The Cassirer case in California.
In the Spring 2010 issue of the Legal Canvas, we reported on a case in which Marei von Saher, the sole surviving heir of Jacques Goudstikker, sued the Norton Simon Museum of Art in California for the return of a diptych by Louis Cranach which had been seized by Herman Goerhing when Goudstikker fled the Netherlands during World War II. The lawsuit was filed within the time allowed by a special statute of limitations enacted in 2002 by the California legislature for Holocaust-related claims. In 2009, the United States Court of Appeals for the Ninth Circuit affirmed the dismissal of the case and struck down the statute as unconstitutional, holding that it impinged on the federal government’s conduct of foreign affairs, as well as its “power to wage and resolve war, including the power to legislate restitution and reparation claims.”
Responding to the court’s decision, the California legislature in 2010 enacted new legislation that did not explicitly single out World War II claims. Under the new law, claims against a museum, gallery, auctioneer or dealer for the return of art stolen by “fraud or duress” within the last 100 years could be brought within six years of the time at which the claimant became aware of both the location of the work and the fact that he or she had a claim for its possession. Under the legislation, this special extended limitations period was meant to last until December 31, 2017.
In an opinion issued on May 24, 2012, a federal district court characterized the new legislation as an attempt to do an impermissible “end run around” the decision in the Von Saher case and held that the new statute was equally unconstitutional.
Cassirer’s Claim. The decision was issued in the case of Cassirer v. Thyssen-Bornemisza Collection Foundation. The case involves a San Diego family that is seeking to reclaim a painting that their grandmother, Lilly Cassirer Neubauer, was forced to sell when she fled Germany in 1939.
In 1898, the plaintiffs’ great-great grandfather, Julius Cassirer, purchased a work by French impressionist Camille Pissarro titled Rue Saint-Honoré, après-midi, effet de pluie. The painting remained with the Cassirer family until 1939, when Ms. Neubauer was forced to sell it to the Nazi’s official art appraiser for 900 Reichsmarks (approximately $360) as a condition to obtaining an exit visa so she could flee to England. Ms. Neubauer made substantial efforts to find the painting thereafter, but died in the United States in 1962 without learning of its whereabouts.
In 1988, Baron Hans-Heinrich Thyssen-Bornemisza, a Swiss art collector who had owned the painting for over ten years at the time, loaned the Pissarro to the Kingdom of Spain, which displayed it and the rest of his collection in the Thyssen-Bornemisza Museum in Madrid. In 1993, the Foundation that runs the museum paid the Baron $327,000,000 to purchase the entire collection.
Ms. Neubauer’s grandson, Claude Cassirer, learned for the first time in 2000 that the museum had the painting. In May 2005, Claude filed suit in California, seeking to have the court force the museum to return the work. When Claude died in 2011, his children David and Ava took over the lawsuit as successors to his interest in the painting.
California’s shifting time limits. The general statute of limitations in California for the recovery of stolen property, including art, is three years from the time that the location of the stolen property is discovered. Under that rule, the Cassirers’ claim to the Pissarro would have expired in 2003, since they learned of its location in 2000. Their lawsuit, which was filed in 2005, would have been barred under the traditional California rule.
However, when the case was filed in 2005 it was timely under the special 2002 legislation that extended until December 31, 2010, the limitations period for claims brought in California courts to recover works of fine art that were stolen during the “Holocaust era” (1929 to 1945). It was this specific focus on Holocaust era claims that led the Court of Appeals to strike down the statute in 2009 in the Von Saher case.
In 2009, the parties in the Cassirer case were busy litigating other motions by the Foundation to dismiss the case. Those motions were finally decided in August 2010 in favor of Cassirer. By that time, the California legislature had already passed the new special statute which, when it took effect in 2011, applied retroactively to all relevant claims, including the claims raised by Cassirer.
In September, 2011, the Foundation made a new motion to dismiss Cassirer’s claims, arguing, among other things, that the new statute of limitations was unconstitutional for the same reason as the 2002 law. The federal district court agreed. Though the 2010 law did not limit itself to Holocaust-era claims, nor even reference the Holocaust or World War II, the court found that the “real purpose” of the law was to provide recourse to the same Holocaust-era theft victims as the 2002 statute. In reaching its conclusion, the court looked to the impact of the statute itself, as well as the statements made by the legislature explaining the intent and purpose of the law. Those statements included direct references to the Von Saher opinion, to the fact that the statute was meant to protect “victims that the Legislature [had] already intended to protect” in the 2002 statute, and the fact that the idea for the statute originated with a lawyer who regularly represents claimants in Holocaust cases and who had represented Cassirer in another matter. The court concluded that the 2010 law was simply an attempt to make an “end run around” the problems of the 2002 law. Because the 2010 law was meant to affect claims that involved foreign affairs that would otherwise be time-barred, it was declared unconstitutional and the case was dismissed.
As this issue of the Legal Canvas goes to press, the Cassirers have made a motion to the district court to amend its decision.
The Flamenbaum case in New York.
On May 30, 2012, a New York state appellate court issued an opinion ordering the family of a survivor of Auschwitz to return to a German museum an artifact that had disappeared from the museum during World War II. The artifact was a small gold tablet, excavated by a German team of archaeologists in 1914 from the foundation of the Ishtar Temple, near the city of Ashtur in what is now northern Iraq and was once part of the Ottoman Empire. The tablet is inscribed with descriptions of the Ishtar Temple’s construction, and dates to the 12th Century BCE.
After excavation, the tablet was loaded on a freighter bound for Germany, but was sequestered in Portugal during World War I, where it remained until 1926. The tablet arrived in Germany in 1926 and was put on display in the Vorderasiatisches Museum in Berlin from 1934 until the outbreak of World War II in 1939, when it was placed in storage. It was found to be missing from the Museum’s inventory sometime around 1945.
Around the same time, a man named Riven Flamenbaum was freed from Auschwitz. At some point thereafter, by means unknown to the court or the parties to the law suit, Mr. Flamenbaum came into possession of the gold tablet. He emigrated to the United States four years later with the tablet in hand. Mr. Flamenbaum died in 2003, and during an accounting of his estate the museum became aware, for the first time, of his possession of the tablet. The museum then sued for the tablet’s return.
The surrogate’s court in Nassau County that originally heard the museum’s claim found that the museum had superior legal title to the tablet – after all, it was, by some means, stolen from the museum. The Nassau County court found, however, that the museum could not recover the tablet from the Flamenbaum estate due to an equitable defense called “laches.” Under the doctrine of laches, a party who seeks to recover a piece of lost or stolen property will not be able to do so if they have not exercised reasonable diligence in attempting to locate the property, and their failure to do so results in prejudice to the current possessor of the property when the original owner finally learns of its whereabouts.
The museum appealed that result, and an appellate court in Brooklyn reversed the trial court’s ruling on laches. The appellate court found that the Museum had not failed to exercise reasonable diligence in searching for the tablet, even though it had neither reported the stolen tablet to law enforcement nor listed the tablet on an international stolen art registry. The judge was persuaded that these failures did not prejudice Flamenbaum’s estate and had not caused it to change its position. Moreover, the court noted that laches is an equitable doctrine – in other words, a doctrine of fairness – and that the equities in the case favored the museum.
In a New York Times article that described the Flamenbaum decision, the lawyer for the Museum, who has also represented Holocaust survivors, was quoted as saying that the “principle that property taken unlawfully should be returned is consistent with the rights of Holocaust victims…. This precedent will help those seeking return of stolen works that are museums not only in the U.S. but throughout Europe.”
The Flamenbaum estate reportedly intends to appeal the decision.
Michael Fresco, Summer Associate, assisted in the preparation of this article.