Case Information
‐ Zuckerman Metropolitan Museum
UNITED STATES COURT OF APPEALS F OR THE S ECOND C IRCUIT _______________
August Term, (Argued: February Decided: June 2019) Docket No.
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L AUREL Z UCKERMAN , AS A NCILLARY A DMINISTRATRIX OF THE E STATE OF A LICE L EFFMANN ,
Plaintiff Appellant,
—v.—
T HE M ETROPOLITAN M USEUM OF A RT ,
Defendant Appellee
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B e f o r e:
K ATZMANN Chief Judge , L IVINGSTON D RONEY , Circuit Judges _______________
Plaintiff Appellant Laurel Zuckerman appeals judgment United States District Court Southern District York (Preska, J .) dismissing her complaint failure state claim. seeks recovery painting Pablo Picasso Art’s Zuckerman The Art
possession since painting once belonged Zuckerman’s ancestors, Paul and Alice Leffmann, who sold private dealer obtain funds flee fascist Italy after having already fled Nazi regime native Germany. district court concluded Zuckerman failed allege duress under New York law. We do reach issue whether properly alleged duress because we find her barred doctrine laches. Accordingly, we AFFIRM .
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L AWRENCE M. K AYE (Ross L. Hirsch, Yael M. Weitz, brief ), Herrick, Feinstein LLP, New York, NY, for Plaintiff Appellant D AVID W. B OWKER Wilmer Cutler Pickering Hale and Dorr LLP, Washington, DC; Michael D. Gottesman, Wilmer Cutler Pickering Hale Dorr LLP, York, NY, for Defendant ‐ Appellee
Thomas J. Hamilton, John J. Byrne, Jr., Byrne Goldenberg & Hamilton, PLLC, for Amicus Curiae Holocaust Restitution Project.
Stanley W. Levy, Benjamin G. Shatz, Diana L. Eisner, Danielle C. Newman, Manatt, Phelps & Phillips, LLP, for Amici Curiae Society Bet Tzedek. Owen C. Pell, White & Case LLP, for Amici Curiae Natalia Indrimi, Professor Guido Alpa, Avv. Renzo Gattenga. Jennifer A. Kreder, Cincinnati, OH, Amici Curiae B ʹ nai B ʹ rith International, Raoul Wallenberg Centre Human Rights, Simon Wiesenthal Center, Omer Bartov, Michael Berenbaum, Stuart Elliot Eizenstat, Richard Falk, Eugene Fisher, Irving Greenberg, Peter Hayes, Marcia Sachs Littell, Hubert G. Locke, Wendy Lower, Bruce F. Pauley, Carol Rittner, John K. Roth, Lucille A. Roussin, William L. Shulman, Stephen Smith Alan Steinweis.
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K ATZMANN Chief Judge : In 1930s, German government, under control of Adolf Hitler’s National Socialist German Workers’ Party (the “Nazis”), launched campaign of oppression against German Jews and other minorities. As part of its reign of terror, Nazis and their affiliates forced Jews out their homes, seized their businesses, and stripped them their property. By late 1930s, life Germany Jewish people became so dangerous many were forced flee country. Of those who were unable escape, most were removed their homes, shipped concentration camps, and murdered.
In recent decades, with passage time and number survivors Nazi brutality diminishes, there sense urgency some measure justice, albeit incomplete, given those victims and heirs. International conferences subsequent declarations have outlined principles designed ensure, example, “legal systems or alternative processes, while taking into account different legal traditions, facilitate just fair solutions with regard Nazi confiscated looted art.” Prague Holocaust Era Assets Conference: Terezin Declaration, Bureau European Eurasian Affairs, U.S. Department State (June 2009), https://2009 ‐ Art 2017.state.gov/p/eur/rls/or/126162.htm. What was moral imperative appropriately converted into statute, with such landmark legislation Holocaust Expropriated Recovery Act (the “HEAR Act”). Pub L. No. 114–308, Stat. These efforts grounded recognition claims survivors and their heirs must be given serious and sympathetic consideration. To facilitate processing such claims, HEAR Act creates nationwide statute limitations bringing to recover artwork and other property lost during Holocaust era. HEAR Act directs every case be given individual attention, with special care afforded particular facts. In effort render justice, law does eliminate equitable defenses innocent defendants may assert, where do otherwise would neither just nor fair.
Paul Alice Leffmann (the “Leffmanns”) were German Jews who, prior Hitler’s rise power, enjoyed flourishing prosperous life Germany. They had “sizeable assets,” including manufacturing business multiple properties. J. App’x Among items they owned, purchased Actor, “masterwork” painting famed artist Pablo Picasso. When were forced sell business flee Germany they ‐ Zuckerman Metropolitan Museum Art
lost much property. Once Italy, they sold their Picasso painting to raise money escape Hitler’s growing influence Italy and relocate Brazil.
Plaintiff Appellant Laurel Zuckerman is Leffmanns’ great grandniece. Zuckerman seeks replevin painting Defendant Appellee (the “Met”). Zuckerman argues sold under duress that sale therefore void. district court (Preska, J. ), concluding that had failed adequately allege duress under York law, dismissed her complaint.
On appeal, Met argues, inter alia , that Zuckerman’s barred by doctrine such a determination can made on pleadings. In this Court’s narrow ruling, we agree. Laches an equitable defense available a defendant who can show “that plaintiff inexcusably slept [its] rights so make decree against defendant unfair,” defendant “has prejudiced plaintiff’s unreasonable delay bringing action.” Merrill Lynch Inv. Managers Optibase Ltd. F.3d (2d Cir. 2003). Here, despite facts painting was significant work celebrated artist, sold substantial sum well known French The art dealer, Met’s collection since neither Leffmanns nor heirs made any demand painting until Such delay unreasonable, prejudice Met evident face Zuckerman’s complaint. We further conclude HEAR Act does preempt Met’s defense. Accordingly, we AFFIRM judgment district court.
B ACKGROUND
The following facts are drawn from allegations Plaintiff Appellant’s Amended Complaint or “matters which judicial notice may taken.” Wilson Merrill Lynch & Co., F.3d (2d Cir. 2011).
I.
Paul Friedrich Leffmann, German Jew Cologne, purchased Actor, painting Pablo Picasso, (the “Painting”). Mr. Leffmann his wife, Alice, lent Painting various exhibitions throughout Germany early 20th Century. also featured articles, magazines, monographs.
After adoption Nuremberg Laws in September Leffmanns’ lives in Germany became untenable. Stripped rights privileges German citizenship, they were forced to sell their property businesses to “Aryan” corporations, receiving “nominal compensation.” J. App’x 34.
By it became clear life in Germany for Jews like Leffmanns no longer simply difficult, but genuinely perilous. Leffmanns decided to flee Germany for Italy. After paying exorbitant “flight taxes,” Leffmanns arrived Italy April 1937. They engaged financial transactions at loss in order settle Italy. For example, Leffmanns arranged to purchase home 180,000 Reichsmark (“RM”) but pre agreed later sell back original owners at substantial loss. These “triangular agreements” were common at time, they allowed individuals outside Germany acquire RM while simultaneously permitting German emigrants circumvent “the ever tightening regulations governing transfer assets” outside country. Id. at Prior fleeing Germany, “arranged” Painting, one few remaining assets, “to held Switzerland non Jewish German acquaintance.”
But early 1938, Italy no longer safe place for Jews. growing influence Nazi Germany resulted in anti Semitic policies—for example, in 1937, Italy’s Ministry Interior produced list all German refugees (most whom were Jewish) living in Italy—and warm welcoming Adolf Hitler in May 1938. began to make plans to flee to Switzerland, which required money. On April 1938, Paul Leffmann wrote to C.M. de Hauke, an art dealer whom U.S. State Department later identified as dealing Nazi ‐ looted art, from whom Leffmann had previously rejected an offer to sell Painting. Leffmann now sought to revive discussions about possibility sale. As matters became more perilous for Jews Italy, Leffmann “continued try sell Painting through de Hauke.” Id. at “Trying raise as much cash possible,” attempt “improve his leverage maximize amount hard currency he could raise,” Leffmann told de Hauke he had rejected $12,000 offer from another dealer.
Shortly after writing de Hauke stating he had rejected an offer $12,000 another dealer, Leffmann sold June The very price to Paris art dealer Käte Perls, who was acting on behalf her former husband, Hugo Perls, another art dealer, Paul Rosenberg.
Funded partially by June sale (the “Sale”), Leffmanns fled to Switzerland in October 1938. record on appeal unclear to how much Leffmanns had to pay in order to leave Italy arrive in Switzerland, but Plaintiff Appellant alleges Swiss authorities required immigrants to pay substantial fees taxes in order to enter country. According to Plaintiff Appellant, “[g]iven various payments required Switzerland . Leffmanns depended on $12,000 . . . they received from [S]ale” in order to survive. Id. at 46.
Their stay Switzerland was short. Having only able procure temporary Swiss residence visa, Leffmanns fled Brazil. Relocating Brazil was similarly expensive. Leffmanns had pay unspecified bribes acquire necessary documentation Brazilian government deposited at least $20,000 Banco do Brasil. They arrived Rio de Janeiro on May Once Brazil, they had pay “levy” $4,641 imposed Brazilian government all Germans living country. Plaintiff Appellant Zuckerman The Metropolitan Museum Art
avers Leffmanns “depended $12,000” Sale for these payments.
The Leffmanns lived in Rio de Janeiro for six years. In 1947, after war had ended, Leffmanns returned Europe settled in Zurich, Switzerland, where they lived for rest lives. Paul Leffmann died 1956; Alice Leffmann died While they were still alive, Leffmanns brought number successful claims with assistance counsel Nazi era losses, but those were limited property “taken Germany” before Leffmanns fled Germany. Oral Argument 25:34 58, Museum Art No. 634, http://www.ca2.uscourts.gov/oral_arguments.html. made no demand reclaim Painting.
II. Painting after Leffmanns’ Sale
In 1939, Paul Rosenberg loaned Painting Modern (“MoMA”) New York. Rosenberg asked MoMA insure Painting $18,000. Sometime before October 1940, Rosenberg consigned M. Knoedler & Co. Gallery York. In November gallery sold Zuckerman
the painting Thelma Chrysler Foy for $22,500. Thereafter, Foy, an arts patron noted her gifts prized pieces public institutions, donated the Painting the Met
Since least 1967, when Painting appeared Met’s published catalogue French paintings, Met’s published provenance Painting listed Leffmann as previous owner. Until recently, however, provenance incorrectly suggested Leffmann sold after 1912; listed provenance as “P. Leffmann, Cologne (in 1912); German private collection (until 1938).” J. App’x
III. Procedural History
On September 8, 2010, Plaintiff Appellant, Leffmanns’ great grandniece, demanded Met return Painting. museum refused. On October 18, 2010, Zuckerman was appointed Ancillary Administratix estate Alice Leffmann New York Surrogate’s Court. On September 30, 2016, Zuckerman filed suit Southern District York, asserting conversion replevin theory Sale made under duress. On February district court dismissed Zuckerman’s claims “[f]or failure allege duress under New York law.” Special App’x district court did address Met’s contention Zuckerman’s claims are time barred York statute limitations laches. This appeal followed.
D ISCUSSION
On appeal, Met argues, among other things, Zuckerman’s claims barred doctrine laches. We agree. Neither nor heirs made demand until This delay unreasonable, prejudiced Met. We further conclude HEAR Act, which creates uniform, nationwide six year statute limitations recover art lost during Holocaust era, does preempt Met’s defense.
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I. Standard Review
We review de novo a district court’s decision grant a motion to dismiss. See Arar v. Ashcroft , 585 F.3d 559, 567 (2d Cir. 2009). “In so doing, we accept as true factual allegations complaint, construe all reasonable inferences can drawn complaint light most favorable plaintiff.” “To survive motion dismiss, complaint must contain sufficient factual matter, accepted true, state claim relief is plausible on its face.” Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009); see also Bell Atl. Corp. v. Twombly , U.S. 544, (2007).
II. Doctrine Laches
It well established “[w]e may . affirm on any basis which there record sufficient permit conclusions law, including grounds upon which district court did rely.” Name.Space, Inc. Network Solutions, Inc. , F.3d (2d Cir. 2000). doctrine laches “protect[s] defendants against unreasonable, prejudicial delay commencing suit.” SCA Hygiene Prods. Aktiebolag First Quality Baby Prods., LLC S. Ct. (2017). “A party asserting defense must show plaintiff inexcusably slept *14 18 634 v. of
its rights so as make a decree against defendant unfair. Laches . . . requires a showing defendant has been prejudiced by plaintiff’s unreasonable delay in bringing action.” Merrill Lynch Inv. Managers , 337 F.3d 132 ; see also Matter of Stockdale v. Hughes , 189 A.D.2d 1065, 1067 (N.Y. App. Div. 1993) (“It well settled where neglect promptly asserting a claim relief causes prejudice one’s adversary, such neglect operates a bar a remedy a basis asserting defense of laches . .”).
“[M]ere lapse time, without showing prejudice, will sustain defense laches.” Saratoga Cty. Chamber Commerce v. Pataki , 100 N.Y.2d 801, (2003). [5] “A defendant prejudiced delay when assertion claim available some time ago would be inequitable light delay bringing claim.” Conopco Inc. Campbell Soup Co. , F.3d (2d Cir. 1996). Finally, may decided “as matter law” when “the original owner’s lack due diligence prejudice party currently possession apparent.” Matter Peters Sotheby’s Inc. A.D.3d (N.Y. App. Div. 2006).
Zuckerman The
a. Unreasonable Delay
First, we conclude that delay in this case was unreasonable. Painting is an important and well known work an influential and celebrated artist. Leffmanns sold it for substantial sum French dealer. Painting was then moved United States, where it was acquired major public institution. Meanwhile, Leffmanns were in Brazil beginning in October 1938, Switzerland until Alice Leffmann died
It is evident face complaint that Leffmanns knew whom they sold Painting nowhere contends Leffmanns, despite making some post war restitution claims, made any effort recover Painting. Indeed, over seventy years passed between sale painting Zuckerman’s demand Met return Painting See, e.g. Krieger Krieger , N.Y.2d (1969) (delay twelve years commencing an action for declaratory judgment Florida divorce decree void was an “inordinate length time”).
It eminently understandable did bring any claim during course World War II even, perhaps, few years thereafter, given specific circumstances. However, simply plausible that the Leffmanns heirs would not have been able seek replevin the Painting prior As noted above, the Leffmanns, being financially sophisticated couple, actively successfully pursued other Nazi era losses. This case where the identity the buyer was unknown seller or the lost property was difficult locate. Indeed, the Painting was “masterwork” Picasso, an obscure piece art. J. App’x Nor this case where plaintiff alleges buyers themselves exerted any undue or improper pressure sellers. could have contacted Käte Perls, MoMA, or Met. Since at least “P. Leffmann” listed prior owner Painting. Although that—concededly incomplete—provenance was included Met’s published catalogue, none Leffmanns’ heirs demanded returned. See Peters N.Y.S.2d at (concluding pre suit delay was unreasonable given “neither estate nor anyone [original owner’s] family . . . attempted recover painting [subsequent purchaser], even though both families lived Manhattan painting exhibited . prominent museums, galleries, universities”).
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b. Prejudice While determination of prejudice is ordinarily fact intensive, even this early stage proceedings, based on unusual circumstances presented complaint, we conclude that Met has prejudiced more than six decades that have elapsed since end World War II. This time interval resulted “deceased witness[es], faded memories, . hearsay testimony questionable value,” well as likely disappearance documentary evidence. Solomon R. Guggenheim Found. v. Lubell , A.D.2d (N.Y. App. Div. 1990). Assuming arguendo Plaintiff’s central claim that Sale void because was made under third party duress cognizable under York law, resolution claim would factually intensive dependent on, among other things, knowledge intent relevant parties. See Restatement (Second) Contracts § 175(2) (1981). No witnesses remain who could testify on behalf Met Sale was voluntary, or indeed behalf Plaintiff sold “involuntar[ily],” Kamerman Steinberg , F.2d (2d Cir. 1989), because “had absolutely no other alternative,” Kenneth D. Laub & Co., Inc. Domansky Käte Perls died Paul 1959. Rosenberg died Perls Hugo died *18 18 634 of
172 A.D.2d 289 (N.Y. App. Div. 1991). [7] Nor are there first hand witnesses who could testify to facts relevant to the Met’s possible affirmative defenses, including whether Foy purchased the good faith. On these facts, “the original owner[s’] lack of due diligence and prejudice to the party currently possession apparent,” and the issue of laches can decided a matter of law. Peters , 34 A.D.3d at 38. [8]
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c. The HEAR Act argues in the alternative that, because her are timely pursuant to the applicable statute of limitations as codified by the HEAR Act, laches defense unavailable in this case.
to buy it back but was rebuffed. Id at He never “report[ed] theft and, indeed, did regard the painting as having stolen.” Id. at 35.
The painting eventually ended up in the United States, where it was exhibited in several museums and universities. Id at 32. Decades later, the Otten family consigned the painting to Sotheby’s which, sold it for $1.5 million. Id. It was only December that the petitioner (a descendant of Glaser’s) sought to recover the painting the theory that was converted or otherwise misappropriated. Id. at 33. Appellate Division rejected the request for pre action discovery
identify new owner of the painting. It did squarely hold whether the sale case constituted conversion, finding instead even “assum[ing] that subject [painting] converted,” any claim for recovery was barred statute of limitations doctrine of laches. Id. at 37. With respect laches, although Glaser attempted buy back painting soon after his brother sold it, he never made legal claim painting. Id. at Further, “[t]he delay Glaser family estate asserting any claim ownership during approximately year odyssey [the painting] prejudiced good faith purchaser since none parties original sale painting—Professor Glaser, Albert Otten Paul Glaser—are alive.” Id. at Appellate Division determined “the original owner’s lack due diligence prejudice party currently possession apparent,” such issue could decided matter law, even pre action discovery stage. Court Appeals denied petitioner’s motion leave file an appeal. Matter Peters Sotheby’s Inc. N.Y.3d (2007).
18 ‐ 634 ‐ of Art HEAR Act addresses “unfair impediment” caused by “[s]tate statutes of limitations” do account for “the unique and horrific circumstances of World War II and Holocaust.” S. R EP . N O . 114 ‐ at 5 (2016). HEAR Act encourages return of Nazi ‐ stolen and looted artwork Holocaust victims, heirs, survivors by preempting state statutes of limitations imposes instead a uniform nationwide six year statute of limitations. Specifically, statute provides “a civil claim or cause action against a defendant recover any artwork or other property lost during [the period between 1933 1945] because Nazi persecution may be commenced later than 6 years after actual discovery claimant . .” HEAR Act § 5(a). [9]
Generally, “in [the] face statute limitations enacted Congress, cannot invoked bar legal relief.” Petrella Metro Goldwyn Mayer, Inc. U.S. (2014); see also SCA Hygiene Prods. , S. Ct. (“The enactment statute limitations necessarily reflects congressional decision timeliness covered better judged basis generally ‐ 634 ‐ of hard fast rule rather than sort of case specific judicial determination occurs when laches defense asserted.”).
This general rule does not apply to HEAR Act. While HEAR Act revives claims would otherwise be untimely under state based statutes of limitations, allows defendants to assert equitable defenses like laches. statute explicitly sets aside “defense[s] at law relating to passage of time.” HEAR Act § 5(a) (emphasis added). It makes no mention defenses at equity . “[A] major departure long tradition equity practice should not lightly implied.” eBay Inc. MercExchange, L.L.C. , U.S. (2006). Moreover, key Senate committee report accompanying statute, discussed infra unequivocally indicates Act does not preclude equitable defenses. S. R EP . N O .
Allowing defendants assert defense, despite introduction nationwide statute limitations designed revive Holocaust era restitution *22 18 ‐ 634 ‐ The of
claims, comports with the overall legislative scheme advanced the HEAR Act. One of the stated purposes of the HEAR Act is to ensure to recover art lost in Holocaust era “resolved in a just and fair manner.” HEAR Act § 3(2). But HEAR Act does not allow potential claimants to wait indefinitely to bring a claim. To do so would be neither just nor fair. At very core of a successful laches defense is prejudice defending party: even an unreasonable delay not fatal a claim if there no harm other party. Unlike a mechanical application of a statute of limitations, a laches defense requires a careful analysis of respective positions of parties search of a just fair solution.
The HEAR Act’s six ‐ year statute of limitations applies after “actual discovery” of claim. HEAR Act § 5(a). statute also contains an exception this generally applicable rule preexisting claims: those will still time ‐ barred under applicable state statute of limitations if “(1) claimant or a predecessor ‐ interest claimant had knowledge [the claim] or after January 1999; (2) not less than years have passed from date such claimant or predecessor interest acquired such knowledge during which time civil claim or cause action barred a Federal or State statute limitations.” § 5(e). Senate Report explained Congress “recognizes importance quieting title property generally importance claimants assert rights a timely fashion.” S. R EP N O general principle codified statute limitations prevents a defendant asserting defense does apply York’s applicable three year statute limitations recovery chattel, N.Y. C.P.L.R. § Even when claim timely pursuant statute limitations, of Art
Finally, legislative history of the HEAR Act makes clear that Congress intended that laches remains a viable defense otherwise covered claims. An early draft of bill, introduced in Senate Committee on Judiciary on April 7, 2016, would have explicitly swept aside a laches defense. Holocaust Expropriated Recovery Act, S. 2763, 114th Cong. § 5(c)(2)(A) (as introduced in Senate, Apr. 2016) (permitting recovery “[n]otwithstanding . any . . . defense law or equity relating passage time ( including doctrine of laches )” (emphasis added)). That draft also stated that one purposes HEAR Act ensure that claims recovery art lost during Holocaust era were “not barred statutes limitations other similar legal doctrines but resolved just fair manner merits.” § (emphasis added).
defendant may still assert laches defense. See, e.g. , Solomon R. Guggenheim Found. Lubell N.Y.2d (1991) (holding “although [defendant ‐ ]appellant’s Statute Limitations argument fails, [its] contention [plaintiff] did not exercise reasonable diligence locating painting” relevant “in context [a] laches defense”). Were this case, plaintiffs could, discussed supra n.7, delay bringing claims indefinitely without consequence. availability defense this context allows courts examine whether plaintiff abused New York’s idiosyncratic “demand refusal” rule way unfair defendants, while keeping rule place. Thus, even if Zuckerman’s were properly brought within York statute limitations (a question we do reach), they can still barred laches. *24 18 634 of Art final version of the bill, however, drops this language. Introduced
the House September 22, 2016, and the Senate on September 29, 2016, the final version does not include any mention of laches or other equitable defenses. In addressing amendment, which was nature of substitute, the Senate Report explicitly noted new version “remove[d] reference precluding availability of equitable defenses and doctrine of laches.” See S. R EP N O 114 394, Moreover, there no mention “other similar legal doctrines” possessors artworks.”). HEAR act does not prevent defendants asserting laches defense. We emphasize each case must assessed its own facts: while laches defense succeeds here, other cases will fail impede recovery claims brought pursuant HEAR Act.
C ONCLUSION
For reasons set forth above, we conclude HEAR Act does preempt Met’s defense Zuckerman’s barred laches. Accordingly, we AFFIRM judgment district court.
[1] Unless otherwise indicated, case quotations omit all citations, internal quotation marks, footnotes, alterations.
[2] selling price $13,200, but after 10% selling commission, came away with $12,000.
[3] On February Met entered into standstill agreement tolling any statute limitations date.
[4] Below, Met asserted its affirmative defenses—statute limitations laches—but “requested district court address merits based defenses,” which district court did. Appellee’s Br. n.15.
[5] Both parties rely solely York law making arguments concerning laches. Therefore, we do same.
[7] Under New York’s “demand and refusal” rule, the statute of limitations is triggered “until a bona fide purchaser refuses an owner’s demand for return of a stolen art object.” DeWeerth Baldinger , F.3d (2d Cir. 1994). If this rule applies to claims art objects sold under duress, the failure to pursue legal proceedings related to the Painting—namely, to make a demand—also prejudiced Met essentially extending New York statute limitations indefinitely. See Peters A.D.3d at 36. In Peters , Appellate Division recognized a consequence New York’s “demand refusal” rule is that “there a potential a plaintiff to indefinitely extend statute limitations simply deferring making requisite demand” such a consideration relevant analysis. Id We do reach question whether York’s “demand refusal” rule, which unquestionably applies stolen looted art, applies an owner demanding return an art object sold under duress.
[8] Peters also involved claim recover Nazi era loss. In case, early 1930s, original owner painting at issue, Professor Curt Glaser, entrusted it his brother, Paul, while fleeing Nazi Germany. Id. at Paul, however, “apparently sold work within following year without first obtaining [Curt’s] consent.” Id. painting ended up at well known art gallery Cologne, Germany. Id. That gallery sold steel magnate named Otten. Otten fled Germany but sent painting out country. Id. Soon after learning painting had sold, Curt Glaser attempted
[9] Amicus Holocaust Restitution Project (“HARP”) urges us extend HEAR Act beyond its enumerated scope create federal common law cause action replevin “Nazi confiscated artwork.” HARP Br. We decline do so.
[10] HEAR Act applies claims “recover any artwork . lost during [Holocaust era] because Nazi persecution.” HEAR Act § 5(a). A stated purpose law recover property “stolen or misappropriated Nazis.” § 3(2). We need do decide whether Zuckerman’s claims, recovery art sold under duress non Nazi affiliates, are within ambit statute. Even if we assume arguendo they are, her nevertheless barred doctrine laches.
purposes section final version statute. final version notes one purposes “ensure artwork other property stolen or misappropriated Nazis are unfairly barred statutes limitations but resolved just fair manner.” HEAR Act § 3(2). “Where Congress includes limiting language an earlier version bill but deletes it prior enactment, may presumed limitation intended.” Russello United States U.S. 16, (1983); see also Simon J. Frankel & Sari Sharoni, Navigating Ambiguities Uncertainties Holocaust Expropriated Recovery Act Colum. J.L. & Arts (2019) (“[B]y removing draft text statute, Congress intended laches other equitable defenses under state law remain available good faith