A Morally Weighty Case

An impassioned dissent from the denial of rehearing en banc in the United States Court of Appeals for the Ninth Circuit

GRABER, Senior Circuit Judge, with whom Senior Circuit Judge PAEZ joins, respecting the denial of rehearing en banc:

I regret this court’s denial of rehearing en banc.

In 1939, Nazis stole a painting by Camille Pissarro from the Cassirers, a prominent Jewish family, in Germany. In 2000, the sole remaining heir, Claude Cassirer, discovered the painting in a Spanish museum that is an instrumentality of Spain. Spain refused to return the painting, and Claude filed this action against the museum’s foundation (“TBC”) in 2005.

The only remaining question before this court is whether, applying California’s choice-of-law test, California law or Spanish law applies. We must ask, in the context of this particular dispute, which jurisdiction’s interest in enforcing its laws would be more impaired by applying the other jurisdiction’s law. That inquiry favors applying a new, specific, modern law that will frustrate the purpose of the other jurisdiction’s law only minimally. The test disfavors applying an old, general, isolated law that will eviscerate the purpose of the other jurisdiction’s law.

The answer here is clear: California’s law applies.

The dissent contends that there was no finding of good faith; rather, defendant lacked actual knowledge of the theft.

Moreover, TBC clearly lacked good faith. Spain bought the painting from Baron Hans Heinrich ThyssenBornemisza. The district court concluded that the Baron held the painting in bad faith, because of several “red flags” found on the painting itself.

The world is watching

The case also has attracted unusually intense media coverage the world over. Articles have been published in essentially every major newspaper in the United States along with many smaller domestic papers, as well as publications in Spain, Germany, the United Kingdom, France, the Netherlands, Italy, Mexico, Canada, Colombia, Brazil, Argentina, Australia, New Zealand, Israel, South Africa, Hong Kong, Bangladesh, Thailand, and regional publications in Europe and Asia more generally. The media understandably have recognized the moral dimension, too, and have characterized the case as “perhaps the highestprofile case of World War II art restitution.” The Nazis forced a Jewish woman to hand over a priceless painting.  years later, judges said her family can’t have it back., Business Insider (Jan. 11, 2024); see, e.g., Editorial: It’s outrageous that a Spanish museum refuses to return Nazi-looted art to the rightful heirs, L.A. Times (Jan. 13, 2024) (“It is shameful that the museum and the Spanish government refuse to do what is just and moral, which is to
return the painting that Lilly Cassirer hung on the wall of her apartment in Berlin.”); ‘The Pissarro case’: a moral dilemma for Spain, El Pais (Jan. 12, 2024); Madrid’s Thyssen Museum hangs on to Pissarro painting looted by Nazis, Le Monde (Feb. 2, 2024) (“Although a California appeals court ruled in favor of the cultural institution against the descendants of the despoiled Jewish family, the legal victory is causing unease.”); Jewish groups in Spain are troubled by their government’s decision to cling onto a painting looted by the Nazis, Business Insider (Jan. 24, 2024) (“In a shock[ing] legal decision earlier this month, a California court determined that Spain has the right to hold onto a valuable painting looted by the Nazis rather than returning it to the family of the Jewish woman it was stolen from.”).

The world is watching. We should apply the law correctly to this high-profile and morally weighty case. Nor is the contrary result unfair to Spain or its instrumentality, TBC. TBC may have lacked actual knowledge that the painting was stolen, but there is no unfairness in requiring TBC to relinquish it. As described above, despite several
strong red flags suggesting that the painting had been stolen by Nazis, TBC voluntarily chose not to investigate at all the
painting or its provenance. Nothing required TBC to investigate, but TBC bore the risk that its rightful owner would make a claim.

(Mike Frisch)