Just as it appeared that the first trial in years would begin next month on a claim of Nazi-looted art, the much publicized Von Saher case has come to an end with a judgment that entered yesterday. The U.S. District Court awarded the Norton Simon Museum summary judgment on the claims to ownership of Adam and Eve by Lucas Cranach the Elder, ending pending further appeal a nearly decade-old litigation. Over the years, the Von Saher case has made new law about statutes of limitations, constitutional law, and the scope of U.S. foreign policy as it impacts the courts. Like the Cassirer case last year, it is a bitter blow for the claimants who labored for years to recover the paintings and for whom it appeared their day in court had arrived. This is all the more so because there was no dispute in the briefing that the paintings had been expropriated by Hermann Göring’s rapacious henchman.

Two years ago, the Ninth Circuit had restored the twice-dismissed case before. Plaintiff Marei Von Saher is the daughter-in-law and sole heir of Jacques Goudstikker, a well-known Dutch art dealer during the interwar period. Goudstikker purchased two paintings by Lucas Cranach the Elder, Adam and Eve from the Soviet Union in 1931. Goudstikker fled the Netherlands in 1940 following the German occupation. His extensive collection was forcibly sold in two events; the first an auction by Alois Miedl who purchased Goudstikker’s art dealership and some his property; the second the expropriation by Hermann Göring of virtually the entire Goudstikker fine art collection, including the two Cranachs. The U.S. Army recovered the Cranachs and they were returned to the Dutch government in 1946. The Netherlands sold them to George Stroganoff in 1966, who claimed to have had the paintings stolen from him by the Soviets before Goudstikker bought them.

With the case seemingly headed for trial, the parties filed comprehensive cross-motions for summary judgment. Both parties’ submissions were exquisitely written and argued, and each side’s argument reflects well the starkly different perspectives that claimants and possessors take on so many of these issues. The District Court’s award of judgment to the Norton Simon on August 15, 2016 was, in the end, a stunning misapprehension of restitution history, and ultimately short-sighted decision. It remains to be seen how broadly it will damage further claims if left undisturbed.

Von Saher filed her motion first. With regard to the facts, so many of the facts had been presented to the Court before, and the summation of the record was review in many respects. But the critical outlier in Von Saher’s brief was the treatment of Stroganoff. Now, Stroganoff was cast as a nearly equal villain in the story, a bad-faith opportunist who knew full well that the painting was not among those confiscated by the Soviet Union. Rather than a question of mistaken identity, the Plaintiff’s brief lays out a very different story. Now, the record was shown about the Netherland’s initial disbelief that Stroganoff had any claim at all. The 1966 transaction was not a restitution, Von Saher argued, but a commercial sale to dispense with a nuisance claimant for compensation. Thus, she pointed out, the 1966 sale would not answer any questions about the state of Von Saher’s or Goudstikker’s title to the paintings. In other words, the 1966 sale would not resolve whether the painting was Stroganoff’s to sell to the Norton Simon.

Instead, Von Saher reiterated, the Dutch State was holding the Cranachs in trust or at least in custody for the Goudstikker firm. She pointed out that Dutch Royal Decree A6 from 1940 (in exile) voided automatically any transactions with Germans (such as Miedl or Göring). That was modified by the Commisssie Rechtsverkeer in oorlogstijd (“CORVO”), which used its power in 1947 to:

Sanction all acts and agreements, performed or entered into in violation of [Decree A6]. Insofar as these acts or agreements related to matters, which were found in enemy territory, after such territory was liberated or occupied by the allied forces, [that] since then have returned to or will have been returned to the Netherlands.

The critical question became whether that decision applied to the Göring thefts, and if so whether the Goudstikker firm had to do anything further to protect its rights, as opposed to having the Miedl sale automatically invalid. A later Royal Decree 100 set up a procedure to challenge CORVO’s decision. The Court concluded that the Goudstikker firm had not done so. In the absence of a Royal Decree 100 restitution claim, the Court found, a claimant was left to seek (financial) reparations under Royal Decree 133. Critically, the court agreed with the Norton Simon’s arguments that Royal Decree 133 made such property recovered from the enemy and covered by CORVO’s 1947 opinion property of the Dutch state.

Von Saher’s central argument was also her shrewdest: that rather than fear the obstacles to claims that have been laid out in this book like the Act of State Doctrine, those principles actually compelled victory for her. The argument is as follows: since Stroganoff was not a successful restitution claimant but rather a purchaser, the 1966 proceedings and transaction has no sovereign character, but rather was entirely a commercial event. As such, she argued, the Norton Simon could not deflect inquiry into the state of title as of 1966, the way that the Metropolitan Museum of Art and Yale University could against Pierre Konowaloff. Put another way, since Von Saher made a compelling factual presentation that Stroganoff had never owned the paintings, that they had therefore not been taken from him by the Soviets, and that the Netherlands sold the works to him in commerce, the Act of State Doctrine should provide not shield to the sale.

Conversely, Von Saher argued, the post-Washington Conference Restitutions Committee decision in 2006 to return all Goudstikker work “purchased” by Miedl was a sovereign act that the Norton Simon was bound to accept and that U.S. courts were powerless to reconsider. This two-step argument brilliantly turns the setback that have bedeviled so many claimants on their head. In other words, Von Saher argued that the Netherlands has spoken as to the question of post war title, and spoken in her favor, such that no one may argue otherwise in U.S. court.

The District Court did not agree. Instead, it concurred with the Norton Simon’s argument that when the Goudstikker firm failed to file a Decree 100 claim before 1951, the Cranachs became the property of the Dutch state. At that point, the court held, the Netherlands had title to do with what it wanted. The court also took the Norton Simon’s view of the scope of the settlement between Desi and the Netherlands, which hardly seemed undisputed, and which in any event with proper historical context now looks much more like the pressures faced by Lea Bondi or the Lederer family after the war. It is largely disingenuous to say that simply because the Dutch were occupied but the Austrians were complicit (as the Norton Simon did), the Dutch settlement merits no scrutiny at all.

In a further critical holding, the District Court stated that:

Military Law 59, which was enacted for U.S.-occupied Germany, provided that if a former owner failed to file a restitution claim before the deadline, that former owner “lost his right to restitution” and was “Forever barred from making any claim for restitution of that such property.”

This is a catastrophic conclusion for restitution claims, and it is also incorrect. The court’s holding was based on an Advisory Opinion by the Court of Restitution Appeals from 1950, Advisory Opinion No. 1, 1 Court of Restitution Appeals Reports 489, 492 (Aug. 4, 1950). But that case concerned the deadlines within MGL No. 59 for successor organizations. That scenario, within the regulations of the MGL itself, applied only

If a juridical person or unincorporated association was dissolved or forced to dissolve for any of the reasons set forth in Article 1 [e.g., racial persecution], the claim for restitution which would have appertained to such juridical person and unincorporated association had it not been dissolved, may be enforced by a successor organization to be appointed by the Military Government.

MGL No. 59, Article 8(1). But that has no application to the Goudstikker firm. It was not dissolved, it was taken over. It continued to exist through the war and after. Thus, the deadline imposed on successor organizations, even if it applied, would not apply to Von Saher.

Additional skirmishes did not reach the point of decision, but they are notable in the context of the themes of this book at these case. First, again seeking to turn defeat into victory, Von Saher argued that the adverse possession/prescriptive ownership in Cassirer to be discussed further below at the very least confirmed that in California, there is no law of adverse possession of personal property—that no longer how long one has a piece of tangible property, that fact alone will never convert ownership. Von Saher also raised the stakes by arguing for the application of a California criminal statute that punishes the knowing possession of stolen property.

And so now, Von Saher will likely head to the Ninth Circuit for the third time, and the case will pass into its second decade.

The foregoing is an edited excerpt from the author’s forthcoming book A Tragic Fate—Law and Ethics in the Battle for Nazi Looted Art, to be published next year by American Bar Association Publishing.