Heirs turn to Seventh Circuit for return of Nazi-looted Van Gogh

CHICAGO (CN) — The heirs of a German Jewish banker looked to a Seventh Circuit panel Thursday to recover a Vincent Van Gogh painting they say was wrongfully sold under pressure from the Nazis.

The heirs of prominent Jewish banker and art collector Paul von Mendelssohn-Bartholdy sued international Japanese insurance company Sompo Holdings and its subsidiaries in 2022 to reclaim one of the iconic Van Gogh Sunflower paintings, which the heirs said Mendelssohn-Bartholdy only surrendered to escape Nazi persecution.

Sompo’s corporate predecessor Yasuda bought the painting in 1987 at a Christie’s auction in London. The heirs said in their appellate brief that Yasuda ignored a provenance indentifying well-known Nazi victim Mendelssohn-Bartholdy as the owner of the painting.

“Your honors, this case at its core involves a theme as old as human temptation itself, a classic devil’s bargain,” Thomas Hamilton, an attorney with Byrne Goldberg told the panel of judges. “When a party in exchange for receiving some illicit advantage or power, that promises great wealth and fame, forfeits its authentic identity and mortgages its future.”

The heirs, who sued under the Holocaust Expropriated Art Recovery Act of 2016, also seek to recoup the unjust enrichment Sompo reaped from the Art Institute-sponsored exhibit of the painting in Chicago in 2001. A lower court dismissed the case in 2024 for lack of jurisdiction, and the heirs appealed to the Seventh Circuit in May.

The Holocaust Expropriated Recovery Act was designed to give survivors of the Holocaust and their heirs a chance to reclaim art confiscated or otherwise misappropriated by the Nazis during World War II.

“These policies also enjoin federal courts to exercise their maximal judicial authority and discretion both to entertain these claims as well as resolve them expeditiously, fairly, and on their substantive merits,” the heirs said in the appellate brief. “In enacting the HEAR Act Congress expressly invoked its Constitutional war powers and foreign policy authority to further its long-standing and priority goal to return Nazi-confiscated artworks to rightful owners.”

They noted the HEAR Act represented a diplomatic commitment to the 46 other signatories of the Terezin Declaration of 2009, a legally nonbinding agreement in which each government committed to facilitating the return of Nazi-confiscated artwork.

Sompo’s attorney Daniel Graham argued in court Thursday that this wasn’t a case of Nazi-confiscated art, because Mendelssohn-Bartholdy sold the painting at an auction.

“This is an argument being made under the HEAR Act that this artwork was sold under duress. This is not Nazi-confiscated art.”

The lower court dismissed the heirs’ claims because they lacked general “suit related contacts” with Illinois. Hamilton argued that the heirs have the necessary contacts because Sompo’s brick and mortar office is in Chicago and because the exhibit was at the Art Institute of Chicago.

Graham, however, argued the heirs based their argument on a mischaracterization of the HEAR Act.

“It’s specifically focused on eliminating statue of limitations for a specific period of time for causes of action, either federal or state causes of action. That’s it,” Graham said of the statute. “It didn’t open up the Pandora. It didn’t open up the box for creation of common law claims and causes of action. In fact, Congress explicitly said, it cannot.”

The lower court also found that because the Terezin Declaration was nonbinding, “the heirs’ claims are premised upon merely ‘desirable social policy,’ and eschewed judicial authority to enforce such mere ‘matters of conscience.’”

Hamilton argued that because the declaration is an executive agreement enjoying the full support of Congress via the HEAR Act, it’s vested with the full foreign policy authority of the United States.

“What are we to make of the fact that the Terezin Declaration by its terms is non-binding, whereas the cases that you cite in support of that proposition dealt with treaties that were binding upon the cents?” U.S. Circuit Judge John Lee, a Joe Biden appointee, asked.

“The nonbinding issue, your honor, is something of a red herring. The Garamendi decision of the Supreme Court explains that the president enjoys extensive foreign policy authority under the Constitution, and Congress has basically gone along with and acknowledged that,” Hamilton said, referring to the high court’s 2003 holding in American Insurance Ass’n v. Garamendi . He said that under Garamendi , the declaration may represent a diplomatic mechanism the president has chosen to achieve a foreign policy objective and reciprocal enforcement is irrelevant.

U.S. Circuit Judges Kenneth Ripple, a Ronald Reagan appointee, and Doris Pryor, a Biden appointee, rounded out at the panel. They did not indicate when they might rule on the matter.

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