Art Law Report Post on Lauder Stolen Art Editorial Ruffles Feathers, Criticism Ultimately Concerns Different (but Important) Issue

Art Law Report 14 July 2014
By Nicholas O'Donnell

Two weeks ago, we posted an article entitled “Lauder Editorial on Stolen Art Fails the Glass House Test.”  The metaphor was not intended to be complicated: it seemed inconsistent, to put it politely, for the honorary board chairman of a museum that has resisted restitution claims by asserting, for example, the statute of limitations and the laches defense, now to say that museums that do just that are “immoral.”  Ultimately, we posited that restitution decisions are complicated and hard.  It seemed an open question for example as to what, exactly, Ronald S. Lauder’s editorial “Time to Evict Nazi-Looted Art From Museums” was designed to draw attention.  Right on cue, another article appeared calling for the return ofthe Camille Pissarro in the Thyssen-Bornemisza Foundation museum in Madrid (Rue St. Honoré, effet de pluie) claimed by the heirs of Lilly Cassirer.  It is clear that the June 30, 2014 Art Law Report raised more than a few hackles, but we welcome discussion and criticism.  An exchange of ideas is what we are here to foster, after all.  In the end, however, some clarification shows that there is not really a disagreement here, but rather that the response highlights frustration with civil law countries’ treatment of stolen art.

To discuss Lauder’s editorial, we examined one of the cases he cited : the ongoing dispute over La Bérgère (also by Pissarro) at the Fred Jones, Jr. Museum of Art, claimed by Léone Meyer.  Lauder also mentions the claims to two Lucas Cranach the Elder paintings (Adamand Eve) at the Norton Simon Museum that we have discussed previously, and which were recently reinstated by the 9th Circuit Court of Appeals.

In any event, the June 30, 2014 Art Law Report description of the Oklahoma case in discussing the Lauder piece was intended neither to support nor refute Meyer’s claim.  We do not represent Oklahoma or any of the Oklahoma defendants.  We do represent the David Findlay Jr., Inc. Gallery, which was initially named as a defendant (a fact disclosed in each post on the topic).  Meyer alleges that La Bérgère was sold at the David Findlay Galleries in 1956 in New York City, and that certain reports and events put the art world on notice that the painting had been stolen.  David Findlay Jr., Inc. was not incorporated until nearly thirty years later, but our client was nonetheless sued, and later dismissed, from the case.  Several other New York galleries with the name “Findlay” were also sued.  After our client was dismissed, Meyer sued the American Alliance of Museums (AAM) and Association of Museum Directors (AAMD), alleging that they had breached a contract of which she was the intended beneficiary.  Specifically, she alleged that they had failed to enforce their membership guidelines on Nazi-looted art to pressure the Fred Jones, Jr. museum to return the Pissarro.  The Fred Jones, Jr. Museum is not a member of the AAMD.  The AAMD is an association of people (directors), not museums.

The outcome of the Oklahoma case was quite straightforward: Judge Colleen McMahon of the U.S. District Court ruled that the Oklahoma defendants cannot be sued in New York.  This is because they are subject to neither “general” jurisdiction—the continuous presence in the forum of the court that makes it fair to be sued there; nor “specific” jurisdiction—the commission of a certain act in a particular place that, one’s typical location notwithstanding, allows a suit to proceed.  A major corporation might be subject to general jurisdiction because of a systematic course of business, even far afield from its base of operations.  A defendant might be subject to specific jurisdiction because it engaged in a transaction that is the subject of the lawsuit (similar to the argument that the Mendelssohn-Bartholdy heirs made in seeking to pursue the Free State of Bavaria and the Pinakothek der Moderne for Pablo Picasso’s Madame Soler).  Judge McMahon wrote, first as to the Findlay defendants:

The Court long ago concluded that the Findlay Defendants were sued as window dressing, in order to try to site the case in New York rather than in Oklahoma. 

With regard to the jurisdictional question, she held first with regard to specific jurisdiction:

No allegations in the First Amended Complaint would render the Oklahoma Defendants amenable to specific (long-arm) jurisdiction in New York pursuant to N.Y. Civ. P. Law & Rules § 302. The Oklahoma Defendants allegedly came into the possession of the Pissarro painting in 2000, when it was gifted to the University by the Weitzenhoffer family-who, according to publicly available materials, lived in Oklahoma City. Since then, the painting has been housed on the campus of the University. The First Amended Complaint pleads not a single New York based activity by the Oklahoma Defendants in connection with either the University’s acquisition or its subsequent maintenance of the painting-all of which allegedly took place in Oklahoma.

The general jurisdiction analysis was similar:

Plaintiff contends that the fact that the University has issued bonds with the assistance ofWall Street (i.e., New York-based) underwriters is sufficient to subject the OklahomaDefendants to general jurisdiction here. That argument has been repeatedly rejected for years. . . .


In fact, the proposition is so well settled that it ought to violate Fed. R. Civ. P. 11 to make the argument!


I decide the pending motion on the ground of personal jurisdiction to emphasize that thismatter had no business being brought before this Court in the first place. Plaintiff may wish to bring her lawsuit against the Oklahoma Defendants in Oklahoma. It is there that issues about the doctrine of sovereign immunity in relation to the University, its Trustees and its President ought to be litigated, as well as issues relating to the statute of limitations and various torts, which may well be governed by Oklahoma law.

Meyer voluntarily dismissed the AAM and AAMD shortly thereafter, and has appealed Judge McMahon’s ruling.  Even with a relatively quick turnaround on appeal (which should not be assumed), that would at best keep the case in New York but would also ensure that any litigation over the Swiss judgment is years away at the earliest.

On July 12, 2014 a post written by Meyer’s attorney appeared entitled “Nicholas O’Donnell’s article on Ronald Lauder’s Editorial on Stolen Art and Museums Fails the Common Sense Test.”  It was posted on the Plundered Art blog, in association with the Holocaust Art Restitution Project (both endeavors we follow faithfully and admire greatly, though we found the Twitter tagline of a “slugfest” that accompanied the July 12 response to be a bit much).

Well that escalated quickly.  It certainly got our ears burning.

Ultimately though, the post just builds up a straw man only to knock it down; it claims that the Art Law Report “repeatedly brings up a 1953 Swiss court decision involving Camille Pissarro’s La Bergère as grounds for why Léone Meyer’s claim should fail, and why Mr. Lauder’s argument is baseless,” when the Swiss judgment had little to do with the June 30, 2014 Art Law Report article, which itself takes no view at all about Meyer’s claim.

This is easily shown. First, we cited the 1953 Swiss judgment as follows, not as “grounds for why Léone Meyer’s claim should fail”:

Specifically, [Lauder] 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 last sentence was actually intended as a compliment.  We went on:

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).

The July 12 response is really focused on a different issue: the fairness of the Swiss judgment against Meyer’s predecessor in title.  That is an entirely valid perspective, and underscores the policy challenges of differing views of good faith purchasers.  In New York, title to a stolen object can never be acquired, the policy is to favor the “true owner.”  In Switzerland, a good faith purchaser will prevail; the policy is to favor the continuity of the market.  Which is better?  People of good faith disagree, “common sense” notwithstanding, and that difference is at the heart of many, if not most, restitution disputes.  Meyer clearly believes that Cristoph Bernoulli, who prevailed in 1953 under Swiss law as a “good faith purchaser” was anything but that.  If Swiss law is applied, Meyer will almost certainly lose; if a court declines to apply Swiss law she may win.  But it a question that has yet to be litigated, and it will almost certainly never be litigated in New York.  If it is, it will be years away.

More to the point we did not (and will not) say what the Oklahoma museum should do, or whether Bernoulli was, or wasn’t a good faith purchaser.  Nor did we say that Lauder was “baseless” or that that Meyer’s claim should fail.  Those matters are better characterized as differences of opinion rather than obvious matters of common sense.  Readers, of course, should judge for themselves.
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