction based on sovereign immunity.
In 2009, the United States Court of Appeals for the Ninth Circuit dismissed an appeal by Cassirer regarding challenges to personal jurisdiction, standing, and the existence of a justiciable case or controversy. In addition, the Court stated that it lacked appellate jurisdiction because there had been no final judgment, and because the issues at hand were not “immediately appealable under the collateral order doctrine.” However, the appellate court did state that under the collateral order doctrine, it had the jurisdiction to consider the issue of sovereign immunity. The court held that the expropriation exception of the Foreign Sovereign Immunities Act (“FSIA”) does in fact apply when the foreign state is not the entity that expropriated the property in violation of international law. In sum, while the appeal was dismissed with regards to the issues of personal jurisdiction, standing, and Article III case or controversy, the appeal agreed with the district court that the Foundation engaged in “sufficient” commercial activity within the “U.S.”. Essentially, the museum was not protected under the FSIA because the law has an “expropriation exception” for property confiscated in violation of international law.
U.S. District Judge John Walter applied Spanish law and confirmed in the 2019 trial that while the Thyssen-Bornemisza Collection Foundation “may have been irresponsible” in failing to investigate the history of the painting, the museum lacked “actual knowledge” that the work was stolen. The Supreme Court reviewed the heirs’ challenge of the trial court’s use of federal common law instead of selecting Spanish law for the case. The Thyssen-Bornemisza Collection Foundation was asking the Supreme Court to choose the substantive “federal common law” in which a foreign state is sued. During trial, David Boies, the heirs’ lawyer stated that because Thyssen-Bornemisza Collection Foundation is not immune, the text of the FSIA makes it “liable to the same manner and to the same extent as a private individual under similar circumstances.” In addition, the justices “repeatedly questioned the Thyssen-Bornemisza Collection Foundation’s position”. Justice Clarence Thomas stated, “I don’t quite understand how a sovereign can be treated the same as a private individual if you don’t use the same choice of law rules.”
The Supreme Court’s decision that California choice of law rule applies paves the way for Cassirer’s heirs to ask the California appeals court to undo the lower court’s choice to follow Spanish law and apply California law instead—under which a thief cannot convey good title. Applied to this case, this means that the Nazi, who had acquired the painting by theft or force, could not convey good title to any other person. Following this logic, Cassirer’s heirs would be the legal owners of the painting.
The decision by the Supreme Court in favor of the heirs of Cassier will undoubtedly have broad implications for the art world, specifically for future actions that involve ownership claims between individuals and foreign governments.
ABOUT THE AUTHOR
Anissa Patel was a Spring 2022 Legal Intern at the Center for Art Law. She just recently received her J.D. degree from Tulane Law School in New Orleans.