The U.S. Court of Appeals for the Ninth Circuit has upheld the judgment against Marei von Saher on her claims against the Norton Simon Museum in Pasadena to recover Adam and Eve by Lucas Cranach the Elder. The Cranachs belonged to Von Saher’s father-in-law Jacques Goudstikker, a renowned Dutch Jewish art dealer who fled the Netherlands. Yesterday’s decision was the latest in a complicated case, holding that the claim could not proceed because it would conflict with a judgment made by the Dutch government—in a case about paintings that no one disputes were looted by the Nazis but which the Norton Simon refuses to return. Notably, the Ninth Circuit upheld the dismissal entered two years ago by the District Court, but for different reasons. Where the trial court had held in 2016 that Von Saher was not entitled to the paintings by applying substantive Dutch post-war law, the Ninth Circuit yesterday held that it could not entertain the question because it involved a so-called “Act of State,” a doctrine under which courts will decline to review certain kinds of cases that implicate sovereign acts. It was not a complete surprise—the appeals court had hinted at the possibility of applying the doctrine back in 2014 when it remanded the case on one of its multiple trips to the appellate court—but was a curious application of it to a sale by the Dutch government, an act that is quintessentially commercial, not sovereign. It remains to be seen what Von Saher will do next. Von Saher is a complicated dispute that deserved its day in court, not the back of the hand out of “respect” for an “official” act that never actually happened, or an official act that this most recent decision actually contradicts.
Topics: Guelph Treasure, Alois Miedl, Act of State, Jacques Goudstikker, Nazi-looted art, Hermann Goering, Restitution, Marei Von Saher, Ninth Circuit, HEAR Act, A Tragic Fate, George Stroganoff, Commisssie Rechtsverkeer in oorlogstijd, Royal Decree 133, Royal Decree A6, CORVO, Royal Decree 100
(WASHINGTON-July 10, 2018) The U.S. Court of Appeals for the D.C. Circuit has affirmed the right of the heirs to the so-called Guelph Treasure (known in German as the Welfenschatz) to seek restitution in U.S. courts for the value of the treasured art collection. The appellate court rejected Defendants’ arguments that U.S. courts lack jurisdiction, or that Germany’s treatment of its Jews in the 1930s should be immune from judicial scrutiny. While the Federal Republic of Germany itself was dismissed as a defendant, the actual possessor and key party in interest (the Stiftung Preussischer Kulturbesitz, or SPK) must now prove that a 1935 transfer of the collection by a consortium of Jewish art dealers to Hermann Goering’s minions was a legitimate transaction if they are to retain the collection.
Topics: Guelph Treasure, Gestapo, Z.M. Hackenbroch, Prussia, Germany, Nazi-looted art, Foreign Sovereign Immunities Act, Markus Stoetzel, Mel Urbach, SPK, Hermann Goering, FSIA, NS Raubkunst, Sullivan & Worcester LLP, J.S. Goldschmidt, Adolf Hitler, Nicholas M. O'Donnell, Welfenschatz, I. Rosenbaum, D.C. Circuit, Consortium, Genocide Convention, Reichstag, flight taxes, Baltimore Sun, Luftwaffe
News Accompanied by Deafening Silence About Ongoing Restitution Policy Failures
The German government announced recently that it had returned an additional work of art found in the Salzburg home of Cornelius Gurlitt in connection with the 2013 revelation of Gurlitt’s trove of art originally in the possession of his late father Hildebrand. La Seine, vue du Pont-Neuf, au fond le Louvre by Camille Pissarro (1902) has been returned to the heirs of Max Heilbronn, from whom it was taken in 1942 in France. The accompanying announcement was of a piece with the ongoing fiasco of the Gurlitt affair: a press release touting the personal involvement of Germany’s Minister of Culture Monika Grütters, a self-serving but vague statement about commitments to restitution, and absolutely no explanation or update about what is happening to the hundreds of additional paintings and objects under investigation. The press release was also sure to mention an upcoming exhibition of Gurlitt collection works later this year. In sum, the announcement confirms precisely the opposite of its intended effect.
Topics: Guelph Treasure, Cornelius Gurlitt, Germany, Nazi-looted art, Washington Conference Principles, Hildebrand Gurlit, Gurlitt, NS Raubkunst, Kunstmuseum Bern, Monika Grütters, Taskforce Schwabinger Kunstfund, Welfenschatz, Minister of Culture, Gurlitt Taskforce
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
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
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.
We reported last week on the outrage over the decision by Germany and the Stiftung Preussischer Kulturbesitz (SPK) to argue in their motion to dismiss my clients’ claims to the Welfenschatz that a commercial interaction between German Jews and a cabal instigated by Hermann Goering in 1935 “predated the Holocaust by several years.” As we noted last week, the suggestion that the Holocaust was a distant possibility in 1935 was an indefensible statement, factually, historically, and ethically. The initial reaction was swift and severe. As Germany gets ready to host the First Conference of the German Centre for Cultural Property Losses next week, its policies are hurtling in the wrong direction.
Topics: Jewish Week Mel Urbach, Hermann Goering First Conference of the German Cen, Guelph Treasure, Gesetz zur Wiederherstellung des Berufsbeamtentums, Henning Kahmann, Atlanta, Simon Wiesenthal Center, Varda Neumann Federal Administrative Court, Yale University, Marion Kaplan, New York University, Germany, Nazi-looted art, Hitler, Kristallnacht Rabbi Abraham Cooper, Deborah Lipstadt, U.S. Holocaust Memorial Museum, Markus Stoetzel, Emory University, Behrens, Holocaust, Bloodlands, SPK, Advisory Commission, Black Earth: The Holocaust as History and Warning, Stiftung Preussischer Kulturbesitz, Restitution, Los Angeles, World War II, Law for the Restoration of the Professional Civil, Washington, Raubkunst, Timothy Snyder, Welfenschatz
The German federal cabinet has approved a revision to its cultural heritage protection law notwithstanding overwhelming opposition by essentially everyone who commented, putting the draft on the fast track to legislative enactment next year.
Topics: cultural property, Guelph Treasure, VAT, Georg Baselitz, Germany, Minister of Culture Monika Grütters, EU, Artforum, Kulturgutschutzgesetz, Gerhard Richter, cultural heritage protection law, Michael Werner, Welfenschatz