Ninth Circuit Sides With Spanish Museum in Fight Over Nazi-Looted Art

Courthouse News Service 17 August 2020
By Martin Macias Jr

PASADENA, Calif. (CN) — A Ninth Circuit panel on Monday affirmed a federal judge’s determination that a Spanish museum is the rightful owner of a Camille Pissarro painting stolen from a Jewish family by Nazis, finding the museum sufficiently demonstrated it had no knowledge the masterpiece had been looted at the onset of World War II.

The French Impressionist’s, “Rue Saint-Honoré in the Afternoon, Effect of Rain,” once belonged to Lilly Cassirer, a Jewish woman who the Nazis stole the artwork from in 1939 in exchange for her family’s safe passage out of Germany during the Holocaust.

Believing for years the Pissarro masterpiece was lost, the Cassirers accepted restitution facilitated by a post-war Allied forces tribunal.

But in 2000, Lilly’s grandson Claude Cassirer found the painting hanging at the Museo Thyssen-Bornemisza in Madrid and sued in federal court five years later to try and retrieve the work.

The Cassirer family argued at a 2019 trial in the Central District of California museum experts failed to fully examine the painting and that documents tied to the work misrepresented its provenance, the official term for the record of ownership of a work of art which is used as a guide to authenticity or quality.

But U.S. District Judge John F. Walter struck down the Cassirers’ claims, ruling the museum foundation was the rightful owner of the Pissarro because court filings did not demonstrate a “willful blindness” of its provenance when the work was added to the museum’s collection.

Walter said the court had to apply Spanish law and could not force the Kingdom of Spain or the museum to comply with “moral commitments” laid out in international agreements governing the return of Nazi-looted works.

On appeal before the Ninth Circuit, Cassirer attorney David Boies with Boies Schiller Flexner argued museum experts overlooked documents tracing the painting back to the Cassirer’s gallery in Berlin.

Boies argued Walter should have employed the “perfectly imagined” test for determining willful blindness of the painting’s full origin as opposed to its use of the “high risk” test, which has a higher standard of proof.

The museum foundation’s attorney Thaddeus Stauber countered the foundation had no knowledge of the Nazi looting at the time it acquired the collection containing the Pissarro in 1993.

On Monday, the Ninth Circuit panel sided with the museum foundation’s argument, writing in its unsigned, unpublished 7-page memorandum it isn’t convinced the Walter used a willful blindness test with a higher standard of proof.

“To the extent the perfectly imagined test is a different, lower standard of proof than the high risk or likelihood test for willful blindness, the district court’s failure to address the perfectly imagined test is harmless because the Spanish Supreme Court has not mentioned or applied the perfectly imagined test for willful blindness in a case analogous to the present case,” the memorandum said. 

Even if Walter’s court applied the incorrect test, the error was “harmless,” the panel held.

Boies did not immediately respond to a request for comment on the ruling.

The panel held that although the Cassirers’ appeal briefs relied on several Spanish decisions that apply the “perfectly imagined” test, none of them involved stolen artwork that was later purchased from an established gallery like the Hahn Gallery in New York, where Baron Hans-Heinrich Thyssen-Bornemisza purchased the Pissarro painting.

“The district court found that the baron lacked actual knowledge of the theft based in part on evidence that the baron purchased the painting for fair market value from a reputable art dealer while the painting was publicly displayed and then publicly and frequently exhibited the painting after he purchased it, without anyone asserting it had been stolen in the past,” the memorandum said. “Therefore, even if the baron’s knowledge could be imputed to [the museum], it does not cause [the museum] to have actual knowledge.”

Further, the museum had little reason to suspect the baron “did not have good title to the paintings” given the baron’s $10 million pledge to the museum, according to museum attorney Fernando Perez de la Sota’s trial testimony noted in the memorandum. 

The panel will not consider reviewing en banc its 2017 ruling that the Cassirers had not exceeded California’s 6-year statute of limitations for claims to recover looted artwork, nor that the claims were preempted by the Foreign Affairs Doctrine.

The Ninth Circuit panel cannot order Spain or the museum to comply with the Washington Principles or the Terezin Declaration, international agreements governing the return of Nazi-looted art, the memorandum said.

“It is perhaps unfortunate that a country and a government can preen as moralistic in its declarations, yet not be bound by those declarations,” the memorandum said. “But that is the state of the law.”

Stauber did not immediately respond to a request for comment on the panel’s decision Monday.

U.S. Circuit Judges Sandra Segal Ikuta, Carlos Bea and Consuelo Callahan, all George W. Bush appointees, made up the panel.
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