Recent months have seen interesting developments in a federal lawsuit against the University of Oklahoma to recover an allegedly Nazi-looted painting by famed Expressionist Camille Pissarro.

The Long Journey of La Bergère

75-year-old Leone Meyer claims that Nazis stole the painting, Pissarro’s “La Bergère Rentrent des Moutons” (“Shepherdess Bringing in Sheep”), from her family during World War II.  The Jewish family owned a significant stake in Galeries Lafayette (a high-end Paris department store) and had an extensive art collection.  The complaint alleges that, following Germany’s invasion of France, the Nazis confiscated the family’s art collection from a bank where it had been stored for safekeeping.  The collection was sent to the Jeu de Paume (an annex of the Louvre that served as a processing station for art confiscated by the Nazi occupying regime), and from there, several pieces, including La Bergère, left the country (probably to be exchanged for works considered more desirable by Nazi officials).  After the war ended, Meyer’s father provided the interim French government with an inventory of the works he had lost, and eventually recovered some of them, but not La Bergère.  In fact, in the early 1950s, he learned that the work was in the possession of a Swiss art dealer named Bernoulli and tried, unsuccessfully, to recover it; however, in 1953, Bernoulli obtained a judgment from a Swiss court finding that Bernoulli had bought the work in good faith and therefore had good title under Swiss law.  (Under the law of most American jurisdictions, a thief can never pass good title, but many European jurisdictions do not follow that rule and allow good-faith purchasers to obtain valid title).

After the 1953 judgment, Meyer’s family again lost track of the work.  It eventually made its way to New York, where in 1957 oil tycoon Aaron Weitzenhoffer and his wife Clara purchased the work.  Upon Clara’s death in 2000, the Weitzenhoffer estate bequeathed dozens of artworks, including La Bergère, to the University of Oklahoma’s collection; the work has been displayed in the on-campus art museum ever since.  Meyer learned of the painting’s whereabouts in 2012.

Federal-Court Litigation

Meyer, a French citizen, filed suit in May of 2013 in the U.S. District Court for the Southern District of New York, against the University, its president, and its foundation.  She also named as additional defendants two museum associations, the American Alliance of Museums and the Association of Art Museum Directors, alleging that the organizations failed to appropriately enforce their membership rules against the University’s art museum.  Finally, she named a number of defendants related to the now-deceased art dealers who originally brought the painting to America and brokered its sale to the Weitzenhoffers.

Last year, Judge Colleen McMahon dismissed Meyer’s complaint for lack of personal jurisdiction.  See Meyer v. Bd. of Regents of Univ. of Oklahoma, No. 13-cv-3128(CM), 2014 WL 2039654 (S.D.N.Y. May 14, 2014).  She held that the University’s minimal connections with New York (such as recruiting students and soliciting donations from New York, and using New York-based financial services firms to issue bonds) were insufficient to subject it to general jurisdiction.  Having dismissed the claims against the University and its affiliates, the Court gave the plaintiff a short period of time to decide whether to proceed with her claims against the other parties (the AAM, the AAMD, and the parties related to the art dealers), but signaled that she considered those claims weak.

Meyer ultimately abandoned her claims against the museum associations and art dealer defendants, but sought permission to transfer the case to the Western District of Oklahoma to proceed against the University defendants (federal statute, 28 U.S.C. § 1406(a) directs district courts to “dismiss, or if it be in the interest of justice, transfer” a case to another district where it could have been filed).  But Judge McMahon did not rule on Meyer’s transfer request:  “There is nothing to discuss by telephone. I granted a motion to dismiss. If you want to refile in Oklahoma – where you should have sued in the first place – file a new action. I am not going to ‘undismiss’ the case against the Oklahoma Defendants so I can transfer the case – I lacked jurisdiction over them.”  See Item No. 56, Docket No. 13-cv-3128 (S.D.N.Y. May 19, 2014).

In March 2015, the Second Circuit Court of Appeals issued a summary order that began a new chapter for Meyer’s claims against the University.  The appellate panel did not address the issue of personal jurisdiction, nor did it decide whether a transfer in this case would be “in the interest of justice,” but it did remand the case for the trial court to consider the parties’ arguments on the subject of a transfer.  See Meyer v. Board of Regents of University of Oklahoma, 597 Fed.Appx. 27 (2d Cir. Mar. 12, 2015).  The Second Circuit clarified that a “district court may transfer a case even where it lacks personal jurisdiction over the defendants.”

On remand, the district court judge ordered the transfer, which means that the case is deemed to have been filed on the date the suit was commenced in New York, so that the timeliness of Meyer’s claims will be measured as of that date for purposes of any statute of limitations issues.  In her order, Judge McMahon defended the earlier decision not to rule on the question of transfer, noting that no motion for transfer had been formally made, briefed, or argued prior to the Second Circuit appeal.  She also criticized what she viewed as the plaintiff’s original “forum shopping strategy” and “transparent gambit to get this case out of Oklahoma,” and opined that it should have been clear from the outset that Oklahoma, not New York, was the proper jurisdiction for the case.  Nevertheless, she said she had “great sympathy for the plaintiff in her quest” and acknowledged that other factors (including convenience of the parties and witnesses, location of documents, and other factors involving “efficiency and interests of justice”) favored a transfer.  Thus, the claims against the University defendants will proceed in Oklahoma.

Going forward, the Oklahoma federal case (Docket No. 15-cv-403 in the Western District of Oklahoma) will likely need to address several preliminary issues (including whether the University defendants have sovereign immunity) before ever reaching the merits of Meyer’s claims.  Other key issues will likely include the timeliness of her tort claims under Oklahoma law (a question that may require analysis of the Meyer family’s diligence in seeking the painting over the last several decades), and the effect (if any) to be given to the 1953 Swiss judgment against Meyer’s father.

Public Pressure Mounts

Meanwhile, the University of Oklahoma is also defending itself in the face of political and public criticism.  For months now, the school has been publicly urged by the family and even by state legislators to stop fighting in court and reach an agreement to return the painting to Meyer.  The pressure mounted recently this month, when over two dozen Republican state lawmakers signed and filed a non-binding resolution calling on the University and its on-campus art museum “to conduct provenance research on every object currently in its collection and prior to acquiring an object with an incomplete or uncertain Nazi-era provenance,” and for any work determined to have been unlawfully appropriated during the Nazi era without later restitution, “to resolve the matter in an equitable, appropriate and mutually agreeable manner, including restitution.”  As the legislative session drew to a close in late May, the state’s House of Representatives passed the resolution by unanimous voice vote.  In this context, the University (which perhaps could use some positive press, following an unrelated controversy this spring) may find itself under heightened pressure to return the work for moral and ethical reasons.  As this blog has observed before, parties faced with disputes over allegedly-looted art are increasingly turning to negotiated restitution instead of spending years mired in complex and expensive litigation.

In many ways, the case of La Bergère is typical of many Holocaust-era art disputes, which often last many years of grappling with complex threshold legal questions regarding immunity, statutes of limitations, laches, and the effect of previous decisions made in other countries decades ago.  For now, the case will continue to play out in Oklahoma—in federal courtrooms and in the court of public opinion.