Cassirer v. Thyssen-Bornemisza Collection Foundation
862 F.3d 951
| 9th Cir. | 2017Background
- In 1939 Lilly Neubauer was forced under Nazi pressure to relinquish a Camille Pissarro painting; postwar proceedings confirmed her ownership but the painting’s whereabouts were unknown for decades.
- The painting surfaced in museum in Madrid after Baron Hans Heinrich Thyssen‑Bornemisza acquired it (1976) and Spain (via the Thyssen‑Bornemisza Collection Foundation, TBC) purchased the Baron’s collection in 1993 and publicly displayed the work.
- Claude Cassirer (heirs now David and Ava Cassirer and United Jewish Federation of San Diego County) discovered the painting’s location by 2000, filed a Spanish petition in 2001, and sued in U.S. federal court in 2005 under FSIA jurisdictional principles established in prior Ninth Circuit opinions.
- The district court granted summary judgment to TBC, holding Spanish law (Civil Code Article 1955) vested TBC with title by acquisitive prescription; plaintiffs appealed and TBC cross‑appealed several defenses and alternative grounds.
- On appeal the Ninth Circuit (Bea, Callahan, Ikuta concurring in part) reversed: HEAR (2016) supplies a six‑year federal limitations period (claims timely), Spanish law governs substantive title under the Restatement (Second) choice‑of‑law rules, and there is a genuine factual dispute whether TBC is an encubridor (accessory/knowing receiver) under Spanish Civil Code Article 1956, defeating summary judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Applicable statute of limitations | HEAR (2016) provides a 6‑year toll starting at actual discovery; applies to pending appeals so claims are timely | Retroactive application of California §338(c)(3)(A) or other limitations would violate due process | HEAR governs in federal court; plaintiffs’ suit is timely (actual discovery in 2000 → suit within 6 years under HEAR) |
| Choice of substantive law to decide title | Apply forum (California) rules protecting original owners | Apply federal common law choice‑of‑law per FSIA; Restatement (Second) factors favor situs (Spain) | Apply Restatement (Second); Spanish substantive law governs acquisitive‑prescription dispute |
| Whether TBC acquired title by Spanish acquisitive prescription (Article 1955) | TBC’s public, peaceful, uninterrupted possession since 1993 satisfies Article 1955; thus title vested | Article 1956 bars prescription where possessor is an encubridor (accomplice/knowing receiver); TBC may have known painting was stolen | Reversed grant of summary judgment: triable issue whether TBC (or Baron) was an encubridor/knowing receiver under Article 1956, so prescriptive title not established as a matter of law |
| Alternative defenses (Swiss good‑faith title, laches, 1958 settlement waiver) | Baron acquired good title under Swiss acquisitive prescription or sale; plaintiffs’ delay invokes laches; Lilly waived rights in 1958 settlement | Baron had presumptively good‑faith acquisition under Swiss law; plaintiffs’ claims are barred by laches or settled by 1958 agreement | Rejected: triable issues of fact on Baron’s good faith under Swiss law; laches inappropriate on summary judgment; 1958 settlement did not waive physical restitution under German law |
Key Cases Cited
- Cassirer v. Kingdom of Spain, 616 F.3d 1019 (9th Cir. 2010) (prior en banc opinion addressing FSIA jurisdictional framework in this dispute)
- Sachs v. Republic of Austria, 737 F.3d 584 (9th Cir. 2013) (discussing choice‑of‑law in FSIA cases; distinguished here)
- Schoenberg v. Exportadora de Sal, S.A. de C.V., 930 F.2d 777 (9th Cir. 1991) (federal common law applies and Restatement (Second) governs choice‑of‑law when jurisdiction rests on FSIA)
- Von Saher v. Norton Simon Museum of Art at Pasadena, 754 F.3d 712 (9th Cir. 2014) (federal policy considerations in Nazi‑looted art restitution cases)
- Couveau v. American Airlines, Inc., 218 F.3d 1078 (9th Cir. 2000) (laches requires unreasonable delay and prejudice; summary judgment rarely appropriate)