The US Supreme Court has sent a Nazi-looted art claim over a painting at the Museo Nacional Thyssen-Bornemisza in Madrid back to the lower federal appeals court to reconsider who owns the work, after a new California statute changed the governing law of the case. The new statute applies the property law of California to lawsuits over art stolen during the Holocaust.
The Supreme Court order, issued on 10 March, granted the plaintiffs’ request for appeal from a 2024 judgment by the Ninth Circuit federal court of appeals in California, which applied the law of Spain, not California, to the case. On that basis, the appeals court concluded that the work that is the subject of the claim, Camille Pissarro’s Parisian streetscape painting Rue Saint Honoré, apres midi, effect de pluie (1897), belonged to the Thyssen-Bornemisza Collection Foundation (TBC). The Supreme Court action now vacates that judgment and directs further consideration of the case in light of the California law.
In the California case, the heirs of the painting’s former Jewish owner, Lilly Cassirer Neubauer, argued that California law should apply, under which a thief cannot pass title to any subsequent owner: the heirs would own the painting. But the Ninth Circuit said that California’s choice of law rules required applying the law of Spain to the case. Because TBC had not had actual knowledge of the theft when it bought the painting, and had possessed the work publicly in good faith for over three years before the lawsuit was filed, TBC owned the work.
In response to the judgment, California enacted the new statute last year, which mandates the application of California law in claims over art or personal property looted during the Holocaust or due to political persecution. The statute applies not just to stolen art claims initiated after its enactment, but also to cases still eligible at that time for appeal.
The statute’s viability has not been tested, and a challenge in the upcoming proceedings seems likely. Thaddeus Stauber, a lawyer for the TBC, tells The Art Newspaper: “Notably, the Supreme Court did not direct the Ninth Circuit to summarily apply the new California law as the claimants asked them to. Why? Because the California bill unlawfully attempts to retroactively apply new California law beyond its own borders to property whose history and place is tied to Europe.” He adds that the statute “is unconstitutional and cannot be applied to [Second World War-]era claims, including here where the German Government previously compensated Ms. Neubauer—in the amount she herself requested”, and the prior lawsuit on the merits “already found” for TBC.
In 1939, Cassirer Neubauer, based in Berlin, was forced to sell the painting to Nazis to obtain an exit visa and she was not allowed to access the payment. After the work passed through several transactions, it was eventually bought by Baron Thyssen-Bornemysza in 1976. Spain bought the baron’s collection in 1993. The painting has been on public display in Madrid at the Villahermosa Palace since 1992. TBC, an instrumentality of Spain, maintains it.
The plaintiffs are the heirs of the original plaintiff, who was Lilly’s sole heir, Claude Cassirer. He died in 2010.
David Boies, David Barrett and Steve Zack, lawyers for the heirs, say in a joint statement that they are “grateful the Supreme Court has vacated the Ninth Circuit decision and remanded the Cassirers’ case for application of California law requiring the return of looted artworks to their rightful owners. There has never been a dispute that the Cassirer family was the rightful owner. With the applicable law now clearly established, we look forward to finally obtaining justice for the Cassirer family after 20 years of litigation.”
David Cassirer, one of the plaintiffs, says in a statement that Claude, his father, “would be very relieved that our democratic institutions are demanding that the history of the Holocaust not be forgotten”.
