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Spain, Thyssen-Bornemisza Seek Review of Ninth Circuit FSIA Decision

By Josh Wolkoff

The battle over Pissarro’s Rue Saint-Honoré, après-midi, effect de pluie wages on for Claude Cassirer and his family. On December 14, 2010, the Thyssen-Bornemisza Collection, together with the Kingdom of Spain, filed their petition for writ of certiorari with the U.S. Supreme Court, claiming that the U.S. District Court lacked personal and subject matter jurisdiction to adjudicate the dispute over the Nazi-looted painting.Their request comes in the wake of the Ninth Circuit’s determination that the Foreign Sovereign Immunities Act (FSIA) will not shield the Museum or the Kingdom from liability, where the property in question was seized in violation of international law, pursuant to 28 U.S.C. 1605(a)(3).

The oil painting originally belonged to Cassirer’s great-grandfather, who purchased the work in 1898. The family was forced to sell the Pissarro in order to escape Germany and the threat of Nazi persecution.The painting eventually wound up in the hands of the Thyssen-Bornemisza Collection.

Spain defended the lawsuit, claiming that the FSIA immunized them from suit, and argued that while the statute abrogates sovereign immunity for cases involving property seized in violation of international law, this exception necessarily requires that the defendant be the one to have engaged in the wrong-doing.The Ninth Circuit disagreed:

[T]he plain language of §1605(a)(3) does not require that the foreign state (against whom the claim is made) be the entity who expropriated the property in violation of international law.

Accordingly, the Court determined that the expropriation, taken in conjunction with the Collection’s U.S. commercial activity, was sufficient to confer jurisdiction.

Spain further argued that under the FSIA, plaintiffs are required to exhaust judicial remedies in the appropriate foreign forum before turning to American courts for relief. Upholding the District Court’s ruling, the Ninth Circuit determined that neither Congress’ mandate, nor international comity, require judicial exhaustion (you can read the rest of the opinion here).

In an interesting twist, Spain and the Collection recently announced that they have historical evidence suggesting that in 1958, Cassirer’s grandmother entered into a legally binding, court approved settlement, in which the family received current 1958 fair market value for the painting.In exchange, the family agreed to relinquish any future restitution claims.

Although this revelation poses a direct challenge to the substantive merits of the case, the jurisdictional issues remain unresolved.What are your thoughts?Do the federal courts have jurisdiction to hear the suit under an FSIA exception? More importantly, what would a Supreme Court decision mean for future restitution cases brought within the United States?