In a unanimous decision in Cassirer v. Thyssen-Bornemisza Collection Foundation, the Supreme Court ruled on April 21, 2022 that the heirs of Lilly Cassirer, who fled Nazi Germany in 1939, can continue their decades-long pursuit of Camille Pissarro’s Rue Saint-Honoré, dans l’après-midi. Effet de pluie (1897). Although nobody contests that the painting – which now hangs on the wall of the Thyssen-Bornemisza Foundation in Madrid – changed hands as the result of a forced sale involving Nazi agents, the case has been appealed three times in the U.S. federal court system with lengthy battles over sovereign immunity, jurisdiction, and procedural rules. While the case was filed in 2005, it was not until 2019 that a federal judge applied Spanish law and ruled that the Thyssen-Bornemisza could keep the painting. The Supreme Court’s recent decision is therefore a victory for the Cassirer heirs, with the Court agreeing with the family that the case should be heard using California’s choice-of-law rules because once the Cassirer family overcame the jurisdictional challenges of sovereign immunity, the Thyssen-Bornemisza must be treated like an ordinary defendant. Justice Elena Kagan noted that “[a]lthough the legal issue before us is prosaic, the case’s subject matter and background are anything but.”
Narrow Legal Question
Most recently, the Supreme Court considered a seemingly arcane but important question under the Foreign Sovereign Immunities Act (“FSIA”), which governs when cases can be brought in U.S. courts against foreign nations and their instrumentalities. (Here, the Thyssen-Bornemisza Collection Foundation is an instrumentality of Spain, which was voluntarily dismissed as a party earlier in the case.) The issue before the Supreme Court this term was whether, under the FSIA, a federal court hearing state law claims such as those in the Cassirer case for the return of property must (1) apply the forum state’s choice-of-law rules (in this case, California) or (2) use federal common law to decide which jurisdiction’s substantive law should apply to the claims. Where the trial decision here allowing the Thyssen-Bornemisza to keep the Pissarro painting was based on Spanish substantive law, the question of how to determine which law applies could be critical to the outcome.
The Supreme Court found that, in a suit raising non-federal claims against a foreign nation or its instrumentality under the FSIA, a court should determine the substantive law by using the same choice-of-law rule applicable in a similar suit against a private party (in this instance, California law). In issuing this decision, the Court vacated the appellate court’s judgment and remanded the case for further proceedings.
Why This Matters
Although a fairly byzantine aspect of U.S. civil procedure, this choice-of-law question is significant for other lawsuits arising under the FSIA, so the precedent may be important for future claimants seeking the return of art held by a foreign sovereign.
More broadly, the Supreme Court’s consideration of the Cassirer dispute has revived discussions about Nazi-looted art before the public eye, with many commentators condemning Spain and the Thyssen-Bornemisza for not living up to their commitments to return Nazi-looted art.
What We’ll Be Watching
It is possible that, even using California’s conflict of laws rules, the Court of Appeals will decide that Spanish law should govern the substantive claims. Notably, the lower court previously ruled that the Cassirer family would lose using either California or federal common law choice-of-law rules because both lead to imposition of Spanish law on the merits. The Ninth Circuit Court of Appeals previously reviewed the choice of law question and upheld the lower court’s decision to apply the federal common law choice of law rules (and Spanish law) without addressing California’s choice-of-law test.
Regardless of the ultimate outcome, the Supreme Court’s unanimous decision demonstrates that all nine justices on an increasingly divided court could agree on one thing in the decision: the “path of [the Supreme Court’s] decision has been as short as the hunt for Rue Saint-Honoré was long; [the Supreme Court’s] ruling is as simple as the conflict over its rightful owner has been vexed.”
Dr. Jennifer A. Morris is an Attorney at Cultural Heritage Partners and leads the firm’s Art and Museum Law practice.