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Supreme Court revives fight over Pissarro painting stolen by Nazis

The unanimous decision advances an international tug-of-war over a French impressionist painting surrendered to the Nazis by its Jewish owner to secure her family's safe passage out of pre-war Germany.

WASHINGTON (CN) — Spain cannot dictate what laws should govern a suit it faces over the acquisition of Nazi-looted art, the Supreme Court ruled Thursday, saying foreign states are not owed any special consideration in cases that do not raise federal claims.

Opening with a flowery paragraph that sets the squabble over a Parisian streetscape against the U.S. law that subjects overseas powers to the American justice system, the unanimous decision stands immediately in contrast to the dry legal arguments about the Foreign Sovereign Immunities Act that occurred at the high court this past January.

“The path of our decision has been as short as the hunt for 'Rue Saint-Honoré' was long; our ruling is as simple as the conflict over its rightful owner has been vexed,” Justice Elena Kagan wrote for the court. “A foreign state or instrumentality in an FSIA suit is liable just as a private party would be.” 

Attorneys for the Cassirer family expressed support for the ruling, which they say brings their clients in reach of their goal.

"Today, we move one step closer toward returning this important piece of art to its rightful owners,'' said Steve Zack, a partner at Boies Schiller who has represented the Cassirer family in the case for more than 10 years. "We applaud the Supreme Court's unanimous decision, which sets the stage for a new trial and the opportunity to make clear to the world that looted artworks must be returned, no matter how many decades have gone by since the initial theft. 

Kagan put wind in the Cassirers' sails but nevertheless made no statement in the opinion about whether the first owners o Camille Pissarro’s “Rue Saint-Honoré in the Afternoon, Effect of Rain," after the artist himself, still have a claim to it.

It was in 1939 that Lilly Cassirer traded the painting to the Nazis in exchange for her Jewish family's safe passage out of Germany. Though she was never able to access the pittance of a purchase price that the Nazis paid, 20 years later she was recognized as the painting's rightful owner and accepted what today would be worth about $250,000 from the German government as compensation. She died a few years after that, having never again seen the painting.

Several more decades passed then before her grandson Claude traveled to Madrid and saw the painting on display at the Thyssen-Bornemisza Museum, part of a $350 million acquisition that the foundation around that time. Claude's heirs took up the quest to reclaim the painting after his death in 2010 — a battle that finally arrived at the Supreme Court's steps after defeat in U.S. District Court and again at the en banc Ninth Circuit.

Using choice-of-law rules to determine jurisdiction, the lower courts landed on the Spanish law version of what is colloquially described as squatter’s rights.

Kagan concluded Thursday, however, that FSIA was never meant to shield foreign states from liability where they are not entitled to immunity under the act. 

“So when a foreign state is not immune from suit, it is subject to the same rules of liability as a private party,” she wrote. 

Therefore, choice-of-law rules must also mirror rules that would apply in a similar suit between private parties. When the lower court applied federal choice-of-law rules, Kagan determined, the court created a mismatch between the foundation’s liability and that of a private defendant. The justices agree with the Cassirers that California’s choice-of-law rules would apply. 

While the ruling is mum about who the rightful owners of the painting are, the Cassirers have long argued that using California's choice-of-law rule would result in them being declared the rightful owners.

“If the Cassirers are right, the use of a federal choice-of-law rule in the courts below stopped Section 1606 from working: That rule led to the Foundation keeping the painting when a private museum would have had to give it back,” Kagan wrote. 

The Cassirers' attorney, David Boies with Boies, Schiller & Flexner, did not respond to a request for comment, nor did Sarah Andre, an attorney from Nixon Peabody representing the foundation. 

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