Lauder Editorial on Stolen Art and Museums Fails the Glass House Test

Art Law Report 30 June 2014
By Nicholas O'Donnell

The Wall Street Journal published an editorial today by Ronald S. Lauder entitled “Time to Evict Nazi-Looted Art From Museums.”  Lauder, the one-time U.S. Ambassador to Austria, current President of the World Jewish Congress, and Honorary Chairman of the Board of Trustees of the Museum of Modern Art in New York, is a frequent commentator on questions of stolen art.  He was, for example, a reliably-available quote on the Gurlitt affair: on Germany’s steps to deal with it (or criticism for Germany’s action) and the question of stolen art in German museums.  But a prominent case several years ago involving a museum with which Lauder himself is involved suggests that perhaps over-simplification is not the answer. 

The editorial treads over familiar ground, using the topic of this year’s unwatchable The Monuments Men movie as a segue to the topic.  Lauder’s thesis is straightforward: U.S. museums that refuse to return stolen art are “immoral.”  As evidence for this, Lauder cites the ongoing case against the University of Oklahoma over La bergère by Camille Pissarro (full disclosure again, I represented the David Findlay, Jr. Gallery in that action, who was dismissed from the case by the plaintiff and which is not involved in the appeal).  Specifically, he objects to the Oklahoma defendants’ refusal to return the painting notwithstanding a Swiss court decision in the 1950s that adopted the view that the painting had been stolen, but nonetheless did not order its return because the case was not brought within the required time.  Lauder argues that this tactic is inconsistent with the Washington Conference Principles on Nazi-Confiscated Art (a conference that Lauder was undeniably instrumental in organizing).  The piece also takes issue with the Norton Simon Museum’s assertion of the statute of limitations against Marei von Saher’s claims to Adam and Eve by Lucas Cranach the Elder (those claims were reinstated earlier this month).

An important first point is that Oklahoma did not prevail because the claim has been found to be time-barred (or because of the Swiss judgment).  Oklahoma prevailed—for the moment—because the Court ruled that those defendants could not be sued in New York.  In any event, Lauder’s overall point is that Oklahoma should not assert title to the painting under the circumstances.  Based on early Twitter traffic (though anecdotal), many commentators agree with him.

But a little additional context may explain why the issue remains so intractable.  In 2007, the Museum of Modern Art in New York sued a man named Julius Schoeps, Edelgard von Lavergne-Peguilhen, and Florence Kesselstatt.  The claimants had identified themselves to MoMA as the heirs of Paul Mendelssohn-Bartholdy.  Mendelssohn-Bartholdy died in 1935, and the dispute concerned what happened thereafter involving his non-Jewish wife and his bankers, and whether subsequent sales of two paintings where the paintings were two Picassos: Boy Leading a Horse and Le Moulin de la Galette.  When Schoeps et al. would not relent in his demand for return of the Picassos, MoMA sued preemptively for a declaration that the sales had been legitimate and that MoMA was the rightful owner.  In part, MoMA argued that the paintings ownership could be decided on the defense of laches, that is, that the Schoeps claimants had delayed so long even if they were the owners that MoMA was prejudiced as a result. 

Schoeps and his alleged co-owners counterclaimed that they did, in fact, own the paintings.  After the parties engaged in discovery, MoMA moved for summary judgment on the Schoeps claimants’ claims, a procedure in which the moving party argues that all the material facts—the facts that matter to the outcome—are undisputed, and that the legal result should be determined by the judge.  Where such facts are in dispute, they can only be resolved at a trial, whether by the judge or a jury. 

The court turned MoMA down, ruling that just such genuine issues of material fact existed.  A request for reconsideration of that ruling was caustically denied by the court

A trial was scheduled, and the parties engaged in the usual pre-trial filings and preparations, before the case settled.  The terms of that settlement were confidential (which is fairly common), but what is most interesting was Judge Jed Rakoff’s reaction to the parties’ request to keep the terms of the settlement confidential.  Judge Rakoff wrote:

The Court finds the confidentiality provision of the settlement agreement and the plaintiffs’ objection to disclosure to be against the public interest and a troubling reversal of the parties’ previously stated positions on this issue. From the outset, the parties on both sides portrayed this lawsuit as of considerable public interest because of the importance of establishing the truth concerning the sensitive issues involved. The Museums, when they first brought this action seeking declaratory judgment, stated that they were ‘prepared to have all factual and legal issues surrounding [plaintiffs’] claims to the Paintings resolved by this Court,” Compl. ¶ 8, and they have subsequently reiterated that “they are and remain committed to transparency in their actions.’

As noted above, Lauder is the Honorary Chair of MoMA.  He joined the Board of Trustees in 1976, according to the New York Times.  Lauder declined comment on the case when it was pending, a perfectly defensible and sensible course of action.  But that case was no less controversial then with regard to MoMA’s approach—suing the claimants—than Oklahoma’s is now, and Lauder himself came into some criticism on that account at the time.  And that does not even broach the topic of Portrait of Wally, which of course was destined for an exhibition at MoMA when it was seized.  No court ruled that the Picassos were stolen, to be sure.  But the court also thought the issue sufficiently murky to allow the trial to proceed.  And, as noted above, the judge was sharply critical of the lack of transparency with regard to the final resolution.  Moreover, Oklahoma would no doubt argue, we can quarrel with the Swiss law if we want, but at least a judgment there addressed ownership. 

MoMA asserted its rights in the appropriate forum, and in the end the result from the public’s perspective was inconclusive.  But to state the following, as the editorial does, seems a bit inconsistent given MoMA’s bringing of the Schoeps case in the first place and its assertion of laches in particular, and a little too convenient now that the MoMA case is settled in a confidential way:

Sadly, in some cases, it does. Many museums make it difficult if not impossible for claimants to proceed. They threaten Holocaust victims with expensive legal actions under the pretext that they need to clear title, and then raise the statute of limitations.

Museums face hard questions when claimants come forward.  Some museums handle those questions well, some quite poorly.  Should Oklahoma give the painting back?  Is the Norton Simon’s assertion of the statute of limitations wrong?  Today’s editorial adds little to that debate.
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