Art Law Report

Supreme Court Declines to Hear Norton Simon Intermediate Appeal, Von Saher Claim Returns to Trial Court

Posted by Nicholas O'Donnell on January 21, 2015 at 7:30 AM

The Norton Simon Museum in Pasadena’s efforts to bring an end to the claim by Marei von Saher to Lucas Cranach the Elder’s Adam and Eve failed yesterday, as the United States Supreme Court declined to hear the museum’s appeal from the decision last year by the Ninth Circuit Court of Appeals that restored the claims. The Supreme Court denied what is called a writ of certiorari, which is a discretionary appeal from a lower court. The high Court can accept cases on appeal from final judgments (as would be the case had the museum prevailed) or, as here, what are called interlocutory appeals—appeals of matters still in process. The Ninth Circuit decision revived Von Saher’s case and sent them back to the District Court for litigation, and the Norton Simon’s petition asked the Supreme Court to intervene and put an end to it. The overwhelming proportion of certiorari petitions are denied, interlocutory appeals even more so (courts favor hearing appeals of final judgments to avoid piecemeal adjudications). This is the second certiorari petition in the case: in 2011, Von Saher was on the losing end of a petition when her case had been dismissed under an earlier version of California’s statute of limitations.

Read More

Topics: Legislation, Dutch Secretary for Education Culture and Science, Norton Simon Museum, Alois Miedl, Lilly Cassirer, Norton Simon Art Foundation, Rue Saint-Honoré après-midi effet de pluie, Jacques Goudstikker, George Stroganoff-Scherbatoff, Hermann Goring, Restitution, Marei Von Saher, Jr., World War II, act of state doctrine, Cassirer v. Kingdom of Spain, Lucas Cranach the Elder, Camille Pissarro, Soviet Union, foreign affairs doctrine, California Section 354.3 of Code of Civil Procedur, Von Saher v. Norton Simon Museum of Art

"Fight Over Paintings Looted by Nazis May Finally Get Trial Thanks to 9th Cir." Published by Bloomberg BNA

Posted by Nicholas O'Donnell on June 18, 2014 at 6:50 AM

I am quoted at length in an article about the recent Von Saher decision: "Fight Over Paintings Looted by Nazis May Finally Get Trial Thanks to 9th Cir." by Nicholas Datlowe, published by Bloomberg BNA’s United States Law Week. The article covers the overall background and importance of the decision, and has quotes from the plaintiffs’ attorneys who now can return to the trial court to try to press their claim (and respond to the likely forthcoming act of state defenses, as discussed here previously). It also analyzes the dissent in the June 6, 2014 opinion by Judge Kim McLane Wardlaw, who would have upheld the trial court dismissal under the foreign affairs doctrine.

Read More

Topics: Bloomberg BNA, 82 U.S.L.W. 1944, Dutch Secretary for Education Culture and Science, Norton Simon Museum, Alois Miedl, Lilly Cassirer, Norton Simon Art Foundation, Rue Saint-Honoré après-midi effet de pluie, Jacques Goudstikker, Howard N. Spiegler, Fred Anthony Rowley, George Stroganoff-Scherbatoff, Hermann Goring, Harry Pregerson, Restitution, Marei Von Saher, Jr., World War II, act of state doctrine, Cassirer v. Kingdom of Spain, United States Law Week, Lucas Cranach the Elder, Camille Pissarro, Dorothy Wright Nelson, http://www.bna.com., The Bureau of National Affairs Inc., Kim McLane Wardlaw, Soviet Union, foreign affairs doctrine, California Section 354.3 of Code of Civil Procedur, Von Saher v. Norton Simon Museum of Art

Restitution Claims for Cranach Paintings in the Norton Simon Museum Revived by Ninth Circuit, Case Now Hinges on Act of State Doctrine

Posted by Nicholas O'Donnell on June 9, 2014 at 1:21 AM

The U.S. Court of Appeals for the Ninth Circuit restored on June 6, 2014 the claims by Marei von Saher against the Norton Simon Museum in Pasadena for the paintings Adam and Eve by Lucas Cranach the Elder. The appeals court followed its decision in Cassirer v. Kingdom of Spain in December of last year, concerning the painting Rue Saint-Honoré, après-midi, effet de pluie by Camille Pissarro that was owned at one time by Lilly Cassirer, a Jewish collector who fled Germany in 1939. While the panel of judges vacated the Von Saher dismissal that was premised on the idea that California’s revised statute of limitations was unconstitutional (instead finding that the law and claims withstand that scrutiny), the divided 2-1 panel sent the case back to the district court to determine if the claims were nonetheless barred under the “act of state doctrine”. One dissenting judge would have upheld the dismissal on the grounds that the case would call into question Von Saher’s compensation from the Dutch government such that that would violate the foreign affairs doctrine. That split on the act of state doctrine partially answers the lingering question of why Von Saher, argued the same day as Cassirer concerning the same California law, had gone undecided six months after Cassirer was resolved.

Read More

Topics: Dutch Secretary for Education Culture and Science, Norton Simon Museum, Alois Miedl, Lilly Cassirer, Norton Simon Art Foundation, Rue Saint-Honoré après-midi effet de pluie, Jacques Goudstikker, Howard N. Spiegler, Fred Anthony Rowley, George Stroganoff-Scherbatoff, Hermann Goring, Harry Pregerson, Restitution, Marei Von Saher, Jr., World War II, Foreign Sovereign Immunities, act of state doctrine, Cassirer v. Kingdom of Spain, Lucas Cranach the Elder, Camille Pissarro, Dorothy Wright Nelson, http://www.bna.com., Kim McLane Wardlaw, Soviet Union, foreign affairs doctrine, California Section 354.3 of Code of Civil Procedur, Von Saher v. Norton Simon Museum of Art

Cassirer Heirs' Claims to Pissarro Work Revived by Appeals Court, the Year 2013 Shows that the Tide for Restitution May be Shifting Again

Posted by Nicholas O'Donnell on December 16, 2013 at 12:36 PM

The U.S. Court of Appeals for the 9th Circuit restored last week claims by heirs of Lilly Cassirer against the Thyssen-Bornemisza Collection for the return of the Camille Pissarro painting Rue St. Honoré, après-midi, êffet de pluie.

Read More

Topics: Nuremberg laws, Schwabinger Kunstfund, Cornelius Gurlitt, Lilly Cassirer, California Code of Civil Procedure § 338(c), Dorothy Nelson, Thyssen-Bornemisza Collection, Julius Schoeps, Rue St. Honoré après-midi êffet de pluie, Claude Cassirer, Von Saher v. Norton Simon, de Csepel, Jacques Goudstikker, California Code of Civil Procedure § 354.3, Gurlitt Collection, Foreign Sovereign Immunities Act, Hans Sachs, Von Saher v. Norton Simon Museum of Art at Pasaden, Madame Soler, Bundesgerichtshof, Hildebrand Gurlit, Entartete Kunst, Hans-Heinrich Thyssen-Bornemisza, Hungarian National Gallery, Nazis, Munich, Deutches Historisches Museum, FSIA, Preemption, Gurlitt, Harry Pregerson, Restitution, field preemption, Marei Von Saher, Herzog collection, Bavaria, Claudia Seger-Thomschitz, Looted Art, World War II, Foreign Sovereign Immunities, Pinakothek der Moderne, degenerate art, Altmann v. Republic of Austria, 578 F.3d 1016, Freistaat Bayern, beschlagnahmte Kunst, Camille Pissarro, Kim McLane Wardlaw, Nürnberger Gesetze, Raubkunst, Museum of Fine Arts Boston, Cassirer v. Thyssen-Bornemisza Collection, verschollene Kunst, Kunstfund München

Dispute of Fact or Statement of Foreign Policy? Ninth Circuit Takes up the Question of U.S. Courts’ Role in Assessing Foreign Art Restitution Procedures

Posted by Nicholas O'Donnell on August 27, 2013 at 5:38 AM

The U.S. Court of Appeals for the Ninth Circuit heard oral argument last week in two high-profile World War II art restitution claims, Von Saher v. Norton Simon Museum of Art, and Cassirer v. Kingdom of Spain. The Supreme Court’s previous decision not to hear earlier appeals of those cases with regard to statutes of limitations has had a broad effect for years now, and last year's dismissal was widely observed. At its core, the Von Saher case poses a direct question: is a claim that alleges procedural unfairness with the restitution claims process in another country after World War II (i.e., the Netherlands) so wrapped up in the State Department’s foreign policy apparatus that courts cannot intervene (requiring dismissal at the outset of the case), or is that fairness a question of fact that entitles the plaintiff to survive the threshold analysis and proceed to discovery or a trial? Although comments from the bench are never a predictor of the results, the spirited argument underscored the importance of the two cases to the future of restitution claims in federal courts, and whether the restitution question is incompatible with the separation of powers in the U.S. government.

Read More

Topics: Dutch Secretary for Education Culture and Science, Norton Simon Museum, Alois Miedl, Lilly Cassirer, Norton Simon Art Foundation, Rue Saint-Honoré après-midi effet de pluie, Jacques Goudstikker, Howard N. Spiegler, Fred Anthony Rowley, George Stroganoff-Scherbatoff, Hermann Goring, Harry Pregerson, Marei Von Saher, Jr., Cassirer v. Kingdom of Spain, Lucas Cranach the Elder, Camille Pissarro, Dorothy Wright Nelson, Kim McLane Wardlaw, Soviet Union, California Section 354.3 of Code of Civil Procedur, Von Saher v. Norton Simon Museum of Art

The Other Von Saher Shoe Drops: Cassirer v. Kingdom of Spain Dismissed Under Foreign Affairs Preemption

Posted by Nicholas O'Donnell on June 4, 2012 at 12:50 PM

An emerging new defense to wartime art restitution claims has claimed another case. Although still confined to one district in California, the trend of dismissing such claims as better suited to resolution through the foreign affairs operations of the federal government simply cannot be ignored; wartime claims already struggling to overcome statutes of limitations could be in real trouble. The procedural history is complex, but the effect could be sweeping.

Read More

Topics: Legislation, Nazi Germany, Lilly Cassirer, Rue Saint-Honoré après-midi effet de pluie, California Code of Civil Procedure Section 338, Thyssen-Bornemisza Foundation, conflict preemption, FSIA, Preemption, Restitution, field preemption, Goudstikker, World War II, Foreign Sovereign Immunities, Von Saher v. Norton Simon Museum, Cassirer v. Kingdom of Spain, California Code of Civil Procedure 354.3

About the Blog


The Art Law Report provides timely updates and commentary on legal issues in the museum and visual arts communities.

Meet the Editor

Learn more about our Art & Museum Law practice

Subscribe to Blog

Posts by Topic

see all