The Ninth Circuit Court of Appeals has ruled in a dispute between plaintiff Claude Cassirer and defendants Thyssen-Bornemisza Collection Foundation and the Kingdom of Spain over Pissarro’s Rue Saint Honore, finding that the defendants are indeed subject to the jurisdiction of the court and that the Foreign Sovereign Immunities Act (“FSIA”) does not apply.
The three critical holdings in the circuit court’s ruling are as follows:
(1) Under the expropriation exception of the FSIA, a foreign nation may be sued so long as the property was taken in violation of international law, and the exception doesn’t just apply to a foreign state who wrongfully took the property;
(2) The commercial activity exception also applies, because the Foundation had engaged in commercial activities in the U.S. such as selling books and posters, promoting tourism of the museum in the U.S. based on the Pissarro work, and sending promotional materials to Spain’s U.S.-based tourism offices; and
(3) The plaintiff is not required to pursue remedies in Spain as a prerequisite to the U.S. suit.
The painting was owned by the plaintiff’s grandmother, who was forced to relinquish the painting in order to obtain an exit visa from Nazi Germany. The plaintiff was the sole heir to the painting and searched for it to no avail, until 2000 when a friend saw it in a Thyssen-Bornemisza Museum catalogue. The plaintiff attempted to negotiate its return from defendants to no avail, and filed suit.
The attorney for the Foundation indicates they are evaluating whether to seek further review (meaning, from the U.S. Supreme Court). Otherwise the case will return to the lower court for trial.