Federal Courts: What Law Applies to Nazi-Appropriated Art Under the Foreign Sovereign Immunities Act?

Abstract

On January 18, 2022, the Supreme Court will hear arguments in Cassirer v. Thyssen-Bornemisza Collection Foundation concerning the legal ownership of an impressionist painting by Camille Pissarro -- Rue Saint-Honoré Afternoon, and Rain Effect -- that the Cassirer family originally purchased in the early twentieth-century. During the 1930s the Nazi regime appropriated the painting and the Jewish painting’s owner fled to the United States. After World War II the painting subsequently changed ownership several times in the United States. Ultimately the painting came into the possession of the Baron Hans Heinrich von Thyssen-Borenmisza of Lugano, Switzerland, who subsequently sold it to the Thyssen-Bornemisza Collection Foundation (TBC) in the Kingdom of Spain.

At the beginning of the twenty-first century several California Cassirer heirs became aware that the Pissarro painting was held in the Thyssen-Bornemisza Collection and was displayed in Madrid. In 2005 the heirs instituted legal proceedings in California federal court pleading California state claims, to recover the painting as the rightful owner. The district court and the Ninth Circuit applied federal common law to determine that the TBC was the rightful owner. After sixteen years of litigation and four appeals to the Ninth Circuit, the Supreme Court will address the appropriate law that federal courts should apply under the Foreign Sovereign Immunities Act when plaintiffs assert state law claims for remediation because of Nazi-era appropriated art. The Court will consider whether federal courts should apply the forum state’s choice of law rules or federal common law.

Keywords: Federal common law, Erie doctrine, conflict of laws, Nazi appropriated art, Foreign Sovereign Immunities Act, Cassirer, Baron Hans Heinrich von Thyssen-Borenmisza, encubridores, adverse possession, Restatement (Second) Conflict of Laws, interest analysis, exceptions to sovereign immunity, limitation