A federal appeals court has upheld the growing consensus that the Foreign Sovereign Immunities Act (FSIA) confers jurisdiction over foreign state actors in possession of art allegedly looted by and/or overseen by the Nazis. Upholding last year’s District Court decision, the U.S. Court of Appeals for the D.C. Circuit affirmed the ruling in De Csepel v. Republic of Hungary that denied several Budapest museums’ motion to dismiss, while allowing the Republic of Hungary itself out of the case. This is the heirs second successful trip to the appellate court, where their claims were upheld in 2013. The case is the subject of a chapter in my newly-released book A Tragic Fate--Law and Ethics in the Battle Over Nazi-Looted Art (ABA Publishing).
Topics: Berlin, David de Csepel, Angela Maria Herzog, Thyssen-Bornemisza Collection, Foreign Sovereign Immunities Act, Baron Herzog, Budapest University of Technology and Economics, Hungarian National Gallery, SPK, Stiftung Preussischer Kulturbesitz, Budapest Museum of Fine Arts, FSIA, expropriation exception”, Cassirer v. Kingdom of Spain, Federal Republic of Germany, András Herzog, Welfenschatz, genocide
The decision on Friday to allow our clients’ claims to proceed against German and the Stiftung Preussischer Kulturbesitz for the restitution of the Guelph Treasure (or Welfenschatz) is ground-breaking in important respects, and a welcome part of a consistent progression in the law of sovereign immunity over claims for Nazi-looted art. As we noted in our initial reaction, it is the first decision in which a U.S. court has held that it has jurisdiction over Germany or an agency or instrumentality of it under the Foreign Sovereign Immunities Act (FSIA) for a claim to Nazi-looted or purchased art—though others have certainly tried—in this case finding the so-called expropriation exception applies. Critically, it recognizes that claims about forced sales in the early days of Nazi persecution indeed create jurisdiction. Moreover, the court agreed with our clients that Germany’s various excuses to avoid litigating the substance of a forced sale involving Hermann Goering based on pleas for deference or respect to the flawed Advisory Commission are no reason to dismiss the case.
Topics: Guelph Treasure, Germany, Nazi-looted art, Foreign Sovereign Immunities Act, SPK, Advisory Commission, Stiftung Preussischer Kulturbesitz, Hermann Goering, FSIA, Preemption, expropriation exception”, NS Raubkunst, sovereign immunity, Welfenschatz, HEAR Act
Under Landmark Ruling, Germany Must Now Defend Nazi-Looted Art Claims in U.S. Court
WASHINGTON (March 31, 2017)- The United States District Court for the District of Columbia has ruled that claims over the famed Guelph Treasure can proceed against Germany in a United States court. This is the first time Germany will have to defend itself in the U.S. against allegations of looted Nazi art and artifacts. The claims arise out of the 1935 forced sale by a consortium of Jewish art dealers to Hermann Goering’s minions of the famed collection of medieval artifacts known as the Guelph Treasure. The claims were filed by clients of Sullivan & Worcester LLP against the Federal Republic of Germany and the Prussian Cultural Heritage Foundation (the Stiftung Preussischer Kulturbesitz, or SPK). The court rejected the Defendants’ arguments that they are immune from suit and held that the Plaintiffs’ claims can be considered a taking of property in violation of international law for the purpose of evaluating the court’s jurisdiction over Germany and the SPK.. Jed Leiber, Alan Philipp, and Gerald Stiebel may now proceed to litigate their claims for their property’s rightful return. Leiber, Philipp, and Stiebel are also represented by S&W’s co-counsel in this matter, Markus Stötzel and Mel Urbach, experienced counselors in the return of Nazi-looted art who have been fighting this case for over eight years and who decried Germany continuing to defend the Nazis’ and Herman Goering’s theft from Jews.
Topics: Guelph Treasure, Nazi-looted art, Foreign Sovereign Immunities Act, Mel Urbach, SPK, Stiftung Preussischer Kulturbesitz, Hermann Goering, FSIA, expropriation exception”, NS Raubkunst, J.S. Goldschmidt, Markus Stötzel, Saemy Rosenberg, Adolf Hitler, Federal Republic of Germany, Zacharias Hackenbroch, Nicholas M. O'Donnell, Welfenschatz, I. Rosenbaum, Paul Körner, Wannsee Conference
With reports that Russia is considering abandoning the nearly five year old embargo on loans of cultural artifacts into the United States, the cited connection between that willingness and the recent passage of the Foreign Cultural Exchange Jurisdictional Immunity Clarification Act (FCEJICA) bears closer scrutiny that it has received to date. If the unnecessary embargo were to come to an end it would be welcome news, but Russia’s claim that the new law is the reason is hard to square with the history of the issue. It cannot be stated emphatically enough that the new law makes Russian art loans no more or less safe from seizure than they were before, because the law governing seizure of cultural objects (the Immunity from Seizure Act, or IFSA) has not changed. Russia’s penchant for framing the question as something for which it needed protection is thus frustrating because it is simply incorrect. The Russian loan embargo has been political theater from the time in began in 2012 in retaliation after Russian defendants lost a key litigation in Washington, DC, and the new law was passed in response to events that had nothing to do with Russia.
Topics: Alfred Flechtheim, Russia, 22 U.S.C. § 2259, Foreign Sovereign Immunities Act, 28 U.S.C. 1605(a)(3), FSIA, IFSA, Immunity from Seizure Act, Chabad, Welfenschatz, Malevich v. City of Amsterdam, Foreign Cultural Exchange Jurisdictional
Congress has passed and President Obama is expected to sign two bills related to looted art and the availability of U.S. courts to hear disputes over them. The Holocaust Expropriated Art Recovery (HEAR) Act of 2016 and the Foreign Cultural Exchange Jurisdictional Clarification Act (FCEJCA, for lack of a handy acronym) were both passed without objection both the House of Representatives on December 10, 2016, and are expected to be signed by President Obama shortly. The HEAR Act is a major shift in the law of Nazi-looted art claims specifically, while the FCEJCA is controversial but unlikely to have a broad impact one way or another. It is perhaps most remarkable that in an era of unique partisanship and political polarization, members of Congress from both parties and the President agreed on anything, let alone unanimously (sponsors include such unusual allies as Ted Cruz, Richard Blumenthal, John Cornyn, and Charles Schumer).
Topics: Legislation, Guelph Treasure, Alfred Flechtheim, Russia, Nazi-looted art, Foreign Sovereign Immunities Act, 22 U.S.C. § 2459, FSIA, expropriation exception”, NS Raubkunst, Restitution, World War II, State Hermitage Museum, Charles Schumer, Immunity from Seizure Act, Chabad, 28 U.S.C. § 1605, John Cornyn, Welfenschatz, Holocaust Expropriated Art Recovery Act, Richard Blumenthal, Ted Cruz, Foreign Cultural Exchange Jurisdictional, Mikhail Piotrovsky, Politico, Anita Difanis
Paintings by Beckmann, Gris and Klee Valued at Nearly $20 Million That Once Belonged to Flechtheim Are at Issue in New York Lawsuit
Sullivan & Worcester LLP has filed suit against Bavaria and its state museums in U.S. District Court in Manhattan on behalf of our clients Dr. Michael Hulton and Mrs. Penny Hulton, heirs to the renowned and persecuted Jewish art dealer Alfred Flechtheim. The Hultons have asked the United States District Court for the Southern District of New York to restitute several paintings by Max Beckmann, Paul Klee, and Juan Gris that are now in the possession of the German federal state of Bavaria, Adolf Hitler’s and the Nazi party’s homeland, and its Bavarian State Paintings Collections (known in German as the Bayerische Staatsgemäldesammlungen, or BSGS). We are aided in this case by our co-counsel Markus Stoetzel and Mel Urbach, Esq.
Topics: Frankfurter Allgemeine Zeitung, Cornelius Gurlitt, Deutschlandradio. Deutsche Presse Agentur, Monuments Men, Nazi-looted art, Foreign Sovereign Immunities Act, Max Beckmann, Markus Stoetzel, Mel Urbach, Paul Klee, FSIA, Gurlitt, NS Raubkunst, Restitution, Bavaria, Sullivan & Worcester LLP, World War II, Alfred Flechteim, Bayerische Staatsgemäldesammlungen, Dr. Michael Hulton, Juan Gris, George Grosz
We filed yesterday the opposition to the motion to dismiss my clients’ claims over the 1935 forced sale of the Guelph Treasure, or Welfenschatz. The motion was filed two months ago by defendants Germany and the Stiftung Preussischer Kulturbesitz. As we noted when Germany first moved to dismiss the complaint last fall, Germany’s arguments were revisionist and alarming in a number of troubling ways, most seriously because they tried to excuse persecution of Jews before an arbitrary date as an internal affair not subject to U.S. court jurisdiction, and because it repudiated Germany’s international commitments under the Washington Principles to address restitution claims on the merits. The abject failure of the Advisory Commission, which Germany tries to portray here as some sort of arbitration (which it is not) is also at the fore.
Expropriation Exception Saves Case, But District Court Holds Commercial Activity Exception Does Not Apply, Claims to Two of the Paintings at Issue are Dismissed as Well
The ongoing litigation between the heirs of Baron Mor Lipot Herzog and several state owned Hungarian museums has produced a new decision interpreting the scope of the Foreign Sovereign Immunities Act (FSIA), a frequent tool used to seek jurisdiction over Nazi-looted art claims brought in U.S. federal court. Relying on Supreme Court and D.C. Circuit cases in the last few months, the U.S. District Court held that claims for all but two of the paintings at issue can proceed under the FSIA’s “expropriation exception” codified in 28 U.S.C. § 1605(a)(3), but that the FSIA’s “commercial activity exception”—which the D.C. Circuit had held applicable in 2013 to the same case—could not be invoked based on the facts in the record developed in discovery. De Csepel v. Republic of Hungary, 2016 U.S. Dist. LEXIS 32111 (March 14, 2016).
Topics: David de Csepel, commercial activity exception, Hungary, Foreign Sovereign Immunities Act, Budapest University of Technology and Economics, Hungarian National Gallery, Budapest Museum of Fine Arts, expropriation exception”, Restitution, World War II
It has been quite some time since there was occasion to update the dispute between the Chabad Lubavitch movement and Russia over Chabad’s efforts to obtain the return of the library of the movement’s late rabbi Menachem Schneerson and his predecessors (each known in his respective era as the “Rebbe”). There is now a major development. The court has granted the Chabad plaintiffs’ request to turn the daily sanctions that began to accrue in 2013 into an interim judgment, that is, to tally the $50,000 daily fines to date. The U.S. District Court in Washington, DC has done so, and entered a judgment against the Russian Federation, the Russian State Military Archive, the Russian State Library, and the Russian Ministry of Culture and Mass Communication, for a total of $43.7 million. Notably, the judgment will increase automatically by $4.5 million every 90 days if not satisfied; the plaintiffs will not have to return to the court and ask for an amended judgment. Plaintiffs have already begun efforts to identify assets from which that judgment could be collected.
Topics: Latvia, Sberbank, Nazi Germany, Russian State Military Archive, Menachem Schneerson, Russian Ministry of Culture and Mass Communication, Foreign Sovereign Immunities Act, Rebbe, 28 U.S.C. § 1603, Russian Federation, FSIA, Restitution, Russian State Library, World War II, Foreign Sovereign Immunities, Poland, Chabad Lubavitch, Soviet Union, Museums
DePaul University College of Law and the Lawyers' Committee for Cultural Heritage Preservation have announced registration for the seventh annual National Cultural Heritage Law Moot Court Competition. The competition will be held February 26-27 at the Everett M. Dirksen United States Courthouse, in Chicago, Illinois. From the announcement:
Topics: Acropolis Museum, National Cultural Heritage Law Moot Court Competit, Everett M. Dirksen United States Courthouse, Foreign Sovereign Immunities Act, Chicago, Greece, Parthenon Marbles, DePaul University College of Law, British Museum, Events, Foreign Sovereign Immunities, Illinois, Lawyers' Committee for Cultural Heritage Preservat