The Work

September 9, 2009 7:05 PM

Davis Wright Seeks to Reunite Holocaust Survivor's Heir with $20M Painting

Posted by Zach Lowe

Lilly's Parlor[1]

In 1939 Nazi officials made an offer to Claude Cassirer's Jewish grandmother: She could flee Germany if she sold them a French impressionist masterpiece by Camille Pissarro for $360. She took the deal. (The painting is in the background of this photo of Lilly Cassirer's parlor, above the sofa.)

Today, however, that painting is worth $20 million, according to the Associated Press. And for obvious reasons, Cassirer wants it back. 

This week he got a step closer when his lawyers at Davis Wright Tremaine won a round in the longstanding case against the Spanish museum that has owned the painting since 1993. On Tuesday the U.S. Court of Appeals for the Ninth Circuit denied Spain's request to dismiss Cassirer's complaint.  

The story of how the firm got the case is almost as colorful as the painting's past. Davis Wright partner Victor Kovner learned of the dispute in 2004 during a ski trip in Telluride, Colo., with his friend Peter Yarrow--yes, that Peter Yarrow, the "Peter" in Peter, Paul and Mary. 

Kovner met Yarrow 40 years ago, when they were both involved in the anti-Vietnam War movement. The two have lived in the same building in New York City since the 1970s. Yarrow happens to be good friends with David Cassirer, Claude's son, who also was on the ski trip in Telluride. When David Cassirer mentioned the case, then dormant, Kovner suggested that Davis Wright revive it. 

In 2005 they filed suit against Spain and the Museo Thyssen-Bornemisza, the Madrid-based museum housing the painting, in federal court in California. The Spanish government and the museum, represented by Alston & Bird partner William Barron and Nixon Peabody partner Thaddeus Stauber (art litigation veterans both), moved to dismiss the case on several grounds. 

The most pertinent argument: That the Foreign Sovereign Immunities Act protects Spain and the museum (a collection Spain purchased from the Thyssen-Bornemisza family) from any lawsuit filed abroad. The act limits the circumstances in which foreign governments and their instrumentalities--the museum in this case--can be sued

The Davis Wright team, led by partner Stuart Dunwoody, argued that the painting matter fell under an exception to the act for goods wrongly expropriated from their rightful owners. 

But the country that has the painting now (Spain) isn't the country that originally seized it (Germany). Does the exception allow for a suit against Spain? It was a question of first impression for the Ninth Circuit, and one they answered unanimously in Cassirer's favor. 

To do so, however, they had to come to two conclusions. First, they had to find that the language of the law did not limit suits to countries that had actually seized the goods (which it doesn't). And second, the court had to find that the museum engages in commercial activity in the U.S. (which it does since it advertises and sells products here).

The justices remanded the case to district court and gave Spain one last ground upon which it could ask for a dismissal. The court found some ambiguity in how far the Foreign Services Immunities Act requires plaintiffs go in exhausting legal remedies elsewhere before filing suit in the U.S. 

Cassirer never filed suit in Spain, and Spain's legal team will likely argue that he has thus not exhausted his legal remedies--and that his suit in the U.S. should be dismissed. (When reached for comment, Barron said he couldn't publicly discuss details of the case.)

That doesn't sit well with Davis Wright lawyers, who note that Cassirer is 88 and would like to have his painting back while he is still alive. "The behavior of Spain here is nothing short of shocking," Kovner says.

Photo courtesy of Davis Wright Tremaine.

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