Cassirer v. Thyssen-Bornemisza Collection Foundation

Foreign Sovereign Immunities Act and Holocaust Expropriated Art Recovery Act

9th U.S. Circuit Court of Appeals

Judge Carlos T. Bea

Appellant’s Lawyers: David Boies, Devin “Velvel” Freedman, Stephen N. Zack, Boies Schiller & Flexner LLP; Laura W. Brill, Nicholas F. Daum, Kendall Brill & Kelly LLP

Appellee’s Lawyers: Thaddeus J. Stauber, Jessica N. Walker, Sarah Erickson André, Nixon Peabody LLP

A rainy afternoon in Paris rendered in oil on canvas in 1897 by the impressionist Camille Pissarro is the $30 million masterpiece at the center of a long recovery effort by the owner’s heirs. Their claim: it is Nazi-looted art wrongfully placed in a Spanish museum’s collection.

In July, following arguments by David Boies of Boies Schiller & Flexner LLP for the heirs, a 9th U.S. Circuit Court of Appeals panel reversed a trial judge’s dismissal of the claim and breathed new life into the litigation.

“There’s a broad recognition among governments and museums that nobody ought to be a party to the looting of art,” Boies said.

Turning that sentiment into legal reality has frustrated the owner’s heirs for years as the case has now taken three trips to the 9th Circuit and isn’t over yet. The three-judge panel again remanded the matter to a Central District trial court after concluding unanimously that a judge interpreted Spanish law too narrowly when he ruled that the Thyssen-Bornemisza Collection Foundation of Madrid had no knowledge that the painting was stolen property when it acquired the work in 1993.

The Nazis forced its token sale in 1939 in exchange for exit visas for its Jewish owner.

Boies had been confident of victory. “We saw multiple ways we could win,” he said. “The Holocaust Expropriated Art Recovery Act played a key role. If American law applied, it was clear we’d prevail. And under Spanish law dating back to the 1880s the museum could not have obtained ownership rights because it had notice of the painting’s suspect source.”

The panel, in an opinion by Judge Carlos T. Bea, rejected the museum’s argument that the great-grandchildren of the original owner, Lilly Cassirer, waited too long to file their claims, noting that the heirs had acted within a six-year window after discovering the artwork’s location. The panel also dismissed the museum’s arguments that these claims were meritless because Cassirer accepted a settlement in 1958 with the Nazi art appraiser who bought the painting.

Settlement talks are in progress, but Boies said he thinks the museum will insist on a trial. “At one time I’d have said of course they’ll settle — the Spanish museum can’t want a trial over its looted Nazi art. But this is a case fought on a scorched-earth approach by the museum. They’ve gone to every extreme to keep the painting.”

Boies will continue to represent the heirs if the museum refuses to settle. “Yes, I will try the case and I’d enjoy it,” he said. “We’re clearly on the side of the angels here.” An intriguing twist at oral argument was that Bea was born in Spain and has a thorough knowledge of Spanish statutes. “His background allowed us to get into details of Spanish law,” Boies said. “He really understood it in depth, and he asked very penetrating questions. He understood the details of the points we were trying to make.”

As for the painting itself, Boies said, “I’ve only seen pictures. It really is a stunning work. I’m looking forward to seeing it in life, here in the U.S.”

— John Roemer