Sunday, August 15, 2010

Art Litigation: 9th Circuit Blocks Spain from Laundering Stolen Art in Cassirer v. Kingdom of Spain

A major international issue is whether a government can purchase a pile of stolen art and then claim immunity under the Foreign Sovereign Immunities Act 28 U.S.C. 1604 when it then makes the stolen art a tourist attraction and markets it to Americans.

Under U.S. law, receiving stolen property is a crime.  18 USC 662.

Spain scored a cultural coup in the 1990's by purchasing the tainted Thyssen-Bornemisza Collection which was compiled by a famous Nazi family.  Spain put the art collection into a "foundation" and tried to insulate it from claims from an American Jew named Claude Cassirer whose grandmother Lilly had been spoliated by the Nazis in the widely-reported case Cassirer v. Kingdom of Spain.

Austria did this by creating the "Leopold Foundation" to "own" the Leopold Museum.  These "foundations" are legal fictions set up to shield the stolen art from legal claims in violation of international law.  Creation of the Leopold Foundation violates the Austria State Treaty Article 26 which unconditionally requires Austria to return property stolen from Nazi persecutees.   Art 26 has no time limitations and is a continuing obligation that Austria has spent decades avoiding, with the complicity of the U.S. State Department.  More on Rudolph Leopold and the Leopold Foundation here.  Rather than treating Rudolph Leopold as the serial criminal that he was, purchasing stolen property and laundering provenances over the course of decadek, a fawning international art press lionizes him as a "collector" downplaying the facts that he died on theeve of his criminal trial in the U.S. in the Portrait of Wally case.

Now Spain is in the game by snapping up artworks with creepy Nazi provenance and plastering famous Nazi names all over downtown Madrid.  See


The late collector Heini Thyssen forced himself to forget his family’s Nazi involvement, but so did the countries that vied for his and his father’s pictures in the 1980s. This well documented book gives the details.

By Anna Somers Cocks
Posted 01 March 2007- From The Art Newspaper

It was the Allies themselves, especially the Americans, who decided to let bygones be bygones and help revive the Thyssen empire in the interest of the German economy and opposing the Soviets. Before Berlin was even taken, Thyssen Gas and Water was working with the Allied Military Governor and by 1948, Bremer Vulkan, the Thyssen shipyard that had made U-boats for the Nazis, had orders from the Allies worth DM11.25m. The fact that in 1946, Averell Harriman, who in January 1941 still nominally held the Thyssen shares in their BVHS bank, became Secretary of State for Commerce almost certainly helped the family get back their banking assets.

Forty years pass and in 1986 the word gets out that Heini Thyssen is thinking of moving his collection from the Villa Favorita on Lake Lugano. Countries fall over themselves to get hold of it (including Prime Minister Thatcher—the only time she takes a direct interest in the arts) and the Nazi past never gets mentioned. As Heini intended from the outset—because it was what his new Spanish wife, Tita, wanted—Spain wins, and in 1993 pays $350m for half the collection.

But check out Wikipedia on the Thyssen-Bornemisza family - not a single mention of the fact that the collection was built from stolen artworks and money from a family that ran its own concentration camp:

In addition, Heini’s brother Stephan, who remained in Germany during the war, was chairman of the board of MABAG, a company that sank mine shafts, built machinery, including parts for the V1 and V2 rockets that bombed Britain, and built petrol storage installations. Together with IG Farben, it constructed the Reich’s main fuel-storage depot in the Kohnstein mountains. By the end of 1943 there were more than 10,000 forced labourers living underground and by October 1944, it had become a concentration camp in its own right, Mittelbau, which would hold 60,000 prisoners of whom 20,000 were worked to death. In addition, a US government memo in the Washington Archives says that in 1943, one in two miners in the Thyssen’s Walsum mine was a slave labourer.

So it's a good thing that on August 12, 2010 the Ninth Circuit decided en banc that Spain's Thyssen-Bornemisza Collection Foundation is not immune from suit in the United States under the Foreign Sovereign Immunities Act (FSIA) 28 USC 1605.

The Ninth Circuit decided two good things: 1. that Claude Cassirer was not required to "exhaust" his remedies against Spain in a Spanish court prior to bringing a claim in the US and 2. that Spain's possession of expropriated property together with its commercial activities in the US (e.g., selling pictures of the stolen work to American consumers) exempted Spain from claiming sovereing immunity to suit.

Below is the YouTube video where attorney Thad Stauber of Nixon Peabody gives the Ninth Circuit's panel a "shout out" from William Barron of Smith Gambrell, who represents both Thyssen-Bornemisza and the Leopold Foundation in the Portrait of Wally case.  The argument is really worth watching, kudos to the judge who analogizes the case to the "pawn shop" scenario.

The Ninth Circuit decision below:

Art Litigation: Cassirer v Kingdom of Spain - Camille Pissarro

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