By: Sophia Do
On March 10, 2025, the United States Supreme Court granted certiorari and remanded the case of David Cassier, et al v. Thyssen-Bornemisza Collection Foundation back to the Ninth Circuit Court of Appeals in light of a new California law that provides a favorable ground for owners of Nazi-looted art to recover their stolen artworks. The case centered on a painting named Rue Saint Honoré, après-midi, effet de pluie by Camille Pissarro, who was a Danish-French Impressionist and Neo-Impressionist painter considered to be a father figure to Paul Cézanne, Georges Seurat, Paul Gauguin, and Vincent van Gogh. The painting is now likely worth tens of millions of dollars and is in the possession of Thyssen-Bornemisza National Museum in Madrid, Spain. The Supreme Court vacated the Ninth Circuit’s decision awarding ownership of the painting to the Thyssen-Bornemisza Collection Foundation (“TBC”) that applied the law of Spain, not California, to the case. Under California law, the plaintiffs could recover the painting, whereas under Spanish law, ownership of the painting passed by prescription to TBC.
There is no dispute that the rightful owners of the painting are Lilly Cassirer Neubauer and her heirs. In 1939, Lilly, a German Jew, sold the painting under duress for $360 to Jakob Scheidwimmer, a Nazi art dealer, to obtain a visa that allowed her to escape Germany. Scheidwimmer then forced Julius Sulzbacher, another German Jewish collector, to exchange three German paintings for the painting in question. When Sulzbacher himself fled the Nazi regime, the Gestapo ultimately seized the painting. There is no question that the Nazis stole the painting from Lilly.
In 1948, the Allies established a legal procedure allowing victims of Nazi looting to seek restitution of their stolen property. Although Lilly filed a timely claim for restitution and compensation of the painting, there was no way for her to find it: its whereabouts were largely unknown until 1951, and from 1952 to 1976, it sat in a private collection. So, in 1957, when Germany enacted a law authorizing claims for Nazi-looted property, Lilly dropped her U.S. claim and instead initiated a claim against Germany. In 1958, the parties entered into a settlement agreement under which Germany paid Lilly 120,000 Deutschmarks, equivalent to approximately $250,000 in today’s dollars.
In 1951, the Frank Perls Gallery in California arranged the painting to be moved out of Germany and into California for the sale to an American art collector, Sydney Brody. Brody in turn sold it to the Knoedler Gallery in New York. The painting passed through the hands of multiple art collectors until, in 1993, it was eventually sold to TBC, an entity created and controlled by the Kingdom of Spain. Between 1976 to 1992, the painting remained in a private collector’s home in Switzerland, except during periods when it was loaned for temporary exhibitions across seven countries. Since 1992, the painting has been on public display in the Thyssen-Bornemisza National Museum.
Between 1999 and 2000, long after Lilly passed away, an acquaintance of her sole heir and grandson, Claude Cassirer, informed Cassirer that the painting was located in the museum. Cassirer lived in California from 1980 until his death in 2010. In 2005, in an attempt to recover the painting, he filed an action under the Foreign Sovereign Immunities Act (“FSIA”) in California. In 2015, after a decade of litigation, Cassirer’s heirs (“the Cassirers”) moved the district court for an order establishing that the law of California, not Spain, governed the action. Under California law, as long as the victim of fine art theft filed suit to recover the art within six years of actual discovery of its whereabouts, the victim could recover the art. However, under Spanish law, ownership could pass by prescription to a possessor after three years of uninterrupted possession in good faith or six years of uninterrupted possession with no regard to good faith. The latter period could be tolled if the possessor was a principal, accomplice, or accessory (encubridor) to the theft.
Because the suit was filed under FSIA, a federal law, the district court determined whether the federal common law or the forum state’s choice-of-law test applied. In the case of adverse possession of chattel, the federal test holds that the law of the state where the chattel was at the time of transfer usually governed. Based on then-binding Ninth Circuit precedent, the district court applied this test, and thus the law of Spain, and awarded ownership of the painting to TBC because the painting was in Spain when the museum acquired it. The court found that TBC was not an encubridor as it had no actual knowledge of the theft and made the painting publicly available in good faith for over three years. The Ninth Circuit affirmed. The Supreme Court, however, disagreed: it reminded the lower court that, in a private suit with no substantive federal component, a federal court sitting in diversity must borrow from the forum state’s choice-of-law rule. The FSIA was never intended to control which substantive law applies. The case arose from a non-federal claim exclusively relating to property, and TBC, an instrumentality of Spain, was not granted immunity under FSIA due to an exception for cases involving “rights in property taken in violation of international law.” Without immunity, TBC was a private party like the Cassirers, and like in any non-federal diversity claims, the forum state’s choice-of-law rule, here California’s, applied.
Until this point, the Supreme Court appeared to treat the case “prosaically.” After all, although the subject matter and background were “anything but,” it only decided on a procedural question that was long settled in American civil courts. However, when the Ninth Circuit on remand came to the same conclusion and applied the law of Spain, awarding ownership of the painting to TBC once again, the Supreme Court granted certiorari a second time. The Ninth Circuit determined that, based on California’s choice-of-law test, the “governmental interest approach,” applying California law to the case would significantly impair the interests of Spain. Without an official opinion, the Supreme Court vacated the Ninth Circuit’s decision once again and simply remanded the case “in light of” the new California law.
The new bill, specifically enacted in response to the Ninth Circuit’s latest decision, provides that California substantive law applies in actions brought by California residents or their heirs to recover fine art, including those covered by the Holocaust Expropriated Art Recovery Art of 2016. Most significantly, it applies retroactively. Thus, regardless of the governmental interests of Spain, the Cassirers would recover the painting under the new law because the action commenced in California within six years of the actual discovery of its whereabouts. Given this expansive and retroactive application of the bill, the Supreme Court could have well declared it unconstitutional. Instead, it upheld it, seemingly favoring the plaintiffs’ claim and perhaps recognizing the advantage of U.S. property law in cases of Nazi-looted art restitution. Under U.S. law, thieves can never acquire good title to stolen property, and California does not expressly recognize adverse possession of personal property. Thus, Scheidwimmer, who stole the painting from Lilly, could never pass title, and TBC could not acquire title by adverse possession as well.
Choice-of-law questions play a decisive role in determining case outcomes, making them both important and challenging. There are compelling arguments for both American common law and European civil law when it comes to the transfer of property. While the former prioritizes good title and condemns thieves, the latter prioritizes market stability and avoids attempts at untangling decades of transactions in legal disputes. In addition, due to the covert nature of Nazi-looted art crimes, there are other factors specific to each case that warrant consideration: what about the compensation Lilly received from Germany? The art dealers and galleries that sold the painting on the U.S. art market despite its suspicious provenance? Should Cassirer have discovered the whereabouts of the painting earlier given that it was displayed publicly across various countries? Was the due diligence of TBC insufficient when it acquired the painting?
There are no definitive answers to these arguments and questions. However, fine art that was outright stolen by Nazis as part of their war crimes should be treated differently. It should be distinguished from other fine art and other types of property to ensure justice for victims of such historical wrongs. The Cassirer case highlights the necessity of a more uniform framework of choice-of-law application in Nazi-looted art cases. Because such cases often involve differing national and international legal frameworks that significantly impact their outcomes, there exists a real need for a unified international standard. In fact, even within the U.S., the outcome of Cassirer would be drastically different if it were brought in a different state: New Jersey for instance, unlike California, requires due diligence on the plaintiff’s part. Because Cassirer could have reasonably discovered the whereabouts of the painting earlier due to its public display throughout various countries, his claim would likely be barred. Different sets of factors, such as good faith acquisition, due diligence, the whereabouts of the art, and when and where the lawsuit is filed, change the outcome of restitution cases entirely. A more unified international standard would therefore allow victims of Nazi-looted art to recover what is theirs more reliably. As seen in Cassirer, however, U.S. property law and laws like the new California bill clearly offer a more favorable ground for owners seeking restitution. Thus, although arguments for good faith acquisition are meritorious, the unified standard should closely reflect these laws and prevent thieves from passing title and possessors from acquiring the same by prescription in Nazi-looted art cases.
