Interview with Jennifer A. Kreder about the HEAR Act

March 11, 2023

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https://www.jenniferkreder.com/

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About Jennifer Kreder

Jennifer Kreder, with Rottenberg Lipman Rich, P.C., began her legal career working with Holocaust era art disputes, litigation, and class actions. Getting her start at Georgetown University Law Center, Jennifer Kreder began her legal career as a litigation associate at Milbank, Tweed, Hadley and McCloy LLP in New York where she first gained experience working with disputes in regard to the Holocaust Era, art and property, white collar cases and class action claims. Taking this experience Jennifer has built her practice to service a variety of cases, placing emphasis on art recovery, and protections of creativity regarding the first amendment’s overlap with various subject matters including copyright, trademarks and art. Admitted to practice in New York, Florida, eleventh circuit, second circuit and the Supreme Court, Jennifer has been on art recovery cases against major museums such as the Museum of Modern Art  and the Metropolitan Museum of Art. Jen has an impressive repertoire of being a key component in cases of Nazi Era and Russian Revolution.  In addition to being a key factor in art recovery, Jennifer also works as a law professor at the University of Kentucky where she not only teaches, but donates her time in volunteer and pro bono work alongside her students. 

Continuing the never ending mission to rebuild and restore lost heritage and culture as a result of the Holocaust, the Center for Art Law had the opportunity to speak with Jennifer for interviews on December 27, 2022 and March 11, 2023 to learn more about the Holocaust Expropriated Art Recovery Act of 2016, also known as the HEAR Act. The HEAR Act was passed to prevent claims to restitute Nazi-looted works of art from being barred on statute of limitations grounds. It adopted a uniform six-year limitation from the period after actual knowledge of a claim arises. The United States had a call to action on repatriation efforts long before the HEAR Act was signed into effect, which included the Washington Principles released in 1998.HEAR Act, H.R. 6130, 114th Cong. (2016).

The Center would like to thank Jennifer for taking the time to speak with us. This interview was conducted by Nina Rice (NYLS, Class of 2024) and edited and supplemented by Kameron-Jai Keel (NYLS, Class of 2024), both Interns for the Center for Art Law.  

THE INTERVIEW

Q: What were some of the most important issues missing in previous legislation and case law that led to the need for the HEAR Act?

J: After the United States led the world to adopt the Washington Principles in 1998, survivors and their heirs were losing in court on time-bar grounds, such as the statute of limitations, civil law prescription doctrine, or the equitable doctrine of laches. The courts have largely not been more helpful since the hopeful high point in 2004, when the Supreme Court in Maria Altmann v. The Republic of Austria^[1] analyzed the “anti retroactivity doctrine” and allowed Ms. Altmann to pursue a civil action against Austria in the United States for five paintings that were stolen from her family. The HEAR Act tried to remedy injustice to ensure our courts were meting out justice in accordance with the specifications set forth as contemplated by the Washington Principles as well as the subsequent Vilnius Declaration and Terezin Declaration.

Q: At least 26 cases have relied on the HEAR Act, including Zucherman v Metropolitan Museum of Art ^[2]and Reif v Nagy.^[3] How effective has the new Act been at getting with museums and collectors to do the right thing?

J: Unfortunately, the result has not been what so many of us hoped it would be, largely because someone in the legislative process managed to have the word “laches” deleted from the list of defenses preempted by the uniform federal statute of limitations in the Act.

Q: The Second Circuit was persuaded by the fact that the text of the HEAR Act does not specifically state that laches is not an equitable defense. Are you able to share why the word “laches” was removed from the Act? Can you explain how this removal harms survivors?

J: I really wish I knew the details about who deleted the word “laches,” how and why. I’ve asked people and have never gotten an answer. It’s a terrible shame that this happened. The doctrine of laches basically bars a claim when a claimant “sat on their hands” too long after they knew or should have known and the actual ability to assert it such that the present-day possessor suffers prejudice in their ability to defend themselves in court. There should be a tougher standard for such a claim than the statute of limitations, but it seems to me that courts are biased in favor of applying it to block historical claims—they assume the standard is met just because a significant amount of time has passed without seriously evaluating what prejudice resulted solely as a result of that allegedly improper delay and whether the claim truly could have and should have been asserted earlier. So, assuming the claim possibly could have been asserted earlier, what evidence was lost after that subsequent point in time? The courts seem to apply the doctrine solely because so many years have passed since the end of the War, but that is not the relevant point in time to evaluate the doctrine. The burden on families searching for their property under such a standard would foreclose virtually all claims before anyone could bring them after war tore their family and nation apart.

Q: What do you believe to have been the tipping point for bi-partisan legislation to finally have been enacted in regard to restitution efforts?

J: Frankly, after having heard for so long that legislation was not an option after a series of meetings at the Department of State on the issue, I was pleased that Ronald Lauder^[4] lobbied Congress. He testified before subcommittees of the Senate Judiciary Committee, along with Monica Dugot of Christie’s^[5]; Simon Goodman^[6], who has reclaimed much of his family’s stolen art objects; Agnes Persztegi^[7], an expert based in Paris who headed the Commission for Art Recovery for some time; and Helen Mirren^[8], who played Maria Altman in the movie Woman in Gold.

Q: Can you provide insight into why it was decided that under the HEAR Act the statute of limitations to file a claim would be six years from actual discovery? Has six years served as an effective statute of limitations? 

J: I believe six years was a compromise between pro-restitution interests and museums and collectors, but the problem preventing the HEAR Act from finally providing a meaningful avenue for justice is the way judges almost genuflect to the laches defense as to historical claims.

Q: The Act provides that it shall sunset after ten years, on January 1st, 2027. Do you believe it will continue to promote private restitution and expedite the process within this timeframe?

J: I think it probably does because it at least is an expression of legislative intent in the modern era favoring restitution. The reality though, at this point, is that it forms more of a backdrop for private arbitration claims, which the public never hears about. It’s really important that people realize that claims known to have existed prior to the HEAR Act’s passage expired on December 15th, 2022. Lawyers representing claimants must either file before then or get a tolling agreement from the current possessor of the art.

Q: On April 21, 2022, the Supreme Court in Cassirer v. Thyssen-Bornemisza Collection Foundation ruled that California law applies to the statute of limitations issues in the case, and it has been remanded for further proceedings. While this was a momentous moment in setting precedent for future restitution cases, how does this favor the Cassirer family and can we consider this to be a glimmer of hope?

J: It is a glimmer of hope, but that is largely because the history in court has been dismal for survivors and their heirs. Almost all of the success stories for claimants occur out of court. Even the Altmann case took years for the Supreme Court of the United States to finally decide just the threshold jurisdictional issue– to allow Ms. Altmann to sue Austria in the United States, after the Austrian courts would have required millions of dollars just in filing fees to try to use its courts to restitute the Klimts. In the end, restitution was awarded via arbitration not court.

Q: Now, approximately halfway through its life, do you think the legislation will need to be renewed or that new legislation may be necessary for effectual restitution of Holocaust-era art?

J: Personally, I would like to see it renewed and amended to add the word “laches” back into the preempted defenses. Otherwise, we have not yet had a truly uniform statute of limitations throughout the United States.

Q: How do you think the publicity of Maria Altmann’s quest for repatriation of her family’s Klimt [painting], including the success of the 2015 biographical film, “Woman in Gold,” played into the subsequent passing of the legislation?

J: I believe the movie and Helen Mirren’s testimony before the U.S. Senate played a large role in drawing attention to the issue at a national level and moving people emotionally to pass the HEAR Act. Art can capture people’s hearts in a way that lawyer’s words and academic papers just cannot. And Helen Mirren is amazing.

Q: In 2019, it was estimated that at least 10,000 works have yet to be restituted. [Reuters] According to the Lost Art Database (German Lost Art Foundation), 3,467 paintings alone have been found, so it is clear that progress has been made. Where would you say there have been successes and where are there failures both within and outside the United States?

J: There have been successes, but the successes usually concern artworks of lower art historical significance and financial value. In my opinion, many museums and collectors are more likely to dig in their heels when a beloved piece is the subject of a claim. There have been more quiet successes – without publicity or public signage – than people realize via private arbitration and mediation. The courts have not worked the way they really should – the deck is stacked against claimants.

Q. How have you been involved in any of the HEAR Act-based cases? Please describe your role. What suggestions do you have to new attorneys interested in this subject? Do you anticipate an increased number or decreased number of court cases involved with Nazi-era looted art claims in the next 3-5 years?

J. I have filed an amicus brief or two to encourage courts to be thoughtful in applying time-bar doctrines since the HEAR Ac’s adoption. I honestly cannot predict the number of court cases that may arise. We keep seeing new claims, but the courts are fairly hostile to them at this point.

Q. Taking the central idea of the HEAR Act and applying it elsewhere, specifically the war in Ukraine and the sanctions constantly being added and altered, do you think the restitution work that has been done is applicable and can serve as a model in different scenarios? Or will entirely new acts and legislation be necessary?

J. Holocaust-era restitution precedents provide a meaningful paradigm to structure other recovery efforts after other atrocities, including the war in Ukraine. It has shown, however, that existing case law has a significant shortcoming in regard to the statute of limitations and laches doctrines. I hope we will see more specialized tribunals handling these matters, rather than generalist judges, in the future.

Q. Rights to ownership is a large topic. How do you think the HEAR Act or other restitution legislation will affect the public view of museums or American property rights in which the Constitution provides the right of people to acquire, use and dispose of property freely^[9] , regardless of means of acquisition?

J. I am always startled when I hear people lament that the public loses out when a museum actually returns [cultural property]. When I think of a free country, one of the things I think of is respect for private property rights. People would be quite upset if institutions could take their car or diamond ring by force. I hope more people realize that the ‘it ought to be in a museum’ mantra often rests on a foundation of stolen property.

Q. The 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property^[10] created guidelines for importation, documentation, etc. of artifacts. Do you think on a global scale the guidelines need to be revamped or addressed and if so, to what?

J. I think the bilateral agreement approach to continue implementing UNESCO is generally a good one, although many collectors don’t like it at all. I’d actually like to see the restitution community extend an olive branch to the dealers so they will provide the information necessary to clean up the antiquities trade. In the Holocaust-era art cases, the lack of information is a huge hurdle for people to even know they may have a claim. Getting the dealers to help would require that one must accept that a trade will continue to exist, whereas many of the people fighting for restitution of antiquities want it banned 100 percent. I’d like to see the dealers fund site preservation.

Q. What experiences have you had that best equipped you for your restitution work? What suggestions do you have to the next generation of legal practitioners to help reach “fair and just solutions” vis-à-vis looted and displaced art claims?

J. Study history and find a cause you feel passionate about dedicating time to help. Require evidence but not an impossible burden of proof. Consider really carefully who ought to have Solomonic^[11] or all-or-nothing power to decide a claim.

The HEAR Act has created a foundation for restitution cases since 2016, advancing the effort to recover what was stolen by Nazi’s to rightful owners. Using HEAR Act precedent, not only are families with a broken past having artworks restored, but draws attention to the question of sourcing the work, and promulgates justice in the sphere of restitution.

This interview demonstrates the importance of educating oneself, using the past to create a framework to create a fair, restored future. The Center for Art Law would like to extend a special thank you to Jennifer Kreder for volunteering her time to speak with our interns and conduct this interview.

Additional Readings:

• Bienstock, Martin, The HEAR Act: An Underutilised Tool for Recovering Holocaust-Looted Art is Scheduled Soon Partially to Expire – Bienstock PLLC (2022)
• Kreder, Jennifer, The Constitutionality of the HEAR Act: Empowering American Courts to Return Holocaust-Era Artwork and Honor History, DePaul University (2020)
• Kredo, Adam, Congress Moves to Spur Return of Artwork Stolen By Nazis, The Washington Free Beacon (2016)
• Kutner, Max, Obama Signs New Law To Help Recover Nazi-Looted Art, News Week (2016)
• Sheridan, Fallon, The Sunset of the Holocaust Expropriated Art Recovery Act of 2016 and the Rise of the Demand and Refusal Rule, Fordham Law Review (2016)

1. Republic of Austria v. Altmann, 541 U.S. 677 (2004). ↑

2. 928 F.3d 186 (2d Cir. 2019). ↑

3. 175 NY App. Div. 3d 107. ↑

4. President of World Jewish Congress who recently reached an agreement for the restitution and repurchase of Gustav Klimt’s “The Black Feather Hat”. ↑
5. International Director of Restitution at Christie’s. ↑
6. Jewish-British Author, Musician and Art Researcher. ↑
7. Holocaust-era Art Litigation Attorney. ↑
8. British Actress. ↑
9. Pilon, Roger Property Rights and the Constitution, Cato Institute (2017) ↑
10. An international treaty signed to combat illegal trade of cultural items. ↑
11. Very wise. ↑