Appeals Court Says No to Frenchman's Efforts to Reclaim Van Gogh Work from Yale

Connecticut Law Tribune 22 October 2015

A federal appeals court has awarded Yale University a victory in round two over a long-running wrestling match over a Van Gogh painting that is valued at $200 million.

The U.S. Court of Appeals for the Second Circuit rejected the arguments that the masterpiece, "The Night Café," be returned to the family from which it was taken by the Bolshevik government of Russia in 1918. In making its ruling, the court upheld a Connecticut judge's ruling that the the "act of state" doctrine precluded the claims of French citizen Pierre Konowaloff. The doctrine generally requires U.S. courts to presume the validity and legality of a foreign state's action with regard to its own nationals within its own borders.

Konowaloff's family history is compelling. His great-grandfather, an industrialist named Ivan Abramovich Morozov, was a major art collector in early 20th-century Russia. Along with two other majory collections, his artwork was "expropriated" by the revolutionary Soviet government. In 1933, "The Night Cafe" and a work by French master Paul Cezanne, "Madame Cezanne in the Conservatory," were sold by the Soviets to Stephen Carlton Clark, an American collector who was also the founder of the Baseball Hall of Fame. Clark donated them in his will, one to his alma mater, Yale, and the other to the Metropolitan Museum of Art in New York City.

About a half dozen years ago, Konowaloff sought to have the materpiecces returned to his family.

In 2009, Yale sued Konowaloff in U.S. District Court in an effort to asserting ownership of the painting. Konowaloff filed a response and counterclaim later that year. Konowaloff claimed that Russia's seizure of the painting violated international law and that Russia's failure to pay his great-grandfather upon his death in 1921 meant the painting rightfully belonged to him.

At the time, Konowaloff's attorney, Allan Gerson, said in court documents that Yale's arguments constituted asking courts to "rubber-stamp good title on any dictator's plunder."

But in a 2010 motion requesting a summary judgment, the university offered three main arguments against Konowaloff's claims: that they were made beyond any statute of limitations; that the act-of-state doctrine prevented Konowaloff from "mounting a legal challenge to the validity of Russia's decree in a U.S. court"; and that a foreign nation's seizure "of its own national's property within its own borders does not violate international law."

Yale argued that a court decision in Konowaloff's favor could have invalidated the ownership of tens of billions of dollars' worth of artwork in galleries around the world.

Last year, U.S. District Judge Alvin Thompson sided with Yale, and Knowaloff appealed. Earlier this month, Gerson squared off against Wiggin and Dana attorney Jonathan Freiman, who represented Yale in oral arguments before the Second Circuit. In a brief decision issued Oct. 26, the Second Circuit upheld the Connecticut judge's act of state rationale and rejected other arguments made by Knowaloff.

The act of state doctrine was also applied in an unsuccessful 2012 lawsuit by Konowaloff against the Metropolitan Museum of Art over ownership of the Cézanne work.

The latest Second Circuit decision was criticized by Gerson, a Washington, D.C., based attorney who is known for his efforts to sue foreign governments for acts of terrorism. After the 1988 bombing of Pan Am Flight 103 over Lockerbie, Scotland, he initiated the first civil suit against a foreign state on behalf of families of the victims.

In the Van Gogh case, Gerson said the latest ruling denied his client the opportunity to be heard in court and to show documents obtained from the Russian government supporting his claim that the man who gave the painting to Yale was a thief. "I have never seen such short shrift given to a serious argument," Gerson said. "The history books will show that this was really a terrible decision."
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