The U.S. Supreme Court has ruled in favor of a family who sought the return of a painting that the Nazis confiscated during the Holocaust, in a dispute over whether a foreign country’s law or a U.S. state’s law should apply.
The Supreme Court held that California law applied, which has a lower bar than Spain in proving who will ultimately own the painting.
This was good news for Stephen Zack, a partner at Boies Schiller Flexner in Miami, joined by his colleagues, firm chairman David Boies and partner Scott Gant, who work out of the New York and the Washington, D.C., offices, respectively.
The trio—opposed by counsel for the Thyssen-Bornemisza Collection Foundation—represented the descendants of Lilly Cassirer, in the dispute over the rightful owner of the impressionist painting: Camille Pissarro’s Rue Saint-Honoré in the Afternoon, Effect of Rain.
“With this decision, there are huge implications internationally in what’s going on in Ukraine,” Zack said. “You can see on the nightly news reports that there is looting going on this minute in Ukraine. It should be very clear that when you steal something, you never have good title that you could pass on to someone else.”
Elena Kagan, associate justice of the Supreme Court, penned the ruling, issued Thursday, centered on the Foreign Sovereign Immunities Act of 1976 28 U. S. C. §1602, and the exception for expropriated property.
The dispute is long and twisted, but it began in 1900, when Paul Cassirer, owner of a Berlin art gallery, bought the artwork directly from Pissarro’s exclusive French dealer, according to court pleadings. In 1939, the Nazis forced Lilly Cassirer to sell the painting for $360, which the family never received, in exchange for exit papers for her and her husband to flee Germany, the filings claimed.
In the early 1990s, the foundation obtained ownership of the painting and it ultimately set up the masterpiece with the Spanish government, court documents show. When Cassirer’s grandson, Claude, learned of the acquisition, he sued in 2005 in California federal district court. However, when Claude died, his son David carried on the case.
The Cassirer plaintiffs argued that California’s choice-of-law rule governed the dispute.
Meanwhile, Thaddeus Stauber and Sarah Erickson Andre, partners at Nixon Peabody International in Los Angeles, advocated a rule based on federal common law for the foundation.
However, the Golden State district court and the Court of Appeals for the Ninth Circuit ruled that the federal option held, which commanded the use of the property law of Spain and doomed the Cassirer claim to the 1897 painting valued at $30 million.
Until the Supreme Court granted certiorari to resolve the lower court conflicts and found that the state’s choice-of-law rule, and not a rule deriving from federal common law, applied, according to the ruling.
“Judicial creation of federal common law to displace state-created rules must be ‘necessary to protect uniquely federal interests,’” the Supreme Court ruled in the opinion. “Foreign relations is of course an interest of that kind. But even the federal government, participating here in support of the Cassirers’ position, disclaims any necessity for a federal choice-of-law rule in FSIA suits raising non-federal claims.”
Now, in a unanimous decision, the U.S. high court ruled to reverse and remand the ruling, which means the decade-long dispute will head back to the lower courts.
The Nixon Peabody litigators did not immediately respond to a request seeking comment.
Read the ruling:
For Boies, the ruling comes after he dusted off his Supreme Court credentials, when he returned after nearly a decade-long hiatus, to argue in the long-running legal battle. Zack, who indicated the law firm took the case on contingency, said the ruling would be part of his colleague’s legacy.
“When you’re right, you never give up,” said Zack, who has represented the Cassirer family in the case for more than 10 years. “The ultimate bastion of justice is the Supreme Court. There were many days we were depressed by what happened. But we never gave up hope we would get the right decision at the end of the day.”