​We have written before about a long-running legal battle between the Norton Simon Museum in Pasadena, California, and the heir to a Jewish Dutch art dealer who fled the Netherlands in 1940.  The focus of the dispute is a diptych (two painted panels) titled Adam and Eve, painted around 1530 by German Renaissance artist Lucas Cranach the Elder.  A recent district court decision dealt a possibly fatal blow to the claims by plaintiff Marei Von Saher, although she plans to appeal.

The History of the Cranachs

Our earlier post contains full details of the case, but we summarize them here as well.  Marei Von Saher is the daughter-in-law and heir of Jacques Goudstikker, a Dutch art dealer who owned the diptych prior to World War II.  Jacques had acquired them at a 1931 auction in Berlin of Soviet state-owned works.  The Goudstikker family fled the Netherlands as the Nazis invaded in 1940, leaving behind their art gallery and its large art collection.  Jacques died on the voyage.  Back in the Netherlands, Nazi leader Herman Göring engineered a forced sale of the Goudstikker gallery’s assets for a fraction of their value.  This was accomplished through two transactions; in the first, Göring himself walked away with 800 of the most valuable works (including Adam and Eve), while in the second transaction, the remaining property was transferred to a Nazi named Alois Miedl.

As Allied victory neared, President Truman formulated procedures for handling looted art.  The overall U.S. approach was one of “external restitution,” whereby nations formerly occupied by Nazi Germany would present to the United States lists of looted property and information about the theft, and the American authorities would identify and return the property to the home country; from there, each formerly occupied nation, having received the externally restituted works, was responsible for managing “internal restitution,” i.e., the process of restoring the works to their individual rightful owners.

By the end of the war, the Allies had “externally restituted” the Cranachs and many other pieces from the Goudstikker collection; the works were returned to the Dutch government, to be held in trust for the owners.  Jacques’ widow, Desi, returned to the Netherlands in 1946 to claim them.  However, the “internal restitution” step never happened; the Dutch government took the position that the sales of Goudstikker property were not coerced, and therefore the family was not entitled to relief.  Desi ultimately, and under protest, reached a settlement with the Dutch government in which she paid to buy back much of the property she lost in the Miedl transaction, including her home.  But she never filed a formal restitution claim for property lost in the Göring transaction; Von Saher argued that she did not do so because she believed it would be futile given the Dutch government’s position that the Goudstikker sales had been voluntary.  Many of the family’s artworks, therefore, remained in the Dutch National Collection for decades.

In 1997, the Dutch government announced that, in light of investigations into externally restituted artworks after World War II, it would be accepting new restitution claims for artwork in its custody.  By this time, Desi and her son had died, leaving the son’s widow, Von Saher, as the Goudstikker heir.  In 1998, she requested the return of all Goudstikker property still in the custody of the Dutch government, but her request and subsequent appeals were rejected; in the Dutch government’s view, among other things, Desi had made a “conscious and well considered decision” to not seek restitution of the works covered by the Göring “sale.”  But Dutch authorities eventually reconsidered this position, and in 2004, the Netherlands ultimately agreed to return a significant group of works taken from the Goudstikker gallery by Göring.

Unbeknownst to Von Saher, however, this concession from the Dutch government came too late to recover Adam and Eve; they had already changed hands decades earlier.  In 1961, a Russian aristocrat named Stroganoff had also challenged the Dutch government’s possession of the diptych, but on very different grounds; in his view, the original 1931 auction (at which Jacques had bought the Cranachs from the Soviet Union) had been invalid, because the works sold there—the diptych among them—had been unlawfully seized by the Soviets and rightfully belonged to the Stroganoff family.  In 1966, without notice to the Goudstikker family, the Dutch government struck a deal with Stroganoff that resulted in the Cranachs passing to Stroganoff.  In 1971, he in turn sold the paintings, and they ultimately landed in the Norton Simon collection.

Procedural History

The history of Von Saher’s federal suit is nearly as convoluted as the history of the artworks—the full details are in our prior post, but in short, since its filing in 2007, the matter has made two trips to the Ninth Circuit Court of Appeals, plus two unsuccessful appeals to the Supreme Court.  The most recent major decision came two years ago, when the Ninth Circuit ruled in Von Saher’s favor on the question of whether Von Saher’s claims were “preempted” because they conflicted with a federal policy of respecting other nations’ internal restitution proceedings.  See Von Saher v. Norton Simon Museum of Art at Pasadena, 754 F.3d 712 (9th Cir. June 6, 2014).  A majority opinion reasoned that Von Saher’s claims did not pose such a conflict, because the Cranachs had never actually been subject to internal restitution proceedings.  The majority also emphasized that while the U.S. has an interest in respecting the finality of foreign governments’ internal restitution decisions, it also has adopted other federal policies relating to Holocaust-era art, including the 1998 Washington Conference Principles on Nazi Confiscated Art and the 2009 Terezin Declaration on Holocaust Era Assets and Related Issues, both non-binding international resolutions signed by the U.S. and the Netherlands.  The majority concluded that allowing Von Saher’s claims to proceed did not threaten the finality of any foreign government proceeding, and that in fact, she was “just the sort of heir that the Washington Principles and Terezin Declaration encouraged to come forward.”

This Month’s Ruling

Following the Ninth Circuit’s decision, the Supreme Court denied the Norton Simon Museum’s petition for review, clearing the way for the case’s return to the district court.  Now, however, after months of motion practice and extensive written submissions, the trial court has again rejected Von Saher’s claims, granting summary judgment for the Norton Simon on all claims.  See Docket No. 331, Case No. 07-cv-2866 (C.D. Cal.).  In a decision on August 9, the district court concluded that the Dutch State had had good title to Adam and Eve when it transferred them to Stroganoff, and that good title ultimately passed to the Norton Simon.  It analyzed the various decrees that were issued by the Dutch government around the time of World War II, and concluded that, under those decrees, the Göring transaction would remain “effective” unless the Göring transaction was nullified through formal proceedings in legalese, the Göring transaction was, in light of the Dutch decrees, only voidable, not void.)  And because Desi Goudstikker and her post-war advisers never took the necessary steps to nullify it, the Göring transaction remained effective.  Then, under another Dutch decree in 1955, enemy property located in the Dutch State became property of the Netherlands as reparations.  Thus, title to the Cranachs passed from Göring—an undisputed “enemy”—to the Dutch government.

Van Saher had argued that, under Allied policy, the Dutch state never became the true owner of the works; rather, it was at best a perpetual custodian pending the return of the works to their pre-war owner.  But the court disagreed with this characterization, noting firstly that the Allies’ policy could not bind the sovereign state of the Netherlands, and even if it did, the Allies’ policy contemplated that if an owner failed to file a claim in a timely manner, then it could lose its right to restitution; indeed, the U.S. had taken actions after the war reflecting that failure to honor restitution deadlines could bar an owner’s claim.  Here, the record showed not only that Desi did not seek nullification of the Göring transaction prior to the Netherlands’ July 1, 1951 deadline, but that that she consciously decided not to for reasons other than that the effort would be futile.  The court quoted extensively from a memorandum from a lawyer and director of the Goudstikker art gallery business, dated October 3, 1950, explaining that unwinding the Göring transaction could be disadvantageous to the business because, among other things:

• The business would be “left with a large number of works of art that are difficult to sell,” including many objects “that had proved unmarketable for dozens of years that had been written down to a value of [1 guilder]”;
• Restitution of those artworks would “inevitably have led to the revival of an art dealership” which would be problematic because “it proved impossible to find a suitable person to run such a business and because reliable staff was lacking”; and
• Restitution would have resulted in a “considerable reduction in the liquid assets,” as the business would potentially have to pay back the money it had received in the forced sale each time a new artwork was repatriated.

Thus, the firm “decided to direct the course of events in such a manner as to prevent inclusion of the Göring transaction in the restoration of rights, also given the unpredictable consequences this would entail.”

In sum, the court’s decision did not even wade into the merits of whether the works had been stolen from the Stroganoff family by the Soviets.  Rather, the decision hinged on the fact that Desi and her representatives intentionally failed to make a post-war claim to the works within the deadlines imposed by Dutch restitution procedures, and therefore, that under Dutch law, the Göring transaction was not nullified; title passed from Göring to the Dutch government, who then passed good title to Stroganoff and his successor, the Norton Simon.

What’s Next

Von Saher has already indicated she intends to appeal.  At least one art law scholar has argued that the district court’s ruling is flawed, among other things because it takes a restricted view of what Desi’s post-war settlement really covered.  The Ninth Circuit will likely not hear the case for months; by the time it does, this case likely will have been circulating through the federal court system for a decade.

The case crystallizes the ongoing difficulty of dealing with Holocaust-era art.  Even where it is clear that the original owner of a work was a victim of Nazi persecution or coercion, these cases present a bewildering array of questions, both legal and moral.  Morally speaking, the Norton Simon—perhaps recognizing that the legalistic nature of the decision may be troubling to some, given that the works were undisputedly stolen by Hermann Göring himself—has emphasized that it recognizes its “responsibility to the public” and has pledged to keep the diptych available to the public.  Also along moral lines, as the LA Times has observed, court documents indicate that Von Saher’s own father was a member of the Nazi party; while that fact was not mentioned in the district court’s decision, the newspaper pondered what role, if any, that information should play in our thinking about the dispute.  And from a legal perspective as well, courts struggle to adjudicate these cases, often spending years wrangling over thorny technical issues such as immunity, statutes of limitations, laches, and the effect of previous decisions made in other countries decades ago.

Given the complexity of the legal and moral issues at stake, some courts have overtly encouraged litigants to seek negotiated settlements in the spirit of the Washington Principles.  And this is not mere wishful thinking; such settlements may be gaining momentum in recent years, and just recently, a high-profile case regarding a Nazi-confiscated painting ended in a detailed, comprehensive settlement that arguably addressed important public and private interests in a way that a court decision never could.  For now, this case appears destined for at least one more chapter of litigation, and stands as a sad testament to the fact that there are no simple answers when it comes to unraveling this deeply troubling period of a