Should Stolen Holocaust Art Be Returned? Legal and Policy Perspectives and Recent Case Developments Thursday, March 21, 2013; 6:00 PM to 9:00 PM

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New York County Lawyers’ Association

Continuing Legal Education Institute 14 Vesey Street, New York, N.Y. 10007 • (212) 267-6646

Should Stolen Holocaust Art Be Returned? Legal and Policy Perspectives and Recent Case Developments Thursday, March 21, 2013 6:00 PM to 9:00 PM

Program Chair and Faculty: Raymond Dowd, Dunnington, Bartholow & Miller LLP

Faculty: Hon. Stephen Crane (Ret.) JAMS; Ambassador Douglas Davidson, Special Envoy for Holocaust Issues; Victor Kovner, Davis, Wright Tremaine LLP; David Rowland, Rowland & Petroff; Sharon Levin, US Attorney's Office, SDNY

AGENDA

5:30 PM – 6:00 PM Registration

6:00 PM – 6:05 PM Introductions and Announcements

6:05 PM – 9:00 PM Introduction and Overview of the Issues A View from the U.S. State Department From Abraham Lincoln's Code of War to the Morgenthau Seizure at MOMA: The American Victory in World War II, Recent Case Law and the Failure to Return Stolen Art to Holocaust Victims Nazi Looted Art Commissions After 1998 Washington Conference: Comparing the European and American Experiences Cassirer v. Kingdom of Spain: An Update

New York County Lawyers’ Association

Continuing Legal Education Institute 14 Vesey Street, New York, N.Y. 10007 • (212) 267-6646

Should Stolen Holocaust Art Be Returned? Legal and Policy Perspectives and Recent Case Developments Thursday, March 21, 2013 6:00 PM to 9:00 PM

Program Chair and Faculty: Raymond Dowd, Dunnington, Bartholow & Miller LLP

Table of Contents

Section

Summary written for the conference ‘Fair and just solutions?’ 1 on 27 November 2012 in the Peace Palace in The Netherlands, Source: Dutch Restitutions Committee, 2012

U.S. Department of State, Holocaust Issues 2

Additional Articles 3

Bibliography 4

RESTITUTIONS COMMITTEE

copyright RC: this summary, written for the conference ‘Fair and just solutions?’ on 27 November 2012 in the Peace Palace in The Netherlands, is currently being revised for the conference publication (expected to be published end-2013)

Questions to committees - summary

Secretariat Dutch Restitutions Committee

13-11-2012

Introduction

The internationally felt need to find solutions for problems connected with the after-effects of the large-scale theft of cultural artefacts belonging to Jews which took place during the Nazi regime, resulted in 1998 in the acceptance of the Washington Principles on Nazi-confiscated Art. These guidelines, which were ratified by 44 countries, were based on the assumption that a ‘just and fair solution’ was to be the goal for art which had been stolen by the Nazis. In this connection, emphasis was given to alternative dispute resolution mechanisms which were not legal actions brought before the Courts. In compliance with this policy put forward by the international community, various countries have implemented measures since 1998 which concern what is termed as ‘heirless art’ within their national collections. In Europe, this has resulted among other things in the institution of various advisory committees which concern themselves with the problems surrounding art stolen by Nazis. To commemorate the tenth anniversary of the Dutch Restitution Committee, five European advisory committees will meet, for the first time, in The Peace Palace in The Hague. Delegates from committees from Austria, France, Germany, the United Kingdom and the Netherlands will have an opportunity to discuss the question as to which possibilities exist in their respective countries for former and current owners of Nazi-confiscated art, either by regular judicial procedures or by approaching the committees. As the historical background and legal context differ from country to country, it goes without saying that the solutions opted for in resolving the problems surrounding art stolen by Nazis are not the same everywhere. To gain insight into what is the same and what differs from country to country, the Dutch Restitution Committee submitted a questionnaire to each of the committees. The responses provided by the committees give insights into the legal background which exercises an influence on the approach taken to the restitution issue in each country. Aside from this, information was provided about the mandate, the organization and the procedures applied by each committee and about the provisional results of their activities. The results of those questionnaires are described in brief below.

General legal background - question 1

A complicating factor in the issues surrounding art stolen by Nazis is that legal proceedings frequently fail to resolve ownership claims; the applicable statute of limitations under the law of various countries concerned prevents this. In response to the question as to whether or not, in their country, there is a realistic possibility of submitting claims about art stolen by Nazis to the Courts, four out of five of the advisory committees stated that there are obstacles which hamper such submissions:

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In the UK, Germany, Austria and the Netherlands , submitting such claims to the Courts is prevented due to the application in principle of the statute of limitations, although the situation is often complex and depends strongly on the individual circumstances of the case. In France , there is no particular time-bar for all types of spoliated property. Whether the work is in a museum or gallery or appears on the art market, the victim or their heirs can refer to the courts, if an out-of-court solution cannot be found.

Establishment and organization - questions 2-7

The five advisory committees in question were established during the period 1998-2003 by their respective national governments:

In 1998, the government of Austria enacted legislation, the Federal Art Restitution Act, and established the Austrian Art Restitution Committee. Between 2011 and 2013 survivors of National Socialist persecution and their heirs were eligible to file applications with the Allgemeiner Entschädigungsfonds (General Settlement Fund) for a lot of categories, e.g. moveable property, which means also art. In France , the findings of an official enquiry (the Mattéoli Commission) prompted the government to establish the Commission for the Compensation of Victims of Spoliation resulting from the anti-Semitic legislation in force during the Occupation (CIVS) which came into effect in 1999. The government of the UK established the Spoliation Advisory Panel in the year 2000 to consider claims for works in UK collections. The Dutch Restitution Committee was established in 2001 by the Secretary of State for Education, Culture and Science. In 2003, the German Federal Government took the initiative to establish the Beratende Kommission, in accordance with the German Laender and Germany’s national associations of local authorities.

The UK government has set a time limit to the life-span of the Spoliation Advisory Panel. The Holocaust (Return of Cultural Objects) Act dating from 2009 contains a sunset clause which provides for the committee to continue to exist until the year 2020. The committees function independently in terms of how their advice comes about. Their assessments are made by seven (the Netherlands ), eight ( Germany and Austria ) or nine members ( UK ). In France , the committee consists of 60 people, 10 of whom have seats on a deliberation panel. The members of all five committees are appointed by the government. Those appointments are made to ensure that there is a mixed and wide range of experience among committee members.

Terms of reference - questions 8-9

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The committees were asked which terms of reference they apply when making their decisions. They were also asked whether this standard differentiated between various owners of the disputes art works, for example, if another standard applied to objects from a national collection than applied to art works owners by other public bodies, or, private individuals.

In response to this, the French committee stated that it based its recommendation firstly by applying ' a general principle of fairness '. When making assessments, no distinction is made between different owners of the disputed art objects. The UK committee responded by stating that its procedures form an alternative to litigation and that its decisions are based on ' the moral strength of the claimant's case ' and on the question as to ' whether any moral obligation rests on the institution ' concerned. In the terms of reference applied, no distinctions are applied in terms of the current owner of the claimed art work. There are however procedural differences: 'where an object is held in a national collection the Panel will automatically consider the claim. Where an object is held in a private collection, the consent of the owner is required before the Panel will advise on the claim '. Aside from this, on the basis of the Holocaust (Return of Cultural Objects) Act dating from 2009, objects from national collections may only be returned to claimants if the Secretary of State for Culture, Media and Sport consents to a positive recommendation in that regard issued by the committee. The decisions reached by the German committee are based on the 'Gemeinsame Erklärung der Bundesregierung, der Länder und der kommunalen Spitzenverbände zur Auffindung und zur Rückgabe NS-verfolgungsbedingt entzogenen Kulturgutes, insbesondere aus jüdischem Besitz ' (Statement by the Federal Government, the Laender, and the national associations of local authorities on the tracing and return of Nazi-confiscated art, especially Jewish property) of December 1999, as well as its ‘Handreichung ’ (Guideline), dating from 2001 (revised in 2007). That Guideline provides a means for assessing individual cases. The ‘ Gemeinsame Erklärung ’ is primarily focused on public bodies, but asks private parties to follow its aims as well. The norm of the Dutch Restitutions Committee has been defined in the Decree establishing the committee of 2001, which has been amended in 2012. Following this decree, the committee has been assigned two tasks: (1) the first task is to advice the Minister for Education, Culture and Science on applications for restitution of items of cultural value which are part of the Dutch State collection; (2) The second task of the Dutch Restitutions Committee is to advice parties who voluntarily choose to have their dispute researched and decided upon by the Committee. It regards works of art in possession of another party than the Dutch State. For both tasks assigned to the committee, it is the norm that claims are judged according to standards of reasonableness and fairness. In its regulations, this is further implemented in article 3, which reads: ' The Committee issues an opinion in accordance with the requirements of reasonableness and fairness, and may, in any event, take the following into consideration:/ a. internationally and nationally accepted principles such as the Washington Principles and the government's line of policy concerning the restitution of stolen works of art in so far as they apply by analogy;/ b. the circumstances in which possession of the work was lost;/ c. the extent to which the applicant has endeavoured to trace the work;/ d. the circumstances in which the owner acquired the

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work and the inquiries the owner made prior tot acquiring the work;/ e. the significance of the work for the applicant;/ f. the significance of the work for the owner;/ g. the significance for the public art collection '. There is a special provision for claims on objects in the so-called NK-collection, which are part of the Dutch State collection. This collection concerns a so-called 'heirless art' collection of works of art, mostly recuperated from Germany after WW II. Claims on items from the NK- collection are judged according to a restitution policy adopted by the government pursuant to the recommendations of the so-called Ekkart Committee. This, until 30 June 2015, after which they will be judged according to the same standards as other cases, which is according to the norm 'reasonableness and fairness'. The Austrian committee assesses cases on the basis of a law, the Art Restitution Law of 1998 (amended in 2009). This law makes reference to the Nullification Act of 1946, which states that all legal transactions caused by the Nazi-occupation are void. The Committee interprets this according to the jurisdiction of the Austrian Restitution Courts, which means that especially all transactions of persecuted people like Jews are to be seen as void. The Art Restitution Law applies only to moveable cultural objects, which are owned by the federal state. All nine Austrian provinces have similar regulations.

Limitation periods - questions 10-11

None of the five European advisory committees applies a deadline in terms of when claims must be submitted. Some remarks from the UK, Austrian and Dutch committees:

The UK committee stated that the Holocaust (Return of Cultural Objects) Act dating from 2009 contains a sunset clause which allows Ministers to designate a Panel to consider claims until 2020. That is not an exact end date and it would be for the government of the time to consider whether to extend the committee’s life. The Austrian committee stated that in fact there is no need to submit claims as decisions are reached on the basis of research findings obtained by the Commission for Provenance Research. That research is official and is submitted on a case for case basis in a dossier to the committee. The Dutch committee stated that in its recommendations, the Ekkart Committee specified that the favourable restitution policy for NK-cases should only be of a temporary nature. Initially, a deadline for applications was set for April 2007, but this was retracted by the government. In 2012, the government decided that claims issued after 30 June 2015 on items from the NK-collection shall, from then on, be judged according to the same standards of reasonableness and fairness as applied in other cases.

Procedure - questions 12-18

Research - question 12

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To acquire greater insight into the procedures used by the European committees, they were asked if they conduct independent (historical/art historical/legal) factual investigations or if they solely assess claims as submitted by parties:

The UK committee responded by stating that they primarily assess cases on the basis of written evidence submitted by the parties but that they do occasionally conduct research when this appears to be necessary. The German committee stated that one of its members is appointed as a ‘ rapporteur ’ for a specific case. The ‘ rapporteur ’ then decides if and what kind of additional information is necessary, e.g. needed from the parties concerned. Extensive investigations are conducted by the Austrian, French and Dutch committees. In France , claimants submit a power of attorney to the CIVS to carry out enquiries on their behalf. The committee has its own research teams in France and in Germany and cooperates intensively with researchers employed by other bodies both at home and abroad. Use is also made of digital search engines. Research is focused on establishing the nature and scale of the theft, and is aimed to prevent compensation being given for property already returned or for which compensation has already been paid. Finally, the consultation of archives may lead to the discovery of other spoliations that have been forgotten by or are unknown to the claimants, and not mentioned in the questionnaires. The Austrian committee decides on the outcome of the investigations of the Commission for Provenance Research, which are done ex offo . If there is any kind of information provided by the families of the former owners, it will be taken into account. The Dutch Restitution Committee conducts extensive (art) historical and legal research in connection with each and every case. The relevant facts are laid down in a draft report which is sent to the parties concerned. These research reports are not published, however the relevant facts are summarised in the recommendation itself, which is published.

Outside experts - question 13 The committees in France, the UK and the Netherlands do sometimes consult with outside experts when dealing with claims:

The French committee consults, if necessary, with the curators of museums; and claimants may also enlist the assistance of experts of their choice. The UK committee has consulted a number of outside experts including a number of government agencies, auction houses, art experts and academic institutions. Legal advice is provided to the committee by government lawyers. The Dutch Restitutions Committee sometimes consults outside experts, such as art- historians, art dealers, or, lawyers, in its research into the facts. The German committee stated that until the present it was not found necessary to consult with outside experts. As the committee in Austria is composed of experts from different fields and has the Commission for Provenance Research at its disposal, there is no need for third party

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experts in general. However, the rules of procedure of the committee foresee in the possibility of consulting with third party experts, if necessary.

Persons or entities entitled to submit a case - question 14

In response to the question as to which persons or bodies are entitled to submit a case, the Austrian committee stated that Committee and the Commission for Provenance Research work ex offo ; in only a few cases were the investigations initiated by the families of the former owners. The French committee is only empowered to receive claims submitted by individuals and not by legal entities. Any (descendant of a) person, having been the victim of material and/or bank-related spoliations resulting from the anti-Semitic laws in force in France during the period of the occupation, may contact the Commission, regardless of their present country of residence. For Germany , in principle, all kinds of public and private entities and persons claiming or possessing a cultural object are entitled to submit a case to the Beratende Kommission. Thereby, it is necessary that at least one party represents a public institution. The UK committee may consider a claim from anyone (or their representative) that lost possession of a cultural object during the Nazi era where the object is in a UK museum or gallery. In the Netherlands , anyone can submit a request for restitution in National Art Collection-cases. It will be a matter of research and consideration by the committee if there is a title to claim the objects on the base of inheritance law or otherwise. In Binding Opinion-claims, to submit a case, it is necessary that the parties involved, without restrictions to the capacity of the parties, agree to voluntarily call upon the committee.

Oral proceedings - question 15

In response to the question as to whether oral proceedings are part of the committee's regular procedure the Austrian committee stated this was not the case. The German committee responded in the affirmative: 'parties have the possibility to explain their point of view directly and detailed to the Beratende Kommission '. The other three committees do not apply a standard procedure but allow for the possibility of oral proceedings being held. The French committee stated in this connection that although it is not a jurisdiction, the CIVS follows the adversarial principle, both in investigation and in session. The Dutch Restitutions Committee stated that whether a hearing is organised or not is decided on a case-by-case basis. According to the UK committee, claimants may request an oral hearing but this will be subject to the agreement of the Chairman and will only be considered where they offer additional value over and above the written submissions. There have only been two oral hearings since 2000.

Kind of decisions - question 16

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The committees were asked to state which possible decisions they may arrive at (restitution, financial compensation, and other resolutions):

The Austrian committee stated that dealing with a case solely results in making a positive or a negative recommendation to return objects: ' The Committee decides to advise the relevant federal minister whether to return an item or not. There are no “compromising” solutions, like financial compensations '. The other four committees do allow for other outcomes. In that connection, the French committee stated that during the deliberations, the Commission drafts recommendations either for dismissal, or for restitution, or for compensation by the State and the banks. The German committee stated that in its recommendations it seeks for ‘fair and just solutions’ according to the Washington Principles 1998 and Germany’s ‘Gemeinsame Erklärung’. Against this background, the Beratende Kommission has already made recommendations with regard to restitution, financial compensation, and other solutions (e.g. indexing, maintenance and exhibition of an artwork as part of the museum’s responsibility in terms of conservation, specific presentation, documentation in general catalogues, clearly expressing its provenance). The UK committee may recommend the return of an object or an ex-gratia or compensation payment to the claimant. Where the claim is rejected it may recommend the display alongside the object of an account of its history and provenance during and since the Nazi era, with special reference to the claimant's interest therein. The Dutch Restitution Committee stated that results depend on the nature of the case. In National Art Collection cases, the committee can only recommend to either grant (if relevant on condition of repayment of the received purchase price) or reject a request for restitution. In Binding Opinion-cases, any option leading to a reasonable and fair solution is possible. In its regulations concerning Binding Opinion cases, some of the possible options are mentioned (a. the work is returned to the applicant; b. the work is returned by way of a set consideration from the applicant to the owner; c. the work is returned to the applicant subject of further provisions; d. settlement of a set consideration by the owner to the applicant, while the work remains in the owner’s possession; e. the work be exhibited, stating its provenance and the part played by the (heirs of the) original owner; f. the application for restitution be denied, subject to further provisions, where applicable).

Mediation - question 17 In response to the question as to whether parties may make use of mediation to resolve the dispute, and apply to the committee as a mediator, the Austrian committee stated this was not the case: ' The Art Restitution Law does not foresee for a mediation procedure '. The other committees responded to this question (in part) in the affirmative:

The German committee stated that the main task of the Beratende Kommission is to act as a mediator in a non-juridical sense in disputes between the current owners of cultural property and the former owners or their heirs, in the case that both sides of the dispute seek such a mediation. The Beratende Kommission can then provide a

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recommendation to resolve the conflict. The fact that the committee has given recommendations in five cases since its establishment in 2003 shows that disputes in Germany can also be solved by the parties directly - without additional assistance of e.g. the Beratende Kommission, which acts in so far subsidiary. The French committee stated that the legal nature of the Commission and the flexibility given to it by its charter allows it to act in this respect as conciliator or mediator. The UK committee does not employ formal mediation procedures as may be used elsewhere to arrive at a decision. For the Netherlands , the answer to the question lies in the nature of the case presented. The National Art Collection cases submitted do not permit mediation. However, for Binding Opinion cases, this is one of the possibilities explicitly described in the abovementioned regulations.

Binding decisions and possibility to appeal - question 18 The committees were also asked the following question: Are the decisions of the committee binding upon the applicant and any other party (such as the owner), or do they have the status of a recommendation? If the decision is binding, is it possible to appeal? The responses show that, with the exception of Binding Opinion cases submitted to the Dutch Restitution Committee, all of the committees give non-binding advice:

For Austria , the response given was that the Committee decisions are advice or recommendations given to the relevant Federal Ministers; the Federal Minister takes the final decision. However, since 1998 all decisions were implemented by the Federal Ministers. The Art Restitution Law does not foresee for an appeal being lodged against the decisions of the Committee or of the Federal Ministers. The German committee stated that since the results of the work of the Beratende Kommission are recommendations, they are (legally) non-binding. The French committee stated that only a decision made by the Prime Minister is binding. For claimants who disagree with the results of their case(s), there are various options: any claimant may request the re-examination of their claim by the Commission (decree of 20 June 2001). Minimum conditions are required: new documents; new facts, or the claimant must demonstrate that the recommendation made contains a material error (error of calculation or assessment, for example). The claimant may also lodge an appeal with the Administrative Court. The UK committee stated that its decisions are not binding on the parties but that every recommendation so far has been accepted by the institution concerned. There are no formal appeal procedures but the Panel will always look at new evidence. For the Netherlands , the answer to the question once again relies on and depends on the nature of the case submitted: (1) In National Art Collection cases: When advising the Minister of Education, Culture and Science on items from the state collection, the decision of the committee has the status of a recommendation. All recommendations were followed by the Minister. Appeal is not possible, however it is possible to submit a request for renewed advice if new facts emerge that, had they been known earlier, could have resulted in a different recommendation or if there were procedural errors that harmed the applicant’s fundamental interests; (2) In Binding Opinion cases:

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Binding. In order to submit a case for recommendation, the parties involved must sign an agreement they will consider the opinion as binding.

Numbers - questions 19-22

The results of activities conducted by the committees are difficult to compare numerically, partly because the cases dealt with differ widely and differ in complexity as well as a scale, have various procedural factors and require different quantities of necessary research and investigation. A case might concern a single object or a large collection of hundred and art works. Notwithstanding this, the committees were asked to indicate how many cases concerning the theft of art works by Nazis were submitted to the committee in question up to 31 December 2011 and how many of them were decided, were withdrawn and were still pending. Information was also requested as to how many cases until 31 December 2011 did the committee decide on and grant claims and in how many cases did the committee decide that the claim be rejected. Information was also requested about an indication of how many new cases are expected to be submitted as of 1 January 2012 and an indication was requested for what the average time is required for a decision to be made after the application:

The Austrian committee stated that until 2011 there have been 274 decisions issued by the Committee. In 29 decisions, the Committee recommended not to return the items, in the others the Committee did so. When the Commission has finished its investigations the case is presented to the Committee, which meets five to six times a year. In most cases, the Committee comes to its decision in one session, which means that the procedures of the Committee needs less than three months in most cases. In 2012, ten decisions were taken and about five more are to be expected. The French committee stated that claims regarding looted art are relatively limited. The vast majority of claims are for the compensation of losses resulting from the looting of homes; the loss of work-related property and the spoliation of assets held by financial institutions. According to the French committee in 3056 cases cultural personal property was claimed, and 2974 cases regarding cultural personal property were submitted to the committee. There were 877 cases of art works in the strict sense; 1980 other cases; 2 cases of restitution; 115 cases dismissed en 82 cases still pending (art works in the strict sense and other cases). The average time required for a decision to be made is between two and four years, depending on the complexity of the case. The UK committee has stated that in the period 2001-2012 it dealt with 11 cases (including one reconsideration of a claim previously handled by the committee). No cases were withdrawn and all were decided. As at 7 November 2012 there are a further three claims pending and a possible fourth. The cases dealt with by the Panel include the case of the Beneventan Missal, which did not involve looting by the Nazis or their allies. The average time required for a decision to be made varies from case to case but claims are normally determined within 6-8 months. The German committee stated that up to 31 December 2011, 12 cases had been submitted to the committee; 5 were decided; 0 were withdrawn and 6 were still pending. In four cases, the Beratende Kommission decided to grant the claims and in

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one case, the Beratende Kommission decided the claim was to be rejected. Since January 1st, 2012, three new cases have been submitted to the Beratende Kommission. The average time required for a decision to be made after the application depends on the complexity of the specific case. The Dutch committee dealt with 130 cases up to and including 2011. Of these cases, 103 cases were decided and 4 cases partly decided (107 recommendations in total); 6 cases were withdrawn and 18 cases are still pending. Of the decisions rendered, 56 were allowed; 34 were denied; and 17 were partially allowed and partially denied. From 2009 to 2012, Dutch museums researched the provenance of objects in their collection that were acquired from 1933 onwards. From the results of this research, an as yet unknown number of new claims are to be expected. The average time required for a decision to be made after the application is currently 100 weeks. The actual time varies highly on a case by case basis an depends on factors such as the number of art items involved, complexity, procedural delays and the nature of any research required.

Publication - question 23

In answer to the question as to whether the decisions reached by the committee are published, the responses, with the exception of the French committee, were affirmative from all the other respondents:

The Austrian committee stated that all decisions of the Committee are published in full length on the internet and there is also an annual report issued by the Federal Minister for Education, the Arts and Culture to Parliament, which is also published in the internet. The German committee responded that all recommendations of the Beratende Kommission are published via press releases from Germany’s Bundespresseamt and additionally online. Reports issued by the UK committee are published by The UK Stationery Office and are laid before Parliament. The reports are also available to view on the DCMS website. The recommendations from the Dutch Restitutions Committee are published on its website and in annual reports. The French committee stated that the recommendations made by the Commission are sent to the claimants but are not published because they are administrative documents which are covered by the laws on the protection of privacy.

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10 FOR ITEMS OF CULTURAL VALUE AND THE SECOND WORLD WAR FEDERAL HOLOCAUST-ERA ART CLAIMS SINCE 2004 CHART UPDATED BY JENNIFER ANGLIM KREDER Oct. 26, 2012 Salmon P. Chase College of Law, Northern Kentucky University, [email protected]

CASES LOST BY HOLOCAUST VICTIMS OR THEIR HEIRS

Case Name Case Citation or Court in Disposition Number Which Pending 1 Bakalar v. 05-3037 619 F.3d 136 Claimant lost after trial, incorrect choice-of-law, Vavra (S.D.N.Y. Aug. 17, burden of proof analysis and interpretations of 2011). fact indicative of Nazi looting. 2d Circuit reversed. On remand, claimant lost again. 2d Circuit affirmed. 2 von Saher v. 07-05691 Remanded from 9th Struck down all claims filed pursuant to Norton Simon Cir. to C.D. Cal. 592 California statute extending limitations period to Museum of Art F.3d 954 (9th Cit. Jan. 2010 and remanded to determine whether statute at Pasadena 24, 2010). of limitations has run on common law conversion claim. Solicitor General recommended SCOTUS deny certiorari, which SCOTUS did. Defendants on remand filed MTD, which was granted by the court. 3 Westfield v. 09-6010 633 F.3d 409 (6th Cir. Court ruled that Germany could not be sued Federal Feb. 2, 2011). under Foreign Sovereign Immunities Act (FSIA) Republic of for any taking of property during the war without Germany even citing Bernstein on the ground that the taking had no “direct effect” in the U.S. 6th Circuit affirmed. 4 Grosz v. MoMA 09-CV-3706 403 Fed.Appx. 575 Court granted museum’s motion to dismiss on (CM) (2d Cir. 2010) ground that recently exchanged letters triggered (unpublished demand and refusal such that the statute of opinion). limitations just barely ran out. Affirmed on appeal. SCOTUS denied petition for certiorari. 5 Boston MFA v. 08-10097- 633 F.3d 1 (1st Cir. Court granted museum’s motion for summary Seger- RWZ Oct. 14, 2010). judgment declaring its superior interest in Thomschitz painting. Affirmed on appeal. SCOTUS denied petition for certiorari. 6 Dunbar v. 09-30717 615 F.3d 574 (5th Cir. Prescriptive ownership by present-day possessor Seger- Aug. 20, 2010). under Louisiana law; motion for summary Thomschitz judgment granted. Affirmed on appeal. SCOTUS denied petition for certiorari. 7 Orkin v. 05-55364 487 F.3d 734 (9th Cir. Holocaust Victims Redress Act did not create a Taylor 2007). private right of action. State law claims barred by statute of limitations. Affirmed on appeal. SCOTUS denied certiorari. 8 Detroit Inst. of 06-10333 2007 WL 1016996 Declaratory judgment issued to museum and Arts v. Ullin (E.D. Mich. Mar. 31, claimants’ state law claims dismissed on statute 2007). of limitations grounds (claim accrued in 1938 and

Electronic copy available at: http://ssrn.com/abstract=1636295 expired in 1941, before the end of WWII). 9 Toledo Museum 3:06 CV 477 F.Supp.2d 802 Declaratory judgment issued to museum and of Art v. Ullin 7031 (N.D. Ohio 2006) claimants’ state law claims dismissed on statute of limitations grounds. Analysis similar, but not identical to Detroit Inst. of Arts v. Ullin. 10 Orkin v. The 09-10013 2011 WL 4822343 MTD granted for lack of jurisdiction under FSIA Swiss (LAK) (2d Cir. Oct. 12, and Alien Tort Statute. Affirmed on appeal. Confedaration, 2011). et al. 11 In re No. 2010- 95 A.D.3d 1318 (N.Y. Vorderasiatisches Museum action for declaratory Flamenbaum 4400. App. Div., May 30, judgment and replevin of a gold tablet dated back 2012). from 13th century BC in possession of the Flamenbaum estate. The court found it was not barred from laches theory and reversed the lower court’s opinion. Finding that the museum had legal title and a superior right to the tablet.

CASE WON BY HOLOCAUST VICTIM OR HEIR IN FEDERAL COURT

Vinsberg v. 08-1136 548 F.3d 50 (1st Cir. Affirmed D. R.I. summary judgment in favor or Bissonnette 2008). claimant. Only case won by a claimant in federal court since 2004.

United States v. 4:11CV (N.D. Fl. Nov. 4, Civil forfeiture action filed against Romanino Painting Known As S71-RH1 2011) painting located at the Mary Brogan Museum in “Cristo Poracroce WCS Tallahassee, Florida. Allegations are that the Trascinato Da Un painting was imported contrary to law and Mangoldo” by smuggled into the country contrary to law. Italy Romanino defaulted on seizure.

CASES SETTLED AFTER COMPAINT FILED IN FEDERAL COURT

Museum of Modern 09 CV 11074 549 F.Supp.2d 543 Settled on eve of trial. Art v. Schoeps (S.D.N.Y. 2008), 594 F.Supp.2d 461 (S.D.N.Y. 2009). U.S. v. One Oil CV 04- 362 F.Supp.2d 1175 Parties settled after the present-day possessor Painting Entitled 8333FMCAJWX (Mar. 31, 2005). filed a declaratory action against the claimant “Femme en Blanc” after removing the painting from California on By Pablo Picasso the eve of a hearing on a temporary restraining order in the state court case filed by the claimant. The California trial court judge then dismissed the California state case for lack of subject matter jurisdiction. The U.S. government then filed this civil forfeiture action seizing the painting. Settled. Republic of Austria v. 03-13 541 U.S. 677 (2004). FSIA applies to allow jurisdiction over foreign

Electronic copy available at: http://ssrn.com/abstract=1636295 Altamann sovereign regardless of whether the conduct at issue predates the FSIA. Claimant won after consenting to arbitration in Vienna. United States v. 99 Civ. 9940 663 F.Supp.2d 232 Civil forfeiture action filed 1999 after grand Portrait of Wally, A (MBM) (S.D.N.Y. 2009). jury subpoena to seize painting was quashed in Painting by Egon state court in 1998. District Court denied Schiele cross-MSJ’s. Settled on eve of trial (shortly after death of Mr. Leopold). Estate of Irene No. (N.D. IL. Aug. 15, The Estate of Irenen Korhumel sued for the Korhumel v. Estate of 1:2011cv05557 2011) official rights of the Renoir painting, “Paysage I.K. and John Does Pres de Cagnes”. Mr. Semmel, the original owner, was force to sell his art collection after he was cut off from his income and his business. Therefore, it was a question of whether the Korhumels’ owned the painting or the heirs of Semmel. After the complaint was filed, the case was settled for an undisclosed amount.

CASES STILL PENDING IN DISTRICT COURT

Cassirer v. Kingdom Nos. 06- 616 F.3d 1019 (9th Court denied Spain’s motion to dismiss on FSIA of Spain 56325, 06- Cir. Aug. 12, 2010) ground under the expropriation exception. 56406 Solicitor General recommended SCOTUS deny certiorari, which SCOTUS did.

de Csepel, Herzog, et. 1:10-01261 --- F. Supp.2d ---, Court denied MTD except as to a small number al v. Rep of Hungary, (ESH) 2011 WL 3855862 of paintings that were the subject of prior et. al. (D.D.C. Sept. 1, proceedings in Hungary. 2011).

Maestracci v. Seated 11 CIV 2011 WL 5142960 Action for declaratory judgment and replevin of Man With a Cane, 7710 (S.D.N.Y. Oct. 26, Modigliani painting located at the Helly Nahmad 1918 et al. 2011) Gallery in New York City, New York.

Victims of Holocaust No. 12- (S.D. FL. April 19, Action for declaratory judgment and Art Theft v. The Czech 80420-CIV- 2012) restitution/replevin of an art collection, the Republic, National COHN Popper Collection. Gallery in Prague, and Museum of Decorative Arts of Prague Fischer, et.al. v. Erste No. CV 12- (E.D. N.Y. July 5, Action for declaratory judgment, Group Bank, et. al. 3328 2012) restitution/replevin of the contents of a safety deposit box. Action for restitution for value of the bank accounts, loss of a mortgaged building, lost

3 salary, pension and other employment benefits.

4 Appendix G WASHINGTON CONFERENCE PRINCIPLES ON NAZI-CONFISCATED ART

In developing a consensus on non-binding principles to assist in resolving issues relating to Nazi-confiscated art, the Conference recognizes that among participating nations there are differing legal systems and that countries act within the context of their own laws.

I. Art that had been confiscated by the Nazis and not subsequently restituted should be identified. II. Relevant records and archives should be open and accessible to researchers, in accordance with the guidelines of the International Council on Archives. III. Resources and personnel should be made available to facilitate the identification of all art that had been confiscated by the Nazis and not subsequently restituted. IV. In establishing that a work of art had been confiscated by the Nazis and not subsequently restituted, consideration should be given to unavoidable gaps or ambiguities in the provenance in light of the passage of time and the circumstances of the Holocaust era. V. Every effort should be made to publicize art that is found to have been confiscated by the Nazis and not subsequently restituted in order to locate its pre-War owners or their heirs. VI. Efforts should be made to establish a central registry of such information. VII. Pre-War owners and their heirs should be encouraged to come forward and make known their claims to art that was confiscated by the Nazis and not subsequently restituted. 972 WASHINGTON CONFERENCE ON HOLOCAUST-ERA ASSETS

VIII. If the pre-War owners of art that is found to have been confiscated by the Nazis and not subsequently restituted, or their heirs, can be identified, steps should be taken expeditiously to achieve a just and fair solution, recognizing this may vary according to the facts and circumstances surrounding a specific case. IX. If the pre-War owners of art that is found to have been confiscated by the Nazis, or their heirs, can not be identified, steps should be taken expeditiously to achieve a just and fair solution. X. Commissions or other bodies established to identify art that was confiscated by the Nazis and to assist in addressing ownership issues should have a balanced membership. XI. Nations are encouraged to develop national processes to implement these principles, particularly as they relate to alternative dispute resolution mechanisms for resolving ownership issues. Nazi-looted art in the courts

By Stephanie Gruner Buckley — November 29, 2012

Biggest art heist in history AP Photos / US National Archives

Bloomberg reports that the US government has abandoned plans to have an official panel help Jewish heirs find art looted by the Nazis. The news follows a one-day meeting in The Hague with panels from the UK, Austria, the Netherlands, Germany and France, set up to manage numerous art claims over what has been described as the “biggest art heist in history.” Members of the five panels and other experts met to discuss their progress.

During the war, the Nazis stole hundreds of thousands of works of art from Jewish private collections. Thousands have been returned to national governments, or ended up in museums— many without the consent or knowledge of their rightful owners. Some progress has been made to return the art. Some governments, for example, have set aside normal statute of limitation periods. Still, it’s estimated that tens of thousands of works of looted art, have not been returned. Check out this searchable database here.

In 1998, the Washington Conference on Holocaust Era Assets in Washington, DC, established a plan to help resolve issues related to Nazi-confiscated art. The plan, signed by 44 countries and known as the Washington Principles, called for creating commissions to identify art confiscated and help people get it back. In cases where it’s impossible to return the art, the deal called for “a just and fair solution” to resolve the dispute. Fourteen years after signing the agreement, the Americans are backing down. Douglas Davidson, the US Special Envoy for Holocaust Issues announced at the conference yesterday that the plan proved “easier to describe than to realize” and there were too many obstacles including too few state-owned museums involved, and no culture ministry to which the panel could report.

The news leaves heirs in the US to mostly pursue claims in court. It’s an unwelcome option given that the crimes happened a long time ago, and because the lawsuits typically cost more than the value of the art in question.

Americans can still apply for help to the European panels, but only if the art being sought fits the various panels’ requirements. For example, the Austrian panel only deals with art held in the national collection, according to Evelien Campfens, Director of the Restitutions Committee in The Hague, while the panel in the Netherlands pursues art with a Dutch connection.

Most art not connected to these countries would have to be pursued through a court. Some of the panels are more powerful than others as well, and are already busy handling hundreds of other cases. The number of cases is expected to steadily rise for another two decades or more.

TEREZIN DECLARATION

June 30, 2009

Upon the invitation of the Prime Minister of the Czech Republic we the representatives of 46 states listed below met this day, June 30, 2009 in Terezin, where thousands of European Jews and other victims of Nazi persecution died or were sent to death camps during World War II. We participated in the Prague Holocaust Era Assets Conference organized by the Czech Republic and its partners in Prague and Terezin from 26-30 June 2009, discussed together with experts and non-governmental organization (NGO) representatives important issues such as Welfare of Holocaust (Shoah) Survivors and other Victims of Nazi Persecution, Immovable Property, Jewish Cemeteries and Burial Sites, Nazi- Confiscated and Looted Art, Judaica and Jewish Cultural Property, Archival Materials, and Education, Remembrance, Research and Memorial Sites. We join affirming in this

Terezin Declaration on Holocaust Era Assets and Related Issues

- Aware that Holocaust (Shoah) survivors and other victims of Nazi persecution have reached an advanced age and that it is imperative to respect their personal dignity and to deal with their social welfare needs, as an issue of utmost urgency,

- Having in mind the need to enshrine for the benefit of future generations and to remember forever the unique history and the legacy of the Holocaust (Shoah), which exterminated three fourths of European Jewry, including its premeditated nature as well as other Nazi crimes,

- Noting the tangible achievements of the 1997 London Nazi Gold Conference, and the 1998 Washington Conference on Holocaust-Era Assets, which addressed central issues relating to restitution and successfully set the stage for the significant advances of the next decade, as well as noting the January 2000 Stockholm Declaration, the October 2000 Vilnius Conference on Holocaust Era Looted Cultural Assets,

- Recognizing that despite those achievements there remain substantial issues to be addressed, because only a part of the confiscated property has been recovered or compensated,

- Taking note of the deliberations of the Working Groups and the Special Session on Social Welfare of Holocaust Survivors and their points of view and opinions which surveyed and addressed issues relating to the Social Welfare of Holocaust Survivors and other Victims of Nazi Persecution, Immovable Property, Nazi Confiscated Art, Judaica and Jewish Cultural Property, Holocaust Education, Remembrance and Research, which can be found on the weblink for the Prague Conference and will be published in the Conference Proceedings,

- Keeping in mind the legally non-binding nature of this Declaration and moral responsibilities thereof, and without prejudice to applicable international law and obligations,

1. Recognizing that Holocaust (Shoah) survivors and other victims of the Nazi regime and its collaborators suffered unprecedented physical and emotional trauma during their ordeal, the Participating States take note of the special social and medical needs of all survivors and

1 str ongly support both public and private efforts in their respective states to enable them to live in dignity with the necessary basic care that it implies.

2. Noting the importance of restituting communal and individual immovable property that belonged to the victims of the Holocaust (Shoah) and other victims of Nazi persecution, the Participating States urge that every effort be made to rectify the consequences of wrongful property seizures, such as confiscations, forced sales and sales under duress of property, which were part of the persecution of these innocent people and groups, the vast majority of whom died heirless.

3. Recognizing the progress that has been made in research, identification, and restitution of cultural property by governmental and non-governmental institutions in some states since the 1998 Washington Conference on Holocaust-Era Assets and the endorsement of the Washington Conference Principles on Nazi-Confiscated Art, the Participating States affirm an urgent need to strengthen and sustain these efforts in order to ensure just and fair solutions regarding cultural property, including Judaica that was looted or displaced during or as a result of the Holocaust (Shoah).

4. Taking into account the essential role of national governments, the Holocaust (Shoah) survivors’ organizations, and other specialized NGOs, the Participating States call for a coherent and more effective approach by States and the international community to ensure the fullest possible, relevant archival access with due respect to national legislation. We also encourage States and the international community to establish and support research and education programs about the Holocaust (Shoah) and other Nazi crimes, ceremonies of remembrance and commemoration, and the preservation of memorials in former concentration camps, cemeteries and mass graves, as well as of other sites of memory.

5. Recognizing the rise of Anti-Semitism and Holocaust (Shoah) denial, the Participating States call on the international community to be stronger in monitoring and responding to such incidents and to develop measures to combat anti-Semitism.

The Welfare of Holocaust (Shoah) Survivors and other Victims of Nazi Persecution

Recognizing that Holocaust (Shoah) survivors and other victims of Nazi persecution, including those who experienced the horrors of the Holocaust (Shoah) as small and helpless children, suffered unprecedented physical and emotional trauma during their ordeal.

Mindful that scientific studies document that these experiences frequently result in heightened damage to health, particularly in old age, we place great priority on dealing with their social welfare needs in their lifetimes. It is unacceptable that those who suffered so greatly during the earlier part of their lives should live under impoverished circumstances at the end.

1. We take note of the fact that Holocaust (Shoah) survivors and other victims of Nazi persecution have today reached an advanced age and that they have special medical and health needs, and we therefore support, as a high priority, efforts to address in their respective states the social welfare needs of the most vulnerable elderly victims of Nazi persecution – such as hunger relief, medicine and homecare as required, as well as measures that will encourage intergenerational contact and allow them to overcome their social isolation. These steps will enable them to live in dignity in the years to come. We strongly encourage cooperation on these issues.

2 2. We further take note that several states have used a variety of creative mechanisms to provide assistance to needy Holocaust (Shoah) survivors and other victims of Nazi persecution, including special pensions; social security benefits to non-residents; special funds; and the use of assets from heirless property. We encourage states to consider these and other alternative national actions, and we further encourage them to find ways to address survivors’ needs.

Immovable (Real) Property

Noting that the protection of property rights is an essential component of a democratic society and the rule of law,

Acknowledging the immeasurable damage sustained by individuals and Jewish communities as a result of wrongful property seizures during the Holocaust (Shoah),

Recognizing the importance of restituting or compensating Holocaust-related confiscations made during the Holocaust era between 1933-45 and as its immediate consequence,

Noting the importance of recovering communal and religious immovable property in reviving and enhancing Jewish life, ensuring its future, assisting the welfare needs of Holocaust (Shoah) survivors, and fostering the preservation of Jewish cultural heritage,

1. We urge, where it has not yet been effectively achieved, to make every effort to provide for the restitution of former Jewish communal and religious property by either in rem restitution or compensation, as may be appropriate; and

2. We consider it important, where it has not yet been effectively achieved, to address the private property claims of Holocaust (Shoah) victims concerning immovable (real) property of former owners, heirs or successors, by either in rem restitution or compensation, as may be appropriate, in a fair, comprehensive and nondiscriminatory manner consistent with relevant national law and regulations, as well as international agreements. The process of such restitution or compensation should be expeditious, simple, accessible, transparent, and neither burdensome nor costly to the individual claimant; and we note other positive legislation in this area.

3. We note that in some states heirless property could serve as a basis for addressing the material necessities of needy Holocaust (Shoah) survivors and to ensure ongoing education about the Holocaust (Shoah), its causes and consequences.

4. We recommend, where it has not been done, that states participating in the Prague Conference consider implementing national programs to address immovable (real) property confiscated by Nazis, Fascists and their collaborators. If and when established by the Czech Government, the European Shoah Legacy Institute in Terezin shall facilitate an intergovernmental effort to develop non-binding guidelines and best practices for restitution and compensation of wrongfully seized immovable property to be issued by the one-year anniversary of the Prague Conference, and no later than June 30, 2010, with due regard for relevant national laws and regulations as well as international agreements, and noting other positive legislation in this area.

3 Jewish Cemeteries and Burial Sites

Recognizing that the mass destruction perpetrated during the Holocaust (Shoah) put an end to centuries of Jewish life and included the extermination of thousands of Jewish communities in much of Europe, leaving the graves and cemeteries of generations of Jewish families and communities unattended, and

Aware that the genocide of the Jewish people left the human remains of hundreds of thousands of murdered Jewish victims in unmarked mass graves scattered throughout Central and Eastern Europe,

We urge governmental authorities and municipalities as well as civil society and competent institutions to ensure that these mass graves are identified and protected and that the Jewish cemeteries are demarcated, preserved and kept free from desecration, and where appropriate under national legislation could consider declaring these as national monuments.

Nazi-Confiscated and Looted Art

Recognizing that art and cultural property of victims of the Holocaust (Shoah) and other victims of Nazi persecution was confiscated, sequestered and spoliated, by the Nazis, the Fascists and their collaborators through various means including theft, coercion and confiscation, and on grounds of relinquishment as well as forced sales and sales under duress, during the Holocaust era between 1933-45 and as an immediate consequence, and

Recalling the Washington Conference Principles on Nazi-Confiscated Art as endorsed at the Washington Conference of 1998, which enumerated a set of voluntary commitments for governments that were based upon the moral principle that art and cultural property confiscated by the Nazis from Holocaust (Shoah) victims should be returned to them or their heirs, in a manner consistent with national laws and regulations as well as international obligations, in order to achieve just and fair solutions,

1. We reaffirm our support of the Washington Conference Principles on Nazi-Confiscated Art and we encourage all parties including public and private institutions and individuals to apply them as well,

2. In particular, recognizing that restitution cannot be accomplished without knowledge of potentially looted art and cultural property, we stress the importance for all stakeholders to continue and support intensified systematic provenance research, with due regard to legislation, in both public and private archives, and where relevant to make the results of this research, including ongoing updates, available via the internet, with due regard to privacy rules and regulations. Where it has not already been done, we also recommend the establishment of mechanisms to assist claimants and others in their efforts,

3. Keeping in mind the Washington Conference Principles on Nazi-Confiscated Art, and considering the experience acquired since the Washington Conference, we urge all stakeholders to ensure that their legal systems or alternative processes, while taking into account the different legal traditions, facilitate just and fair solutions with regard to Nazi- confiscated and looted art, and to make certain that claims to recover such art are resolved expeditiously and based on the facts and merits of the claims and all the relevant documents submitted by all parties. Governments should consider all relevant issues when applying various legal provisions that may impede the restitution of art and cultural property, in order

4 to achieve just and fair solutions, as well as alternative dispute resolution, where appropriate under law.

Judaica and Jewish Cultural Property

Recognizing that the Holocaust (Shoah) also resulted in the wholesale looting of Judaica and Jewish cultural property including sacred scrolls, synagogue and ceremonial objects as well as the libraries, manuscripts, archives and records of Jewish communities, and

Aware that the murder of six million Jews, including entire communities, during the Holocaust (Shoah) meant that much of this historical patrimony could not be reclaimed after World War II, and

Recognizing the urgent need to identify ways to achieve a just and fair solution to the issue of Judaica and Jewish cultural property, where original owners, or heirs of former original Jewish owners, individuals or legal persons cannot be identified, while acknowledging there is no universal model,

1. We encourage and support efforts to identify and catalogue these items which may be found in archives, libraries, museums and other government and non-government repositories, to return them to their original rightful owners and other appropriate individuals or institutions according to national law, and to consider a voluntary international registration of Torah scrolls and other Judaica objects where appropriate, and

2. We encourage measures that will ensure their protection, will make appropriate materials available to scholars, and where appropriate and possible in terms of conservation, will restore sacred scrolls and ceremonial objects currently in government hands to synagogue use, where needed, and will facilitate the circulation and display of such Judaica internationally by adequate and agreed upon solutions.

Archival Materials

Whereas access to archival documents for both claimants and scholars is an essential element for resolving questions of the ownership of Holocaust-era assets and for advancing education and research on the Holocaust (Shoah) and other Nazi crimes,

Acknowledging in particular that more and more archives have become accessible to researchers and the general public, as witnessed by the Agreement reached on the archives of the International Tracing Service (ITS) in Bad Arolsen, Germany,

Welcoming the return of archives to the states from whose territory they were removed during or as an immediate consequence of the Holocaust (Shoah),

We encourage governments and other bodies that maintain or oversee relevant archives to make them available to the fullest extent possible to the public and researchers in accordance with the guidelines of the International Council on Archives, with due regard to national legislation, including provisions on privacy and data protection, while also taking into account the special circumstances created by the Holocaust era and the needs of the survivors and their families, especially in cases concerning documents that have their origin in Nazi rules and laws.

5 Education, Remembrance, Research and Memorial Sites

Acknowledging the importance of education and remembrance about the Holocaust (Shoah) and other Nazi crimes as an eternal lesson for all humanity,

Recognizing the preeminence of the Stockholm Declaration on Holocaust Education, Remembrance and Research of January 2000,

Recognizing that the Universal Declaration of Human Rights was drafted in significant part in the realization of the horrors that took place during the Holocaust, and further recognizing the U.N. Convention on the Prevention and Punishment of the Crime of Genocide,

Recalling the action of the United Nations and of other international and national bodies in establishing an annual day of Holocaust remembrance,

Saluting the work of the Task Force for International Cooperation on Holocaust Education, Remembrance and Research (ITF) as it marks its tenth anniversary, and encouraging the States participating in the Prague Conference to cooperate closely with the Task Force, and

Repudiating any denial of the Holocaust (Shoah) and combating its trivialization or diminishment, while encouraging public opinion leaders to stand up against such denial, trivialization or diminishment,

1. We strongly encourage all states to support or establish regular, annual ceremonies of remembrance and commemoration, and to preserve memorials and other sites of memory and martyrdom. We consider it important to include all individuals and all nations who were victims of the Nazi regime in a worthy commemoration of their respective fates,

2. We encourage all states as a matter of priority to include education about the Holocaust (Shoah) and other Nazi crimes in the curriculum of their public education systems and to provide funding for the training of teachers and the development or procurement of the resources and materials required for such education.

3. Believing strongly that international human rights law reflects important lessons from history, and that the understanding of human rights is essential for confronting and preventing all forms of racial, religious or ethnic discrimination, including Anti-Semitism, and Anti-Romani sentiment, today we are committed to including human rights education into the curricula of our educational systems. States may wish to consider using a variety of additional means to support such education, including heirless property where appropriate.

4. As the era is approaching when eye witnesses of the Holocaust (Shoah) will no longer be with us and when the sites of former Nazi concentration and extermination camps, will be the most important and undeniable evidence of the tragedy of the Holocaust (Shoah), the significance and integrity of these sites including all their movable and immovable remnants, will constitute a fundamental value regarding all the actions concerning these sites, and will become especially important for our civilization including, in particular, the education of future generations. We, therefore, appeal for broad support of all conservation efforts in order to save those remnants as the testimony of the crimes committed there to the memory and warning for the generations to come and where appropriate to consider declaring these as national monuments under national legislation.

6 Future Action

Further to these ends we welcome and are grateful for the Czech Government´s initiative to establish the European Shoah Legacy Institute in Terezin (Terezin Institute) to follow up on the work of the Prague Conference and the Terezin Declaration. The Institute will serve as a voluntary forum for countries, organisations representing Holocaust (Shoah) survivors and other Nazi victims, and NGOs to note and promote developments in the areas covered by the Conference and this Declaration, and to develop and share best practices and guidelines in these areas and as indicated in paragraph four of Immovable (Real) Property. It will operate within the network of other national, European and international institutions, ensuring that duplicative efforts are avoided, for example, duplication of the activities of the Task Force for International Cooperation on Holocaust Education, Remembrance and Research (ITF).

Following the conference proceedings and the Terezin Declaration, the European Commission and the Czech Presidency have noted the importance of the Institute as one of the instruments in the fight against racism, xenophobia and anti-Semitism in Europe and the rest of the world, and have called for other countries and institutions to support and cooperate with this Institute.

To facilitate the dissemination of information, the Institute will publish regular reports on activities related to the Terezin Declaration. The Institute will develop websites to facilitate sharing of information, particularly in the fields of art provenance, immovable property, social welfare needs of survivors, Judaica, and Holocaust education. As a useful service for all users, the Institute will maintain and post lists of websites that Participating States, organizations representing Holocaust (Shoah) survivors and other Nazi victims and NGOs sponsor as well as a website of websites on Holocaust issues.

We also urge the States participating in the Prague Conference to promote and disseminate the principles in the Terezin Declaration, and encourage those states that are members of agencies, organizations and other entities which address educational, cultural and social issues around the world, to help disseminate information about resolutions and principles dealing with the areas covered by the Terezin Declaration.

A more complete description of the Czech Government´s concept for the Terezin Institute and the Joint Declaration of the European Commission and the Czech EU Presidency can be found on the website for the Prague Conference and will be published in the conference proceedings.

7 List of States

1. Albania 2. Argentina 3. Australia 4. Austria 5. Belarus 6. Belgium 7. Bosnia and Herzegovina 8. Brazil 9. Bulgaria 10. Canada 11. Croatia 12. Cyprus 13. Czech Republic 14. Denmark 15. Estonia 16. Finland 17. France 18. FYROM 19. Germany 20. Greece 21. Hungary 22. Ireland 23. Israel 24. Italy 25. Latvia 26. Lithuania 27. Luxembourg 28. Malta 29. Moldova 30. Montenegro 31. The Netherlands 32. Norway 33. Poland 34. Portugal 35. Romania 36. Russia 37. Slovakia 38. Slovenia 39. Spain 40. Sweden 41. Switzerland 42. Turkey 43. Ukraine 44. United Kingdom 45. United States 46. Uruguay

The Holy See (observer) Serbia (observer)

Appendix B AAM Guidelines Concerning the Unlawful Appropriation of Objects During the Nazi Era, Approved, November 1999, Amended, April 2001, AAM Board of Directors

Introduction

From the time it came into power in 1933 through the end of World War II in 1945, the Nazi regime orchestrated a system of theft, confiscation, coercive transfer, looting, pillage, and destruction of objects of art and other cultural property in Europe on a massive and unprecedented scale. Millions of such objects were unlawfully and often forcibly taken from their rightful owners, who included private citizens, victims of the Holocaust, public and private museums and galleries, and religious, educational and other institutions.

In recent years, public awareness of the extent and significance of Nazi looting of cultural property has grown significantly. The American museum community, the American Association of Museums (AAM), and the U.S. National Committee of the International Council of Museums (AAM/ICOM) are committed to continually identifying and implementing the highest standard of legal and ethical practices. AAM recognizes that the atrocities of the Nazi era demand that it specifically address this topic in an effort to guide American museums as they strive to achieve excellence in ethical museum practice.

The AAM Board of Directors and the AAM/ICOM Board formed a joint working group in January 1999 to study issues of cultural property and to make recommendations to the boards for action. The report that resulted from the initial meeting of the Joint Working Group on Cultural Property included the recommendation that AAM and AAM/ICOM offer guidance to assist museums in addressing the problems of objects that were unlawfully appropriated during the Nazi era without subsequent restitution (i.e., return of the object or payment of compensation to the object's original owner or legal successor).

The efforts of the Working Group were greatly informed by the important work on the topic that had gone before. In particular, three documents served as a starting point for the AAM guidelines, and portions of them have been incorporated into this document. These include: Report of the AAMD Task Force on the Spoliation of Art during the Nazi/World War II Era (1933-1945); ICOM Recommendations Concerning the Return of Works of Art Belonging to Jewish Owners; and Washington Conference Principles on Nazi- Appropriated Art (released in connection with the Washington Conference on Holocaust-Era Assets co- hosted by the U.S. Department of State and the United States Holocaust Memorial Museum).

The Presidential Advisory Commission on Holocaust Assets in the United States (PCHA) was created in June 1998 to study and report to the President on issues relating to Holocaust victims' assets in the United States. AAM and the Association of Art Museum Directors (AAMD) worked with the PCHA to establish a standard for disclosure of collections information to aid in the identification and discovery of unlawfully appropriated objects that may be in the custody of museums. In January 2001, the PCHA issued its final report, which incorporated the agreed standard for disclosure and recommended the creation of a searchable central registry of the information museums disclose in accordance with the new standard. AAM and AAMD agreed to support this recommendation, and these guidelines have been amended to reflect the agreed standard for disclosure of information.

Finally, AAM and AAM/ICOM acknowledge the tremendous efforts that were made by the Allied forces and governments following World War II to return objects to their countries of origin and to original owners. Much of the cultural property that was unlawfully appropriated was recovered and returned, or owners received compensation. AAM and AAM/ICOM take pride in the fact that members of the American museum community are widely recognized to have been instrumental in the success of the post-war restitution effort. Today, the responsibility of the museum community is to strive to identify any material for which restitution was never made.

General Principles

AAM, AAM/ICOM, and the American museum community are committed to continually identifying and achieving the highest standard of legal and ethical collections stewardship practices. The AAM Code of Ethics for Museums states that the "stewardship of collections entails the highest public trust and carries with it the presumption of rightful ownership, permanence, care, documentation, accessibility, and responsible disposal."

When faced with the possibility that an object in a museum's custody might have been unlawfully appropriated as part of the abhorrent practices of the Nazi regime, the museum's responsibility to practice ethical stewardship is paramount. Museums should develop and implement policies and practices that address this issue in accordance with these guidelines.

These guidelines are intended to assist museums in addressing issues relating to objects that may have been unlawfully appropriated during the Nazi era (1933-1945) as a result of actions in furtherance of the Holocaust or that were taken by the Nazis or their collaborators. For the purposes of these guidelines, objects that were acquired through theft, confiscation, coercive transfer, or other methods of wrongful expropriation may be considered to have been unlawfully appropriated, depending on the specific circumstances.

In order to aid in the identification and discovery of unlawfully appropriated objects that may be in the custody of museums, the PCHA, AAMD, and AAM have agreed that museums should strive to: (1) identify all objects in their collections that were created before 1946 and acquired by the museum after 1932, that underwent a change of ownership between 1932 and 1946, and that were or might reasonably be thought to have been in continental Europe between those dates (hereafter, "covered objects"); (2) make currently available object and provenance (history of ownership) information on those objects accessible; and (3) give priority to continuing provenance research as resources allow. AAM, AAMD, and PCHA also agreed that the initial focus of research should be European paintings and Judaica.

Because of the Internet's global accessibility, museums are encouraged to expand online access to collection information that could aid in the discovery of objects unlawfully appropriated during the Nazi era without subsequent restitution.

AAM and AAM/ICOM acknowledge that during World War II and the years following the end of the war, much of the information needed to establish provenance and prove ownership was dispersed or lost. In determining whether an object may have been unlawfully appropriated without restitution, reasonable consideration should be given to gaps or ambiguities in provenance in light of the passage of time and the circumstances of the Holocaust era. AAM and AAM/ICOM support efforts to make archives and other resources more accessible and to establish databases that help track and organize information.

AAM urges museums to handle questions of provenance on a case-by-case basis in light of the complexity of this problem. Museums should work to produce information that will help to clarify the status of objects with an uncertain Nazi-era provenance. Where competing interests may arise, museums should strive to foster a climate of cooperation, reconciliation, and commonality of purpose.

AAM affirms that museums act in the public interest when acquiring, exhibiting, and studying objects. These guidelines are intended to facilitate the desire and ability of museums to act ethically and lawfully as stewards of the objects in their care, and should not be interpreted to place an undue burden on the ability of museums to achieve their missions.

Guidelines

1. Acquisitions

It is the position of AAM that museums should take all reasonable steps to resolve the Nazi-era provenance status of objects before acquiring them for their collections whether by purchase, gift, bequest, or exchange. a) Standard research on objects being considered for acquisition should include a request that the sellers, donors, or estate executors offering an object provide as much provenance information as they have available, with particular regard to the Nazi era. b) Where the Nazi-era provenance is incomplete or uncertain for a proposed acquisition, the museum should consider what additional research would be prudent or necessary to resolve the Nazi-era provenance status of the object before acquiring it. Such research may involve consulting appropriate sources of information, including available records and outside databases that track information concerning unlawfully appropriated objects. c) In the absence of evidence of unlawful appropriation without subsequent restitution, the museum may proceed with the acquisition. Currently available object and provenance information about any covered object should be made public as soon as practicable after the acquisition.

d) If credible evidence of unlawful appropriation without subsequent restitution is discovered, the museum should notify the donor, seller, or estate executor of the nature of the evidence and should not proceed with acquisition of the object until taking further action to resolve these issues. Depending on the circumstances of the particular case, prudent or necessary actions may include consulting with qualified legal counsel and notifying other interested parties of the museum's findings.

e) AAM acknowledges that under certain circumstances acquisition of objects with uncertain provenance may reveal further information about the object and may facilitate the possible resolution of its status. In such circumstances, the museum may choose to proceed with the acquisition after determining that it would be lawful, appropriate, and prudent and provided that currently available object and provenance information is made public as soon as practicable after the acquisition. f) Museums should document their research into the Nazi-era provenance of acquisitions. g) Consistent with current practice in the museum field, museums should publish, display, or otherwise make accessible recent gifts, bequests, and purchases, thereby making all acquisitions available for further research, examination, and public review and accountability.

2. Loans

It is the position of AAM that in their role as temporary custodians of objects on loan, museums should be aware of their ethical responsibility to consider the status of material they borrow as well as the possibility of claims being brought against a loaned object in their custody.

a) Standard research on objects being considered for incoming loan should include a request that lenders provide as much provenance information as they have available, with particular regard to the Nazi era.

b) Where the Nazi-era provenance is incomplete or uncertain for a proposed loan, the museum should consider what additional research would be prudent or necessary to resolve the Nazi-era provenance status of the object before borrowing it. c) In the absence of evidence of unlawful appropriation without subsequent restitution, the museum may proceed with the loan. d) If credible evidence of unlawful appropriation without subsequent restitution is discovered, the museum should notify the lender of the nature of the evidence and should not proceed with the loan until taking further action to clarify these issues. Depending on the circumstances of the particular case, prudent or necessary actions may include consulting with qualified legal counsel and notifying other interested parties of the museum's findings. e) AAM acknowledges that in certain circumstances public exhibition of objects with uncertain provenance may reveal further information about the object and may facilitate the resolution of its status. In such circumstances, the museum may choose to proceed with the loan after determining that it would be lawful and prudent and provided that the available provenance about the object is made public. f) Museums should document their research into the Nazi-era provenance of loans.

3. Existing Collections

It is the position of AAM that museums should make serious efforts to allocate time and funding to conduct research on covered objects in their collections whose provenance is incomplete or uncertain. Recognizing that resources available for the often lengthy and arduous process of provenance research are limited, museums should establish priorities, taking into consideration available resources and the nature of their collections.

Research

a) Museums should identify covered objects in their collections and make public currently available object and provenance information.

b) Museums should review the covered objects in their collections to identify those whose characteristics or provenance suggest that research be conducted to determine whether they may have been unlawfully appropriated during the Nazi era without subsequent restitution.

c) In undertaking provenance research, museums should search their own records thoroughly and, when necessary, contact established archives, databases, art dealers, auction houses, donors, scholars, and researchers who may be able to provide Nazi-era provenance information. d) Museums should incorporate Nazi-era provenance research into their standard research on collections. e) When seeking funds for applicable exhibition or public programs research, museums are encouraged to incorporate Nazi-era provenance research into their proposals. Depending on their particular circumstances, museums are also encouraged to pursue special funding to undertake Nazi-era provenance research.

f) Museums should document their research into the Nazi-era provenance of objects in their collections.

Discovery of Evidence of Unlawfully Appropriated Objects

g) If credible evidence of unlawful appropriation without subsequent restitution is discovered through research, the museum should take prudent and necessary steps to resolve the status of the object, in consultation with qualified legal counsel. Such steps should include making such information public and, if possible, notifying potential claimants.

h) In the event that conclusive evidence of unlawful appropriation without subsequent restitution is found but no valid claim of ownership is made, the museum should take prudent and necessary steps to address the situation, in consultation with qualified legal counsel. These steps may include retaining the object in the collection or otherwise disposing of it. i) AAM acknowledges that retaining an unclaimed object that may have been unlawfully appropriated without subsequent restitution allows a museum to continue to care for, research, and exhibit the object for the benefit of the widest possible audience and provides the opportunity to inform the public about the object's history. If the museum retains such an object in its collection, it should acknowledge the object's history on labels and publications.

4. Claims of Ownership

It is the position of AAM that museums should address claims of ownership asserted in connection with objects in their custody openly, seriously, responsively, and with respect for the dignity of all parties involved. Each claim should be considered on its own merits.

a) Museums should review promptly and thoroughly a claim that an object in its collection was unlawfully appropriated during the Nazi era without subsequent restitution.

b) In addition to conducting their own research, museums should request evidence of ownership from the claimant in order to assist in determining the provenance of the object.

c) If a museum determines that an object in its collection was unlawfully appropriated during the Nazi era without subsequent restitution, the museum should seek to resolve the matter with the claimant in an equitable, appropriate, and mutually agreeable manner.

d) If a museum receives a claim that a borrowed object in its custody was unlawfully appropriated without subsequent restitution, it should promptly notify the lender and should comply with its legal obligations as temporary custodian of the object in consultation with qualified legal counsel.

e) When appropriate and reasonably practical, museums should seek methods other than litigation (such as mediation) to resolve claims that an object was unlawfully appropriated during the Nazi era without subsequent restitution.

f) AAM acknowledges that in order to achieve an equitable and appropriate resolution of claims, museums may elect to waive certain available defenses.

5. Fiduciary Obligations

Museums affirm that they hold their collections in the public trust when undertaking the activities listed above. Their stewardship duties and their responsibilities to the public they serve require that any decision to acquire, borrow, or dispose of objects be taken only after the completion of appropriate steps and careful consideration.

a) Toward this end, museums should develop policies and practices to address the issues discussed in these guidelines.

b) Museums should be prepared to respond appropriately and promptly to public and media inquiries.

Commitment of AAM

As part of its commitment to identifying and disseminating best practices, AAM will allocate resources:

a) to disseminate these guidelines widely and frequently along with references to other guidelines, principles, and statements that exist on the topic

b) to track the activity and purpose of the relevant databases and other resources and to compile bibliographies for dissemination to the United States museum community

c) to collect examples of best practices and policies on Nazi-era provenance research and claims resolution from the museum field, both in the United States and abroad, as guidelines for other museums d) to make the above information available to the museum community through reports, conference sessions, and other appropriate mechanisms e) to assist in the development of recommended procedures for object and provenance information disclosure

f) to provide electronic links from AAM's Web site to other resources for provenance research and investigate the feasibility of developing an Internet tool to allow researchers easier access to object and provenance information about covered objects in museum collections. g) to encourage funding of Nazi-era provenance research.

Appendix C

Association of Art Museum Directors

Report of the AAMD Task Force on the Spoliation of Art during the Nazi/World War II Era (1933-1945) June 4, 1998

AAMD Statement of Purpose: "The purpose of the AAMD is to aid its members in establishing and maintaining the highest professional standards for themselves and the museums they represent, thereby exerting leadership in increasing the contribution of art museums to society."

I. Statement of Principles

A. AAMD recognizes and deplores the unlawful confiscation of art that constituted one of the many horrors of the Holocaust and World War II.

B. American museums are proud of the role they, and members of their staffs, played during and after World War II, assisting with the preservation and restitution of hundreds of thousands of works of art through the U.S. Military’s Monuments, Fine Arts and Archives section.

C. AAMD reaffirms the commitment of its members to weigh, promptly and thoroughly, claims of title to specific works in their collections.

D. AAMD urges the prompt creation of mechanisms to coordinate full access to all documentation concerning this spoliation of art, especially newly available information. To this end, the AAMD encourages the creation of databases by third parties, essential to research in this area, which will aid in the identification of any works of art which were unlawfully confiscated and which of these were restituted. Such an effort will complement long-standing American museum policy of exhibiting, publishing and researching works of art in museum collections in order to make them widely available to scholars and to the general public. (See III. below.)

E. AAMD endorses a process of reviewing, reporting, and researching the issue of unlawfully confiscated art which respects the dignity of all parties and the complexity of the issue. Each claim presents a unique situation which must be thoroughly reviewed on a case-by-case basis.

II. Guidelines

AAMD has developed the following guidelines to assist museums in resolving claims, reconciling the interests of individuals who were dispossessed of works of art or their heirs together with the fiduciary and legal obligations and responsibilities of art museums and their trustees to the public for whom they hold works of art in trust.

A. Research Regarding Existing Collections

1. As part of the standard research on each work of art in their collections, members of the AAMD, if they have not already done so, should begin immediately to review the provenance of works in their collections to attempt to ascertain whether any were unlawfully confiscated during the Nazi/World War II era and never restituted.

2. Member museums should search their own records thoroughly and, in addition, should take all reasonable steps to contact established archives, databases, art dealers, auction houses, donors, art historians and other scholars and researchers who may be able to provide Nazi/World-War-II-era provenance information.

3. AAMD recognizes that research regarding Nazi/World-War-II-era provenance may take years to complete, may be inconclusive and may require additional funding. The AAMD Art Issues Committee will address the matter of such research and how to facilitate it.

B. Future Gifts, Bequests, and Purchases

1. As part of the standard research on each work of art:

(a) member museums should ask donors of works of art (or executors in the case of bequests) to provide as much provenance information as possible with regard to the Nazi/World War II era and

(b) member museums should ask sellers of works of art to provide as much provenance information as possible with regard to the Nazi/World War II era.

2. Where the Nazi/World-War-II-era provenance is incomplete for a gift, bequest, or purchase, the museum should search available records and consult appropriate databases of unlawfully confiscated art (see III below).

(a) In the absence of evidence of unlawful confiscation, the work is presumed not to have been confiscated and the acquisition may proceed.

(b) If there is evidence of unlawful confiscation, and there is no evidence of restitution, the museum should not proceed to acquire the object and should take appropriate further action.

3. Consistent with current museum practice, member museums should publish, display or otherwise make accessible all recent gifts, bequests, and purchases thereby making them available for further research, examination and study.

4. When purchasing works of art, museums should seek representations and warranties from the seller that the seller has valid title and that the work of art is free from any claims.

C. Access to Museum Records

1. Member museums should facilitate access to the Nazi/World-War-II-era provenance information of all works of art in their collections.

2. Although a linked database of all museum holdings throughout the United States does not exist at this time, individual museums are establishing web sites with collections information and others are making their holdings accessible through printed publications or archives. AAMD is exploring the linkage of existing sites which contain collection information so as to assist research.

D. Discovery of Unlawfully Confiscated Works of Art

1. If a member museum should determine that a work of art in its collection was illegally confiscated during the Nazi/World War II era and not restituted, the museum should make such information public.

2. In the event that a legitimate claimant comes forward, the museum should offer to resolve the matter in an equitable, appropriate, and mutually agreeable manner.

3. In the event that no legitimate claimant comes forward, the museum should acknowledge the history of the work of art on labels and publications referring to such a work.

E. Response to Claims Against the Museum

1. If a member museum receives a claim against a work of art in its collection related to an illegal confiscation during the Nazi/World War II era, it should seek to review such a claim promptly and thoroughly. The museum should request evidence of ownership from the claimant in order to assist in determining the provenance of the work of art.

2. If after working with the claimant to determine the provenance, a member museum should determine that a work of art in its collection was illegally confiscated during the Nazi/World War II era and not restituted, the museum should offer to resolve the matter in an equitable, appropriate, and mutually agreeable manner.

3. AAMD recommends that member museums consider using mediation wherever reasonably practical to help resolve claims regarding art illegally confiscated during the Nazi/World War II era and not restituted.

F. Incoming Loans

1. In preparing for exhibitions, member museums should endeavor to review provenance information regarding incoming loans.

2. Member museums should not borrow works of art known to have been illegally confiscated during the Nazi/World War II era and not restituted unless the matter has been otherwise resolved (e.g., II.D.3 above).

III. Database Recommendations

A. As stated in I.D. (above), AAMD encourages the creation of databases by third parties, essential to research in this area. AAMD recommends that the databases being formed include the following information (not necessarily all in a single database):

1. claims and claimants

2. works of art illegally confiscated during the Nazi/World War II era

3. works of art later restituted

B. AAMD suggests that the entity or entities creating databases establish professional advisory boards that could provide insight on the needs of various users of the database. AAMD encourages member museums to participate in the work of such boards.

April 30, 2001 Addendum to the Report of the AAMD Task Force on the Spoliation of Art during the Nazi/World War II Era (1933-1945)

The Presidential Advisory Commission on Holocaust Assets in the United States has issued a report dated December 15, 2000. The Commission found that museums are committed to continuing provenance research on works in their collections and to disseminating the information obtained.

Specifically, the Commission acknowledged the commitment of the American museum community that (1) works created before 1946, transferred after 1932 and before 1946, and which were or could have been in continental Europe during that period will be identified and disclosed and all provenance information in the possession of museums regarding those works be disclosed; (2) such provenance information will be disclosed, even where there are no known gaps; and (3) provenance research by museums will be a continuing process with additional information disclosed as it becomes known.

The Commission recognized that provenance research is difficult, expensive and time-

consuming, often involving access to records that are hard or impossible to obtain, and that most museums lack the resources to accomplish this.

The Commission further found that the museum community has begun to develop tools to achieve full disclosure and will participate in the process of creating a searchable central registry of Nazi/World War II Era cultural property held by American museums, beginning with European paintings and Judaica.

Consistent with the report of the Commission, the Task Force issues the following addendum to its June 1998 report:

It should be the goal of member museums to make full disclosure of the results of their ongoing provenance research on those works of art in their collections created before 1946, transferred after 1932 and before 1946, and which were or could have been in continental Europe during that period, giving priority to European paintings and Judaica.

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Martha Nathan Heirs React to Lawsuits to "Quiet Title" Filed by the Toledo Museum of Art and the Det

the heirs of Martha Nathan (the "Heirs") met for the first time with the museum directors of the Toledo Museum of Art (Don Bacigalupi) and the Detroit Institute of Arts (Graham Beal) (the "Museums" and the "Museum Directors") to discuss their claims the paintings "Street in Tahiti" by Paul Gauguin (Toledo) and "The Diggers" by Vincent van Gogh (Detroit) (the "Paintings").

Press Release:

Martha Nathan Heirs React to Lawsuits to "Quiet Title" Filed by the Toledo Museum of Art and the Detroit Institute of Arts

(mmd-news) - - On Tuesday, Jan 24, 2006, the heirs of Martha Nathan (the "Heirs") met for the first time with the museum directors of the Toledo Museum of Art (Don Bacigalupi) and the Detroit Institute of Arts (Graham Beal) (the "Museums" and the "Museum Directors") to discuss their claims the paintings "Street in Tahiti" by Paul Gauguin (Toledo) and "The Diggers" by Vincent van Gogh (Detroit) (the "Paintings"). The Heirs were under the impression and belief that the Museum Directors were meeting with them in good faith to discuss this matter under the principles of the 1998 Washington Conference on Holocaust-Era Assets and in order to reach a private resolution of this matter. The Heirs were also under the belief that after the meeting, the Museum Directors would report to their respective board of directors who would then further consider the matter.

After a full discussion of the issues by both sides, at the end of the meeting the Museum Directors asked the Heirs to withdraw their claims to the Paintings. In response, the Heirs asked the Museum Directors to agree to submit the matter to an independant art commission or arbitrator for an independant review and decision. The Heirs specifically said that they would accept a decision from an independant art commission or arbitrator, but they could not accept a decision made by the Museums without an independent review.

The next day, on the morning of Wednesday, January 25, 2006, Thaddeus Stauber, Esq., counsel for the Museums informed counsel for the Heirs, David J. Rowland, Esq., that suit had been filed in federal court in Toledo and Detroit to "quiet title" to the Paintings. In addition, a press release was issued by the Museums shortly thereafter. A review of the two lawsuits filed, indicates that both were filed on January 24, 2006, while the Heirs were still meeting with the Museum Directors and their counsel. In addition, the press release also appears to have been prepared well in advance of the meeting with the Heirs in New York.

The Heirs are distressed that the Museums have taken what they regard as a private matter, which was being discussed privately, into the public forum of the courts and the press. The Heirs also believe that by taking such a step and disregarding the request of the Heirs to have this matter addressed privately by an independant art commission or arbitrator, the Museums have broken their pledge to abide by the principles of the Washington Conference to have such claims be adjudicated under principles of fairness and justice, rather than to resort to the courts which are constrained to apply rigid rules which could not possibly take into account the circumstances under which these artworks were lost. In addition to the principles of the Washington Conference, the Museums and the Museum Directors involved are members of the American Association of Museums (AAM) and the Association of Art Museum Directors (AAMD) which have also promulgated guidelines and principles under which such claims are to be considered. This includes the consideration of how other public museums outside of the United States resolve such claims. It is the view of the Heirs that the Museums have not decided this matter in accordance with the principles and quidelines set down by the AAM and the AAMD and that in fact these principles were disregarded when the Museums decided to file lawsuits in court and issue a press release, even before they had finished meeting with the Heirs.

With respect to the factual assertions in the Museums press release, the Heirs note that Martha Nathan was a German Jew who lived in Frankfurt am Main, Germany. Research in the German resitution files indicates that she lost almost all of her property in Germany due to Nazi persecution and that she was determined in German restitution proceedings after WWII, to have the status of a Nazi persecutee. In June of 1938, she sold her residence in the Mendelsohn Strasse in Frankfurt for approximately 1/2 of its tax assessed value and the proceeds of the sale were put into a blocked account which was later confiscated. At the time of this forced sale of her residence in Germany, the local police surveyed the contents of her home and confiscated artworks which were deemed to be of "national value" to Germany. Six paintings were thus confiscated and were then deposited with the Staedel, the local fine arts museum in Frankfurt. After paying a large exile tax of 87,431 Reichmarks, Mrs. Nathan was permitted to leave Germany with 15,000 Reichmarks to "start her new existence" in France. In addition, she was permitted to take with her furnishings from her residence in the Mendelsohn Str. in Frankfurt, including artworks, books, and furniture. These items were then stored by her in a warehouse called Nortier in Paris, France. Mrs. Nathan never rented an apartment in France, due to her uncertainty as to whether she could safely stay in France. After the Germans invaded France in 1939 and thereafter occupied Paris, they also confiscated, in 1942, all of Mrs. Nathan's belongings stored in the Nortier warehouse. Mrs. Nathan also filed claims for the loss of her aforementioned property with France after WWII, and was also deemed to be a Nazi persecutee in those proceedings. She received a damage award for the loss of her property at the Nortier warehouse in the French proceedings, however the furnishings, including artworks, were never recovered. The artworks lost in France are currently listed on the website www.lostart.de .

The artworks in question here, "The Diggers" by van Gogh and "Street in Tahiti" by Gauguin, may have been stored in Basel, Switzerland, since 1930, together with other important pieces of the Hugo and Martha Nathan collection. However, as set forth in the post WWII, Wildenstein New York bills of sale to the Museums, both paintings belonged to the Martha Nathan collection in Franfurt am Main, Germany, and were in Frankfurt am Main, Germany in July of 1931 for an exhibition at the Staedel called "From Image to Allegory." It is currently unknown how long these artworks stayed in Germany after that exhibition, as neither the Heirs nor the Museums have yet been able to uncover further information regarding this important fact. However, when Mrs. Nathan did finally leave Germany after selling her Frankfurt residence in June of 1938, the Paintings were apparently in Basel, Switzerland, in December of that year.

At the time of the purported sale of the Paintings by Mrs. Nathan in December of 1938, just a few months after the duress sale of her residence in Germany and a few weeks after Reichskristallnacht (the night of the broken glass, when Nazi storm troopers destroyed Jewish shops and other Jewish property), Mrs. Nathan was a persecuted Nazi refugee who had effectively lost most of her property in Germany. In a statement made to restitution authorities after WWII she said:

"Developments in Germany after the Nazis came to power forced me to emigrate in Feburary 1937. I was not sure in what country I could find refuge. Since I could no longer postpone my leaving Germany, I first went to relatives in Paris. I also had my personal effects sent there. However, I was unable to take delivery of these goods for lack of my own residence in Paris. The household goods therefore remained with the Paris forwarder who had received them from the German mover and put them in storage in Nortier.

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Since it soon became evident that conditions in France, especially once the war broke out, were not suitable for establishing a new residence there, I decided after some hesitation to travel to Switzerland. Having taken care of the necessary paper work I left for Geneva in August, 1939 and settled there. According to files....my stored belongings were confiscated by the German occupation forces in June of 1942 and taken away."

It is therefore clear that Martha Nathan did not cease to be a Nazi victim when she left German soil, but Nazi persecution against her continued when she lived temporarily as a refugee in France where the Germans also confiscated all of her property because she was Jewish. It was in December of 1938, between the time when she lost her property in Germany and when she lost her property in France, that the purported sale of the Paintings to the art dealers took place. It is thus very clear from these facts, that the sales took place exactly during the time Mrs. Nathan was still being victimized as a Nazi persecutee. In addition, it should be noted that Mrs. Nathan was a collector of art and not an art dealer. Had she not been forced to sell the Paintings out of necessity caused by her situation as a Nazi victim, she would not have sold her collection at that time, in duress sales, for duress prices.

The Museums say that Mrs. Nathan did not pursue claims for the Paintings after WWII. However, it is clear that the Paintings, because they were neither located in Germany nor France, were not subject to the restitution laws of either of those two countries, and were thus not claimed under the German and French restitution proceedings brought by Mrs. Nathan after WWII. The Heirs believe that in order to recover the Paintings, Mrs Nathan, who was 71 at the end of WWII, would have had to proceed in Switzerland under Swiss law, which did not have comparable restitution laws to Germany and France, and under which she may have had to pay back any purchase price which she obtained in order to obtain back the paintings. However, since she was forced to sell the paintings out of necessity because almost all of her other property had been taken due to Nazi persecution, Mrs. Nathan did not have the financial resources to claim, track down, and buy back the Paintings after WWII.

As to the issue of whether or not Mrs. Nathan obtained a fair price for the Paintings, the Gauguin was sold to the art dealer consortium of Georges Wildenstein, Alexander Ball, and Justin Thannhauser (the "Art Dealers") for approximately $6,800 in December of 1938, and was then resold by the Art Dealers for $25,000 to the Toledo Museum of Arts in May, 1939, only five months later. A profit was realized on the sale of approximately 270%, more than two and one half times the amount paid to Mrs. Nathan by the Art Dealers. The same percentage of profit was also made by the Art Dealers for the van Gogh, where Mrs. Nathan was paid approximately $9,000 and where the Art Dealers sold the van Gogh to Mr. Tannahill (who later donated the painting by bequest to the Detroit Institute of Arts) for $34,000, within a period of slightly more than two years from the date of the purported purchase from Mrs. Nathan.

The Heirs do not think that one need be an art expert to realize that a profit of 270% within such a short time indicates that an unfair price was paid for the Paintings when the Art Dealers purportedly purchased them from Mrs. Nathan. The Heirs also believe that this indicates that the Paintings were sold under extreme duress at a time when Mrs. Nathan was deemed to be a Nazi persecutee under both the German and French restitution proceedings. Although the Museums hired Laurie Stein to review the sales with respect to the issue of whether or not they were sold at fair market by Mrs. Nathan, the Heirs did not consider her to be independent of the Museums nor did they find her explanation of the 270% profit on the resale of the Paintings to be credible. The

Heirs noted that other Gauguin and van Gogh paintings were sold in Switzerland at the Fischer Gallery in Lucerne in 1939, for far higher prices. The Heirs also noted that the purported sales to the Art Dealers were for prices far below the insured value of the Paintings as listed with respect to their July, 1931 exhibition at the Staedel fine arts museum in Frankfurt.

In particular, the Heirs are of the view, that the Toledo Museum of Arts, when it purchased the Gauguin painting in May, 1939, failed to take into account that the Gauguin painting was coming from a well known Jewish collection in Frankfurt am Main, Germany, and failed to adequately take into account that its previous owner was a Nazi victim who had lost the Gauguin painting just a short time prior to their purchase of it. The bill of sale from Wildenstein in New York, clearly notes this fact in the Gauguin painting's provenance. Mr. Bacigalupi's explanation to the Heirs, that Jewish persecution by the Nazi's in 1939 was not well known at that time in the United States, did not impress the Heirs. They think that Jewish persecution was very well known at that time, also in the United States, and that it was well know that a flood of German Jewish refugees, who had lost their property in Germany, were fleeing Germany in order to save their lives at that time.

The Heirs also believe that the Detroit Institute of Arts, also did not adequately review this issue when they received the bequest of the van Gogh painting from Mr. Tannahill. The Heirs note the fact that the Wildenstein, New York, sales documentation with respect to the van Gogh painting also recites that it previously belonged to the Martha Nathan collection in Frankfurt am Main.

A request by the Heirs to Wildenstein for its entire files regarding this matter went unanswered and the Heirs do not believe that all of the relevent documents and information regarding this matter have been obtained.

These facts were discussed with the Museums and their counsel on Tuesday, January 24, 2006, in New York. Only a day later, in the morning of January 25, 2006, the Heirs were informed that lawsuits had been filed against them to "quiet title" and that a press release had been issued by the museums. In short, the Heirs were ambushed by a concerted effort by the Museums to avoid their responsibilities under the principles and guidelines of the AAM and AAMD to decide the Heirs claims in a fair and equitable manner and to avoid the request of the Heirs to have this matter be settled privately by an independant art commission or arbitrator taking into account the AAM and AAMD guidelines and principles. In particular those guidelines state:

"When appropriate and reasonably practical, museums should seek methods other than litigation (such as mediation) to resolve claims that an object was unlawfully appropriated during the Nazi era without subsequent restitution." AAM Guidelines Concerning the Unlawful Appropriation of Objects During the Nazi Era, section 4(e).

In brief, the Heirs consider the Museums handling of the matter up to this point to have not followed the guidelines of the AAM and AAMD, and to have been handled more in the manner of a charade, orchestrated by the Museum Directors and their counsel.

The Heirs now call on the Museums to withdraw their lawsuits and to meet their responsibilities under the guidelines of the AAM and the AAMD by agreeing to have this matter be submitted to to an independant art commission or arbitrator who will take into account the totality of the circumstances of this matter and who will decide it in accordance with principles of fairness and justice pursuant to the principles of the AAM, the AAMD, and the Washington Conference on Holocaust-Era Assets. The Heirs note that most major countries in Europe who have tackled this issue have spoliation commissions to which Nazi era art claims can be referred where the parties agree to do so. The Heirs believe that such an independent art commission should also be set up in the United States and that the Museums have an obligation under their stated policies to agree to submit the matter to such a independent decision maker when the parties are not able to resolve such claims by themselves. The Heirs feel that this is the only way they can obtain a fair hearing, not clouded by legal technicalities, and taking into account the moral aspects of the case.

New York, New York February 7, 2006

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For further information contact:

David J. Rowland, Esq. Rowland & Associates Two Park Ave., 19th Floor New York, New York 10016

Tel. 1-212-685-5509 Fax. 1-212-685-8862 Website: www.rowlandlaw.com

Or in Europe Contact:

RA Peter Schink Schink & Studzinski Ostseestr. 109 10409 Berlin Germany

Tel. 00-49-30-42851177 Fax. 00-49-30-42851178

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HOME → HOME Search: GO → Published: 2/12/2006 ToledoBlade.com Business Directory Art disputes raise moral, legal issues

BY DAVID YONKE BLADE RELIGION EDITOR

Share 0 Tweet 0 +1 0 0 0 Pin It 0 0 0 Paul Gauguin's Street Scene in Tahiti, an impressionistic painting of a sun-dappled tropical paradise, now has a dark shadow looming over it, according to some leaders of Toledo's Jewish community.

The 1889 masterpiece, bought by the Toledo Museum of Art in 1939, is at the center of an ownership dispute that raises moral, ethical, and legal questions because it was sold by a German Jew during the rise of the Paul Gauguin's 'Street Scene in Tahiti' was owned by a Third Reich. German Jew fleeing Nazi persecution. Heirs are seeking restitution from the Toledo Museum of Art, which owns the Martha Nathan, a wealthy widow from Frankfurt who Gauguin. Enlarge sought refuge in France, sold the Gauguin for $6,865 to a trio of art dealers in December, 1938, one month after Kristallnacht, the night when the Nazis unleashed a wave of attacks against Germany's Jews.

Five months later, the dealers sold it to the Toledo Museum of Art for $25,000.

"The moral issues get stronger or weaker depending on what the circumstances were when the museum got the painting," said Howard Friedman, professor emeritus at the University of Toledo law school and a

The Detroit Institute of Arts owns Vincent van Gogh's 'The member of Congregation B'nai Israel. Diggers.' Enlarge A key factor, he said, is whether Toledo museum officials knew, or should have known, when they bought it in 1939 that the dealers had purchased the artwork from a German Jew who fled Nazi persecution.

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Heirs of Ms. Nathan's estate contend that she was forced to sell the painting, along with Vincent van Gogh's The Diggers, out of necessity because of the Nazis' rise to power. The heirs are also seeking ownership of the van Gogh, which was bequeathed to the Detroit Institute of Arts in 1970.

The Toledo museum contends that Ms. Nathan freely sold the Gauguin, sending a handwritten note on Dec. 1, 1938, to art dealer Georges Wildenstein inviting him to view her paintings. POLL After Ms. Nathan's heirs first made their appeal to the Toledo museum in 2004, museum officials hired a QToledo mayor, council could see specialist to research the Gauguin's history. The 15-month investigation concluded that the Toledo raises after cut from 2009. Do they deserve it? institution has "clear title" to the painting. A Gauguin expert put its value in the $10 million to $15 million range. Yes A No The museum filed a lawsuit in U.S. District Court seeking a ruling that it is the rightful owner of the Gauguin, as did the Detroit Institute of Arts regarding the van Gogh. But the 15 heirs, most of whom live Vote in Europe, are asking for an independent arts commission to resolve the cases.

Rabbi Barry Leff of B'nai Israel said ownership is not just a matter of legal rights.

"You have the question of law, but beyond the question of law there is an obligation to be good citizens and to try and be ethical," he said.

"Well, they did sell it, but it was sold under pressure. So there is an ethical argument," Rabbi Leff said. "But, to me, it's not a slam-dunk for the heirs. It's a weaker case than when paintings were basically confiscated or stolen by the Nazis."

Philip Markowicz, an 81-year-old Holocaust survivor who grew up in Poland, said he saw Nazi soldiers brazenly steal valuable artworks from the homes of Polish Jews.

"I witnessed it. I know what went on at that time," said Mr. Markowicz, the son of a rabbi who survived the Nazis' Auschwitz-Birkenau death camp. "In Lodz, the second-largest city in Poland, people were thrown out of their apartments, sometimes naked, and they left everything - paintings, furniture, everything."

Ms. Nathan was "one of the lucky ones," he said, because she had the foresight and the option to sell her artwork before it was too late.

"The Jewish people had to sell everything they could. They had no reason to sell it except under duress. This is 100 percent sure," said Mr. Markowicz, who divides his time between Toledo and South Florida.

"They had to hurry up and sell them as much as possible," he said. "And she was not the only one. The market for these paintings was down because everyone wanted to get rid of them because they were going to lose them anyway.

"I'm not a legal expert at all, but this is a clear-cut moral case. My opinion is that [the heirs] need compensation somehow. As far as legal concerns, I couldn't judge anything."

Pete Silverman, a Toledo attorney and columnist for the Toledo Jewish News, called it "a difficult case" because the facts are not clear.

"So long as the museum is pursuing this in good faith and putting its arguments in front of a court, then I think that is a reasonable approach. Obviously, you have to proceed with some sensitivity," he said.

Joel Beren, CEO of the United Jewish Council of Greater Toledo, said he would support either a court decision or an independent art panel's opinion, "whatever mechanism is effective in resolving the issue."

He said it appears that the museum is "acting responsibly and acting with good due diligence" in researching the painting's history.

Rabbi Sam Weinstein of the Temple-Congregation Shomer Emunim in Sylvania said the heirs' arguments merit review.

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"There is precedent in terms of artwork being restored to its owners, and even though sales may have been 'legal,' the fact remains that this is considered in some cases, especially in Germany, as loot.

"The moral question is this: If one knows the history of the painting, does one want to profit from the Holocaust?" Rabbi Weinstein said.

Mr. Friedman said the questions over the ownership of the Gauguin have some parallels with the United States' treaties with Native Americans.

"We still have moral issues about dealings between the U.S. government and Indian tribes that happened 200 years ago involving formal treaties, where Indian tribes sold their land but for artificially low prices," Mr. Friedman said. "We had legal rules to deal with those, and they weren't very satisfactory. We are still struggling with the moral ambiguities here."

Mr. Markowicz said that today, more than 60 years after the end of World War II, it is still hard to believe the horrors perpetrated by the Nazi regime.

"It opens up a dark chapter in the history of mankind, not just Jewish people, but all mankind," he said. "It was a time of lawlessness unlike any before in the history of the world."

Contact David Yonke at: [email protected] or 419-724-6154.

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HOME → OPINION → EDITORIALS Search: GO → Published: 2/19/2006 ToledoBlade.com Business Directory The law and the morality Share 0 Tweet 0 +1 0 0 0 0 0 The relationship between law and morality has been the subject of intellectual debate since at least the days of Aristotle in ancient Greece. Today, the question persists in the dispute over who rightfully owns the Paul Gauguin masterpiece, Street Scene in Tahiti, now hanging in the Toledo Museum of Art.

We argued in a recent editorial that the courts are the best vehicle for deciding the legalities of a dispute between the museum and heirs of the painting's previous owner, Martha Nathan, a German Jew who sold it along with a work by Van Gogh as the Nazis threatened Europe prior to World War II.

But we believe there is a strong moral component that also must be carefully weighed before this case can reach a satisfactory conclusion. An outcome in the purely legal sense may not be enough to achieve the justice - an ideal fulfillment of law and morality - sought by the parties to this agonizingly complicated matter.

The Toledo museum is seeking a federal court judgment solidifying what it insists already is "clear title" to the Gauguin, as is the Detroit Institute of Arts, which holds the Van Gogh, known as The Diggers.

Mrs. Nathan's heirs want the disposition of the paintings to be decided by an independent arbitration panel of the kind that have decided similar cases of art that exited Europe as persecution that portended the Holocaust unfolded.

The paintings were among a collection inherited by Judith Nathan on the death of her husband in Germany in 1922. In 1930, three years before the Nazis took power in Germany, she moved the collection to Switzerland, but she continued to live in Germany and loan various paintings from the collection for museum exhibitions around Europe.

In 1937, Mrs. Nathan moved to Paris, but not before she was forced to pay - as were other Jews fleeing the growing menace of Hitler - so-called "exit taxes." On Dec. 1, 1938, obviously in need of money - and less than three weeks after "Kristallnacht," the Nazis' infamous "night of breaking glass" attacks on Jews, their homes, businesses, and synagogues - she invited an art dealer to purchase some of her paintings in Switzerland.

Mrs. Nathan took $6,865 for the Gauguin, a price a museum consultant says was "consistent with prices for comparable works sold voluntarily in Europe at the time."

But was it? Just five months after she sold it, the painting was sold again by the dealers to the Toledo museum for $25,000. It's now worth an estimated $10 million to $15 million.

1 of 3 3/15/2013 11:55 AM The law and the morality - Toledo Blade http://www.toledoblade.com/Editorials/2006/02/19/The-law-and-the-mor...

So did she sell willingly, or did she have to? Clearly, as some in the Toledo Jewish community have suggested, she was a victim and a refugee of the Holocaust.

Mrs. Nathan lived in Switzerland from 1939 until her death in 1958. The closest relatives among the 15 heirs challenging ownership apparently are either nieces and nephews or grandnieces and nephews.

After the war, Mrs. Nathan sought and received restitution for money and property lost to the Nazis, including artwork sold under duress, but her claims never included either the Gauguin or the Van Gogh, according to the museum consultant, who was hired to research the issue.

If the case were decided strictly according to the law - absent some solid evidence that the museum buyers knew at the time they were exploiting Nazi evils - perhaps the museum would win. But the timing of the Gauguin's sale and resale in relation to what was happening in Europe in 1939 is troubling.

Is this purely a case of righting a monstrous moral wrong, or are Mrs. Nathan's distant heirs trying to enrich themselves belatedly by hitching their claim to the emotional vehicle of the Holocaust?

Our legal system, though grounded in morality, may not be sufficient to explore all of these issues in the depth they deserve. Perhaps independent arbitration would be a better course, if real justice is to prevail.

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Life People TV Movies Music Books Lifestyle Games Comics Your Life Detroit art gallery wins Van Gogh case Featured video Posted 4/3/2007 11:37 AM | Comment | Recommend E-mail | Print |

DETROIT (AP) — A family that claimed a Vincent van Gogh painting at a Detroit museum rightfully belonged to them since it was sold during the Nazi era lost their case because they waited too long to sue.

Martha Nathan, a member of a notable banking family who emigrated from Germany to France in 1937 to escape Royal family Charlie Sheen Nazi persecution, sold the van Gogh to a consortium of three Jewish art dealers in Paris in 1938 for $9,360. One of Can wedding boost Actor seeks the dealers sold the picture for $34,000 in 1941 to Detroit art collector Robert Tannahill. monarchy's custody of twins. popularity? The Detroit Institute of Arts received the painting, called "Les Becheurs," as a bequest from Tannahill in 1969. More: Video

In 2004, Nathan's relatives sought to claim the painting. In an order released Saturday, U.S. District Judge Denise Page Hood cited the expiration of Michigan's statute of limitations and dismissed the claims.

A parallel dispute between Nathan's heirs and the Toledo Museum of Art over a Gauguin painting was similarly dismissed by an Ohio judge in December.

"It's tremendous relief," Detroit Institute of Arts Director Graham Beal said. "You always fear the worst, and while we felt we had the strongest possible case, and we wouldn't have taken our stand if we hadn't felt so strongly, it's still a great relief to know that this is finished."

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Posted 4/3/2007 11:37 AM E-mail | Print |

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January 27, 2006 Arts, Briefly; Museums Battle Heirs for Art

By ROBIN POGREBIN

Two museums have filed court actions seeking to establish their ownership of two paintings --van Gogh's ''Diggers'' (1889) at the Detroit Institute of Arts and Gauguin's ''Street in Tahiti'' (1891), right, at the Toledo Museum of Art. The actions were filed in response to a request for restitution from some 15 heirs of the paintings' former owner, Martha Nathan. A study for the museums found that Mrs. Nathan inherited the paintings from her husband, Hugo, in 1922; that she moved her collection to Basel, Switzerland, in 1930; and that a group of dealers purchased the van Gogh and Gauguin in 1938. The paintings were subsequently acquired by the museums. The family heirs say that Mrs. Nathan, who was Jewish and emigrated from Germany in 1937, was forced to sell the paintings to survive and that she sold them for considerably less than the market rate -- the Gauguin for about $7,000, the van Gogh for about $9,000. They were later sold by dealers for $25,000 and $34,000 each, said David J. Rowland, a lawyer for the family. ''Would the sale have taken place in the absence of Nazi persecution?'' Mr. Rowland said. ''We say no. She had no other choice but to sell these paintings at an unfair price.'' ROBIN POGREBIN

Photo

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Toledo Museum of Art, Plaintiff, -vs- Claude George Ullin, et al., Defendants.

Case No. 3:06 CV 7031

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO, WESTERN DIVISION

477 F. Supp. 2d 802; 2006 U.S. Dist. LEXIS 93627

December 28, 2006, Decided December 28, 2006, Filed

CASE SUMMARY: knowledge, they should have made inquiry into the painting's provenance well before 2002. The court rejected defendants' contention that plaintiff's adoption of PROCEDURAL POSTURE: Plaintiff art museum filed the Guidelines resulted in a voluntary relinquishment of a motion to dismiss defendant heirs' counterclaims for its defenses. declaratory relief, restitution, and conversion in plaintiff's quiet title action seeking a declaratory judgment and OUTCOME: The court granted plaintiff's motion to permanent injunction against legal or other actions dismiss defendants' counterclaims. brought by defendants regarding a Paul Gauguin painting that was owned by defendants' ancestor during the Nazi LexisNexis(R) Headnotes era.

OVERVIEW: The ancestor sold the painting to a group of European art dealers in 1938 who in turn sold the painting to plaintiff in 1939. After World War II, the Civil Procedure > Declaratory Judgment Actions > ancestor successfully pursued restitution and damages for Federal Judgments > Factors wartime losses that resulted from Nazi persecution, but [HN1] In determining the propriety of a declaratory she never filed a claim for the painting at issue in the judgment pursuant to 28 U.S.C.S. §§ 2201(a) and 2202, instant action. Defendants contacted plaintiff regarding the United States District Court for the Northern District the painting after plaintiff posted the painting on its of Ohio, Western Division, considers the five factors set website pursuant to the American Association of forth by the United States Court of Appeals for the Sixth Museum Guidelines, which were adopted to assist Circuit in Roumph: (1) whether the judgment would museums in addressing Nazi-era artwork issues, but settle the controversy; (2) whether the declaratory plaintiff concluded that defendants' claim to the painting judgment action would serve a useful purpose in was without merit. The court agreed with plaintiff that clarifying the legal relations at issue; (3) whether the declaratory remedy is being used merely for the purpose defendants' counterclaims were barred by the four-year statute of limitations under Ohio Rev. Code Ann. § of procedural fencing or to provide an arena for a race for 2305.09(B). Any claim by the ancestor would have been res judicata; (4) whether the use of a declaratory action discovered shortly after the sale to plaintiff and, even if would increase the friction between the federal and state defendants were not imputed with the ancestor's courts and improperly encroach on state jurisdiction; and Page 2 477 F. Supp. 2d 802, *; 2006 U.S. Dist. LEXIS 93627, **

(5) whether there is an alternative remedy that is better or General Overview more effective. Governments > Legislation > Statutes of Limitations > General Overview Real Property Law > Title Quality > Adverse Claim Civil Procedure > Pleading & Practice > Defenses, Actions > Quiet Title Actions Demurrers & Objections > Failures to State Claims [HN6] Ohio law does not impose a statute of limitations [HN2] When deciding a motion to dismiss under Fed. R. or laches defense to quiet title actions where the plaintiff Civ. P. 12(b)(6), the function of the court is to test the is in possession. legal sufficiency of the claims. The court is required to accept the allegations stated in the pleading as true and take the alleged facts in the light most favorable to the Governments > Legislation > Statutes of Limitations > claimant. In considering a motion to dismiss the court Time Limitations may consider materials in addition to the complaint if Torts > Damages > Compensatory Damages > General such materials are public records or are otherwise Overview appropriate for the taking of judicial notice. The court is Torts > Intentional Torts > Conversion > Defenses without authority to dismiss the claims unless it can be Torts > Procedure > Statutes of Limitations > Accrual demonstrated beyond a doubt that the claimant can prove of Actions > Discovery Rule no set of facts that would entitle it to relief. [HN7] Restitution and conversion claims are governed by Ohio Rev. Code Ann. § 2305.09(B), which requires actions for the recovery of personal property be brought Civil Procedure > Federal & State Interrelationships > within four years after the cause of action accrues. Claims Choice of Law > General Overview for the recovery of personal property accrue when the [HN3] A federal court sitting in diversity must apply the wrongdoer is discovered. Under this discovery rule, choice of law rules of the state in which it sits. claims accrue when the claimant discovers or, in the exercise of reasonable care, should have discovered the Civil Procedure > Federal & State Interrelationships > complained-of injury. Choice of Law > Forum & Place Governments > Legislation > Statutes of Limitations > Evidence > Procedural Considerations > Burdens of General Overview Proof > General Overview [HN4] A federal court sitting in Ohio applies the Governments > Legislation > Statutes of Limitations > procedural law of the forum state including the forum's Waivers statute of limitations even if the case requires application [HN8] Under Ohio law, a waiver is a voluntary of another state's substantive law. relinquishment of a known right, with the intent to do so. Waiver must be proven based on a clear, unequivocal, Civil Procedure > Declaratory Judgment Actions > decisive act by the other party. Federal Judgments > General Overview Governments > Legislation > Statutes of Limitations > COUNSEL: [**1] For Toledo Museum of Art, Time Limitations Plaintiff: Keith A. Wilkowski, LEAD ATTORNEY, [HN5] Actions for declaratory judgment are neither legal Vassar, Dills & Dawson & Bonfiglio, Toledo, OH; nor equitable claims, but are considered to be sui generis Laboni A. Hoq, LEAD ATTORNEY, Sidley Austin, Los and must accompany the substantive claim for which the Angeles, CA; Thaddeus J. Stauber, LEAD ATTORNEY, declaratory judgment is sought. The United States Court Nixon Peabody, Los Angeles, CA. of Appeals for the Sixth Circuit has held that because a For Claude George Ullin, Albert Henry Ullin, Peggy declaratory judgment action is a procedural device used Dreyfus-Kaufman, Maria Gantner-Dreyfus, Christopher to vindicate substantive rights, it is time-barred only if Georges Dreyfus, Dominic Georges Dreyfus, Coralie relief on a direct claim would also be barred. Cowper, formerly known as Coralie Eve Dreyfus, Brigitte Bernard-Salin, Elizabeth Cronk Salin, Janine Civil Procedure > Pleading & Practice > Defenses, Birmant, Francois Birman, Isabelle Williams, Stephane Demurrers & Objections > Affirmative Defenses > Birmant, Daniele Diamant-Berger, Brigitte Amzalac, Page 3 477 F. Supp. 2d 802, *; 2006 U.S. Dist. LEXIS 93627, **1

Defendants: Kenneth L. Mickel, LEAD ATTORNEY, judgment action [**3] which is not barred by the statute Mickel & Huffman, Toledo, OH; Philip J. Smith, LEAD of limitations (or laches) and (2) TMA voluntarily waived ATTORNEY, New York, NY; Scott E. Spencer, LEAD its statute of limitations defense. ATTORNEY, Toledo, OH. This Court has jurisdiction pursuant to 28 U.S.C. § For Coralie Cowper, Brigitte Bernard-Salin, Elizabeth 1332, as there is complete diversity of citizenship and the Cronk Salin, Janine Birmant, Francois Birman, Isabelle amount in controversy exceeds $ 75,000, exclusive of Williams, Stephane Birmant, Daniele Diamant-Berger, interest and costs. This Court also has authority to grant Brigitte Amzalac, Claude George Ullin, Albert Henry declaratory judgment, as requested by both parties, Ullin, Peggy Dreyfus-Kaufman, Maria Gantner-Dreyfus, pursuant to 28 U.S.C. §§ 2201(a) and 2202. [HN1] In Christopher Georges Dreyfus, Dominic Georges Dreyfus, determining the propriety of a declaratory judgment, this Counter-Claimants: Kenneth L. Mickel, LEAD Court considers the five factors set forth in Scottsdale Ins. ATTORNEY, Mickel & Huffman, Toledo, OH; Scott E. Co. v. Roumph, 211 F.3d 964, 968 (6th Cir. 2000): Spencer, [**2] LEAD ATTORNEY, Toledo, OH; Philip J. Smith, New York, NY. 1. whether the judgment would settle the controversy; For Toledo Museum of Art, Counter-Defendant: Keith A. Wilkowski, LEAD ATTORNEY, Vassar, Dills & 2. whether the declaratory judgment action Dawson & Bonfiglio, Toledo, OH; Laboni A. Hoq, would serve a useful purpose in clarifying LEAD ATTORNEY, Sidley Austin, Los Angeles, CA; the legal relations at issue; Thaddeus J. Stauber, LEAD ATTORNEY, Nixon Peabody, Los Angeles, CA. 3. whether the declaratory remedy is being used merely for the purpose of "procedural JUDGES: Jack Zouhary, U.S. DISTRICT JUDGE. fencing" or "to provide an arena for a race for res judicata;" OPINION BY: Jack Zouhary 4. whether the use of a declaratory action OPINION would increase the friction between [*804] our federal and state courts and improperly encroach on state jurisdiction; [*803] MEMORANDUM OPINION AND ORDER [**4] and JUDGE JACK ZOUHARY 5. whether there is an alternative remedy INTRODUCTION that is better or more effective.

This case involves competing claims of ownership of a painting by Paul Gauguin entitled "Street Scene in This case satisfies each of the five factors. A Tahiti" (the Painting). Plaintiff, the Toledo Museum of declaratory judgment will settle the controversy of Art (TMA), has had continuous ownership of the Painting ownership of the Painting and clarify the legal rights of since 1939. Defendants are the heirs of Martha Nathan, a the parties. There is no indication this proceeding is being prior owner of the Painting. Martha Nathan was a Jewish used for ulterior purposes, will increase friction between woman born in Germany who sold the Painting in 1938 federal and state courts, or bypasses a more effective to a group of European art dealers who in turn sold the remedy. Therefore, a declaratory judgment is appropriate. Painting in 1939 to TMA. MOTION TO DISMISS STANDARD TMA has moved to dismiss Defendants' claim of ownership alleging the claim is barred by Ohio's [HN2] When deciding a motion to dismiss under four-year statute of limitations governing conversion of Federal Rule of Civil Procedure 12(b)(6), the function of personal property. Defendants allege that (1) this lawsuit the Court is to test the legal sufficiency of the claims. The does not sound in conversion but rather is a declaratory Court is required to accept the allegations stated in the pleading as true, Hishon v. King & Spalding, 467 U.S. 69, Page 4 477 F. Supp. 2d 802, *804; 2006 U.S. Dist. LEXIS 93627, **4

73, 104 S. Ct. 2229, 81 L. Ed. 2d 59 (1984), and take the Germany until their galleries were liquidated by the Nazi alleged facts in the light most favorable to the claimant. government. They, like Martha Nathan, left Germany to Christopher v. Harbury, 536 U.S. 403, 406, 122 S. Ct. escape Nazi persecution. The third art dealer, George 2179, 153 L. Ed. 2d 413 (2002); Westlake v. Lucas, 537 Wildenstein, also was Jewish but not German. In F.2d 857, 858 (6th Cir. 1976). In considering a motion to December 1938, the three purchased the Painting from dismiss the Court may consider "materials in addition to Martha Nathan for 30,000 Swiss Francs (approximately the complaint if such materials are public records [**5] U.S. $ 6,900). or are otherwise appropriate for the taking of judicial notice." New England Health Care Employees Pension 1 Defendants refuse to acknowledge a "sale," Fund v. Ernst & Young, LLP, 336 F.3d 495, 501 (6th Cir. citing the lack of evidence as to negotiation, offer 2003). The Court is without authority to dismiss the and acceptance, bill of sale, or exchange of claims unless it can be demonstrated beyond a doubt that consideration, or in the alternative the Defendants can prove no set of facts that would entitle it unconscionability of purchase price (Answer to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. P1d). Whether a "sale" occurred is immaterial to 99, 2 L. Ed. 2d 80 (1957); Westlake, 537 F.2d at 858. the current analysis. Even without a prior "sale," there is no dispute that TMA acquired ownership BACKGROUND FACTS through an arms length purchase from established art dealers. History of the Painting [**7] In short, this sale occurred outside Germany Martha Nathan was the wife of a prominent art by and between private individuals who were familiar collector, Hugo Nathan. She inherited the Painting and with each other. The Painting was not confiscated or numerous other artworks upon her husband's death in looted by the Nazis; the sale was not at the direction of, 1922. In his Will, Hugo Nathan indicated his intention nor did the proceeds benefit, the Nazi regime. Several that Martha Nathan would someday sell some of these months later, in May 1939, TMA purchased the Painting artworks to meet her needs. from Wildenstein & Co. for U.S. $ 25,000. TMA has had the Painting on display in Ohio and internationally since In February 1937, Martha Nathan left Germany in 1939 with Martha Nathan noted as prior owner. order to escape Nazi persecution. She moved to Paris, France where she obtained French citizenship. Around Following World War II and the fall of the Nazi May 1938, she returned to Germany to sell her house. At regime, Martha Nathan pursued claims for her wartime that time, the Nazi government required her to turn over losses that resulted from Nazi persecution including the six paintings remaining in her home to the Staedel Art exit tax she paid, the sale of her home for less than its fair Institute. The paintings she turned over did not include market value, the six paintings she turned over to the the [**6] Painting which she had moved sometime Staedel Art Institute and the household items she left in earlier along with other artwork to Basel, Switzerland. storage in France. Martha Nathan continued to live in She also transported some household goods from Switzerland until she died in 1958 at the age of Germany to France where she placed them in storage. eighty-three. Her brother, Willy Dreyfus, was (These household goods remained in storage until they Co-Executor of her estate until his death in 1977. were later confiscated by the Nazi regime in June 1942.) Martha Nathan moved permanently to Switzerland Nathan Family Pursues Nazi-Era Claims around 1939. Martha Nathan and later her estate successfully In December 1938, a year and a half after living in pursued restitution and damages for wartime losses that France and before the German occupation of France, resulted from Nazi persecution. Willy [**8] Dreyfus also Martha Nathan sold some of her artwork, including the actively pursued compensation for his family's wartime Painting then located in Basel, Switzerland. She sold the losses and even filed a civil action in U.S. Federal Court Painting to three prominent European art dealers, at least in 1973 to obtain further compensation for his interest in two of whom had known her for many years. 1 These the family's German banking firm which allegedly was two, Justin Thannhauser [*805] and Alexander Ball, sold in 1938 under duress for below its actual value. were German Jews whose families owned art galleries in Dreyfus v. Von Finck, 534 F.2d 24 (2nd Cir. 1976), cert. Page 5 477 F. Supp. 2d 802, *805; 2006 U.S. Dist. LEXIS 93627, **8

denied 429 U.S. 835, 97 S. Ct. 102, 50 L. Ed. 2d 101 TMA has moved to dismiss Defendants' (1976). Counterclaim. Defendants allege three separate causes of action: declaratory relief, restitution and conversion. In 1999, the American Association of Museums [HN5] "Actions for declaratory judgment are neither adopted the Guidelines Concerning the Unlawful legal nor equitable claims, but are considered to be sui Appropriation of Objects During the Nazi Era (the generis" and "must accompany the substantive claim for "Guidelines) (Pl.'s Mot., Ex. B). Pursuant to the which the declaratory judgment is sought." QSI-Fostoria Guidelines, TMA posted on its website artwork having a DC, LLC v. General Electric Capital Business Asset Nazi-era provenance. Funding Corp., No. 3:02 CV 7466, 2005 U.S. Dist. LEXIS 521, 2005 WL 81902, at n.3 (N.D. Ohio 2005). Defendants contacted TMA about the Painting in The Sixth Circuit has held that "[b]ecause a declaratory May 2004 and asserted a claim of ownership. TMA judgment action is a procedural device used to vindicate provided Defendants with the information it had collected substantive rights, it is time-barred only if relief on a about the Painting's provenance and, in 2005, TMA direct claim would also be barred." International Ass'n of rejected Defendants' claims of ownership. TMA brought Machinists and Aerospace Workers v. Tennessee Valley this quiet title action in January 2006, seeking a Authority, 108 F.3d 658, 668 (6th Cir. 1997). Under this declaratory judgment and a permanent injunction against analysis, Defendants' request for declaratory relief is legal or other actions brought by Defendants regarding barred if the underlying substantive claims for restitution the Painting. Defendants bring counterclaims for and conversion are barred by the statute of limitations. conversion, restitution and a declaratory judgment. Defendants argue that this result is inequitable if [**9] The distant heirs of Martha Nathan now TMA's request [**11] for declaratory judgment is not demand possession of the Painting or compensation for similarly barred. The Court disagrees. TMA's request for their claimed loss. TMA argues that no claim of declaratory relief is barred only if its underlying claim to ownership was asserted to the Painting for more than quiet title is barred. However, [HN6] Ohio law does not sixty-six years during which time any relevant statute of impose a statute of limitations or laches defense to quiet limitations has long run. Specifically, TMA asserts title actions where plaintiff is in posession. Chambers v. Defendants' claim of ownership is barred by the Ohio Wilcox, 3 Ohio N.P. (n.s.) 269, 15 Ohio Dec. 629, 632 four-year statute of limitations. (Ohio Com. Pl. 1905) (an action to quiet title is a "special CHOICE OF LAW proceeding whose object is to challenge and provoke any causes of action which may exist" and, when this is the Ohio's choice of law rules determine what law petition's sole purpose, no statute of limitations applies); governs this action. "[A] federal [HN3] court sitting in Klar v. Hoopingarner, 62 Ohio App. 102, 106, 23 N.E.2d diversity must apply the choice of law rules of the state in 326 (1939) (defense of laches is not available against the which it sits." Charash v. Oberlin College, 14 F.3d 291, party in possession). Because the underlying claim in 296 (6th Cir. 1994) (citing Klaxon Co. v. Stentor Electric TMA's request for a declaratory judgment is not barred, Mfg. Co., 313 U.S. 487, 496, 61 S. Ct. 1020, 85 L. Ed. its Complaint for Declaratory Judgment is likewise not 1477 (1941)). Under Ohio's choice of law [*806] rules, barred. the Ohio statute of limitation applies to this case. [HN4] A federal court sitting in Ohio applies the procedural law The underlying claims in Defendants' request for of the forum state including the forum's statute of declaratory judgment are [HN7] restitution and limitations even if the case requires application of another conversion, each governed by Ohio Revised Code § state's substantive law. Charash, 14 F.3d at 299 (citing 2305.09(B). This statute requires actions "for the Howard v. Allen, 30 Ohio St. 2d 130, 133, 283 N.E.2d recovery of personal property" be brought within four 2 167 (1972)); Metz v. Unizan Bank, 416 F. Supp. 2d 568, years after the cause of action accrues. [**12] 573-74 (N.D. Ohio 2006). [**10] 2 The Court acknowledges the strong public DECLARATORY RELIEF IS APPROPRIATE policy to resolve claims for Nazi-era artwork. However, unlike some states, Ohio law does not Statute of Limitations Bars Defendants' Recovery contain a special statute of limitations for Page 6 477 F. Supp. 2d 802, *806; 2006 U.S. Dist. LEXIS 93627, **12

Nazi-era artwork. See Cal. Civ. Proc. Code § would have made further inquiry into the terms of her 354.3 (granting heirs the right to sue galleries and sale to the art dealers. Defendants, heirs to the Nathan museums for the return of Nazi-era artwork until estate, are imputed with knowledge of her interest. 2010). This Court does not sit as a Schwartz v. Cincinnati Museum Ass'n, 35 Fed. Appx. 128, "super-legislature" to rewrite state laws. Evans v. 131 (6th Cir. 2002). Abney, 396 U.S. 435, 447, 90 S. Ct. 628, 24 L. Ed. 2d 634 (1970) (federal courts' responsibility "is to 3 construe and enforce the Constitution and laws of the land as they are and not to legislate social See Firsdon v. Mid-American National Bank policy on the basis of our own personal & Trust Co., No. 90WD083, 1991 Ohio App. inclinations"); Watson v. Kenlick Coal Co., Inc., LEXIS 4808, 1991 WL 254218, at *4 (Oct. 11, 498 F.2d 1183, 1187 (6th Cir. 1974). 1991). In Firsdon, the defendant, a grain farmer, was contractually obligated to give his landlord Claims for the recovery of personal property accrue half of his grain crop or half of the proceeds from when "the wrongdoer is discovered." Investors REIT One its sale. Id. at *2. Defendant rightfully raised the v. Jacobs, 46 Ohio St. 3d 176, 180, 546 N.E.2d 206 grain, stored it, and then sold it. Id. However, the (1989). [*807] Under this "discovery rule," claims proceeds wrongfully went to two other creditors, accrue when the claimant "discovers [**13] or, in the not the landlord, and the landlord filed claims exercise of reasonable care, should have discovered the against defendant seven months later. Id. The complained-of injury." Id. at 181; Hambleton v. R.G. court held the landlord discovered or should have Barry Corp., 12 Ohio St. 3d 179, 181, 12 Ohio B. 246, discovered the conversion at the time of the sale 465 N.E.2d 1298 (1984) ("If a person has knowledge of even though he was not a party to the sale. Id. at such facts as would lead a fair and prudent man, using 4. Here, Martha Nathan was herself a party to the ordinary care and thoughtfulness, to make further inquiry, sale making even stronger the application of the and he fails to do so, he is chargeable with knowledge limitations. which by ordinary diligence he would have acquired") (citation omitted); Copeland v. Delvaux, 89 Ohio App. 3d [**15] Even if Defendants were not imputed with 1, 6, 623 N.E.2d 569 (1993) ("Information sufficient to Martha Nathan's knowledge, they too should have made alert a reasonable person to the possibility of wrongdoing inquiry into the Painting's provenance well before 2002. gives rise to a party's duty to inquire into the matter with Martha Nathan passed away in 1958, at which time an due diligence") (citation omitted). accounting of her estate was made and additional Holocaust-related claims were made by her Executor In the instant case, Martha Nathan pursued (Compl. P65.3). Defendants themselves cite to the restitution and damages immediately after the war for numerous Congressional hearings held on the issues of property she lost as a result of Nazi persecution, but did Nazi-era artworks beginning in 1998 (Defs' Opp. 4). At not file a claim for the Painting. If she believed she had a the very latest, sixty years after the sale of the Painting, claim to the Painting, she could have investigated and the public debate surrounding Nazi-era assets should brought suit back then. Up to her death in 1958, twenty have led the Nathan heirs to inquire into the location of years after the alleged sale, she did not challenge the art her former assets. Based upon Martha Nathan's own dealers' purchase or the subsequent sale to TMA. TMA previous claims, as well as those of her estate, the heirs did not try to hide its possession of [**14] the Painting knew she was persecuted by the Nazis and sustained and Martha Nathan knew better than anyone the facts wartime losses. This knowledge would have led a surrounding her own purported sale. The Painting was reasonable person to make further inquiries. These acquired from her by acquaintances who, like her, were inquiries and ordinary diligence would have revealed the Jews who suffered during Nazi-era Germany. Any fraud, sale of the Painting in 1938. Certainly by 1998, at the duress or wrongdoing would or should have been known latest, Defendants had sufficient [*808] notice to alert at the time the art dealers' acquired the painting. 3 Even them to the possibility of wrongdoing surrounding the if, for some unexplained reason, she could not discover Painting. any wrongdoing at that time, once the chaos of World War II Europe subsided, a reasonable and prudent person At least one other court has made a similar finding. In Adler v. Taylor, No. CV 04-8472-RGK, 2005 U.S. Dist. Page 7 477 F. Supp. 2d 802, *808; 2006 U.S. Dist. LEXIS 93627, **15

LEXIS 5862, 2005 WL 4658511, at *4 (C.D. Cal. 2005), appropriation of cultural objects during the Nazi-era [**16] the plaintiffs lost a painting due to Nazi without restitution. Pursuant to the Guidelines, TMA persecution and the painting was subsequently purchased posted the Painting on its website. As a result, by the defendant in 1963. The court held California's Defendants contacted TMA regarding the Painting in three-year statute of limitations would begin to run when May 2004. Thereafter, TMA investigated the provenance the defendant acquired the property, or when, applying of the Painting and concluded that Defendants' claim to the discovery rule, "by exercise of reasonable diligence" the Painting was without merit. Defendants were the plaintiffs should have discovered the facts forming informed of this decision in July 2005 when their claim the basis of their cause of action. Id. In applying the was rejected. discovery rule, the court considered three "key facts:" (1) the world knew plaintiffs had once owned the painting; Defendants claim the adoption of the Guidelines (2) plaintiffs knew the painting was lost or stolen; (3) waived TMA's defense of the statute of limitations, and defendant's purchase and ownership was public that the critical time for computing the statute of knowledge and easily discoverable. Id. The court limitations is July 2005 when TMA rejected Defendants' concluded that with reasonable diligence, the plaintiffs claim or, at the earliest, when Defendants first contacted would have discovered their claim in 1963 when the TMA about the Painting back in May 2004. Either date is painting was sold to defendant. well within the four-year limitations period of Ohio Revised Code § 2305.09. Similarly, Defendants here knew or should have known Martha Nathan had once owned the Painting, a Defendants' position is that the act of posting fact publicized by both TMA and the art dealers; artwork, including this Painting, on the TMA website Defendants knew the Painting was no longer in the was a general invitation to the public to come forward, family's possession for some time; and TMA's ownership make a claim, and collect damages. The Court rejects this and possession was public [**17] knowledge and easily argument. [HN8] Under Ohio law, a [*809] waiver is a discoverable. As in Adler, by exercise of reasonable "voluntary relinquishment [**19] of a known right, with diligence, Martha Nathan would have known she had a the intent to do so." City of N. Olmsted v. Eliza Jennings, claim against TMA shortly after the sale to TMA in 1939. Inc., 91 Ohio App. 3d 173, 180, 631 N.E.2d 1130 (1993). The undisputed fact that she, and later her estate, did file Defendants must prove a waiver based on "clear, claims for Nazi-era losses, but did not pursue recovery of unequivocal, decisive act by the other party." Id. at 180. the Painting is strong evidence that the purchase by TMA The Guidelines were not intended to create legal was not considered suspect. obligations or mandatory rules but rather were intended to "facilitate the ability of museums to act ethically and Based upon the dates alleged in Defendants' Answer, legally as stewards" through "serious efforts" on a "case no matter what date is selected, whether 1938 when the by case basis" (Pl.'s Mot., Ex. B, at General Principles, Painting was sold by Martha Nathan, 1939 when TMA Acquisitions). The Guidelines are "intended to assist purchased the Painting, 1958 when Martha Nathan died museums in addressing issues relating to objects that may and her estate was opened, or at the very latest, 1998 have been unlawfully appropriated during the Nazi era," when Congress began to discuss the issue in a highly but should not be interpreted to place an undue burden on publicized forum, Defendants' claims are time barred the museums (Id.). Pursuant to the Guidelines, TMA well before their filing in 2006. These undisputed facts carried out research which it shared with Defendants. The and dates create an insurmountable bar to relief. posting of Nazi-era artwork by TMA was not an automatic waiver, and TMA did not "elect" to waive its TMA Did Not Waive Its Defenses defenses which the Guidelines specifically provide it "may" do if and when presented with a meritorious claim Defendants' primary argument is that TMA (Pl.'s Mot., Ex. B, at Claims of Ownership). Indeed, voluntarily relinquished its statute of limitations and instead of waiving these defenses, TMA filed this lawsuit laches defenses. This waiver claim is based upon the [**20] specifically asserting these defenses. Therefore, American Association of Museum Guidelines which were even accepting all factual allegations in Defendants' adopted to assist museums in addressing issues raised by pleading as true, the Court finds there has been no holding Nazi-era artworks in their [**18] collections. voluntary and intentional relinquishment of these The Guidelines were meant to address unlawful Page 8 477 F. Supp. 2d 802, *809; 2006 U.S. Dist. LEXIS 93627, **20

defenses by TMA. state a claim.

CONCLUSION IT IS SO ORDERED.

Based on the foregoing, Defendants can prove no set s/ Jack Zouhary of facts that entitle them to relief. Their claims were not brought within the applicable statute of limitations. U.S. DISTRICT JUDGE Therefore, Plaintiff's Motion to Dismiss (Doc. No. 29) is granted and, pursuant to Federal Civil Rule 12(b)(6), the December 28, 2006 Counterclaims are dismissed with prejudice for failure to Page 1

THE DETROIT INSTITUTE OF ARTS on behalf of itself and the CITY OF DETROIT, MICHIGAN, Plaintiff and Counter-Defendant, v. CLAUDE GEORGE ULLIN, et al., Defendants and Counter-Plaintiffs.

CASE NO. 06-10333

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN, SOUTHERN DIVISION

2007 U.S. Dist. LEXIS 28364

March 31, 2007, Decided

COUNSEL: [*1] For Detroit Institute of Arts, Detroit, OPINION BY: DENISE PAGE HOOD City of, Plaintiffs: Alan S. Schwartz, LEAD ATTORNEY, Joshua F. Opperer, LEAD ATTORNEY, OPINION Mark A. Stern, LEAD ATTORNEY, Honigman, Miller, (Detroit), Detroit, MI; Thaddeus J. Stauber, LEAD MEMORANDUM OPINION AND ORDER ATTORNEY, Nixon Peabody (Los Angeles), Los [*2] I. INTRODUCTION Angeles, CA. This matter is before the Court on For Claude George Ullin, Albert Henry Ullin, Peggy Plaintiff/Counter-Defendant The Detroit Institute of Arts' Dreyfus-Kaufman, Christopher Georges Dreyfus, Motion to Dismiss Counterclaims, filed on June 19, 2006. Dominic Georges Dreyfus, Coralie Cowper, formerly On August 8, 2006, Defendants/Counter-Plaintiffs filed a known as Caorlie Eve Dreyfus, Brigitte Bernard-Salin, Brief in Opposition to Plaintiff/Counter-Defendant's Elizabeth Cronk Salin, Francois Birman, Isabelle Motion to Dismiss. Oral argument was heard on Williams, Stephane Birmant, Brigitte Amzalac, September 13, 2006. Defendants: Steven G. Silverman, LEAD ATTORNEY, Gross, Nemeth, (Detroit), Detroit, MI. Plaintiff/Counter-Defendant, The Detroit Institute of Arts, a private non-profit corporation operating as a For Claude George Ullin, Albert Henry Ullin, Peggy museum open to the public, brought the present quiet title Dreyfus-Kaufman, Maria Gantner-Dreyfus, Christopher action pursuant to 28 U.S.C. § 1332 and § 1655, Georges Dreyfus, Dominic Georges Dreyfus, Coralie requesting declaratory and injunctive relief, against Cowper, Brigitte Bernard-Salin, Elizabeth Cronk Salin, Defendants/Counter-Plaintiffs, who are the heirs of Janine Birmant, Francois Birman, Isabelle Williams, Martha Nathan, a prior owner of the Painting. 1 On April Stephane Birmant, Daniele Diamant-Berger, Brigitte 27, 2006, Defendants/Counter-Plaintiffs filed Amzalac, Counter Claimants: Steven G. Silverman, Counterclaims against Plaintiff/Counter-Defendant DIA LEAD ATTORNEY, Gross, Nemeth, (Detroit), Detroit, for declaratory judgment, restitution, and conversion. MI. 1 Defendants/Counter-Plaintiffs include: Claude JUDGES: DENISE PAGE HOOD, United States District George Ullin, Albert Henry Ullin, Peggy Judge. Page 2 2007 U.S. Dist. LEXIS 28364, *2

Dreyfus-Kaufman, Christopher Georges Dreyfus, Nathan sold some of her artwork, including the Painting, Dominic Georges Dreyfus, Coralie Cowper F/K/A then located in Basel, Switzerland, to three prominent Coralie Eve Dreyfus, Brigitte Bernard-Salin, European art dealers. 3 Two of the art dealers, Justin Elizabeth Cronk Salin, Francois Birman, Isabelle Thannhauser and Alexander Ball, knew of, and had been Williams, Stephanie Birmant, and Brigitte familiar with Mrs. Nathan for many years as they were Amzalac (Defendants/Counter-Plaintiffs). German Jews, whose [*5] families owned art galleries in Germany and who also left Germany to escape Nazi [*3] DIA has moved to dismiss persecution. The other art dealer, George Wildenstein, Defendants/Counter-Plaintiffs' Counterclaims because the was also Jewish, but not German. Mrs. Nathan sold the Michigan statute of limitations bars painting to the three men for 40,920 Swiss Francs Defendants/Counter-Plaintiffs' claim to the Painting since (approximately U.S. $ 9,360). they did not raise their claim until 2004, sixty-six years after its original sale in 1938. Also, 2 These goods were eventually confiscated by Defendants/Counter-Plaintiffs are barred from asserting the Nazi regime in June 1942. their claims under the doctrine of laches because 3 Defendants/Counter-Plaintiffs deny that a sale Defendants/Counter-Plaintiffs unreasonably delayed occurred. asserting a claim to the Painting. Following World War II, and the fall of the Nazi II. STATEMENT OF FACTS regime, Mrs. Nathan pursued and succeeded in obtaining restitution and damages for wartime losses that were a The instant matter arises out of a dispute as to the result of Nazi persecution. She successfully obtained ownership of a painting by Vincent Van Gogh, entitled compensation for an exit tax the Nazi government Les Becheurs (The Diggers)(1889) (the "Painting"). required her to pay when she originally left Germany, the Plaintiff/Counter-Defendant has had continuous sale of her home which was deemed to be for less than ownership of the Painting since 1969, when DIA received fair market value, the six paintings she was required to it as a bequest from art collector, Robert H. Tannahill. turn over to the Staedel Art Institute, and the household Defendants/Counter-Plaintiffs are the heirs of Martha items that were confiscated by the Nazi regime. At no Nathan, the prior owner of the Painting who was a Jewish time did Mrs. Nathan pursue restitution or damages for woman born in Frankfurt am Main, Germany. Mrs. the Painting. Nathan was married to a prominent art collector, Hugo Nathan. Upon Mr. Nathan's death in 1922, Mrs. Nathan [*6] Upon her death in 1958, Mrs. Nathan's brother, inherited numerous artworks, including the Painting. Mr. Willy Dreyfus, co-executor of her estate protected her Nathan expressly indicated in a codicil to his will [*4] estate's interests up until his death in 1977. Willy Dreyfus that he was bequeathing his artworks to Mrs. Nathan in also sought compensation for his family's wartime losses, anticipation that she would sell some of the artworks to filing an action in U.S. Federal court in 1973. meet her financial needs. In 1938, Mrs. Nathan sold the painting to a group of European Art dealers, who in turn, In 1999, the American Association of Museums sold the Painting to Mr. Tannahill. adopted the Guidelines Concerning the Unlawful Appropriation of Objects During the Nazi Era. Pursuant In February 1937, Mrs. Nathan left Germany in order to these guidelines, DIA posted on its website artwork to escape Nazi persecution, moved to Paris, France and having a Nazi-era provenance, including the Painting. obtained French citizenship. In May 1938, Mrs. Nathan Defendants/Counter-Plaintiffs contacted DIA in May returned to Germany to sell her home. The Nazi 2004, asserting a claim of ownership. After investigating government made her turn over six paintings in her home the provenance of the artwork, to the Staedel Art Institute, none of which included the Plaintiff/Counter-Defendant contacted Painting. In August 1938, she moved her household Defendants/Counter-Plaintiffs informing them that it had goods from Germany to France, placing them in storage. rejected their claim of ownership. 2 Prior to December 1938, she moved some of her artworks, including the Painting, to Basel, Switzerland. III. APPLICABLE LAW & ANALYSIS On December 14, 1938, a year and a half after living in France and before the German occupation of France, Mrs. A. Standard of Review Page 3 2007 U.S. Dist. LEXIS 28364, *6

Federal Rules of Civil Procedure 12(b)(6) provides 156, 626 N.W.2d 917 (2001). [*9] for a motion to dismiss for failure to state a claim upon Plaintiff/Counter-Defendant DIA argues that Michigan which relief can be granted. This type of motion tests the does not apply the discovery rule to toll the statute of legal sufficiency of the plaintiffs Complaint. Davey v. limitations for conversion claims. Tomlinson, 627 F. Supp. 1458, 1463 (E.D. Mich. 1986). Plaintiff/Counter-Defendant cites John Hancock [*7] A court takes the factual allegations in the Financial Services, Inc. v. Old Kent Bank, 185 F. Supp. Complaint as true when evaluating the propriety of 2d 771, 779-80 (E.D. Mich. 2002) in support of this dismissal under Fed. R. Civ. P. 12(b)(6). Ziegler v. IBP proposition. However, John Hancock states that the Hog Market, Inc., 249 F.3d 509, 512 (6th Cir. 2001); discovery rule does not apply to toll the statute of Hoeberling v. Nolan, 49 F. Supp.2d 575, 577 (E.D. Mich. limitations for conversion claims involving negotiable 1999). Further, the court construes the complaint in the instruments. Id. (Emphasis added). Notwithstanding this light most favorable to the plaintiff, and determines fact, Plaintiff/Counter-Defendant is correct that the whether it is beyond a doubt that the plaintiff can prove discovery rule is inapplicable to the facts in this matter. no set of facts in support of his claims that would entitle In Brennan, the Michigan Court of Appeals stated that, him to relief. Varljen v. Cleveland Gear Co., Inc., 250 F.3d 426, 429 (6th Cir. 2001). [t]he strong public policies favoring finality in commercial transactions, B. Plaintiff/Counter-Defendants' Motion to Dismiss protecting a defendant from stale claims, Counterclaims and requiring a plaintiff to diligently pursue his claim outweigh the prejudice to This Court must apply the choice of law rules of the plaintiffs and militate against applying a forum state in which it sits. Klaxon Co. v. Stentor Electric discovery rule in the context of Mfg. Co., 313 U.S. 487, 496, 61 S. Ct. 1020, 85 L. Ed. commercial conversion cases. 1477 (1941). "Under Michigan's common law choice of law rule, statutes of limitation are considered procedural Brennan, 245 Mich. App. at 160. As such, and are governed by the law of the forum." Johnson v. Defendants/Counter-Plaintiffs' Counterclaims accrued on Ventra Group, Inc., 191 F. 3d 732, 746 (6th Cir. 1999). the date that Mrs. Nathan sold the Painting to the [*10] As such, Defendants/Counter-Plaintiffs' claims for three European art dealers in 1938. In other words, their restitution [*8] and conversion are governed by MICH. claim accrued in 1938, the date of the alleged wrong COMP. LAWS § 600.5805. Under this statute, giving rise to Defendants/Counter-Plaintiffs Defendants/Counter-Plaintiffs were required to bring Counterclaims. their cause of action for injuries to property within three years of the date on which the claim first accrued. See Even if this Court were to apply the discovery rule to MICH. COMP. LAWS § 600.5805(10). Defendants/Counter Plaintiffs' Counterclaims, this would not save the Counterclaims from being barred by the "A conversion is committed when dominion is statute of limitations. In 1973, the executor of Mrs. wrongfully asserted over another's property. Therefore, Nathan's estate made claims in addition to those the statute on a claim for conversion would not start to previously asserted by Mrs. Nathan, for his families run until the date when dominion is asserted." Miller v. wartime losses. At this point, Mrs. Nathan's heirs, Green, 37 Mich. App. 132, 138, 194 N.W.2d 491; 37 "through the exercise of reasonable diligence should have Mich. App. 132, 194 N.W.2d 491 (1971). Claims for the discovered" that they had a possible cause of action to recovery of personal property accrue "at the time the recover the Painting. wrong upon which the claim is based was done regardless of the time when damage results." MICH. COMP. LAWS In regard to Defendants/Counter-Plaintiffs' § 600.5827. "If the discovery rule is applied, . . . the Counterclaim for declaratory judgment, the Sixth Circuit period of limitations does not begin to run until the has stated that "[b]ecause a declaratory judgment action plaintiff discovers, or through the exercise of reasonable is a procedural device used to vindicate substantive diligence should have discovered, that he had a possible rights, it is time-barred only if relief on a direct claim cause of action." Brennan v. Edward D. Jones & Co., 245 would be barred." International Ass'n of Machinists and Mich. App. 156, 159, 626 N.W.2d 917; 245 Mich. App. Aerospace Workers v. Tennessee Valley Authority, 108 F. Page 4 2007 U.S. Dist. LEXIS 28364, *10

3d 658, 668 (6th Cir. 1997). As such, "in order to achieve an equitable and appropriate Defendants/Counter-Plaintiffs' Counterclaim that seeks resolution of claims, museums may elect to waive certain declaratory relief is likewise [*11] barred because the available defenses." (Id.) Plaintiff/Counter-Defendant has underlying substantive claims of conversion and sought to achieve resolution of this claim by initiating the restitution are barred by Michigan's three-year statute of instant quiet title action. This act alone is inapposite to limitations. waiving its right to assert defenses it may have available to it. The Court finds that Plaintiff/Counter-Defendant Defendants/Counter-Plaintiffs assert that has not waived its right to assert a statute of limitations Plaintiff/Counter-Defendant voluntarily waived its statute defense, and that Defendants/Counter-Plaintiffs' of limitations defense by adopting the American Counterclaims are barred by Michigan's statute of Association of Museum Guidelines and posting the limitations, and must be dismissed. See Toledo Museum Painting on its website. Defendants/Counter-Plaintiffs of Art v. Ullin, 477 F. Supp. 2d 802, 2006 U.S. Dist. argue that by posting the Painting on its website, LEXIS 93627, 2006 WL 3827512 (N.D. Ohio). Plaintiff/Counter-Defendant made a general invitation to the public to come forward and make a claim of IV. CONCLUSION ownership. Defendants/Counter-Plaintiffs further assert that their Counterclaims accrued when Accordingly, Plaintiff/Counter-Defendant rejected their claim to ownership of the Painting in 2005. As such, their IT IS ORDERED that Plaintiff/Counter-Defendant Counterclaims were filed within the applicable three year The Detroit Institute of Arts' Motion to Dismiss statute of limitations. This argument is without merit. Counterclaims [Docket No. 27, filed on June 19, 2006] is GRANTED. Under Michigan law, a waiver is an "intentional abandonment of a known right." Roberts v. Mecosta Co. IT IS FURTHER ORDERED that Hospital, 466 Mich. 57, 64, 642 N.W.2d 663; 466 Mich. Defendants/Counter-Plaintiffs' [*13] Counterclaims are 57, 642 N.W. 2d 663 (2002). It is clear that by adopting DISMISSED WITH PREJUDICE. the Guidelines, Plaintiff/Counter-Defendant was not Dated: March 31, 2007 intentionally waiving its right to assert any defenses it may be entitled to. [*12] The Guidelines specifically /s/ Denise Page Hood state that they "are intended to assist museums in addressing issues relating to objects that may have been United States District Judge unlawfully appropriated during the Nazi era . . . ." (Pl.'s Mot. to Dismiss, Ex. B) The Guidelines further state that Page 1

THE MUSEUM OF FINE ARTS, BOSTON v. DR. CLAUDIA SEGER-THOMSCHITZ

CIVIL ACTION NO. 08-10097-RWZ

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

2009 U.S. Dist. LEXIS 58826

May 28, 2009, Decided

SUBSEQUENT HISTORY: Related proceeding at JUDGES: RYA W. ZOBEL, UNITED STATES Dunbar v. Seger-Thomschitz, 638 F. Supp. 2d 659, 2009 DISTRICT JUDGE. U.S. Dist. LEXIS 56742 (E.D. La., 2009) Affirmed by Museum of Fine Arts v. Seger-Thomschitz, OPINION BY: RYA W. ZOBEL 2010 U.S. App. LEXIS 21250 (1st Cir. Mass., Oct. 14, 2010) OPINION

COUNSEL: [*1] For The Museum of Fine Arts, Boston, Plaintiff, Counter Defendant: Courtney Amber Clark, MEMORANDUM OF DECISION AND ORDER LEAD ATTORNEY, Sherin and Lodgen LLP, Boston, ZOBEL, D.J. MA; Robert J. Muldoon, Jr., LEAD ATTORNEY, Sherin & Lodgen LLP, Boston, MA; Simon J. Frankel, LEAD I. Introduction ATTORNEY, PRO HAC VICE, Covington & Burling, San Francisco, CA. In 1973, plaintiff, The Museum of Fine Arts, Boston (the "MFA") received by bequest a painting by Oskar For Dr. Claudia Seger-Thomschitz, Defendant: David H. Kokoschka ("Kokoschka") known as Two Nudes (Lovers) Rich, LEAD ATTORNEY, Todd & Weld, Boston, MA; (the "Painting"), which has been in its [*2] possession John J. Byrne, Jr., LEAD ATTORNEY, Byrne, Goldberg ever since. In 2007, defendant Claudia Seger-Thomschitz & Hamilton, PLLC, Washington, DC; Thomas J. ("Seger-Thomschitz") made demand for the Painting, and Hamilton, LEAD ATTORNEY, PRO HAC VICE, Byrne, the MFA has brought this action for declaratory judgment Goldenberg & Hamilton, PLLC, Washington, DC; J. to establish that it has valid title to the Painting, to Owen Todd, Todd & Weld LLP, Boston, MA. remove the cloud on its title by defendant's claim and to enjoin her from threatening and/or instituting legal or For Dr. Claudia Seger-Thomschitz, Counter Claimant, other action against the MFA regarding the Painting. In Counter Defendant: David H. Rich, LEAD ATTORNEY, her First Amended Answer and Counterclaim (Docket # Todd & Weld, Boston, MA; Thomas J. Hamilton, LEAD 20 ("Am. Answer")), defendant seeks a declaration that ATTORNEY, PRO HAC VICE, Byrne, Goldenberg & she is the rightful owner and asserts claims for replevin, Hamilton, PLLC, Washington, DC; J. Owen Todd, Todd conversion, constructive trust, disgorgement, restitution, & Weld LLP, Boston, MA. unjust enrichment and estoppel. 1 Plaintiff has moved for Page 2 2009 U.S. Dist. LEXIS 58826, *2

summary judgment on the ground that defendant's claims by Kokoschka to a museum in Vienna. The catalog for are time barred. (Docket # 25.) Resolution of this motion this exhibition listed Reichel as having lent the Painting. requires consideration of the Painting's provenance 2 starting in 1939, when its undisputed owner, Oskar In March 1938, Nazi Germany annexed Austria, the Reichel ("Reichel"), a Jewish doctor living in Vienna, Anschluss. Shortly thereafter, Kallir transferred control of transferred it to an art dealer in Paris for sale. his gallery in Vienna to his secretary, who was not Jewish, and moved to Paris where he opened the Galerie 1 The counterclaim also includes multiple St. Etienne. In Austria, the Nazi government issued gratuitous paragraphs denouncing the MFA for regulations requiring Jews with property exceeding a assorted wrongs from violations of federal and certain value to file declarations listing all of their assets. state criminal and civil statutes, of organizational Reichel submitted such a property declaration in June codes [*3] of ethics and of federal tax 1938. It included the Painting and four other works by regulations, to the "Reckless Breach of Its Kokoschka. On February 1, 1939, Reichel transferred the Fiduciary Duties as a Public Trustee" (Am. five Kokoschka paintings [*5] to Kallir in Paris for their Answer P 107) and engaging in a "Long History sale. of Acquiring Stolen and other Illicit Artworks." (Id. P 108.) Kallir left France in August 1939, emigrated to the 2 Provenance refers to the authenticated history United States with the Painting and other works, and of ownership of a work of art. opened the Galerie St. Etienne in New York the following month. The gallery sold the Painting to the II. Factual and Procedural Background 3 Nierendorf Gallery in September 1945, which sold it later that year to E. and A. Silberman Galleries of New York. 3 The following facts concerning the case are Ownership of the Painting passed to Sarah Reed Blodgett taken primarily from plaintiff's Rule 56.1 ("Blodgett") sometime between December 1947 and Statement of Undisputed Facts (Docket # 26) April 1948. When Blodgett died in 1972, she bequeathed where not controverted by defendant's amended the Painting to the MFA, which formally acquired the Rule 56.1 statement of contested facts (Docket # work in 1973. Kallir died in 1978, but his art gallery 49). See Local Rules of the United States District continues to operate in New York City. Jane Kallir, Court for the District of Massachusetts, Rule 56.1. Kallir's granddaughter, has worked at the gallery since 1977 and is currently its co-director. The gallery The Austrian expressionist painter Kokoschka maintains an inventory card for the Painting, that shows it painted Two Nudes (Lovers), a self-portrait of the artist as having been purchased from Reichel on February 1, with his lover Alma Mahler, in approximately 1913. 1939, and lists both Blodgett and the MFA as owners of Reichel purchased the Painting from Kokoschka the work. sometime in 1914 or 1915. Reichel was an art collector and acquired several other works by Kokoschka during During the time Blodgett owned the Painting, it was this period. One, a portrait of Reichel's son Hans was included in many exhibitions across the United States. painted during the period 1908-10 when Kokoschka spent The catalog for a traveling exhibition in 1948-49 time at the Reichel home in Vienna. specified that it had been owned by "Dr. Reichel, Vienna," and was "lent by Mrs. John [*6] W. Blodgett, Reichel lent the Painting to the Neue Galeria art Jr., Portland Oregon." (Docket # 26 P 51.) Except for gallery in 1924 and again in [*4] 1933 for exhibition and periods when it has been on loan for exhibitions possible sale. The Neue Galeria, owned by a Jewish art elsewhere, the MFA has had the Painting on public dealer, Otto Kallir-Nirenstein ("Kallir"), was located in display almost continuously since it acquired the work. Vienna. Another of Reichel's sons, Raimund, arranged The Painting has been included in all three catalogues for the transfer of the Painting to Kallir in 1924, and raisonnes of Kokoschka's works published since 1939. 4 Reichel's wife Malvine signed the receipt when the A catalogue raisonne published in 1947 listed Reichel as painting was returned to the Reichel home in November a prior owner. A 1995 catalogue raisonne listed the MFA 1924 and, again, when the Painting was returned after the as the current owner and traced the work's provenance second exhibition in November 1933. In 1937, Reichel back to Reichel. Since 1972, numerous other publications and Hans arranged a loan of the Painting and other works Page 3 2009 U.S. Dist. LEXIS 58826, *6

have referenced the Painting as owned by the MFA and OR, USA; Santa Barbara, CA, USA (from listed Reichel as a prior owner. The MFA has publicized its acquisition and ownership of the work in its annual Nierendorf between 1945 and 1947) report and in several books on its collection. It published the provenance of the Painting on its web site in 1973- December 2000, and that information has been Boston, MA, USA. Museum of Fine Arts continuously available through the Internet since then. In (bequest of Platt) addition, the Painting's provenance has been included in the Getty Provenance Index since the late 1980s. 5 (database last accessed April 27, 2009).

4 A catalogue raisonne is a comprehensive Reichel died in Vienna in 1943. A third son, Max, catalog of artworks by an artist. See DeWeerth v. was killed during the war. Hans settled in Illinois in Baldinger, 836 F.2d 103, 112 (2d Cir. 1987). 1939, where he was joined by his mother after the war. 5 See The Getty Provenance [*7] Index She died in Illinois in 1951. Hans died in 1979. Raimund Databases, Public Collection record 10823. This moved to Paraguay in 1939, then lived in Argentina until database may be accessed at 1982, at which time he returned [*8] to Vienna. He http://piprod.getty.edu/starweb/pi/servl remained in Vienna until his death in 1997. While living et.starweb?path=pi/pi.web. Record 10823 shows in Vienna, Raimund corresponded with and was the Painting in the public collection of the MFA interviewed by numerous art historians concerning his and additionally notes that "[t]his record was last father's collection of Kokoschka paintings. In this modified 4 March 1987." Clicking on the correspondence, he explained that his father maintained a "Provenance" link displays the following "Kokoschka room" in the house in Vienna to display the information (errors in original): artist's work. In a 1982 letter sent to a Munich art historian, he recalled that "in 1938 my father transferred Provenance of Paintings Record 10823 the entire collection of O[skar] K[okoschka] paintings to KOKOSCHKA, OSKAR the art dealer Dr. Kailer [sic], which he sold in the USA." (Docket # 28, Ex. 65.) In another letter, sent in 1985 to a Two Nudes (Lovers) researcher working on a new catalogue raisonne of Kokoschka's works, Raimund specifically recalled his Boston, MA, Museum of Fine Arts father bringing Alma [by then] 6 Werfel to the house one Sunday and showing her the Painting hanging in the 1973.196 dining room. He further recalled:

canvas In 1938 he transferred his OK paintings - 1939 (I think there were about ten) to Kallier when the latter was emigrating to the Reichal, Oskar. Wien, Osterreich USA; exporting them was easy, since they were "degenerate", and my father made an 1939 - 1945 arrangement with Kallier to provide the proceeds to my brother who was already Saint Etienne, Galerie. New York, NY, USA over there -- Around 1940 or 41 Kallier (from Reichal) sent two-hundred-and-fifty [*9] dollars (sic), and so my brother sent me half, $ 1945 - 1945/47 125 .... Some years later I spoke with Nierendorf, (Karl), Gallery (from Kallir; Kallier in N.Y. in his Galerie St. Etienne; d.1947) he told me that he lost his shirt for it!

1945/47 - 1973 (Docket # 31, Ex. A ("(sic)" and spelling as "Kallier" in original).) The Painting was displayed in Vienna in 1991 Platt, Sarah Reed Blodgett, Mrs.. Portland, as part of a Kokoschka exposition while Raimund was Page 4 2009 U.S. Dist. LEXIS 58826, *9

living there. she first learned that she might have a claim to artworks formerly owned by Reichel when the Museums of Vienna 6 Alma Mahler-Gropius-Werfel (1879-1964) contacted her in order to return four works by Romako to was the wife, successively, of composer Gustav her. After receiving the paintings in early 2004, she Mahler, architect Walter Gropius and novelist retained a Viennese attorney for "all purposes relating to Franz Werfel. She was also the lover of several the restitution of artworks lost by Oskar Reichel due to other prominent men of her era, one of which was Nazi persecution." (Am. Answer P 105.) 8 She had Kokoschka. See, e.g., Tom Lehrer, Alma, on That worked with this attorney previously in qualifying as the Was the Year That Was (Reprise Records 1965) sole heir of Raimund, and he had dealt with the Museums (lyrics available at of Vienna concerning the restitution of the Romako http://www.casualhacker.net/tom.lehrer/t artworks. he_year-commented.html). 7 See Answer and Counterclaim P 3, Dunbar v. Reichel and Malvine were persecuted by the Nazis Seger-Thomschitz, No. 08-711 (E.D. La. filed after the Anschluss. Reichel's business was ordered June 27, 2008) (Docket # 36, Ex. A). The court closed, and he was forced to sell his ownership in takes judicial notice of this filing by defendant in property at Borsegasse 12. Malvine did not receive any a related action seeking recovery of another one monies from the sale of the family house, which she of the five Kokoschka paintings transferred to owned and sold in early 1939 to acquaintances. After the Kallir in February 1939. See E.I. du Pont de war, the Reichel family was awarded compensation for Nemours & Co., Inc. v. Cullen, 791 F.2d 5, 7 (1st the forced sale of the Borsegasse 12 property. Malvine, Cir. 1986). however, did not [*10] apply for compensation on the 8 Paragraph [*12] numbers cited in defendant's family house, and in 1949 she signed a statement Amended Answer (Docket # 20) refer to the relinquishing any claim to the property. In 1957, numbered paragraphs of her counterclaim unless Raimund engaged a lawyer in Vienna to submit otherwise noted. applications for himself and his brother Hans for compensation for paintings that had been owned by their In the fall of 2006, Seger-Thomschitz retained a law father. In the statement attached to the application, he firm in Washington, D.C., to investigate artwork in the averred that "[a] large art collection was forcibly sold: 47 United States formerly owned by Reichel. On March 12, paintings of the painter Anton Romako ["Romako"], 2007, that firm made a demand on the MFA for return of which are today to be found in Austrian Museums and the Painting to her. The MFA asked for additional time to private collections," the proceeds from which were investigate her claim and agreed to toll the statute of placed in a blocked account controlled by the Nazis. limitations from July 23, 2007, until December 2007. (Docket # 28, Ex. 60.) The paintings were identified by After its investigation, the MFA met with defendant's number from a catalogue raisonne of Romako's works. attorneys in January 2008 to inform them that it would Raimund received 5000 Schillings on the basis of this not return the Painting. The MFA explained that its application and received an additional 1400 Schillings in investigation had concluded that Reichel's sale of the 1969 in compensation for professional losses. However, Painting to Kallir was a voluntary, uncoerced transaction neither Malvine, Raimund nor Hans ever sought and, therefore, it had clear legal title to the work. restitution for any of the works by Kokoschka, nor did they seek to challenge the transfer of the Painting by On January 22, 2008, the MFA commenced the Reichel to Kallir. Reichel's 1938 asset declaration listing instant lawsuit seeking: an order quieting title to the the Painting was declassified by the Austrian government Painting pursuant to 28 U.S.C. § 1655 (Count I); a in 1993 for academic use and made available to the [*11] declaratory order that the MFA has valid title to the general public in 1998. Painting and that Seger-Thomschitz has no claim to it (Count II); and an injunction to enjoin Seger-Thomschitz Although she has no consanguinity with the Reichel or her agents from initiating or threatening [*13] legal family, 7 Raimund designated Seger-Thomschitz, a nurse, action regarding Painting (Count III). (See Docket # 1 as his "universal successor" in his will. She asserts that (the "Complaint").) The Complaint also asserts that she is Reichel's sole remaining heir. In the fall of 2003, defendant is in any event barred by the applicable statute Page 5 2009 U.S. Dist. LEXIS 58826, *13

of limitations from pursuing the Painting because its her answer and counterclaim to add counts of fraudulent provenance and whereabouts have been public concealment. (Docket # 45.) The MFA opposes the knowledge for decades. motion on the grounds that it is futile. (Docket # 52.) Seger-Thomschitz seeks leave to file a reply brief to In her initial answer (Docket # 11), filed on May 29, plaintiff's opposition (Docket # 54), which the MFA 2008, Seger-Thomschitz asserted counterclaims for opposes as "a disguised sur-reply in opposition to the replevin to recover the Painting, for conversion and for a Museum's motion for summary judgment." (Docket # declaration that she is the rightful owner of the Painting, 55.) and that the MFA has no valid title or interest in it. In an amended and corrected answer (Docket # 20), she added III. Legal Standard counts for a constructive trust, disgorgement, restitution and unjust enrichment, estoppel and injunctive relief. Her Summary judgment is appropriate if, viewing the claims are premised on her assertion that the Painting was evidence in the light most favorable to the non-moving effectively confiscated by the Nazi government once party and drawing all reasonable inferences in her favor, Reichel listed it on his property declaration in 1938, and no genuine issue of material fact remains. See Fed. R. that the transfer to Kallir's gallery in Paris was but the last Civ. P. 56(c); Casas Office Machs., Inc. v. Mita Copystar step in the confiscation. Alternatively, she construes the Am., Inc., 42 F.3d 668, 684 (1st Cir. 1994). The question transfer as a forced, and therefore, invalid sale that could of whether a suit is time-barred is a question of law suited not create valid title in any subsequent owner. In response for disposition on summary judgment as long as there are to the MFA's limitations argument in the [*14] no genuine issues of material fact about whether the suit Complaint, she asserts that no member of the Reichel [*16] was timely brought. See Morris v. Gov't Dev. Bank family knew of Kallir's wrongful acquisition and the of Puerto Rico, 27 F.3d 746, 748 (1st Cir. 1994); subsequent owners' wrongful retention of the Painting. Hallgren v. U.S. Dep't of Energy, 331 F.3d 588, 589 (8th Cir. 2003). Where, as here, the plaintiff has raised a The MFA moves for summary judgment (Docket # plausible claim that the defendant's claim to the Painting 25) because it says that defendant's claims are barred by is time-barred, she must identify a trialworthy issue to the Massachusetts three-year statute of limitations. avoid summary judgment. See McIntosh v. Antonino, 71 Defendant does not, in general, dispute the MFA's F.3d 29, 33 (1st Cir. 1995). "Although we give the statement of uncontested facts; rather, she asserts that nonmoving party the benefit of all reasonable inferences, Kallir "likely connived with Nazi authorities to obtain a party cannot rest on conclusory allegations, improbable artworks from many Jewish collectors" and accuses inferences, on unsupported speculation to defeat a motion Kallir of "exploit[ing] -- for his own personal gain -- the for summary judgment." Welch v. Ciampa, 542 F.3d 927, fact that the Nazis persecuted Jews in Vienna." (Docket # 935 (1st Cir. 2008) (internal quotation marks omitted). 49 PP 6, 9.) She also contends that Reichel's property declaration "constituted the only means of identifying the IV. Discussion specific artworks and other assets Oskar Reichel owned as of the date of the Property Declaration," and that A. The Applicable Statute of Limitations Period investigating artworks and other property confiscated by Federal courts adjudicating state claims under the Nazis requires expertise not available to a person diversity jurisdiction borrow the statute of limitations without specialized training. (Id. PP 18, 22, 23.) Finally, applicable to the action under the forum state's law. 9 See she alleges that "in acquiring the Painting from Oskar Molinar v. W. Elec. Co., 525 F.2d 521, 531 (1st Cir. Reichel, Otto Kallir [w]as acting as a de facto Nazi agent 1975) (citing Guaranty Trust Co. of N.Y. v. York, 326 and under color of Nazi authority, and that [*15] Kallir, U.S. 99, 65 S. Ct. 1464, 89 L. Ed. 2079 (1945)). Plaintiff in breach of his confidential relationship with Hans and contends that under Massachusetts law, defendant's Raimund Reichel, fraudulently concealed from them the counterclaims asserting actions of tort, actions of replevin true status he occupied when he acquired the Painting and conversion, [*17] as well as the remaining causes of from Oskar Reichel, and so their claim to recover the action that seek restitution or disgorgement based on the Painting." (Id. P 25.) same underlying claim of conversion, are all subject to a Based on this last contention, she moves to amend three-year limitations period. See Mass. Gen. Laws ch. 260, § 2A ("[A]ctions of tort, actions of contract to Page 6 2009 U.S. Dist. LEXIS 58826, *17

recover for personal injuries, and actions of replevin, premised on the proposition that, upon being notified of shall be commenced only within three years next after the her claim to the Painting, her ownership was so apparent cause of action accrues."). and clear that the refusal by the MFA to immediately hand over the Painting could only be attributed to a 9 Defendant claims federal subject matter continued pattern of "aiding, abetting, encouraging and jurisdiction under 28 U.S.C. § 1331, relying on facilitating the illegal and criminal intentional trafficking the Supreme Court's decision in Grable & Sons in stolen art and illicit cultural property." (Am. Answer P Metal Prods., Inc. v. Darue Eng'g & Mfg., 545 7.) Here, however, the alleged illegitimacy of the transfer U.S. 308, 125 S. Ct. 2363, 162 L. Ed. 2d 257 of the Painting to Kallir in 1939 is not clear-cut, and all (2005), to argue that a federal, not state, of the witnesses with first-hand knowledge of the transfer limitations period should apply. (See Docket # 41, are now deceased. Upon being notified of defendant's 2.) Grable held that "in certain cases claim to the Painting, the MFA embarked upon an federal-question jurisdiction will lie over investigation into its provenance, with particular attention state-law claims that implicate significant federal to its transfer to Kallir, before asserting its ownership. issues." Id. at 312. This allows "claims recognized (See, Compl. PP 4-6, 36; Decl. of Victoria Reed in Supp. under state law that nonetheless turn on of MFA's Mot. for Summ. J. (Docket # 28).) Other substantial questions of federal law" to be heard museums faced with similar claims in which the in federal court, even where there is no diversity circumstances of a wartime transfer made the legitimacy of citizenship between the parties. Id. Here, of the transfer debatable have also refused to summarily reliance on Grable is unnecessary because subject return the artworks and, instead, sought declaratory matter jurisdiction is established by the complete judgments of ownership. See, e.g., [*20] Toledo Museum diversity between the MFA and of Art v. Ullin, 477 F. Supp. 2d 802, 804-05 (N.D. Ohio Seger-Thomschitz. [*18] (See Compl. P 9; Am. 2006); The Detroit Institute of Arts v. Ullin, No. Answer P 18.) In addition, even if Grable had 06-10333, 2007 U.S. Dist. LEXIS 28364, 2007 WL some applicability, its holding does not implicate 1016996, at *1 -2 (E.D. Mich. Mar. 31, 2007); see also the rule, stated supra, that federal courts Orkin v. Taylor, 487 F.3d 734, 737 (9th Cir. 2007) adjudicating state claims apply the state (contesting a claim of ownership based on a similar limitations period to the action. Thus, defendant's theory of economic coercion and that the painting at issue counterclaims seeking recovery of the Painting had been sold "under duress"). Therefore, I find no would still be governed by the Massachusetts evidence of bad faith, laches or unclean hands by the limitations period for tort and replevin claims, MFA that would justify setting aside the Massachusetts even if jurisdiction were established under three-year limitations period. Grable. Seger-Thomschitz's asserts that her counterclaims In response, defendant urges this court to "invoke its sound in contract, not tort, because the MFA has violated federal common law authority to displace the provincial an "express contract with the public" as well as a contract Massachusetts limitations period with the equitable with the federal government created by its tax-exempt doctrines of laches and unclean hands," arguing that the status. This argument, while creative, is without merit. MFA "wrongfully acquired and detains the Painting" in "Under Massachusetts law, the determination of whether violation of its duties as a tax exempt organization. the contract or tort statute of limitations applies is (Def.'s Opp'n to Summ. J. (Docket # 41), 1.) She further controlled by the essential nature of a party's claim." contends that, should the court choose to apply Oliveira v. Pereira, 414 Mass. 66, 605 N.E.2d 287, 290 Massachusetts law, her counterclaims "sound in contract (Mass. 1992). Defendant does not allege the existence of not tort," and thus are subject to a six-year limitations any agreement between herself and plaintiff; rather, her period, because they "are premised upon MFA's violation contract claim purports to enforce the rights of the [*21] of its implied promise under [26 U.S.C.] § 501 (c)(3) and public and the United States government as parties to breach of express contract with the public." (Id.) separate contracts with plaintiff. 10 Moreover, a plain reading of her counterclaim alleges that the MFA Defendant's suggestion that this court ignore [*19] wrongfully obtained property properly belonging to her the state limitations period on equitable grounds is and that she now seeks its return. (See, e.g., Am. Answer Page 7 2009 U.S. Dist. LEXIS 58826, *21

P 7 (contending that the MFA "wrongfully detained the Koe v. Mercer, 450 Mass. 97, 876 N.E.2d 831, 836 Painting from Dr. Seger-Thomschitz after the MFA (Mass. 2007) (citing Bowen v. Eli Lilly & Co., 408 Mass. learned, dispositively, that the Nazis confiscated the 204, 557 N.E.2d 739 (1990)). "A plaintiff is considered to painting") (emphasis, both boldface and italics, in be on 'inquiry notice' when the first event occurs that original).) Such a claim sounds clearly in tort, not would prompt a reasonable person to inquire into a contract, and thus is subject to the three-year limitations possible injury . . . ." Epstein v. C.R. Bard, Inc., 460 F.3d period. See Oliveira, 605 N.E.2d at 290-91; cf. Aimtek, 183, 187 (1st Cir. 2006) (emphasis added) (applying Inc. v. Norton Co., 69 Mass. App. Ct. 660, 870 N.E.2d Massachusetts law). Seger-Thomschitz asserts that her 1114, 1119-20 (Mass. App. Ct. 2007) (holding that a counterclaim is timely because no member of the Reichel dispute resulting from a consensual arrangement between family could have known that the Nazis stole the the parties was contractual in nature and thus subject to Painting, and she was unaware the Nazis stole the the six-year limitations period). Painting until her attorneys so advised her in 2006. (See Am. Answer PP 86-106.) A party asserting the discovery 10 Defendant asserts that the MFA has formed rule "bears the burden of proving both an actual lack of an express contract with the public "by soliciting causal knowledge and the objective reasonableness of charitable contributions based on its status as an that lack of knowledge." Koe, 876 N.E.2d at 836 (internal 'Accredited Museum' of the American Association quotation marks and citation omitted). of Museums (AAM)." (Docket # 14, 14.) Even assuming such a contract exists, 1. Knowledge of the Reichel Family Seger-Thomschitz, an Austrian citizen residing in [*22] Vienna, has not pled facts that would Here, the evidence is undisputed that the members of establish her standing to enforce the rights of the Reichel family had sufficient knowledge of Reichel's members of the public who have been solicited ownership and transfer of the Painting to put them on for charitable contributions by the museum. As to notice [*24] of a possible injury long before defendant her tax exempt contract theory, not only has "the contacted the MFA. As discussed supra, Part II, Malvine, Supreme Court [] long denied attempts to Raimund and Hans all knew of Reichel's ownership of characterize a tax exemption as a contract" Amato the Painting before the war, and Raimund was aware that v. UPMC, 371 F. Supp. 2d 752, 756 (W.D. Pa. his father transferred the Painting, along with other 2005), but the federal courts have consistently paintings by Kokoschka, to Kallir for their sale. At some held that tax-exempt status does not confer private point in 1940 or 1941, Kallir sent the proceeds in the rights of action on American citizens. See, e.g., amount of $ 250 to Hans, who forwarded half to Harrison v. Christus St. Patrick Hosp., 430 F. Raimund. Raimund recalled visiting Kallir at his New Supp. 2d 591, 595 (W.D. La. 2006); Amato, 371 York gallery after WWII and discussing the Painting and F. Supp. 2d at 756; Ferguson v. Centura Health its sale with him. Corp., 358 F. Supp. 2d 1014, 1016 (D. Colo. 2004). As an Austrian citizen, defendant has no In addition, although the Reichel family never more standing than an American citizen to claimed compensation for any of the Kokoschka works interject herself in such disputes. that had been transferred to Kallir for sale, it did claim restitution for artwork and property that had been stolen B. The Massachusetts Discovery Rule by the Nazis. It received compensation for the forced sale of the Borsegasse 12 property, and both Raimund and Under Massachusetts law, the general rule is that Hans submitted applications for compensation for their causes of action in tort accrue when the plaintiff is father's Romako collection, which he was admittedly injured. E.g., Joseph A. Fortin Const., Inc. v. forced to sell. Massachusetts Hous. Fin. Agency, 392 Mass. 440, 466 N.E.2d 514, 516 (Mass. 1984). However, under the Finally, the location of the Painting has been readily discovery rule exception, the limitations period does not ascertainable since at least 1945. Kallir's New York begin to run in circumstances where "the plaintiff [*23] gallery, which has moved only once since its founding, did not know or could not reasonably have known that he maintained a record of the several owners [*25] of the or she may have been harmed by the conduct of another." work. Raimund visited Kallir at the gallery and he knew that Kallir had sold the Painting after he came to the Page 8 2009 U.S. Dist. LEXIS 58826, *25

United States. Since the Painting was given to the MFA, contracted with an art recovery company to search for it has been on display almost continually and its artworks still missing. It was not until 2003 that the provenance, including Reichel's ownership, was widely painting-at-issue was put up for sale by the wartime recorded in several catalogues raisonnes of Kokoschka's buyer's step-daughter and its location came to the works. Indeed, the Painting was exhibited in Vienna attention of the Stern estate. 13 Unlike the instant case, while Raimund lived there. the ownership of the painting was not in question, nor did the step-daughter contest the estate's claim of ownership; Given this evidence, Hans, Raimund and Malvine all rather, she relied on the affirmative defense of laches. In had ample notice of any possible claim to the Painting rejecting this defense, the court below held that Stern and decades before the filing of this lawsuit. 11 Although his successors-in-interest were not barred from Seger-Thomschitz accuses Kallir of dealing in stolen recovering the work because they "had pursued their Nazi art (Am. Answer P 53) and alleges that all Jewish claim to the Painting diligently," and the defendant had property in Austria was "effectively seized by the Nazis not shown that she was prejudiced by the delay in no later than November 1938" (id. P 44), these bringing suit. Id. at 57. The First Circuit affirmed on the allegations only emphasize that an objective person latter ground. See id. at 57-59. would have been on notice to investigate the circumstances surrounding the transfer of the Painting to 12 Seger-Thomschitz also submits an order and Kallir. Indeed, according to defendant, the MFA "has opinion from a case in the Southern District of known since 1983 that the Nazis likely stole the Painting" New York as relevant to this case. However, that based solely on the fact that "Oskar Reichel, a persecuted opinion provides insufficient explanation for the Jew, 'sold' it in February 1939 in Vienna Austria to art court's conclusion that "disputed questions of dealer Otto Kallir." (Id. P 107.) [*26] The Reichel family [*28] material fact preclude its ruling finally on had this same information. the issue of laches" to illuminate the present dispute. (Docket # 57, Ex. A, 3.) 11 In addition, the fact that the Reichel family 13 Plaintiff Vineberg was an executor of Stern's sought compensation for some wartime assets estate and a trustee of the Dr. and Mrs. Stern while disclaiming other assets is evidence that its Foundation. failure to challenge the transfer of the Painting to Kallir was not due to mere inadvertence or Here, the basic issue is whether the transfer to Kallir ignorance of its right to restitution. in 1939 was legitimate, and thus, who is the rightful owner of the painting. Unlike Stern and his successors, The Reichel family's post-war conduct is in stark the Reichel family never attempted to recover the contrast to actions by the original artwork owner in Painting after WWII, and there is no evidence that it Vineberg v. Bissonnette, 548 F.3d 50 (1st Cir. 2008), believed the transfer was not legitimate. In addition, the supplemental authority submitted by defendant. 12 (See delay in bringing suit will prejudice the MFA because all Docket # 56.) In Vineberg, Dr. Stern ("Stern"), a Jewish of the witnesses with actual knowledge of the transfer are art dealer, was forced by the Nazis to liquidate his gallery now deceased. See Am. Pipe & Const. Co. v. Utah, 414 and inventory. However, unlike the Reichels, he actively U.S. 538, 554, 94 S. Ct. 756, 38 L. Ed. 2d 713 (1974) sought recovery of his paintings "[i]n the immediate ("[S]tatutory limitation periods are designed to promote aftermath of World War II." He placed advertisements in justice by preventing surprises through the revival of 1948 and 1952 to track down his missing art, "visited claims that have been allowed to slumber until evidence Europe in 1949 to hunt for his missing artworks" and has been lost, memories have faded, and witnesses have "pursued claims for monetary compensation in the disappeared.") (internal quotation marks and citation German restitution courts." Id. at 53. During his lifetime, omitted). Stern was unable to recover the painting that was the subject of the lawsuit because, unbeknownst to him, it 2. Knowledge of Seger-Thomschitz had been sold during the war and was being held in a private [*27] collection, with only a single brief public Even if the limitations period was tolled during exhibition. After Stern's death, his estate listed the Raimund's lifetime for some reason, defendant is still painting on Germany's Lost Art Internet database and barred because she waited more [*29] than three years to assert her claim after she was on inquiry notice of her Page 9 2009 U.S. Dist. LEXIS 58826, *29

possible right to the Painting. Seger-Thomschitz admits (internal quotation marks and citation omitted). that she "first learned that the Nazis had confiscated artworks from Oskar Reichel in the Fall of 2003 when the Defendant bases her motion to amend on several of Museums of Vienna contacted her concerning their intent the letters written by Raimund to art historians that the to return to her as the sole heir of Oskar Reichel four MFA submitted in support of its motion for summary artworks in their collection by the artist Anton Romako . . judgment. (See Docket # 28, Ex. 65; Docket # 31, Ex. A.) . ." (Am. Answer P 103.) Although she disclaims any In one of these letters, Raimund erroneously wrote that specialized knowledge or familiarity with the art world, the transfer of the Painting took place "in 1938," not a she understood that she had a claim to paintings formerly month later on February 1, 1939, and equivocally recalled belonging to Reichel and, in fact, retained counsel in that there were ten Kokoschkas transferred, not five. She 2004, well within the limitations period, "for all purposes asserts, "upon information and belief," that this evidence relating to the restitution of artworks lost by Oskar shows that "Raimund had been totally misled by Otto Reichel due to Nazi persecution." (Id. P 105.) Kallir," and that Kallir told Raimund "that the sale [of the Kokoschka paintings] was a volitional sale that occurred The information necessary to pursue her claim was in 1938, rather than in 1939." (Docket # 46, 4.) readily available to both defendant and her counsel at that time. The Austrian government had made Property Seger-Thomschitz's assertion that Kallir misled Declarations generally available in 1998; therefore, Raimund as to the date of the transfer and the number of Reichel's declaration (showing his ownership of the paintings is pure speculation. There is no evidence that Painting) was accessible in 2003. (Docket # 36, Ex. A P any of the errors (including the several misspellings of 90.) In addition, not only was Reichel's prior ownership Kallir's name) in the letters Raimund wrote forty-five of the Painting listed on [*30] the MFA's web site, in the years after [*32] the events he was recounting were the Getty Provenance Index and in the several catalogues result of statements made to him by Kallir. Even if Kallir raisonnes of Kokoschka's works, but a book published in did mislead Raimund and his brother, fraudulent Vienna in 2003 included a picture of the Painting, traced concealment by Kallir would not toll the limitations its provenance from Reichel to the MFA, included a period of defendant's counterclaims against the MFA. See transcription of Reichel's April 1938 property declaration Mass. Gen. Laws ch. 260, § 12 ("If a person liable to a listing the Painting and described the sale of the work to personal action fraudulently conceals the cause of such Kallir and its subsequent exhibition in the United States action from the knowledge of the person entitled to bring at the Galerie St. Etienne. (Docket # 28 PP 45-46; id. Ex. it, the period prior to the discovery of his cause of action 50.) The conclusion is inescapable that, in 2003, by the person so entitled shall be excluded in determining defendant knew or should have known of Reichel's the time limited for the commencement of the action.") previous ownership of the Painting, his transfer of the (emphasis added). Defendant cites no evidence that the Painting to Kallir and the MFA's current ownership, all of MFA concealed any cause of action from the Reichel which was public knowledge and easily discoverable. family or from her. Finally, even if fraudulent Because she did not make a demand on the MFA until concealment by Kallir tolled the limitations period as to 2007, Seger-Thomschitz's claims are time-barred, even if the Reichel family, defendant's counterclaims are the cause of action were tolled until 2003. time-barred because she knew of her claim in 2003. See discussion supra, Part IV.B.2. V. Defendant's Motion to Amend Her Counterclaim In addition, although she describes the evidence on Seger-Thomschitz moves to amend her First which she bases her motion to amend as "previously Amended Counterclaim to add allegations of fraudulent unknown to Seger-Thomschitz" (Docket # 45, 1), these concealment by Kallir. (Docket # 45). Because letters were obtained by the MFA from third parties defendant's counterclaim would still be time-barred even unassociated with either the MFA or defendant [*33] in if amended, amendment would be futile. See Adorno v. its investigation of her demand. (See Docket # P 57 Crowley Towing and Transp. Co., 443 F.3d 122, 126 (1st (Declaration of the MFA's Asst. Curator for Provenance Cir. 2006) [*31] ("Consent to file amended pleadings attesting that she "contacted Marie-Agnes von Puttkamer, shall be freely given when justice so requires unless the an art historian and art dealer" in July 2008 to obtain the amendment would be futile or reward undue delay.") 1982 letter); Docket # 31 (Declaration of Johann Page 10 2009 U.S. Dist. LEXIS 58826, *33

Winkler, a Vienna based researcher of the life and work warning"). Unlike the situations in the cases she cites in of Kokoschka, explaining his possession of the 1985 support of her motion, here Reichel's prior ownership of letter).) Seger-Thomschitz had the same opportunity to the Painting and its current location were easily obtain this evidence as did the MFA, and it would be discoverable. unfair to plaintiff and the public to delay resolution of this case because of her failure to investigate the Second, she rebuts the MFA's contention that even if circumstances of the transfer of the Painting. See Wolf v. Kallir had fraudulently concealed information from the Reliance Standard Life Ins. Co., 71 F.3d 444, 450 (1st Reichel brothers, it would not toll the limitations period Cir. 1995). The motion to amend is denied. against the MFA. However, the basis for her rebuttal is that the limitations period should be equitably [*35] VI. Defendant's Motion to File a Reply Brief tolled due to the MFA's unclean hands, an argument I have already rejected. See supra, Part IV. A. Defendant's motion to file a reply to the MFA's opposition to her motion to amend (Docket # 54) is VII. Conclusion allowed, however, the arguments presented in that reply (id., Ex. A) do not change my decision as to her motion Accordingly, defendant's motion to file a reply brief to amend. She first argues that the discovery rule is fact (Docket # 54) is ALLOWED. Defendant's motion to intensive and that the limitations period did not begin to amend her counterclaim (Docket # 45) is DENIED. run until she learned that Reichel had owned the Painting, Plaintiff's motion for summary judgment (Docket # 25) is that it [*34] had been transferred to Kallir and that the ALLOWED. MFA now owned it. Seger-Thomschitz's thesis, however, that her retention of an attorney in Vienna in 2004 Plaintiff shall submit an agreed form of judgment followed by her "commencing negotiations and hiring her within 10 days. present counsel" (id. at 7) is adequate to toll the statute of May 28, 2009 limitations, does not comport with Massachusetts law. See, e.g., Koe, 876 N.E.2d at 836; Epstein, 460 F.3d at DATE 187; see also Bernier v. Upjohn Co., 144 F.3d 178, 180 (1st Cir. 1998) (refusing to apply the Massachusetts /s/ Rya W. Zobel discovery rule where plaintiff did not "offer any rationale for concluding that her attorney could not have RYA W. ZOBEL discovered [a relevant document] in 1980 as readily as he did in 1994" and cautioning that "lawyers faced with UNITED STATES DISTRICT JUDGE deadlines in the future should treat this case as a Page 1

THE MUSEUM OF MODERN ART, and THE SOLOMON R. GUGGENHEIM FOUNDATION, Plaintiffs, -v- JULIUS H. SCHOEPS, Defendant.

07 Civ. 11074 (JSR)

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK

549 F. Supp. 2d 543; 2008 U.S. Dist. LEXIS 30717

April 14, 2008, Decided April 14, 2008, Filed

SUBSEQUENT HISTORY: Later proceeding at claimant could not sue on behalf of the estate without Schoeps v. Museum of Modern Art, 594 F. Supp. 2d 461, obtaining letters of appointment. As the museums did not 2009 U.S. Dist. LEXIS 5647 (S.D.N.Y., 2009) seek to finally adjudicate their title as against the entire estate, but only as against the claimant, the court held that PRIOR HISTORY: Schoeps v. Andrew Lloyd Webber the state court ruling was inapposite. The court further Art Found., 17 Misc. 3d 1128A, 851 N.Y.S.2d 74, 2007 found that a declaratory judgment suit was appropriate. N.Y. Misc. LEXIS 7681 (2007) As the claimant had stated his clear intention to pursue every avenue to regain possession of the paintings, the CASE SUMMARY: museums were not obliged to wait for the claimant to follow through with his threats. Since the museums only sought to adjudicate their rights as against the claimant, PROCEDURAL POSTURE: Plaintiff museums filed a joinder of the other heirs of the alleged rightful owner declaratory judgment action against defendant, a claimant was not necessary. to two paintings, seeking a declaration that the claimant had no valid claim of ownership to the disputed OUTCOME: The court denied the motion to dismiss. paintings. The claimant moved to dismiss the lawsuit, contending that he lacked standing and legal capacity to LexisNexis(R) Headnotes defend, and that, as a prudential matter, a declaratory judgment action against him was inappropriate.

OVERVIEW: The claimant demanded the return of the paintings, contending that they had been sold to the Civil Procedure > Parties > Capacity of Parties > museums' donors under duress. In moving to dismiss the General Overview suit, the claimant contended that he lacked capacity to be [HN1] Under Fed. R. Civ. P. 17(b)(1), the capacity to sue sued, citing a recent state court ruling, which had or be sued of an individual who is not acting in a dismissed a similar suit regarding another painting, representative capacity is determined by the law of the wherein the state court had found that the suit should individual's domicile. have been brought on behalf of all of the heirs of the alleged rightful owner of the painting, and that the Page 2 549 F. Supp. 2d 543, *; 2008 U.S. Dist. LEXIS 30717, **

Civil Procedure > Declaratory Judgment Actions > Evan A. Davis, LEAD ATTORNEY, Cleary Gottlieb Federal Judgments > Factors Steen & Hamilton, LLP, New York, NY. [HN2] 28 U.S.C.S. § 2201(a) authorizes a declaratory judgment remedy in cases "of actual controversy." The For Julius H. Schoeps, Defendant: David George actual controversy requirement is met where there is a Smitham, Bressler, Amery & Ross, PC (NYC), New substantial controversy, between parties having adverse York, NY. legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment. JUDGES: JED S. RAKOFF, U.S.D.J.

OPINION BY: JED S. RAKOFF Civil Procedure > Declaratory Judgment Actions > Federal Judgments > Scope OPINION [HN3] The declaratory-judgment remedy gives a means by which rights and obligations may be adjudicated in cases involving an actual controversy in cases in which a [*544] OPINION AND ORDER party who could sue for coercive relief has not yet done so. JED S. RAKOFF, U.S.D.J. This action for declaratory judgment concerns the Civil Procedure > Parties > Joinder > Necessary Parties ownership of two rather celebrated Pablo Picasso [HN4] Courts frequently do--and indeed should--consider paintings, Boy Leading a Horse, currently in the the issue of joinder sua sponte because a primary purpose permanent collection of plaintiff the Museum of Modern of Fed. R. Civ. P. 19 is to protect the rights of an absentee Art, and Le Moulin de la Galette, currently in the party. permanent collection of plaintiff the Solomon R. Guggenheim Foundation. (Collectively, the two plaintiffs are referred to as the "Museums.") The two paintings Civil Procedure > Parties > Joinder > Necessary Parties were at one time in the private collection of Paul von [HN5] Where a party seeks simply to adjudicate its rights Mendelssohn-Bartholdy (1875-1935), a prominent Jewish as against a particular claimant but not finally allocate banker and art collector who lived in Berlin during the title, it is not necessary to join other claimants. Nazis' rise to power. Complaint for Declaratory Relief ("Compl.") P 2. Around or before the time of von Civil Procedure > Judgments > Preclusion & Effect of Mendelssohn-Bartholdy's death, the paintings were sold Judgments > Estoppel > Collateral Estoppel to Justin K. Thannhauser, [**2] who sold Boy Leading a Real Property Law > Estates > Concurrent Ownership > Horse to William S. Paley in 1936. Id. PP 1,3. Tenancies in Common Thannhauser donated Moulin de la Galette to the Real Property Law > Title Quality > Adverse Claim Guggenheim Foundation in 1963, and Paley donated Boy Actions > Quiet Title Actions Leading a [*545] Horse to the Museum of Modern Art [HN6] A judgment in an ejectment or quiet title action in 1964. Id. P 1. will not affect the interests of others than the parties or On March 28, 2007, counsel to defendant Julius H. those in privity with them. Such actions do not operate in Schoeps (the grand-nephew of von rem upon the land itself, and therefore principles of Mendelssohn-Bartholdy) sent letters to each Museum collateral estoppel by judgment are not implicated. A stating that counsel represented both Schoeps and other plaintiff in possession of property may bring suit to quiet heirs of von Mendelssohn-Bartholdy and that they title against any or all tenants-in-common with competing believed that von Mendelssohn-Bartholdy sold the claims. paintings under duress. See Request for Provenance Information and Documents Regarding Pablo Picasso's COUNSEL: [**1] For the Museum of Modern Art, Boy Leading a Horse, Ex. 1 to Declaration of Evan A. Plaintiff: Evan A. Davis, LEAD ATTORNEY, Cleary Davis ("Davis Decl."); Request for Provenance Gottlieb Steen & Hamilton, LLP, New York, NY. Information and Documents Regarding Pablo Picasso's For The Solomon R. Guggenheim Foundation, Plaintiff: Le Moulin de la Galette, Ex. 2 to Davis Decl. This Page 3 549 F. Supp. 2d 543, *545; 2008 U.S. Dist. LEXIS 30717, **2

precipitated several months of correspondence between accordingly, Schoeps, who had not been so appointed, Schoeps's counsel and the Museums that culminated on "lack[ed] standing or the legal capacity to commence an November 1, 2007, when Schoeps's counsel sent letters to action on behalf of [the] estate." Id. at *2-4. both Museums demanding that the Museums return the paintings to the heirs by November 12, 2007. See 2 Schoeps initially brought the suit in federal Demand for Return of Pablo Picasso's Le Moulin de la court under a theory that, this Court found, failed Galette, Ex. 13 to Davis Decl., at 1; Demand for Return to state a federal claim. The federal suit was of [**3] Pablo Picasso's Boy Leading a Horse, Ex. 14 to therefore dismissed for lack of jurisdiction, Davis Decl., at 1. The letters further stated that if the without prejudice to being re-filed in state court. Museums did not agree to return the Paintings by that See Order, Schoeps v. The Andrew Lloyd Webber time, Schoeps's counsel would "take whatever actions we Art Foundation, No. 06 Civ. 12934 (S.D.N.Y. deem appropriate to protect the rights of our clients." Id. Nov. 7, 2006). [**5]

In response, the Museums promptly initiated this Schoeps, who took the position in Webber that the action for declaratory relief, asking the Court to find that EPTL did not apply, has [*546] represented to this Schoeps has no valid claim to the paintings. As the Court that he "emphatically disagrees" with the Supreme Museums subsequently confirmed, the lawsuit names Court's decision and that he has filed both a motion for Schoeps only in his individual capacity, rather than as a leave to reargue and a Notice of Appeal. Memorandum of representative of von Mendelssohn-Bartholdy's estate or Points and Authorities in Support of Defendant Julius H. of all of the heirs. See Memorandum of Law in Schoeps' Motion to Dismiss Plaintiffs' Complaint for Opposition to Defendant Julius H. Schoeps' Motion to Declaratory Relief ("Def. Mem.") at 14-15 n.8. Dismiss the Complaint for Declaratory Relief, at 1, 8; see Meanwhile, however, Schoeps has initiated the process of also transcript, 3/5/08. applying to the Surrogate's Court for appointment as personal representative of the estate. See transcript, Schoeps now moves to dismiss the complaint on two 3/5/08. grounds: first, that under a recent ruling of the New York Supreme Court for New York County in Schoeps v. The In the instant motion, Schoeps asserts that, because Andrew Lloyd Webber Art Foundation, 17 Misc. 3d Webber held that he did not have "standing or the legal 1128A, 851 N.Y.S.2d 74, 2007 NY Slip Op 52183U (N.Y. capacity" to bring suit, it follows that he cannot be named Sup. Ct. Nov. 19, 2007) ("Webber"), he lacks "standing" as a defendant in this action. Webber, however, addressed and the "legal capacity" to defend this suit; and second, the limited question of whether Schoeps had that, as a prudential matter, a declaratory judgment action representative standing or representative capacity to against Schoeps in [**4] his individual capacity is bring an action on behalf of the entire estate seeking inappropriate. 1 restoration of property thereto. 3 Here, by contrast, the Museums do not seek to finally adjudicate their title to 1 Schoeps also moves to dismiss the complaint the paintings as against the entire [**6] estate; rather, on the ground that the Museums have abused the they seek a declaration only vis-Ã-vis Schoeps as an declaratory judgment remedy. That argument is individual. Webber says nothing about this question, and addressed below. is therefore inapposite.

In Webber, Schoeps brought suit to recover another 3 Webber refers both to Schoeps's lack of Pablo Picasso painting from von "standing" and his lack of "capacity"; Schoeps's Mendelssohn-Bartholdy's collection that is now in submissions also refer to his "authority" to sue. possession of the Andrew Lloyd Webber Art Foundation. While these terms all have distinct meanings, see 2 Despite Schoeps's claim that he represented all of the Black's Law Dictionary 142, 220, 1142 (8th ed. heirs of von-Mendelssohn-Bartholdy, the Supreme Court 2004) (defining "authority" as "[t]he right or refused to let him proceed with the action on the heirs' permission to act legally on another's behalf, behalf. Under the New York Estates, Powers and Trusts "capacity" as "the satisfaction of a legal Law ("EPTL"), the Court found, an individual may only qualification . . . that determines one's ability to bring an action on behalf of an estate if he has obtained sue or be sued," and "standing" as "[a] party's letters of appointment from New York Surrogate's Court; right to make a legal claim or seek judicial Page 4 549 F. Supp. 2d 543, *546; 2008 U.S. Dist. LEXIS 30717, **6

enforcement of a duty or right"), it is clear that in individual capacity, however, it does not necessarily the context of Webber they all refer generally to follow that a declaratory judgment against one individual the ability of Schoeps to bring suit on behalf of heir is an appropriate way to proceed. That question the entire estate. involves both an issue of law and an issue of discretion. The issue of law is whether there is an "actual [HN1] Under Federal Rule of Civil Procedure controversy" for declaratory judgment purposes, i.e., 17(b)(1), the capacity to sue or be sued of "an individual whether Schoeps as an individual actually has an interest who is not acting in a representative capacity" is adverse to that of the Museums. See [HN2] 28 U.S.C. § determined "by the law of the individual's domicile" - in 2201(a) (authorizing declaratory judgment remedy in Schoeps's case, Germany. 4 See Compl. P 19. Following cases "of actual controversy"); MedImmune, Inc. v. initial briefing and oral argument on this motion on Genentech, Inc., 549 U.S. 118, 127 S. Ct. 764, 771, 166 March 5, 2008, the Court requested that the [**7] parties L. Ed. 2d 604 (2007) (holding that actual controversy provide further briefing on, inter alia, what German law requirement is met where [**9] "there is a substantial provides as to Schoeps's capacity to be sued in the instant controversy, between parties having adverse legal action. In response, the Museums submitted a statement interests, of sufficient immediacy and reality to warrant of German law from Wolfgang Ernst, Professor of the issuance of a declaratory judgment"). Schoeps argues Private Law and Roman Law at the University of Zurich, that Webber bars him from asserting a claim as an attesting that under German law a declaratory suit such as individual to recover the paintings, and that the most that this one could proceed against Schoeps in his individual the Museums can hope to achieve as a result of this capacity. See Letter of Wolfgang Ernst, dated March 28, lawsuit is a declaration to the same effect. 2008, Ex. A to Memorandum of Law in Response to Order Dated March 25, 2008 Requesting Additional The argument is unpersuasive, however, for several Information and in Further Opposition to Defendant reasons. To begin with, it is completely inconsistent with Julius H. Schoeps' Motion to Dismiss the Complaint for Schoeps's repeatedly stated position that Webber was Declaratory Relief, at 3 (concluding that the "'law of the erroneously decided, and that he will take every land'" in Germany, as decided by the German Federal appropriate step to try to have it reversed. Indeed, he has Court, is that "a single co-heir can be sued for a negative already filed a notice of appeal, which if successful, declaration, since the defendant could 'comply' with the would render his argument here entirely without support. judgement without the assistance of his co-heirs"). See 6 Moreover, Schoeps has hedged his bets by beginning also Bundesgerichtshof [BGH] [Federal Court of Justice] the process of obtaining letters of appointment from the May 20, 1992, IV ZR 231/91, 1992 Neue Juristische New York Surrogate's Court. As a practical matter, Wochenschrift-Rechtsprechungsreport [NJW-RR] 1151 therefore, it is entirely possible that Schoeps will become (F.R.G.). Schoeps has offered no contrary view of the estate representative during the pendency of this German law. 5 lawsuit, and could be substituted as such.

4 The capacity to sue or be sued of one [**8] 6 The Court makes clear, however, that it in no acting in a representative capacity is determined way opines on the correctness of Webber. by "the law of the state where the court is located." Fed. R. Civ. P. 17(b)(3). More fundamentally, [**10] Webber, as Schoeps 5 Schoeps argues that Ernst's statement "is conceded at oral argument, is not binding on this or any riddled with precautions and qualifications" that other federal court, or presumably even another state's render it a "tenuous basis" on which to find that court. See transcript, 3/5/08. Schoeps consistently has Schoeps has capacity. See Reply Memorandum of maintained, at least since his November 2007 demand Law in Compliance with the Court's March 25, letters, that he will "take whatever actions" he deems 2008 Order, at 11. The Court, however, finds necessary to recover the paintings that are at issue in this Ernst's statement unequivocal on the relevant case. See Exs. 13-14 to Davis Decl. That could well point, and, as noted, Schoeps has offered no include bringing lawsuits that are in no way barred by contrary German authority. Webber.

[*547] Simply because Schoeps may be sued in his Moreover, even with respect to New York actions, the New York case law Schoeps cites for the proposition Page 5 549 F. Supp. 2d 543, *547; 2008 U.S. Dist. LEXIS 30717, **10

that when a personal representative has been appointed to nature and so state law, rather than federal, administer the affairs of an estate, individual legatees controls here. Apart from the capacity issue, (like Schoeps) are legally precluded from litigating which is governed by Federal Rule of Civil ownership rights in estate property is inapposite, as no Procedure 17 and so is not susceptible to Erie personal representative has yet been appointed in this analysis, the question of whether or not to apply case. As the Museums have pointed out, given that there New York probate law to this action is simply not is no estate representative, the only defendant they could before the Court. name in this lawsuit was the one heir whose specific identity was known to them: Schoeps himself. To require In these circumstances, it would be inappropriate for the Museums to wait to file an action to quiet their title the Court to deny plaintiffs the right to proceed, even in while Schoeps takes steps (or not, as he chooses) to be the exercise of the Court's discretion. 8 Indeed, with appointed [**11] estate representative would grant to respect to discretionary issues, the only one that the Court Schoeps the unilateral power - to refuse to initiate a finds it prudent to consider is whether [**13] the lawsuit while hanging the threat of one over the remaining heirs of von Mendelssohn-Bartholdy, of whom Museums - that the declaratory judgment remedy is there are apparently around forty, see transcript 3/5/08, designed to temper. See 10B Wright & Miller, Federal should be joined to this lawsuit under Federal Rule of Practice and Procedure § 2751 (3d ed. 2007) ("Wright & Civil Procedure 19(a). Although neither party has moved Miller") ([HN3] "[T]he declaratory-judgment remedy . . . for joinder, [HN4] courts frequently do-and indeed . gives a means by which rights and obligations may be should-consider the issue sua sponte because a primary adjudicated in cases involving an actual [*548] purpose of Rule 19 is to protect the rights of an absentee controversy . . . in cases in which a party who could sue party. See Mastercard Int'l, Inc. v. Visa Int'l Serv. Ass'n, for coercive relief has not yet done so."). 471 F.3d 377, 382-383 (2d Cir. 2006). As the Museums repeatedly have emphasized, however, they seek in this Under these circumstances, the Court finds that this action declarations of their property rights in the is "a concrete case admitting of an immediate and paintings only vis-Ã-vis [*549] Schoeps as an definitive determination of the legal rights of the parties," individual, rather than a final adjudication that they hold such that a declaratory judgment remedy is appropriate. title to the paintings. They do so because it is Schoeps Dr. Beck & Co. G. M. B. H. v. General Electric Co., 317 who has challenged their ownership. Consequently, there F.2d 538, 539 (2d Cir. 1963) (internal quotation marks is neither a risk that "in [the heirs'] absence, the court omitted). 7 The simple fact is that Schoeps, as the most cannot accord complete relief among existing parties," assertive heir of von Mendelssohn-Bartholdy, has stated Fed. R. Civ. P. 19(a)(1)(A), nor a risk that resolving the his clear intent to pursue every avenue to obtain the instant controversy in the heirs' absence will legally or Picasso paintings he believes were wrongfully forced "as a practical matter" impair the heirs' ability to protect from his distinguished ancestor. The Museums, as the their own interests in the paintings, Fed. R. Civ. P. possessors of two of those paintings, need not be [**12] 19(a)(1)(B)(i). obliged to sit on their hands while Schoeps decides when next to attack. See Wright & Miller § 2751 ("[The 8 There is no merit [**14] to Schoeps's claim declaratory judgment remedy] relieves potential that dismissal is warranted in the exercise of the defendants 'from the Damoclean threat of impending Court's discretion because the Museums filed this litigation which a harassing adversary might brandish, suit "surreptitiously to gain an improper while initiating suit at his leisure-or never.'" (citing Japan procedural advantage," Def. Mem. at 15, and thus Gas Lighter Ass'n v. Ronson Corp., 257 F. Supp. 219, have abused the declaratory judgment remedy. 237 (D.N.J.1966)). Indeed, given that it was Schoeps who initially threatened the Museums with litigation, it is 7 The Court need not address Schoeps's difficult to take this argument seriously. More argument under Erie Railroad Company v. importantly, Schoeps can identify no "illicit Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. tactical advantage," Def. Mem. at 17, that the 1188 (1938), raised for the first time in his reply Museums have obtained by filing suit. His to the Court's March 25, 2008 Order, which is contention that the Museums filed in order to essentially that probate law is substantive in portray themselves as "victims" to the Court and Page 6 549 F. Supp. 2d 543, *549; 2008 U.S. Dist. LEXIS 30717, **14

to the public does not warrant a response. And he not implicated."); Goldsmith v. Gilliland, 24 F. 154, 158 has not alleged the typical advantage obtained by (C.C. Ore. 1885) (holding that a plaintiff in possession of declaratory judgment plaintiffs who win a property may bring suit to quiet title against any or all so-called "race to the courthouse": the opportunity tenants-in-common with competing claims). to choose a forum unfavorable to the defendant. See, e.g., N. Am. Airlines, Inc. v. Int'l Bhd. of That said, the Court sees no reason why the heirs Teamsters Local 747, 04 Civ. 9949, 2005 U.S. could not be joined to this lawsuit if either side so chose, Dist. LEXIS 4385, at *60-61 (S.D.N.Y. Mar. 21, so long as their joinder would not imperil the expeditious 2005). The only alleged prejudice that Schoeps's resolution of this matter. As Schoeps's counsel informed counsel was able to identify at oral argument was the Court during oral argument (echoing the claim put that if Schoeps prevailed in this action, a forth in his demand letters to the Museums), while judgment in his favor would not result in the Schoeps is the moving force, his counsel also represents [**15] heirs' recovering possession of the the remaining heirs of von Mendelssohn-Bartholdy. The paintings, as this is merely an action for Court therefore has no doubt that Schoeps's counsel can, declaratory judgment against Schoeps in a timely manner, apprise the heirs that this lawsuit is individually. Any judgment against the Museums, pending and determine their interest in joining it. The however, would be binding on them in future Court will entertain any motions for joinder on the part of actions by principles of collateral estoppel, so the the Museums, or on the part of the heirs (which the Court sees no genuine prejudice to Schoeps that Museums have indicated they will not oppose, see could result from this action. Memorandum of Law in Opposition to Defendant Julius H. Schoeps' Motion to Dismiss the Complaint for The Second Circuit repeatedly has explained that Declaratory Relief [**17] at 10), so long as such joinder [HN5] where a party seeks simply to adjudicate its rights motions are filed by the previously set deadline of June 2, as against a particular claimant but not finally allocate 2008. title, it is not necessary to join other claimants. See MasterCard Int'l, 471 F.3d at 387 (holding that joinder of For the foregoing reasons, the motion to dismiss is current or competing titleholders is necessary only when denied. The parties shall proceed with this litigation in the relief sought is a declaration that the plaintiff is the accordance with the Case Management Plan previously titleholder); Brody v. Village of Port Chester, 345 F.3d ordered by the Court on January 4, 2008. 103 (2d Cir. 2003) (holding that current titleholder would only have to be joined if the appropriate remedy for the SO ORDERED. plaintiff would be to reconvey his property); cf. Oneida Dated: New York, NY Indian Nation v. New York, 732 F.2d 261, 265 (2d Cir. 1984) ("Ordinarily,[HN6] a judgment in an ejectment or April 14, 2008 quiet title action will not affect the interests of others than the parties or those in privity with them. Such actions do s/ Jed S. Rakoff not operate [**16] in rem upon the land itself, and therefore principles of collateral estoppel by judgment are JED S. RAKOFF, U.S.D.J. Press Release

12. January 2005 Nr. 19/05

The return of cultural assets seized as a result of Nazi persecution: The first recommendation of the Advisory Commission.

The Advisory Commission on the return of cultural assets seized as a result of Nazi persecution, especially from Jewish possession, has today in Berlin delivered its first recommendation. As a result of their deliberations in the State of Saxony-Anhalt under the chairmanship of Professor Jutta Limbach, the Commission recommends that the Federal Government return three paintings by Karl Blechen and a watercolour by Anselm Feuerbach to the community of heirs of Julius and Clara Freund.

The following facts underpin the recommendation: Julius Freund, who as a Jew was persecuted by the Nazi regime, possessed a large art collection which included the paintings in question. At the end of 1933, he took this collection to Switzerland in order to protect it from the grasp of the National Socialists. In 1939 Julius Freund and his wife, now penniless, emigrated to London because of the persecution measures of the Nazis. After his death in 1941, Clara Freund found herself in 1942 forced for economic reasons to have the collection auctioned in Lucerne at the Galerie Fischer. The pictures mentioned were acquired there by Hans Posse, Hitler’s special commissioner for the development of the “Führer museum” in Linz. At the end of the war, the paintings were seized by the Allies, and as art works which at first could not be identified with their owner, were given as a loan by the German state to German museums. Later they were displayed as lost art in the internet database www.lostart.de, in order by this means to find those with justified claims.

Julius Freund’s community of heirs, represented by the Berlin lawyer Dr Jost von Trott zu Solz, asked for the return of the four art works on the grounds that their sale had been caused solely because of economic difficulties which were exclusively dependent upon the persecution measures of the Nazis.

The Federal authority responsible for ruling on open questions about assets refused to return the paintings because it rejected the connection between the persecution and the sale.

It is the task of the Advisory Commission to assume the role of arbiter between the Federal government and other public institutions and the former owner of the cultural asset or their heirs, if this is desired by both parties. It can make a recommendation for a solution of the conflict based upon a moral judgement. Working for the Commission in an honorary capacity are: the former president of the Federal Republic of German, Dr Richard von Weisäcker; the former president of the German Bundestag, Professor Rita Süssmuth; the former president of the Constitutional Court, Professor Jutta Limbach; the art historian, Professor Thomas Gaehtgens; the philosophy professor, Professor Günther Patzig; the legal philosopher, Professor Dietmar von der Pfordten; the history professor, Professor Rheinhard Rürup; and the philosopher Professor Ursula Wolf.

The Coordinating Authority for the Loss of Cultural Assets in Magdeburg (www.lostart.de) is the seat of the Advisory Commission and the contact point for applicants.

Additional Articles of interest from Spiegel Online

Hitler’s Wristwatch, A Nazi Legacy Hidden in German Museums, by Steffen Winter, Spiegel Online 01/30/2013, located at http://www.spiegel.de/international/germany/germany-s-unsatisfactory- approachto-art-looted-by-the-nazis-a-880363.html

Photo Gallery: A Problematic Nazi Legacy, located at http://www.spiegel.de/fotostrecke/fotostrecke- 92569.html

Polish Authorities Launch Probe: Anger at Painting Made of Holocaust Victim Ash, (01/09/2013). Located at http://www.spiegel.de/international/zeitgeist/0,1518,876565,00.html

The Ugly German Rears Its Head: Why Germany Can't Shed Its Troubling Past (12/13/2012), located at http://www.spiegel.de/international/germany/0,1518,872433,00.html

Faculty Biographies

Victor A. Kovner // PARTNER // NEW YORK

New York

1633 Broadway 27th Floor New York, New York 10019-6708 212.489.8230 DIRECT 212.489.8340 FAX [email protected]

Victor Kovner represents national and regional broadcast and print media clients Education in all aspects of communications law, in addition to his work in intellectual J.D., Columbia Law School, 1961 property and commercial litigation. He advises clients in cases of alleged B.A., Yale University, 1958 defamation, privacy, copyright, press access, and reporter’s privilege and other

First Amendment issues. Related Practices Victor represents a wide range of clients in the media and the arts, including Media & First Amendment newspapers, billboard companies, motion picture companies and museums. Commercial Speech & Advertising Professional and Community Activities Defamation & Privacy Government Regulation of Content • Corporation Counsel of the City of New York, 1990-1991 Right of Publicity • Former Chair, New York State Commission on Judicial Conduct Access to Public Records & Proceedings • Former Chair, Committee on the Judiciary and the Committee on Subpoenas & Reporters' Privilege Communications and Media Law, Association of the Bar of the City of Trademark Litigation New York Government Relations & Litigation • Board Member – Former Chair, The Fund for Modern Courts Copyright Litigation Intellectual Property Litigation • Board Member and Former Chair, Legal Affairs Committee, Magazine Intellectual Property Publishers of America Prior Restraints • Co-founder, Media Law Resource Center Litigation • Advisory Board, Media Law Reporter Communications, Media & Technology • Founder, Lankenau Kovner & Outten, which merged with Davis Wright Entertainment Tremaine in 1998 Digital Media Recent Professional Recognition Admitted to Practice • Corporation Counsel Award for Distinguished Service, New York City Law Department, 2012 New York, 1962 U.S. District Court Southern District Publications of New York, 1966 U.S. Supreme Court, 1975 For more than 25 years, Victor served as the principal author for the Practising U.S. Court of Appeals 2nd Circuit, Law Institute's annual Communications Law Seminar outline on the law of 1995 newsgathering, invasion of privacy and related torts. U.S. Court of Appeals 3rd Circuit, 1997

Victor A. Kovner | Davis Wright Tremaine LLP |

DOUGLAS DAVIDSON SPECIAL ENVOY FOR HOLOCAUST ISSUES

Douglas Davidson became Special Envoy for Holocaust Issues in April 2010. He is responsible for developing and implementing U.S. policy pertaining to the return of Holocaust-era assets to their rightful owners, compensation for wrongs committed during the Holocaust, and Holocaust remembrance.

From 2004 to 2008 Davidson was Head of the Organization for Security and Cooperation in Europe’s (OSCE) Mission to Bosnia and Herzegovina. Immediately prior to that, Davidson was Deputy U.S. Representative to the OSCE in Vienna.

His other overseas diplomatic assignments have included Kosovo (also on detail to the OSCE) in the immediate aftermath of its most recent conflict; Zagreb and Belgrade from the end of the war in former Yugoslavia to the eve of the NATO bombing campaign against Ser- bia; and Peshawar in the early nineteen-eighties during the Soviet-Afghan war. From late 1989 until early 1993 he was an Assistant Press Secretary for Foreign Affairs at the White House.

David J. Rowland

David J. Rowland is a co-founder of Rowland & Petroff and is its managing partner. Mr. Rowland specializes in international legal transactions including art recovery, German property claims, real estate, business transactions, wills, trusts and estates, litigation, and international law. He has represented claimants in several high profile art restitution cases, including the recovery of the “Watzmann” by Caspar David Friedrich and the restitution of the “Berlin Street Scene” by Ernst Ludwig Kirchner. In addition, Mr. Rowland has worked in the area of German property restitution since 1990. He speaks fluent German and French.

Education Trinity College, B.A. 1978. New York Law School, J.D. 1983. Diploma in Advanced International Legal Studies, University of the Pacific, McGeorge School of Law, 1987.

Admitted New York State, 1984. U.S. District Court, Southern and Eastern Districts of New York, 1984.

Memberships American Bar Association, The Association of the Bar of the City of New York, the New York State Bar Association, and the New York County Bar Association.

Publications Nazi-Era Art Claims in the United States: 10 Years After the Washington Conference Art & Cultural Heritage Law Newsletter Spring 2009.

Have U.S. Museums Lived up to the Promise of the Washington Conference? The Case for the Mandatory Referral of Nazi-Era Art Claims to a Neutral Art Commission Taking Responsibility. Nazi-Looted Art - A Challenge for Museums, Libraries and Archives. Koordinierungsstelle für Kulturgutverluste, Magdeburg 2009

Reclaiming Property Along the Former Berlin Wall, New York Law Journal, Vol. 216-No. 65, 1996;

Deadlines Affecting Property Claims in East Germany, New York Law Journal, Vol 208 No. 121, 1992;

Compensation for Jewish Victims of the Nazi Regime, New York Law Journal, Vol. 204-No. 104, 1992;

Deadline Looms for Filing East German Compensation Claims, New York Law Journal, Vol. 204-No. 65, 1990.

JAMS Arbitration, Mediation, and ADR Services | Mediators/Arbitrators | Neutrals | Hon.... Page 1 of 3

Hon. Stephen G. Crane (Ret.)

Hon. Stephen G. Crane (Ret.) was the Senior Associate Justice of the Appellate Division, Second Department and has served as a Justice of the Supreme Court, New York County since 1984. Justice Crane presided as one of the New York County Justices in the Commercial Division handling complex commercial cases from 1995 to 2001, and Administrative Judge, Civil Branch, Supreme Court, New York County from 1996 to 2001. Widely respected for being knowledgeable, thoughtful, and fair, Justice T: 212-751-2700 Crane is most comfortable in the middle of conflict, helping parties sort out their F: 212-751-4099 problems and reach an amicable resolution. ADR Experience and Qualifications Voted Best Mediator, z Supported and encouraged use of methods of alternative dispute resolution in the Financial Markets, Commercial Division of the Supreme Court and established a court-annexed New York Law mediation program for tort cases as Administrative Judge of Supreme Court, New Journal's "Best of" York County; sponsored training courses for mediators with faculty including Survey, 2012 neutrals from JAMS z As a trial judge, "I don't think that it { maintained a Commercial Division Part and assisted in the settlement of the would be premature national tobacco litigation to express, once { administered an Individual Assignment Part, deciding motions and conducting again, our trials (jury and non-jury); managed all repetitive stress injury cases filed in New appreciation for your York County, conferencing cases for settlement; and handled all aspects of hard and skillful work civil cases: personal injury actions, medical malpractice, landlord-tenant, in connection with breach of contract, civil forfeiture, injunctions, corporate dissolutions, and all the achievement of a other categories of civil actions resolution of our z As an appellate judge, participated in adjudicating appeals in civil, criminal, family case. We had been and Surrogate’s Court cases from originating courts in ten counties in the New York working on reaching Metropolitan area a settlement for z As a mediator facilitated negotiations of a number of disputes involving credit several years without default swaps, collateralized debt obligations, and the sale of securitized mortgage success. In three backed and asset backed residential and commercial obligations short hours, you z As an arbitrator decided cases of employment discrimination, of a discharge alleged helped us work it out. to be for cause of a trader for mismarking collateralized debt obligations to market, We look forward to of an alleged violation of restrictive covenants in an agreement for the sale of working with you shares in a business, and of claims against an investment advisor for violations of again in the future." - securities and investment advisor laws Law Firm Attorney z As a neutral evaluator, evaluated the merits of an appeal of an order dismissing an action seeking to impose a constructive trust, engaged in a mock oral argument of Case Manager an appeal in a novel issue of the meaning of a settlement agreement in a divorce Virginia Corvey action, the vulnerabilities in a proposed complaint in a fraud action involving credit JAMS default swaps and mock oral arguments in appeals involving art law disputes 620 Eighth Avenue z As a mediator facilitated negotiations of numerous sophisticated real property 34th Floor disputes including controversies between a sponsor of a cooperative conversion New York, NY 10018 and the board of the cooperative corporation regarding the sale of sponsor-related 212-607-2754 Phone units; the issues between a cooperative board and the owner of shares attributed to 212-751-4099 Fax the commercial unit; the failure to close a multi-million dollar sale of a shopping Email: center; and the breach of a licensing agreement for the use of the name of a well- [email protected] known developer on a new building project z Mediated numerous legal malpractice disputes involving complex underlying litigations; architect's malpractice claims; accountant's malpractice claims and numerous personal injury actions under the Labor Law and for common law negligence z Mediated the equitable distribution of a marital estate where husband and wife were equal partners in half-a-dozen corporate entities or partnerships; mediated issues involved in law firm dissolutions

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Representative Matters Significant trials presided over by Justice Crane include the following: z Maryland Johnson Bush v. International Business Machines Corporation and N.C.R. Corp. Four-week jury trial: First trial in New York State of claims against computer keyboard manufacturers that their products caused plaintiff’s carpal tunnel syndrome z Edith Abrams, et al. v. Nathan Rogers, et al. Six-week jury trial of complex commercial case involving limited partners’ derivative claims against general partners of real estate partnership z Collochio, Gloria v. City of New York and Tom Town Cab Co. After liability tried before another justice establishing minimal liability against New York City, twelve week trial of damages for brain injury to composer-musician sustained in head-on collision between taxi and bus z Grutman Katz Greene & Humphrey v. Lillian Goldman. Bench trial of claim to $5 million bonus to attorney against former client with counterclaim to recover fees previously paid for malpractice resulting in 80-page decision, affirmed 251 AD2d 7 Other recent significant cases on which Justice Crane has written include the following: z Nastasi v. Nastasi, 26 AD3d 32, (November 14, 2005). (Affirming the denial of vacatur of a notice of pendency in an action seeking to impose a constructive trust over property conveyed, not by the plaintiff in her personal capacity, but by her husband’s estate, as alleged security for payment of her annuity.) z Sweeney, Cohn, Stahl & Vaccaro v. Kane, 6 AD3d 72 (March 8, 2004). (Applying the doctrine of reverse piercing the corporate veil under Florida law to permit two New York judgment creditors of the co-shareholder wife of a Florida corporation, the sole asset of which was real property in New York and which was treated as the alter ego of the co-shareholders, to execute their judgments on the corporate real property even though the shares were held as tenants by the entirety under Florida law and thereby immune from the claims of all but joint creditors.) z Gomez v. Bicknell, 302 AD2d 107 (December 23, 2002). (Discussing the measure of damages for breach of an employee’s duty of loyalty in contrast to the measure for breach of his covenant not to compete after termination of employment and reversing a verdict in favor of the employee that was legally unsupported based on a theory that the employment agreement had been orally modified to provide for the payment of a profit participation on a transaction-by-transaction basis, the employee having quit before the end of the year and having admitted that the employer did not agree to this amendment.) z Bindit Corp. v. Inflight Advertising, Inc., 285 AD2d 309 (October 1, 2001). (Declaring that prior litigation, during the life of a patent, over alleged antitrust violations of an exclusive licensing agreement did not bar similar claims by the licensor after the patent for the licensed technology expired.) z State of New York v. Philip Morris, 179 Misc 2d 435, 686 NYS2d 564, (December 23, 1998). (Approving tobacco industry master settlement agreements as fair, reasonable, and adequate and approving the Attorney General’s allocation of the proceeds of approximately $25 billion over 25 years among the members of the class of Counties, the City of New York, and the State of New York also as fair, reasonable, and adequate.) Honors, Memberships, and Professional Activities z Robert L. Haig Award for Distinguished Public Service, New York State Bar Association z Louis J. Capozzoli Gavel Award, New York County Lawyers’ Association z Distinguished Service Award, Law Secretaries & Law Assistants Collegium z Harold A. Stevens Jewel Award, New York County Lawyers’ Association–Tort Section z Past President, Cornell Law Association and Past Chair, Cornell Law School Advisory Council z Past Member, Pattern Jury Instructions Committee of the Association of Supreme Court Justices of the State of New York z New York County Lawyers’ Association { Co-Chair, Institute on Continuing Legal Education; Chair, History Committee { Member: Board of Directors, Cromwell Awards Committee { Past Member: Executive Committee, Criminal Justice Section (founding co- chair) z New York State Bar Association { Immediate Past Chair, Committee on Civil Practice Law and Rules { Member: Commercial and Federal Litigation Section Executive Committee, Dispute Resolution Section Executive Committee

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{ Former Member, House of Delegates { Fellow, New York State Bar Foundation { Member of former Commission on Legal Services for the Middle Income z Association of Trial Lawyers of America and New York State Trial Lawyers Association z New York Regional Board and Executive Committee, Anti-Defamation League z National Center for State Courts: Project Advisory Committee for A Manual for Managing Notorious Cases, 1990-1992 z Association of Justices of the Supreme Court of the City of New York and Association of Justices of the Supreme Court of the State of New York z Member, Board of Justices, First Judicial District z Former Chair, Board of Trustees, New York County Public Access Law Library z Museum Memberships: The Guggenheim Museum; The Metropolitan Museum of Art; The Museum of Modern Art; The Museum of Arts and Design; The Whitney Museum of American Art; The United States Holocaust Memorial Museum; The Museum of Jewish Heritage; Frank Lloyd Wright Association z Member, New York State Dispute Resolution Association Background and Education z Justice, Supreme Court, New York County, 1984-2007 (Supreme Court Justice, 1990-2007; Acting Supreme Court Justice, 1984-1989) { Senior Associate Justice, Appellate Division-Second Department, 2008 { Associate Justice, Appellate Division-Second Department, designated 2005 { Additional Justice, Appellate Division-Second Department, designated 2001 { Administrative Judge of Supreme Court, Civil Branch, New York County, 1996- 2001 z Judge, Criminal Court, City of New York, 1981-1984 z Partner, Glass Howard and Crane, New York, 1980-1981 z Counsel to the Office of Court Administration, New York, 1979-1980 z Chief Law Assistant, Supreme Court, Appellate Division, First Department, New York, 1976-1979 (Senior Law Assistant, 1966-1976) z Associate, Poletti Freidin Prashker Feldman & Gartner, New York, 1963-1966 z J.D., with distinction, Cornell Law School, 1963 z B.S., Cornell University, 1960

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Marvin M. Brown Raymond J. Dowd RAYMOND J. DOWD John T. Dunlap Partner George W. Gowen Raymond J. Dowd is a member of DBM's litigation and arbitration, and Michael J. Kopcsak intellectual property and art law practice groups. He has broad commercial Steven E. Lewis litigation experience in both federal and state trial and appellate courts, Albert L. Lingelbach representing both plaintiffs and defendants in copyright and trademark, and Frederick W. London domain name owners and content providers in litigation and arbitration. Thomas V. Marino Representations include conducting bench and jury trials, arbitrations and Luke McGrath administrative proceedings, emergency applications for injunctive relief, Joseph Michaels IV quashing subpoenas, obtaining, enforcing and collecting judgments. Trust John W. Shroyer and estates matters include contested probate proceedings through trial, Carol A. Sigmond disputes involving heirship and decedents' estates. International litigation Louis E. Teitel includes conducting depositions in Canada, France and Switzerland, Counsel pursuing discovery through letters rogatory, obtaining service of process in foreign countries and obtaining and challenging foreign experts. Francis J. Mooney, Jr. Mr. Dowd’s corporate counseling includes corporate and transactional work for entrepreneurial companies, Associates including international licensing. Mr. Dowd also counsels art owners and dealers, including transactional Eva Adaszko representation, UCC filings, tracking and recovering stolen art and handling disputes involving provenance, Viktoria A. Beress authenticity and theft. Trademark counseling services include registration, policing and enforcing rights of Samuel A. Blaustein trademark owners and users. Counseling political candidates includes election day onsite monitoring, poll access Robert F. Dannhauser challenges, signature challenges and matters involving election law and political campaigns. Edward W. Greason Justin T. Kelton Mr. Dowd petitioned successfully for the removal of the co-executors of American Tobacco heiress Doris Duke's estate and upheld the first honorary pet trust challenged in New York history, obtaining a $100,000 trust for heiress Doris Duke's dogs.

Mr. Dowd’s recent lectures include "Conflicts of Law in Art Disputes" (Art Litigation and Dispute Resolution Institute, New York County Lawyers' Association, 2008); "Murder, Mystery and Egon Schiele's Dead City: Swiss Laundering of Stolen Austrian Art" (Jewish Museum, Berlin Germany); "Fritz Grunbaum's Art Collection: Legal Obstacles to the Recovery of Stolen Art" (Prague Conference on Holocaust-Era Assets, Czech Republic); "U.S. Copyright Law for the Non-U.S. Lawyer" (Montreal and Quebec City Canada and Berlin, Germany); "Copyright Litigation" (New York County Lawyers' Association, 2005); "International Copyright: Foreign Copyrights in U.S. Courts" (New York County Lawyers' Association, 2008); "When Art Meets Commerce, What Happens?" (Copyright Society of the U.S.A., Boston, San Francisco and Philadelphia Chapters), Federal Bar Association (Connecticut, Minneapolis and New Orleans Chapters); and "Nazi Art Looting" (Federal Bar Association Cleveland Chapter).

Mr. Dowd is the Vice President for the Second Circuit of the Federal Bar Association, is on the Editorial Board of The Federal Lawyer Magazine and was President of Southern District of New York Chapter. Additionally, Mr. Dowd is a member of the Copyright Society of the U.S.; New York State Bar Association, Commercial and Federal Litigation Section and Intellectual Property Law Section; and New York County Lawyers' Association where he served on the Board of Directors as Co-Chair, Entertainment Media, Intellectual Property and Sports Law Section and on the Continuing Legal Education Committee. He is also a member of the National Arts Club.

Mr. Dowd’s recent publications include Copyright Litigation Handbook, a Thomson West publication and Copyright Litigation Blog. He is a contributor of the New York Law Journal.

Mr. Dowd is admitted to practice law in New York State, the U.S. District Court for the Southern and Eastern Districts of New York, Northern U.S. Court of Appeals for the Second Circuit, U.S. Supreme Court, U.S. District Court for the Northern District of New York, U.S. Tax Court and U.S. Court of International Trade.

Mr. Dowd Received his Bachelor of Arts from Manhattan College and his Juris Doctorate from Fordham University School of Law, where he was the Articles Editor for the Fordham International Law Journal.

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Mr. Dowd is fluent in French and Italian.

E-mail: [email protected]

New posts from Mr. Dowd's Copyright Litigation Blog:

Nazi Art Looting: Egon Schiele, George Grosz and Stolen Art in U.S. Museums Should Stolen Holocaust Art be Returned? Legal and Policy Perspectives and Recent Case Developments Twitter Feeds With Daily Summaries of SCOTUS and Courts of Appeals Cases Oblon Spivak's U.S. District Courts and Judicial Circuits Map App for Litigators Copyright Law: Win Before You Begin - Discovery and Pre-Trial Investigations Updates via FeedBlitz

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http://www.dunnington.com/pages/attorneys/rdowd_bio.html 3/18/2013 Sharon Cohen Levin

Sharon Cohen Levin is the Chief of the Asset Forfeiture Unit in the Criminal Division of the United States Attorney’s Office for the Southern District of New York, where she has served as Chief since 1996. Under her guidance, the Asset Forfeiture Unit handles all criminal and civil forfeiture actions in the Southern District of New York. These cases include the forfeiture of the proceeds of corporate and securities fraud, economic crime, cybercrime, health care fraud, international narcotics trafficking, terrorism, money laundering and public corruption. In the past six years, the Southern District of New York has forfeited nearly $6 billion in crime proceeds.

As the Chief of the Asset Forfeiture Unit, AUSA Levin pioneered the use of federal forfeiture laws to recover and return stolen art and cultural heritage property. The SDNY Asset Forfeiture Unit has initiated dozens of proceedings under the forfeiture laws -- seizing and returning artwork and cultural property to the persons and nations who rightfully own them. Notable examples include the forfeiture and repatriation of stolen paintings by Lavinia Fontana, Jean Michel Basquiat, Roy Lichtenstein, Serge Poliakoff, Anton Graff and Winslow Homer; drawings by Rembrandt and Duhrer; an Etruscan bronze statute dated circa 490 B.C.; an antique gold platter dated circa 450 B.C.; a rare Mexican manuscript; and a medieval carved wood panel which was originally inside the historic Great Mosque in Dvrigi; and an Ancient Hebrew Bible owned by the Jewish Community of Vienna and stolen during the Holocaust.

In 2001, AUSA Levin was awarded the Attorney General’s John Marshall Award for Outstanding Legal Achievement for Asset Forfeiture for her use of the federal forfeiture laws to recover and return stolen art and cultural heritage property. AUSA Levin was also awarded the Attorney General’s Asset Forfeiture Award in 2006, 2007 and 2010 for her work in the forfeiture of fraud proceeds and their restoration to victims. In 2009, she was awarded the Department of Justice’s National Asset Forfeiture Award for Sustained Exceptional Service by an Individual. In 2011, AUSA Levin received the Henry L. Stimson Medal presented to the Outstanding Assistant U.S. Attorney, Criminal Division, Southern District of New York. In addition, in 2011 she was awarded the Women in Federal Law Enforcement Outstanding Federal Law Enforcement Employee Award. In 2012, AUSA Levin was a recipient of the Immigration and Customs Enforcement Director's International Achievement Award for her contributions to Immigration and Customs Enforcement’s Cultural Property, Art and Antiquities Program.