From Murder To Museums: Recent Nazi Looted Art Cases

NYCLA June 16, 2015

Hon. Barbara Jaffe

Raymond J. Dowd Partner – Dunnington Bartholow & Miller LLP - NYC

2 U.S. Court Asked to Act Against Germany in Nazi Art Acquisition Now Valued at $250 Million Collection Once Presented to Hitler as “Surprise Gift” Current Owners Insist 1935 Jewish Owners Freely Sold To Nazis February 24, 2015 Washington, D.C. - February 24, 2015 American and British descendants of Jews who escaped from , and whose joint art collection included precious medieval works worth an estimated $250-300 million today, have asked the United States District Court for the District of Columbia to restitute that collection from Germany and from the current possessor of the collection, Germany's Prussian Cultural Heritage Foundation (SPK). This is the first time U.S. Courts have been asked to intervene in Germany's refusal to recognize the claimants’ ownership of these works, known as The Guelph Treasure, which were stolen in what the claimants say was a "sham transaction" forced upon their predecessors in 1935.

3 4 5 6 7 April 24, 1863 – Executive Order 100 – Lieber Code

31. A victorious army appropriates all public money, seizes all public movable property until further direction by its government, and sequesters for its own benefit or of that of its government all the revenues of real property belonging to the hostile government or nation. The title to such real property remains in abeyance during military occupation, and until the conquest is made complete. 34. As a general rule, the property belonging to churches, to hospitals, or other establishments of an exclusively charitable character, to establishments of education, or foundations for the promotion of knowledge, whether public schools, universities, academies of learning or observatories, museums of the fine arts, or of a scientific character-such property is not to be considered public property in the sense of paragraph 31; but it may be taxed or used when the public service may require it. 35. Classical works of art, libraries, scientific collections, or precious instruments, such as astronomical telescopes, as well as hospitals, must be secured against all avoidable injury, even when they are contained in fortified places whi1st besieged or bombarded. 36. If such works of art, libraries, collections, or instruments belonging to a hostile nation or government, can be removed without injury, the ruler of the conquering state or nation may order them to be seized and removed for the benefit of the said nation. The ultimate ownership is to be settled by the ensuing treaty of peace. In no case shall they be sold or given away, if captured by the armies of the United States, nor shall they ever be privately appropriated, or wantonly destroyed or injured. 8 37. The United States acknowledge and protect, in hostile countries occupied by them, religion and morality; strictly private property; the persons of the inhabitants, especially those of women; and the sacredness of domestic relations. Offenses to the contrary shall be rigorously punished. This rule does not interfere with the right of the victorious invader to tax the people or their property, to levy forced loans, to billet soldiers, or to appropriate property, especially houses, lands, boats or ships, and the churches, for temporary and military uses.

38. Private property, unless forfeited by crimes or by offenses of the owner, can be seized only by way of military necessity, for the support or other benefit of the Army or of the United States.

U.S. signed the Hague Conventions of 1899 and 1907 which incorporated the protections of the Lieber Code of public and private cultural property.

9

10 11 Portrait of Adele Bloch- Bauer (1907)

Republic of v. Altman, 541 U.S. 677 (2004)(permitted Maria Altmann to sue Austria for stolen in Austrian museum) 12 In re Flamenbaum, 2013 NY Slip Op 07510 [22 NY3d 962] - Third Century gold tablet from Temple of Ishtar, stolen from German museum by Soviet Troops – museum initially lost due to laches; decision overturned as Court disallowed “spoils of war” argument and upheld WWII-era U.S. policy against pillaging of cultural artifacts

13 In re Flamenbaum Supreme Court of the State of New York Appellate Division: Second Department In re Flamenbaum, 2013 NY Slip Op 07510 [22 NY3d 962] - On November 14, 2013, the NY Court of Appeals reversed an earlier decision, and awarded the Vorderasiatisches Museum the rightful ownership and possession of the Tablet. 1) “The Estate failed to establish the affirmative defense of laches, which requires a showing ‘that the museum failed to exercise reasonable diligence to locate the tablet and that such failure prejudiced the [E]state (see Solomon R.Guggenheim Found. v Lubell, 77 NY2d 311, 321).’ The Estate provided no proof to support its claim that, had the Museum taken such steps, the Museum would have discovered, prior to the decedent’s death, that he was in possession of the tablet (compare Matter of Peters v Sotheby’s Inc., 34 AD3d 29, 37-38)”

2) “We decline to adopt any doctrine that would establish good title based upon the looting and removal of cultural objects during wartime by conquering military force (see Menzel v List, 49 Misc2d 300, 305-308).” 14 The – Egon Schiele’s Seated Woman With Bent Left Leg (“Torso”) – K 51/ JK 1974 15 Bakalar v. Vavra Allegations

The Drawing has an established and documented provenance. It originally belonged to the collection of Fritz Grunbaum, a well-known Viennese cabaret performer. In 1938, the Nazis confiscated Grunbaum's residence and inventoried the contents of his art collection. Grunbaum was deported to Dachau, where he died in 1941...(Complaint ¶ 5)

16 Sotheby’s February 8, 2005 Auction Catalog

17

Replevin

Menzel v. List, 267 N.Y.2d 804, 819 (Sup. Ct. N.Y. Co. 1966) modified 279 N.Y.S.2d 608 (1st Dept. 1967) modified and aff’d 24 N.Y.2d 91 (1969).

• Preponderance of the evidence Fritz Grunbaum owned Drawing when shipped to Dachau Concentration Camp; • Fritz Grunbaum did not abandon Drawing; • Drawing never returned to Grunbaum or court- designated heir

Declaration of title and replevin.

18 Conversion

Elements of Conversion:

• Claimants had superior right to possession; • After learning of superior right to possession, possessor retained possession; • Remedy: damages and costs of recovery

Conversion encompasses both wrongful takings and wrongful detention. Nat Koslow, Inc. v. Bletterman, 197 N.Y.S.2d 583, 586 (N.Y.Sup.1960)

Conversion requires neither bad faith, e.g., Nat Koslow, Inc., 197 N.Y.S.2d at 586; Parker v. P & N Recovery of N.Y., Inc., 697 N.Y.S.2d 462, 467 (N.Y.Civ.Ct., 1999), nor wrongful intent, e.g., Spodek v. Liberty Mut. Ins. Co., 547 N.Y.S.2d 100, 102 (2d Dep't 1989)

19 Affirmative Defense of Laches

• Grunbaum’s heirs knew of Drawing’s Grunbaum provenance; • Knowing of the Grunbaum provenance, heirs delayed without excuse; • Possessor suffered prejudice as a result of Defendants’ failure to act.

See Bakalar v. Vavra (WHP) Aug. 10, 2006

20 Burdens of Proof

• In New York, when a property owner reclaims property, the burden of proof shifts to the holder of the property to prove that the property was acquired lawfully. Guggenheim v. Lubell , 153 A.D.2d 143, 153, 550 N.Y.S.2d 618, 624 (First Dept. 1990) aff’d 77 N.Y.2d 311, 321

21 Fritz Grunbaum Born April 7, 1880, Brno, Moravia Died January 14, 1941, Dachau Concentration Camp 22 www.imdb.com -Famous film star -Famous cabaret performer -Famous writer

Part of Austria’s “Abbott & Costello” – style comedy team 23 10/5/1942 Elisabeth “Lily” Grunbaum deported to Maly Trostinec24 Bernstein v. N.V. Nederlandsche- Amerikaansche Stoomvaart-Maatshappij, 201 F.2d 375, 376 (2d Cir. 1954)

- Act of State Doctrine does not apply to Nazi spoliation - Nazis not to be considered as legitimate government - Ordinarily, courts won’t review the acts of a foreign sovereign under the “act of state” doctrine - Review came at request of US State Department indicating US foreign policy to undo the acts of Nazis - Known as “Tate exception” to Act of State Doctrine

25 Defendants’ Claim to Title: Heirs of Fritz Grunbaum • Austrian co-heirs under 2003 Estate Assignment Certificate (Probate Decree) • Fritz predeceased wife, no issue • Fritz and Elizabeth (“Lily”) had separate property Under Austrian law: • Fritz’s heirs take 50% of Fritz’s property • Elizabeth’s (“Lily”) heirs take 50% of Fritz’s property 26

Lily Grünbaum to Leon Elise aka Alzebeta Fischer (50%) Zozuli di Salino to Milos Vavra (50%) Lily Grünbaum (Fritz’s Wife) Elise aka Alzebeta Zozuli di Salino (Fritz’s Sister) Max Herzl (Lily’s Brother/Fritz’s Brother-in-Law) Marta Bakalová (Elise’s Daughter/ Renee Fischer nee Herzl Fritz’s Niece) (Max’s Daughter/ Fritz’s Niece) October 31, 2003 Estate Assignment Leon Fischer Certificate Milos Vavra (Renee’s Son/ (by 1994 Will) Fritz’s Grand-Nephew) Fischer & Vavra Co-Heirs 27 , 26 July 1893 - 6 July 1959 Grosz – Fit For Active Duty (1916) Grosz – Blood is the Best Sauce - 1919 Grosz – Shut Up and Do Your Duty (1927) 32 Alfred Flechtheim, April 1, 1878 – March 3, 1937

Nazi Party Platform 1920

 #4. Only Nationals can be Citizens of the State. Only persons of German blood can be nationals, regardless of religious affiliation. No Jew can therefore be a German National.  23(c) We demand laws against trends in art and literature which have a destructive effect on our national life, and the suppression of performances that offend against the above

requirements. 37 March 1933– Jews Stripped of All Legal Rights By Nazis

 March 23, 1933 – Hitler took power from Reichstag  Governed by decree - Fuhrerprinzip – Nazis only party  Nazi Party Platform is law “To buy or sell from a Jew is to be a traitor to the German people” – massive, persistent boycotts, Jews denied food/medicine  NY Times “To be a Jew is a crime in Nazi Germany”  Aryanization “Aryans” take over Jewish businesses by extortion, initially permit some Jews to get assets out  Jewish lawyers and judges thrown out immediately  1936 NY opinion Holzer v. Reichsbahn declares Nazi legal system repugnant to NY law: “comity is not chloroform”, aff’d by Court of Appeals, Dachau survivor recovers for breach of contract against Deutsche Reichsbahn assets in NY 38 Hitler Invades Austria March 12, 1938

The Nazis reach

Hitler salutes his troops marching into Austria

39 Fritz at Dachau – Arrested 3/22/1938 – Died in Captivity

While at Dachau, Fritz and other prisoners participated in Cabaret performances to keep spirits up.

Performances were supported by the Nazis and scheduled on the same day as trains taking prisoners40 to death camps. Entartete Kunst “” In 1933 Nazis started exhibits in museums attacking on “degenerate “ art in museums, attacking modern and Jewish artists/dealers as “un-German” and depraved. This culminated with “Entartete Kunst” a traveling art exhibit, in 1937. Art was stripped from museums, artists boycotted or exiled, artworks sold in Switzerland, US.

41 1933-1945 – Jews Stripped of Artworks • April 1, 1933 Boycott of Jews • 25% Reich Flight Tax (started 1931 – pre-Hitler) • 96% Confiscatory foreign exchange rate for Jews • Blocked bank accounts • Sham transactions • Wholesale confiscations Jewish property • 25% Atonement Tax • Tens of thousands artworks left Reich • Direct to U.S. & via Switzerland/Netherlands • Snapped up by U.S. museums and wealthy collectors 42 Jewish Property Declarations

• April 26, 1938 Law - penalty of imprisonment/confiscation • Required for Jews with over 5,000 RM • Filed every three months until property gone or left Reich • Systematically liquidated through Aryan trustees • Art Collection Category IV “Other Property”

43 The Kieslinger Inventory “Large drawing by Schiele, 55 works colored, 20 and 1 print by Schiele”

Dead City

44 Grunbaum Assets1938-1942 (Per Jewish Property Declarations)

45 Who Was Franz Kieslinger?

• Assistant to Kajetan Muhlmann • Muhlmann oversaw Nazi art looting and laundering operations in Holland • July, 1938 – Grunbaum artworks inventoried in Vienna • Muhlmann - “arguably the single most prodigious art plunderer in the history of human civilization”*

* Petropoulos, Jonathan, The Faustian Bargain (Oxford University Press 1990) at 170-204). 46 Schenker Inventory

21 Oil 15 Water Colors 2 Pastel s 6 Miniatures 2 Oil Miniatures 10 Drawings 278 Drawings (some in color) 7 graphics 3 envelopes with misc. graphics 66 graphic prints 1 collage

47 Schenker Export Application September 8, 1938

• Submitted while Fritz in Dachau • Stamped with Swastikas by Nazi functionary on or around September 8, 1938 • Roughly same number of artworks as Kieslinger Inventory (three envelopes of graphics) • Export license expired December 8, 1938 • No customs stamps indicating collection left Vienna during WWII • No Bundesdenkmalamt (“BDA”) export licenses during Nazi era, indicating collection did not leave Austria during WW II 48 Selling Stolen Jewish Property

• Dorotheum “a clearinghouse for the ” • Fritz Kieslinger was a Dorotheum expert • VUGESTA – consortium of storage companies and freight forwarders sold off unclaimed Jewish property • Hitler used network of art dealers including 49

50 Nazi Reich Laundered Artworks Through FIDES

• FIDES – Treuhand of Zurich • Established 1910 • Subsidiary of Credit Suisse • Offered 30% discounts to Americans and British • Laundered sales of Nazi art • Attempted to buy all degenerate art from Nazis • Never investigated by the Swiss • Visit www.fides.ch • Bergier Report mentioning FIDES laundering www.uek.ch (best information in Vol. 1 not online) 51 November 18, 1938 Nazi Finance Ministry Decree on Jewish Property

52 11/18/1938 Nazi Finance Ministry Report “Other Property” Refers to Category IV in Jewish Property Declarations 1. Shows Nazis considered Jewish art collections “available to the Reich” and liquid assets 2. Shows Nazis liquidating Jewish art collections to finance war machine as of November 18, 1938

53

Grunbaum Power of Attorney Translation Dachau, July 16, 1938 Power of Attorney By which I, the undersigned G Franz Friedrich (known as Fritz) Grunbaum, actor in Vienna, IV. Rechte Wienzelle 29. currently Dachau, empower my Spouse Elisabeth Grunbaum, Vienna IV., Rechte Wienzelle to submit on my behalf the Vermogensbekenntnis [declaration/statement of property] as required by law, and to provide any signatures or other declarations that may be required by law, and to provide any signatures or other declarations that may be required in order to ensure that it complies with the law, and generally to act on my behalf I all matters. At the same time I also empower her, to transfer this power of attorney in whole or in part onto another person of her own free choosing.” 55 Powers of Attorney

“There is a curious respect for legal formalities. The signature of the person despoiled is always obtained, even if the person in question has to be sent to Dachau in order to break down his resistance.”

- U.S. Consul General in Vienna

56 From Bakalar v. Vavra, 619 F.3d 136, 148 (2d Cir. 2010) (concurrence by Judge Edward Korman)

Grunbaum was arrested while attempting to flee from the Nazis. After his arrest, he never again had physical possession of any of his artwork, including the Drawing. The power of attorney, which he was forced to execute while in the Dachau concentration camp, divested him of his legal control over the Drawing. Such an involuntary divestiture of possession and legal control rendered any subsequent transfer void.

57 Why use a power of attorney to steal Fritz’s property? • “Holocaust” liquidation in Vienna largely “voluntary” cooperation from brutalized minority • Art collection listed as Fritz’s in Jewish Property Declarations • Lily needed power of attorney from Fritz to liquidate his property and Italian life insurance policy and give Nazis proceeds • Powers of attorney used to systematically force Jews in concentration camps to liquidate property • Jews never saw the money, paid into blocked accounts or Sperrmarks • Any sales by Jews presumptively duress sales • Nazis kept up pretense of legality, still confuses scholars, historians and judges today 58 Letter dated January 31, 1939 Establishes Lily and Fritz lost legal control of assets practical ability to transfer any assets as of January 31, 1939 59 Grunbaum’s Aryan Trustee – Ludwig Rochlitzer

• By Nazi law of December 3, 1938, Aryan trustees were empowered to transfer and sell Jewish assets and to render proceeds to the Reich to finance the Nazi war machine (DBM 5806-5812)

60 At least nine percent of the Nazi total government budget in 1938-39 was stolen from Jews (approximately 1.5 billion ).

Aly, Goetz, Hitler’s Beneficiaries (Metropolitan Books 2006) at 48.

61 Holocaust Victims Redress Act of 1998 Findings with respect to works of art:

Established pre-World War II principles of international law, as enunciated in Articles 47 and 56 of the Regulations annexed to the 1907 Hague Convention (IV) Respecting the Laws and Customs of War on Land, prohibited pillage and the seizure of works of art.

In defiance of the 1907 Hague Convention, the Nazis extorted and looted art from individuals and institutions in countries it occupied during World War II and used such booty to help finance their war of aggression.

The Nazis’ policy of looting art was a critical element and incentive in their campaign of genocide against individuals of Jewish and other religious and cultural heritage and, in this context, the Holocaust, while standing as a civil war against defined individuals and civilized values, must be considered a fundamental aspect of the world war unleashed on the continent.

In the aftermath of the war, art and other assets were transferred from territory previously controlled by the Nazis to the Union of Soviet Socialist Republics, much of which has not been returned to rightful owners.

Public Law No. 105-158 Section 201, Findings S. 1564 (105th): Holocaust Victims Redress Act, 105th Congress, 1997-1998.

62 Payne-Aldrich Tariff Act of 1909 added imports of original artworks more than twenty years old to the duty-free list. 63 Charitable deductions allowed at the fair market value of the artwork, regardless of the amount paid for the work. In today’s Internal Revenue Code.

Result donations more attractive than sales. The Art Museum: Power, Money, Ethics (Twentieth Century Fund Inc. 1979) at 31-36.64 June 13, 2014 citing Institute of Museum and Library Sciences 65 66 […]

67 New York Times November 16, 1964

Between 1945 and 1962, 3978 stolen art objects were recovered in this country by the State Department with the assistance of other Government Agencies, and returned to 14 nations overseas. 68 69 70 National Stolen Property Act

Whoever transports, transmits, or transfers in interstate or foreign commerce any goods, wares, merchandise, securities or money, of the value of $5,000 or more, knowing the same to have been stolen, converted or taken by fraud; Shall be fined under this title or imprisoned not more than ten years, or both. [….]

18 U.S.C. § 2314 71

72 From Tallahassee.com 73 74 75 76 77 78 On Nazi-Looted Art: “This is such a gigantic issue,” Cleveland Museum of Art Director Robert P. Bergman said. “We're talking about hundreds of thousands of objects. I believe that for the rest of my professional career, this issue will face the museums of the world.”

(AP/Akron Beacon Journal 3/1/1998). Bergman died at age 54 in 1999 after a two-week illness of a rare blood disorder (NY Times 5/7/99).

79 Scope of current Nazi-art problem

 “the amount of research to be undertaken on the tens of thousands of works of art that, by definition, may have Nazi-era provenance problems is significant, requiring large allocations of staff time and money, allocations U.S. art museums have made and will make until the job is done.”

- Testimony of AAMD President James Cuno to Congress July 27, 2006

80 81 Egon Schiele’s – 1998 Morgenthau Seizure from MOMA as stolen --- with Fritz Grunbaum’s Dead City

82 1998 Seizure Quashed, U.S. Attorney Seizes Portrait of Wally

 Rita and Tim Reif assert claims in New York to Fritz Grunbaum’s artworks, D.A. Morgenthau seizure at MoMA  New York Court of Appeals quashes D.A. Morgenthau’s subpoena of Portrait of Wally and Dead City  Orders MoMA to return artworks to Austria  Next day, U.S. Attorney seizes only Portrait of Wally  Missing heirs for Grunbaum’s Dead City – returned to Austria, now at in Vienna  Portrait of Wally case settled 11 years later after C.J. Preska in SDNY – ordered Rudolph Leopold to stand trial – and then he died 83 Egon Schiele’s Dead City – Property of Fritz Grunbaum 84 Now in Leopold Museum in Vienna Dead City’s Provenance Published in ’56 Kornfeld Catalog Shows: 1925 Wurthle Exhibition, 1928 Hagenbund Exhibition and Fritz Grunbaum’s Ownership

K 01 H DBM(06366) OK30 94 H DBM(06366) 85 1998 Morgenthau Seizure

 Tremendous international scandal  Led to Austria opening archives to return Jewish property to comply with 1955 Austrian State Treaty  Austria reformed laws to permit claims to stolen art in museums only  Led to Washington Conference on stolen art  Museums agreed to “Washington Principles” – research their collections, favorable evidentiary burdens, encouraging heirs to come forward  Museums promised to publish all provenance research, welcome heirs  www.lootedartcommission.com/Washington- principles 86 U.S. Museums and Auction Houses Violate the Washington Principles

 Failed to hire provenance researchers and publish research  Publishing false, misleading and incomplete provenance research making research impossible  Failing to publish research subject to peer review, hiding behind lawyers  Suing Jewish heirs, accusing heirs and lawyers of greed and extortion  Auction houses peddle unprovenanced works  Toledo and Detroit museums, Museum of Fine Arts Boston  MoMA and Guggenheim sued heirs of Holocaust victims  U.S. museums assert laches and statute of limitations defenses  Falsely claim Jews voluntarily sold art during Holocaust  Museums and auction houses falsely claim Holocaust- looted art was unknown until 1990’s in U.S. 87 Holocaust-Era Looted Art Press Statement Hillary Rodham Clinton Secretary of State Washington, DC January 16, 2013 This month we commemorate the seventieth anniversary of the Inter- Allied Declaration against Acts of Dispossession Committed in Territories under Enemy Occupation and Control, known as the London Declaration of January 5, 1943. Beginning with the London Declaration, the United States implemented a policy of returning Nazi- confiscated art, including art taken through forced and coerced transfers, to its countries of origin, with the expectation that the art would be returned to its lawful owners. Under U.S. leadership, the international community has endorsed these principles as well. In the 1998 Washington Principles on Nazi-Confiscated Art and the Terezin Declaration of the 2009 Conference on Holocaust Assets, more than forty countries joined the United States in agreeing that their respective legal systems or alternative dispute resolution processes should facilitate just and fair solutions for art that was taken by the Nazis and their collaborators. In reaffirming these commitments, the Department of State expresses no view on any issue currently in litigation. U.S. policy will continue to support the fair and just resolution of claims involving Nazi-confiscated art, in light of the provenance and rightful ownership of each particular work, while also respecting the bona fide internal restitution proceedings of foreign governments.

Franz Xaver Winterhalter Girl from the Sabine Mountains

Vineberg v. Bissonnette, 548 F.3d 50 (1st Cir. 2008)(summary judgment on duress sale – “proving prejudice to support laches requires more than the frenzied brandishing of a cardboard sword”) 89 Toledo MuseumToledo of Art v. Ullin / Detroit Inst. of Arts v. Ullin. DETROIT INSTITUTE OF ARTS TOLEDO MUSEUM OF ART

VINCENT VAN GOGH PAUL GAUGUIN The Diggers, 1889 Street in Tahiti, 1891

Toledo Museum of Art v. Ullin ( 477 F. Supp.2d 802 N.D. OH 2006)

 During a settlement negotiation, Toledo Museum sued heirs of Holocaust victim for declaratory judgment  Judgment granted and counterclaim dismissed with prejudice on Rule 12(b)(6) motion after extensive findings of fact against heirs  Most aggressive action taken by any museum in the country  Detroit Institute of Arts v. Ullin. 2007 WL 1016996. Same lawyers, filed same time, same result  Key fact cited by both courts: purchasers were Jewish  Highly unusual decisions - Rule 12(b)(6) motions generally construed in claimant’s favor

91 Toledo Museum of Art v. Ullin ( 477 F. Supp.2d 802 N.D. OH 2006) From decision:  In December 1938 the three [Jewish art dealers] purchased the Painting from Martha Nathan for 30,000 Swiss francs (approximately U.S. $6,900)  FN Defendants refuse to acknowledge a “sale” citing to the lack of evidence as to negotiation, offer and acceptance, bill of sale, or exchange of consideration, or in the alternative the unconscionability of the sale price[.] Whether a “sale” occurred is immaterial to the current analysis. Even without a prior “sale,” there is no dispute that TMA acquired ownership through an arms length purchase from established art dealers.

Common law rule: a thief in the chain of title means title is void thereafter 92 MOMA & Solomon R. Guggenheim Foundation v. Schoeps

Pablo Picasso Le Moulin de la Galette, autumn 1900

Pablo Picasso Boy Leading a Horse, 1906 Grosz v. Museum of , --- F. Supp.2d ---, 2010 WL 88003 (Jan. 6. ,2010) aff’d a (2d. Cir. Dec. 16, 2010.) New York’s demand and refusal rule weakened – conversion and replevin claims accrue upon implied refusal Portrait of the Poet Max-Herrmann Neisse (1927) “Poet”

Republican Automatons (1920) Self-Portrait with Model (1928) Vue de l’Asile et de la Chapelle de Saint-Remy

Orkin v. Taylor, 487 F.3d 734 (9th Cir. 2007) (granted Rule 12(b)(6) motion on alleged 1939 Berlin duress sale, claim time-barred by statute of limitations) 95 Dunbar v. Seger-Thomschitz, 615 F.3d 574 (5th Cir. Aug. 20, 2010) (acquisitive prescription under Louisiana law) Museum of Fine Arts Boston v. Seger-Thomschitz, 623 F.3d st 1 (1 Cir. Oct. 14, 2010)(statute of limitations) 96

Bakalar v.Vavra, 2008 WL 4067335 (S.D.N.Y. Sept. 2, 2008)

 First Holocaust-era art trial in U.S. federal history  Judge found Schiele’s Torso – to have been owned by Fritz Grunbaum  Grunbaum Jewish cabaret performer who died in Dachau  Grunbaum’s apartment in Vienna inventoried by Nazis shortly after Gestapo arrested him – 81 works by Schiele  Judge applied Swiss law  147-day period in Switzerland sufficient to clean title  Appealed to the Second Circuit 97 Bakalar v. Vavra, 619 F.3d 136, 2010 WL 3435375 (2d Cir. Sept 2, 2010) – vacates and remands for “further proceedings and a new trial, if necessary” 98 Bakalar v. Vavra, 619 F.3d 136, 2010 WL 3435375 (2d Cir. Sept 2, 2010) - I

- Acknowledged Nazi mass confiscation of Jewish assets - Acknowledged legal effect of Dachau Power of Attorney - Scholarly decision relying on historical scholarship not in the trial record - Trial judge had excluded expert historians

99 more Bakalar v. Vavra, 619 F.3d 136, 2010 WL 3435375 (2d Cir. Sept 2, 2010) - II - Rejected trial court’s application of “law of the situs” conflicts rule - Instead applied “interest analysis”

- “the law of the jurisdiction having the greatest interest in the litigation is applied and the facts or contacts which obtain significance in defining State interests are those which relate to the purpose of the particular law in conflict

100

Bakalar v. Vavra, 619 F.3d 136, 2010 WL 3435375 (2d Cir. Sept 2, 2010) - III - Applied New York, rather than Swiss law - Swiss law places insurmountable obstacles to recovery of stolen art - Under Swiss law, five year statute of limitations from acquisition, purchaser gains clean title from a thief - New York good faith purchaser cannot acquire title from a thief - New York protective of true owners of stolen art – “demand and refusal” rule

- New York’s interest to protect the 101 integrity of the market

Bakalar v. Vavra, 619 F.3d 136, 2010 WL 3435375 (2d Cir. Sept 2, 2010) - IV - Notwithstanding its conclusion that the manner in which the Drawing was acquired from Grunbaum would not have affected the outcome of the case, the district judge found that the Grunbaum heirs had failed to produce “any concrete evidence that the Nazis looted the Drawing or that it was otherwise taken from Grunbaum.” Bakalar v. Vavra, 2008 WL 4067335, at *8 (S.D.N.Y. Sept. 2, 2008). Our reading of the record suggests that there may be such evidence, and that the district judge, by applying Swiss Law, erred in placing the burden of proof on the Grunbaum heirs in this regard. Indeed, as discussed earlier, if the district judge determines that Vavra and Fischer have made a threshold showing that they have an arguable claim to the Drawing, New York law places the burden on Bakalar, the current possessor, to prove that the Drawing was not stolen. 102

Bakalar v. Vavra, 619 F.3d 136, 2010 WL 3435375 (2d Cir. Sept 2, 2010) - V

- On remand, disputed issue as to whether trial court will permit expert historian and foreign law testimony - Motion pending to permit experts to testimony - Plaintiff opposes permitting experts to testify

103 Bakalar v. Vavra, 2d Cir. Oct. 11, 2012- VI

- “the District Court found that the Drawing was not looted by the Nazis” - “Vavra and Fischer’s hypothesis – that the Nazis stole the Drawing from Grunbaum only to subsequently return or sell it to his Jewish sister- in-law—does not come close to showing that the district court’s finding was clearly erroneous.” - Heirs never made this argument

104

Bakalar v. Vavra, 2d Cir. Oct. 11, 2012- VII

- “The district court found that Vavra and Fischer’s ancestors were aware of – or should have been aware of— their potential intestate rights to Grunbaum property,” and that the ancestors “were not diligent in pursuing their claims to the Drawing.” - Second Circuit found “no clear error”.

105 Bakalar v. Vavra, VIII

- US Supreme Court denied cert. April 29, 2013

106 New York Times 10/24/2014, Dispute Over Nazi Victim’s Art: Christie’s and Sotheby’s Differ on Handling of 2 Schieles (Sotheby’s omitted Nazi- looting entity Schenker from provenance)

107 Von Saher v. Norton Simon Museum of Art at Pasadena, 131 S.Ct. 379 (Oct. 4, 2010(inviting Solicitor General to file a brief); 2014 WL 2535473, --- F.3d ----, 9th Cir. June 6, 2014) (holding that heir’s claims were not barred by federal preemption and remanding to the District Court) April 2, 2015(district court 108 denying motion to dismiss) Cassirer v. Kingdom of Spain, 616 F.3d 1019 (9th Cir. August 12, 2010) – expropriation exception to Foreign Sovereign Immunities Act applies to Spain rev’d 737 F.3d 613 (9th Cir. 2013) est. trial date July 23, 2015 109 El Greco Agony in the Garden c. 1605

De Csepel v. Republic of Hungary, 714 F.3d 591 (D.C. Cir. 2013) (allegations of bailment survive FSIA at pleadings stage) 110 Pablo Picasso Madame Soler (1903) Julius H. Schoeps v. State of Bavaria, --- F.Supp.2d - --, 2014 WL 2915894 (S.D.N.Y. June 27, 2014) (on appeal to Second Circuit as of 1/11/2014) 111 Bibliography

Dowd, Raymond J., Nazi Looted Art and Cocaine: When Museum Directors Take It, Call The Cops, 14 Rutgers Journal of Law and Religion 529 (2013)

Dean, Martin, Robbing The Jews: The Confiscation of Jewish Property in the Holocaust, 1933-1945 (Cambridge U. Press 2008)

Petropoulos, Jonathan, Art As Politics in The Third Reich (U. North Carolina Press 1999)

Petropoulos, Jonathan, The Faustian Bargain: The Art World In Nazi Germany (Oxford U. Press 2000)

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