Back

WYWH: “Art and Antiquities Part 2: Art and the Holocaust”

March 19, 2025

By Emily Ko

On February 27, 2025, the Federal Bar Council hosted Art and Antiquities Part 2: Art and the Holocaust. Moderated by The Honorable Gary Stein, the panel featured five speakers who offered a rich variety of perspectives. The panelists were Lucian Simmons, the Head of Provenance Research at The Metropolitan Museum of Art; Jane Levine, a founder of The ArtRisk Group; Edward Diskant, Co-Head of the Global White-Collar and Government Investigations Practice at McDermott Will & Emery LLP; Noah Solowiejczyk, Co-Chief of the Illicit Finance and Money Laundering Unit at the United States Attorney’s Office for the Southern District of New York; and Anna Rubin, Director of the Holocaust Claims Processing Office at the New York State Department of Financial Services.

Subject of Nazi-era looted art remains of great interest because even eighty years after Nazi plunder, over 100,000 pieces remain missing. Simmons opened the discussion by highlighting the simultaneously small and incalculably large nature of this displacement. It was not only masterpieces that were subject to Nazi looting but also everyday items such as family portraits and cutlery.

What Does Provenance Research Look Like?

Simmons explained that provenance issues arise when artworks change hands – whether consigned for sale, appraised upon the death of a collector, or gifted to an institution. In the museum setting, movement occurs through donations and incoming or outgoing loans. Any cultural property is subject to detailed provenance research.

Simmons emphasized the critical role of research. There are “red-flag” names – such as certain dealers or known aggressors – and high-risk areas with which the work is associated that might trigger the need for further investigation. As is often the case for a lawyer, research comes first – trying to understand as much as you can, analyzing the facts, then applying the law or asking “what do we do about this?” In the private sector, one asks what the right thing to do is for the auction house. In the museum, one asks what the right thing to do is for the museum and the public interest.

80 Years Later… What About Statute of Limitations?

Next, Levine addressed the legal doctrines and challenges that emerge from these cases. Often, WWII plunder involves acts of government. Suing a government is difficult – sovereign immunity can bar recovery, for instance. These artworks also travel internationally; what laws do we apply?

Levine posed the question: how do you bring a tort action (specifically, the civil tort of replevin) 80 years later? This question has been at the heart of much litigation surrounding statute of limitations.

She referenced three key cases: Menzel v. List, Republic of Austria v. Altmann, and Republic of Germany v. Philipp, each illustrating the legal complexities and evolving jurisprudence in art restitution cases.

Menzel v. List: Demand and Refusal versus Discovery

In 1941, the Menzels fled their apartment when the Germans invaded Belgium, leaving behind a Marc Chagall painting.^{^[1]} At the end of the war, the Menzels continued to search for the painting, with no luck.^{^[2]} The painting’s location between 1941 and 1955 is unknown (as of 1969).^{^[3]} In 1955, Klaus Perls and his wife purchased the painting from a Parisian art gallery.^{^[4]} In October of 1955, Perls sold the painting to Albert List.^{^[5]} In 1962, Mrs. Menzel noticed in an art book a reproduction of the Chagall with a statement that the work belonged to List. She demanded that he surrender the work to her, but he refused.^{^[6]}

List impleaded the Perlses, and the defendants invoked statute of limitations.^{^[7]} Levine noted that a key part of this case is its engagement with the New York rule of “demand and refusal.” Pursuant to this rule, the “clock” starts (i.e., the statute of limitations begins to run) when the demand and refusal occurs. In this case, under the rule of demand and refusal, the statute of limitations started when List refused to surrender the painting to Mrs. Menzel. Therefore, Mrs. Menzel was not without recourse over 20 years later. As the trial court^{^[8]} specified, “In replevin, as well as in conversion, the cause of action against a person who lawfully comes by a chattel arises, not upon the stealing or the taking, but upon the defendant’s refusal to convey the chattel upon demand.”^{^[9]} Under the discovery rule, however, the cause of action accrues when the person knew or reasonably should have known, through the exercise of due diligence, that they had a cause of action. In other words, as Levine clarified, the burden is on the victim to find their art. Unlike most other states, New York uses the rule of demand and refusal, which explains why there is a lot of WWII looted art litigation here.

Menzel v. List (cont.): Act of State Doctrine

Levine noted that the defendants raised another defense: the Act of State Doctrine. Citing Banco Nacional de Cuba v. Sabbatino, the trial court defined the Act of State Doctrine: “The doctrine states… that ‘the Judicial Branch [of the government] will not examine the validity of a taking of property within its own territory by a foreign sovereign government, extant and recognized by this country at the time of suit, in the absence of a treaty or other unambiguous agreement regarding controlling legal principles, even if the complaint alleges that the taking violates customary international law.’”^{^[10]}

The trial court considered the following four factors of the Act of State Doctrine: “(A) the taking must be by a foreign sovereign government; (B) the taking must be within the territorial limitations of that government; (C) the foreign government must be extant and recognized by this country at the time of suit; (D) the taking must not be violative of a treaty obligation.”^{^[11]} The trial court found that none of these factors were met.^{^[12]}

When the Menzels returned, they found that a receipt had been left, indicating that the painting was taken into “safekeeping” by the Einsatzstab der Dienststellen des Reichsleiters Rosenberg (ERR).^{^[13]} The trial court found that the seizure of the painting was carried out not by a foreign sovereign government, but by the ERR, “an organ of the Nazi party.”^{^[14]}

Without (A) met, the inquiry of (B) becomes “moot”, the trial court determined.^{^[15]} Even if the court assumed the German government had carried out the plunder, the seizure of the painting occurred outside of the territorial limits of the German government; it occurred in Belgium, a separate, recognized nation.^{^[16]}

(C) was not met, since the Third Reich was not extant nor recognized by the United States government at the time of this case.^{^[17]} Because the Nazi plunder constituted violations of the Hague Conventions, the trial court found that (D) was not met.^{^[18]}

Republic of Austria v. Altmann and Federal Republic of Germany v. Philipp: Foreign Sovereign Immunities Act

As mentioned above, Levine noted that many restitution cases often involve acts of government. She provided two examples: Republic of Austria v. Altmann and Federal Republic of Germany v. Philipp.

Maria Altmann filed suit against the Republic of Austria and the Austrian Gallery, seeking recovery of artwork pursuant to a will that her uncle executed after he fled Austria in 1938.^{^[19]} She had become aware that her aunt and uncle did not “freely donate” the paintings to the gallery before the war.^{^[20]} It was a coerced donation.^{^[21]} Altmann asserted jurisdiction under the Foreign Sovereign Immunities Act of 1976 (FSIA), which grants “foreign states immunity from jurisdiction of federal and state courts but expressly exempts certain cases, including ‘cases… in which rights in property taken in violation of international law are at issue.’”^{^[22]} The defendants invoked sovereign immunity. The District Court found that the FSIA applied retroactively and that the expropriation exception (the express exemption) covered Altmann’s claims, even though the conduct in question occurred before the statute’s enactment. The Ninth Circuit affirmed, and the Supreme Court affirmed on certiorari.

In Federal Republic of Germany v. Philipp, the Court held that the FSIA did not apply. At the tail end of the Weimar Republic, Jewish residents of Frankfurt who owned art firms purchased medieval relics and devotional objects (known as the Welfenschatz).^{^[23]} The heirs of these Jewish residents of Frankfurt brought suit, invoking the expropriation exception of the FSIA.^{^[24]} Germany argued that the heirs’ claims did not fall under the expropriation exception, and the heirs countered by asserting that “violation of international law” should be construed to include violation of the international law of genocide.^{^[25]}

The Court rejected this broader reading of the statute:

We need not decide whether the sale of the consortium’s property [the Jewish owners’ art firm consortium] was an act of genocide, because the expropriation exception is best read as referencing the international law of expropriation rather than of human rights. We do not look to the law of genocide to determine if we have jurisdiction over the heirs’ common law property claims. We look to the law of property.^{^[26]}

The Court further explains the undesirable implications of the heirs’ interpretation of the statute:

As a Nation, we would be surprised – and might even initiate reciprocal action – if a court in Germany adjudicated claims by Americans that they were entitled to hundreds of millions of dollars because of human rights violations committed by the United States Government years ago. There is no reason to anticipate that Germany’s reaction would be any different were American courts to exercise the jurisdiction claimed in this case.^{^[27]}

After Levine provided a rich survey of some of the common legal doctrines and rules that arise from restitution litigation, Diskant continued the conversation, focusing on the doctrine of laches.

Bakalar v. Vavra and Reif v. Nagy: Doctrine of Laches

Diskant, a lawyer for the Art Institute of Chicago in the litigation over Egon Schiele’s “Russian War Prisoner,” spoke about two cases: Bakalar v. Vavra and Reif v. Nagy. In both cases, the doctrine of laches was determinative.

The doctrine of laches is an affirmative defense that is available when a party was aware that they had a cause of action and unreasonably delayed in pursuing that cause of action, which prejudiced the opposing party.^{^[28]}

The district court found that the heirs’ ancestors were not diligent in pursuing the recovery of the work in question – Schiele’s “Seated Woman With Bent Left Leg (Torso).”^{^[29]} As a result, the court concluded, David Bakalar was prejudiced. This delay “‘resulted in deceased witnesses, faded memories, lost documents, and hearsay testimony of questionable value.’”^{^[30]} The district court also held that there was no reason to “disturb” the finding that Bakalar purchased the work in good faith.^{^[31]} The court concluded that Bakalar had no duty to research the provenance of the Schiele, since he was an “ordinary non-merchant purchaser of art.”^{^[32]} The district court found that laches did apply, which was affirmed on appeal.

In contrast, the Reif v. Nagy court rejected the defense’s invocation of laches, since Richard Nagy, an independent art dealer, was aware of the plaintiffs’ claims to the Fritz Grünbaum (Jewish art collector who amassed a large body of Schiele’s work) collection prior to purchasing the two Schieles in question.^{^[33]} He also acquired insurance in order to insure title against plaintiffs’ claims.^{^[34]} Therefore, Nagy was not prejudiced by the delay.

Diskant mentioned that the Grünbaum collection is subject to criminal proceedings as well.

This entailed a transition into Noah Solowiejczyk’s discussion of the civil forfeiture, which is used in light of the challenges that come with handling these claims through criminal proceedings.

Civil Forfeiture and Statutes

With these claims that deal with potentially looted art and conduct that occurred 80 years ago, we are in the world of civil forfeiture, as Solowiejczyk explained.^{^[35]}

A conviction is required for a criminal forfeiture, which is more difficult with these restitution claims that look back 80 or so years, since there are often no defendants to investigate.

Civil forfeiture is a civil proceeding against in rem property with the burden on the government to prove the connection between the property and criminal offense by a preponderance of the evidence standard – it is not necessarily about proving the culpability of the particular property owner.

This is a typical pattern of events: an auction house in Manhattan does its own investigation, it realizes that it may be in the possession of a looted piece, it reaches out to the FBI or Homeland Security, and the government gets involved. The government tries to do its own investigation.

Solowiejczyk mentioned the relevant statutes that the government may rely on:

18 U.S.C. §545 – smuggling statute
18 U.S.C. §981(a)(1)(c) – “proceeds” theory (the most common basis with the two typical offenses being 18 USCS, Pt. I, Ch. 113 §2314 and §2315)
19 U.S.C.S. Ch. 5^{^[36]}– customs forfeiture

Solowiejczyk provided an example of the Salomon Konick case. The United States Attorney’s Office sought civil forfeiture of Salomon’s Konick’s A Scholar Sharpening His Quill. Read the press release here.

Law as Background, Not Foreground: The Holocaust Claims Processing Office

Shifting from the strictly legal perspective, Anna Rubin offered a state agency perspective that does not look to the law to resolve these claims. Though she may use “soft law” like the Washington Principles, her office supports victims through negotiation and dialogue, with morals and ethics as guiding principles.

The Holocaust Claims Processing Office is also not subject to the constraints imposed by law, such as statute of limitations. The office has recovered 289 individual objects over 30 different collections.^{^[37]} 90% of the claims involve possessors in Europe and not in the United States, and U.S. law has no authority on museums in Munich or France.

The office supports families in putting together their case through archival and genealogical research. The office puts together a package for the current possessor that in part explains how a particular object is woven into the family’s story.

After this package is assembled, the office hopes to engage in a constructive exchange. Because these dialogues are not restricted by statute of limitations, there is no rigid timeline. The lack of legal constraints also offers more creativity with respect to remedies. The office may devise ways to resolve claims such as financial settlements, a combination of financial settlements and donation, or a mix-and-match of different options. Resolution does not necessarily have to be giving the object back.

The office does not charge a fee, and it does not matter what the value of the work is. Even if an object has a low monetary value, it could have a high emotional impact within the family’s story. The office often works with grandchildren, great grandchildren, or even great-great grandchildren. Though these heirs may have somewhat of a more distant relationship, oftentimes, claimants are looking to rectify their predecessor’s pain in some way and bring justice to what they experienced, as Rubin explained.

Before Litigation

With respect to alternative avenues for resolution, Levine emphasized that a majority of these cases are resolved without litigation. Since it is no longer possible to find individuals with firsthand knowledge of what occurred during World War II, the onus is now on museums and other institutions to conduct due diligence. The question then becomes, as Levine put it, “When does your failure to do due diligence cross the line to the point where you are kind of complicit?”

From the Editors: If you would like to learn more about the work being conducted in connection to Nazi-era disputed art, we invite you to attend our upcoming annual conference on April 10th about research and restitution.

Bibliography:

Menzel v. List, 267 N.Y.S.2d 804, 806 (Sup. Ct. 1966). ↑
Id. at 807. ↑
Menzel v. List, 246 N.E.2d 742, 743 (1969). ↑
Id. ↑
Id. ↑
Id. ↑
Menzel v. List, 267 N.Y.S.2d 804, 807 (Sup. Ct. 1966). ↑
Even though this case reached the Court of Appeals of New York, I refer to the trial court here because the principal issue at the appellate level was the measurement of damages, not these findings of law (the demand and refusal rule and the act of state doctrine) and fact. In the words of the Court of Appeals of New York, “List’s appeal and the Perls’ cross appeal present only questions of law for resolution, the facts having been found by the jury and affirmed by the Appellate Division (its modification was on the law as to the proper measure of damages and the running of interest). The issue on the main appeal is simply what is or should be the proper measure of damages for the breach of an implied warranty of title (or quiet possession) in the sale of personal property.” (emphasis added). Menzel v. List, 246 N.E.2d 742, 743-44 (1969). ↑
Menzel v. List, 267 N.Y.S.2d 804, 809 (Sup. Ct. 1966). ↑
Id. at 812-13. ↑
Id. at 813. ↑
Id. ↑
Menzel v. List, 267 N.Y.S.2d 804, 806 (Sup. Ct. 1966); Menzel v. List, 246 N.E.2d 742, 743 (1969). ↑
Menzel v. List, 267 N.Y.S.2d 804, 815 (Sup. Ct. 1966). ↑
Id. ↑
Id. ↑
Id. at 816. ↑
Id. at 817. ↑
Republic of Aus. v. Altmann, 541 U.S. 677, 680 (2004). ↑
Id. at 684. ↑
Id. ↑
Id. at 685. ↑
F.R.G. v. Philipp, 592 U.S. 169, 173 (2021). ↑
Id. at 174. ↑
Id. at 175. ↑
Id. at 180. ↑
Id. at 185. ↑
Bakalar v. Vavra, 500 F.App’x 6, 8 (2012). ↑
Bakalar v. Vavra, 819 F. Supp. 2d 293, 306 (2011). ↑
Id. (quoting Solomon R. Guggenheim Found. v. Lubell, 550 N.Y.S.2d 618, 621 (1990) in Sanchez v. Trs. of the Univ. of Pa., 2005 U.S. Dist. LEXIS 636, at *10 (S.D.N.Y. Jan. 18, 2005). ↑
Id. at 306. ↑
Id. ↑
Reif v. Nagy, 106 N.Y.S.3d 5, 7 (2019). ↑
Id. at 22-3. ↑
Solowiejczyk provided a disclaimer that the views expressed here are his own and do not represent the views of the Justice Department. ↑
I did not catch the exact section. ↑
As of February 27, 2025. ↑

Disclaimer: This article is for educational purposes only and is not meant to provide legal advice. Readers should not construe or rely on any comment or statement in this article as legal advice. For legal advice, readers should seek a consultation with an attorney.

Navigating New Grounds on the Nazi-Looted Art Restitution Field: Swiss Commission and German Arbitration Tribunal

From Stolen Heritage to Restitution: The Story Behind Looted Art

Deciphering the Foreign Sovereign Immunities Act and Its Effects on Reclaiming Looted Art