Davis Wright Wins Appeals Court Ruling That Spain Can't Claim Sovereign Immunity in Suit over Nazi Art Theft

Am Law Litigation Daily 10 September 2009
By David Bario

The Nazi looted art cases just keep on coming. In the 70 years since the Nazis forced Claude Cassirer's grandmother to sell a painting by French impressionist Camille Pissarro, the painting was shuttled from Germany to Holland, New York, St. Louis, and Switzerland before eventually landing in a museum in Spain. Now, thanks to a decision by the U.S. Court of Appeals for the Ninth Circuit, the painting is a step closer to being reunited with the Cassirer family. On Tuesday a three-judge panel in Pasadena ruled that Cassirer's suit against the Thyssen-Bornemisza museum in Madrid and the Spanish government may go forward. Here's a compelling story about the case from Zach Lowe at The Am Law Daily.

A Nazi-appointed appraiser forced Cassirer's Jewish grandmother to sell Pissaro's Rue Saint-Honoré, Après-midi, Effet de Pluie for $360 in 1939 before she could leave Germany. The Spanish government acquired the painting from a collector in 1988; 12 years later, Cassirer discovered Rue Saint-Honoré, now valued at $20 million, hanging in Madrid's Thyssen-Bornemisza. In 2005, Cassirer hired Davis Wright Tremaine and filed suit in California federal court. demanding the return of the painting. The case landed before the Ninth Circuit after a district court judge denied motions by Spain and the museum to dismiss the case.

The central issue before the Ninth Circuit was one of first impression: whether the expropriation exception of the Foreign Sovereign Immunities Act applies when the foreign state being sued is not the one that took property in violation of international law. Spain, represented by Alston Bird partner William Barron, had argued that it was protected by sovereign immunity because it was Nazi Germany, not Spain, that expropriated Pissaro's painting. The panel disagreed. It found that the FISA exception was not limited to the country actually seizing property, and it agreed with the lower court that the museum foundation holding the painting (represented by Nixon Peabody's Thaddeus Stauber) engaged in commercial activity in the United States.

As Lowe writes, the case came to Davis Wright Tremaine thanks to a coincidence having more to do with music than fine art. Partner Victor Kovner learned of the dispute during a Colorado ski trip from his friend Peter Yarrow of the group Peter, Paul and Mary, who is a friend of Cassirer's son.

It's now up to the Davis Wright team, led by Stuart Dunwoody, to continue pressing Cassirer's case in the district court. The Ninth Circuit ruling left at least one more obstacle in the path of his recovery of the painting, holding that the district court had not adequately considered whether Cassirer had exhausted his remedies in Spain. But the judges wrote that Cassirer could plead that his options for pursuing the case in Spain--which Cassirer unsuccessfully petitioned for the painting's return before filing suit--were ineffective or unduly prolonged.

Meanwhile, the 88-year-old Cassirer is running out of time to enjoy the painting he considers his rightful property. "The behavior of Spain here is nothing short of shocking," Kovner told The Am Law Daily.
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