The United States District Court has allowed significant parts of the claim brought by claimed heirs of Baron Mor Lipot Herzog to go forward. The decision is significant for several reasons. First, it is the most prominent restitution case currently at the trial level, and the case will now proceed into discovery of the facts. Second, the judge turned away a strong statute of limitations argument, which has been the strong trend in recent restitution cases. On the flip side, the judge found for the defendants on eleven paintings that were the subject of prior litigiation.
This result is interesting and somewhat surprising. A statute of limitations defense, where the paper trail of the claimant's demands is relatively clear, usually does not require a great deal of factual development, but the judge felt that the point at which the heirs "discovered" their claim-to avoid having lost the right to bring it within three years of the wartime seizure-was unclear as a matter of fact. On the other hand, the "fairness" of the prior litigation, which the plaintiffs anticipated and attacked in the complaint itself, usually is a matter to be sorted out, but the court found the record to be sufficiently clear.
One expects the battleground in the factual phase of the case to be about the "discovery" rule, which continues to drive the outcome in the most prominent restitution cases.
