Nazi Art Case Argued at Ninth Circuit

Matt Reynolds

PASADENA, Calif. (CN) — Before World War II, the Camille Pissarro painting of a Paris street was displayed in a well-appointed room in the Berlin residence of Lilly Cassirer, whose Jewish family had owned the Impressionist artwork since the turn of the century.

Decades later, the 1897 oil on canvas, “Rue Saint-Honoré, Après-midi, Effet de Pluie,” would find a home at the Thyssen-Bornemisza art museum in Madrid, where visitors would lean in to look at the rain-drenched scene.

The journey from Germany to Madrid was fraught and laid the seeds for a bitterly fought legal contest that began when the woman’s relatives filed suit more than a decade ago.

Cassirer fled Nazi Germany at the beginning of the war. To secure an exit visa with her husband, she sold the Pissarro to a Nazi art appraiser. He offered her 900 Reichsmarks —$360 — well below market value for the piece, but it was a matter of life and death for the woman, whose sister was in a concentration camp.

While Cassirer went to England, her painting would wind up crossing the Atlantic.

In 1951, the Frank Perls Gallery of Beverly Hills acquired the painting after it was smuggled from Germany, Cassirer’s relatives said in a legal brief to the Ninth Circuit this year.

The painting changed hands several times before it ended up in the hands of Baron Hans Heinrich Thyssen-Bornemisza in Spain. In the early 1990s, the Thyssen-Bornemisza Foundation bought hundreds of artworks, including the Pissarro, for $338 million, with funding from the Spanish government.

The Cassirers say that when the Foundation came into possession it knew, or should have known, that the painting was stolen.

In June 2015, however, U.S. District John Walter Los Angeles ruled that the Thyssen-Bornemisza Foundation had properly acquired title to the painting under Spanish law.

“Although the foundation has now prevailed in this prolonged and bitterly contested litigation, the court recommends that, before the next phase of litigation commences in the Ninth Circuit, the Foundation pause, reflect, and consider whether it would be appropriate to work towards a mutually agreeable resolution of this action,” the judge wrote, citing “‘just and fair solutions’ for victims of Nazi persecution.”

At a Monday hearing at the Ninth Circuit, the family said Walter had misinterpreted the law. Their attorney David Boies said the Cassirers are the rightful owners, under California and international law.

“The Foundation acted in bad faith with actual or constructive knowledge that this was a looted piece of art,” Boies said.

Even if the court does find that the painting should stay in the museum because of heritage laws in its adopted country, the family should receive the equivalent in damages, Boies said.

He said after the hearing that that could mean tens of millions of dollars. The painting has been valued at $20 million.

Ninth Circuit Judge Consuelo Maria Callahan asked the Foundation’s attorney Thaddeus Stauber to address the “elephant in the room.” She wondered if the Foundation had “turned a blind eye to multiple indicators of the painting’s suspect provenance.”

Among those indicators is a torn Berlin label that is still on the painting, which includes part of the Cassirer art gallery’s address, the family said in its brief. It was well known in art circles that the Nazis looted Pissarro paintings.

Stauber conceded that the painting was lost under “tragic circumstances,” but said Lilly Cassirer had been compensated in 1958 for her loss by the German government, which paid her the “fair market value” for the painting at that time.

“Our position is that the 1958 settlement agreement ended the status of the property as stolen,” Stauber told the court.

After the hearing, Boies said he did not believe that settlement would play into the court’s decision.

“I think it’s pretty clear that the earlier settlement did not relate at all to possession of the painting,” Boies said.

Stauber said outside the courthouse that Lilly Cassirer had settled “willingly and with good counsel,” despite the panel’s position during the hearing that she believed the piece had been lost or destroyed.

“We think it demonstrates that there’s a reason the family took no action after 1958. The case was over. The German government accepted responsibility for its crime and paid,” Stauber said.

Callahan was joined on the panel by Judges Carlos Bea and Sandra Segal Ikuta.