Tag Archives: Art Theft

Average Joe SCOTUS: Cassirer v. Thyssen-Bornemisza Collection Foundation

Strap yourselves in for another procedural snoozefest, everyone.

Y’all remember what a royal prick Adolf Hitler was, right? Well, despite the fact that he’s been dead for nearly 80 years, he’s still occasionally a pain in the ass.

You see, in 1900, one of the petitioner’s ancestors, Paul Cassirer bought a painting made by artist Camille Pissarro. Never mind that Pissarro would be a great name for an artist who paints with urine. The painting was called, Rue Saint-Honoré in the Afternoon. Effect of Rain. As Paul got on in years, he passed this painting on to his family member, Lilly Cassirer, in the 1930’s.

A Marching Bunch of Cunts

Once shit started flying in Nazi Germany, Lilly Cassirer, being Jewish, was like, “I gotta get the fuck on up outta here.”

So she applied for permission to leave. In order to be allowed to do so, she “gave” her Pissarro to the Nazi’s. I quote “gave” because it wasn’t really much of a choice, was it? Basically, it was a racketeering payment.

Lilly was successful, and made her way with family to the United States.

Long after Hitler and his merry band of fuckwads were eliminated, in 1958, Lilly successfully sued the German Federal Republic in the U.S. Court of Restitution (Not going to lie, never fucking heard of this court). Germany paid her approximately $13,000 for her troubles, as opposed to returning the painting, because it was presumed the painting was lost.

While you might be thinking, “seems fair enough.” Well, in today’s money, that painting is apparently worth about $40 million. So, adjusted for inflation, the Cassirer family still got fucked.

Apparently $40 million worth of paint and canvas AKA Rue Saint-Honoré in the Afternoon. Effect of Rain

It turns out though, that the painting wasn’t destroyed. Apparently the Nazi’s who took possession of it, passed it around like a porn star in a gang bang. It made it’s way to a California art gallery in 1951. Since there was no fucking internet then, it apparently wasn’t that easy to know it was safely here in the US.

Apparently, many in the US liked cash more than the painting, because it got sold multiple times after arriving here, eventually making it’s way to Missouri in 1976, when Swiss national Baron Hans Heinrich von Thyssen-Bornemisza bought that shit, and had it sent to a museum he put together in Spain.

Working with the Spanish government, he started the Thyssen-Bornemisza Collection foundation (TBC), a museum of fine art, or some shit. Apparently Spain doesn’t give much of a fuck about Germany stealing valuable paintings, because they didn’t bother looking into whether this painting was legitimately theirs to keep, or had been stolen by the Nazis.

Eventually Claud Cassirer found it in a catalog in 1999, and was like, “Well fuck me, it still exists! I’ve been looking for this mother fucker for decades.” So he sent a letter to Spain and the museum, telling them to give him his family’s painting back. Spain and the museum told him to pound sand.

As you can imagine, claims involving foreign governments and entities are fucking complicated. If it’s a hostile government, you’re basically pissing in the wind. But if it’s an ally of the US, they generally try to work with us and achieve a fair outcome.

Thyssen-Bornemisza Museum

So Cassirer went to a federal district court in California, where he lived, and sued Spain and the museum holding the painting, under the Foreign Sovereign Immunities Act (FSIA). This law basically says, foreign countries are not immune from suits where the issue in question involves a violation of international law, such as Nazi’s stealing a fucking painting.

But Spain was like, “Woah! Sure we helped set up this museum, but that’s it. We didn’t steal or buy the fucking painting.” They went on to cite all kinds of reasons why they didn’t feel they were either liable. Their list included that they weren’t the right party to be suing since the museum had the painting, whether Cassirer filed suit in a timely manner, and pretty much any other fucking reason they could think of to get out of this shit. Cassirer acquiesced, and eventually removed Spain from the suit, going after the museum instead.

So now we’re down to two combatants, Cassirer and Thyssen-Bornemisza Collection (TBC) Foundation.

California federal court had to decide, what trumps what—California or Spanish law?

At the heart of this, is Cassirer’s claims that the museum is guilty of unlawful possession and conversion (a fancy term for someone wrongfully taking possession of someone else’s property) under California law, which is a state-law claim, but that we’re in a federal court with a foreign country’s entity, which wants Spanish law to prevail. Under Spanish law, a trial to determine whether the Museum knew it was stolen when they bought it. If not, then they bought it in good faith and they can keep it.

When a person sues in a Federal court because they’re suing a foreign entity, but their suit revolves around a state law violation, there are precedents for this. The Erie Doctrine, from Erie Railroad Co. v. Tompkins, requires state law from the state the suit was filed under to prevail. There’s also a state-choice-of-law doctrine, from  Klaxon Co. v. Stentor Co., which basically says the federal court should defer to whatever the state court would have done, looking at whether a California court would use California law or Spanish law.

As is often the case with SCOTUS hearings, we have multiple federal courts who’ve made decisions on shit like this, and at least two of them don’t agree. While most of the circuits held that state-law would apply, those cunts in the 9th circuit, being squarely located in Californistan, with their touchy-feely rules, decided that Spain law should prevail, because America are assholes, and we want to be kinder to our foreign friends. Under Spanish law, they determined the museum was fucking clueless as to it being stolen, so it’s their painting.

While all this shit was going on, Claud Cassirer couldn’t take it anymore and promptly died. So his heirs, not wanting to just walk away from a $40 million dollar painting, are carrying on in his name.

The Cassirers claimed multiple reasons why they win. “If this museum was in California, and the Museum was a Cali museum, we wouldn’t even fucking be here. We’d win under Cali’s unlawful possession and conversion laws. We just needed to go to federal court, because these assholes are in a foreign country with our shit.

They also argue that the US has a long-standing history of states’ rights, which should mean state law applies, and that the FSIA doesn’t really change that.

Then they also threw in the idea that while the 9th circuit’s interpretation may have some merit to it, they’re literally the only assholes who see it this way, and therefore we should ignore them because they’re idiots.

The federal government joined the Cassirer’s in arguing for their case. They added that the FSIA was meant to lay the framework to sue a foreign state, not to demand federal law take over and preempt state laws in the suit. The state is free to apply it’s own law, and the federal government will support them. They also pointed out that other federal tort laws had already been decided by SCOTUS finding in a similar manner. So basically, the 9th circuit once again, finds themselves isolated on an island with zero friends.

Beverly and Claud Cassirer

But the museum, undeterred, fired back with a litany of their own arguments. Basically, the crux of their argument is with the 9th circuit’s claim that Spanish law apply. Since the museum had no idea, presumably because they were too fucking lazy to even bother checking, the Cassirer’s claim is against the assholes who stole it. So they essentially want them to dig up Hitler, and steal it from his tomb, I guess.

As SCOTUS’ nerdiness knows no bounds, the issue of diversity jurisdiction vs. federal question jurisdiction is at the heart of this.

Let’s say some bad shit goes down in California, to a Californian, and it’s at the behest of Spain. In that instance, California law applies, but because we’re dealing with a Spanish entity in Spain, you go to a federal court who will adjudicate the California law, not federal law. They’re only in federal court so it’s one country fighting with the other, not some punk-ass state going after a foreign country. That’s diversity jurisdiction.

Federal question jurisdiction is when the supposed violation violates federal law, the constitution, etc.

So the museum felt the FSIA laws are the laws at question here, and therefore federal law, not state law prevail, meaning Erie and Klaxon are irrelevant. They then brought up foreign policy concerns, as if somehow Spain and the US are going to go to war over a stupid fucking painting. And they ended it all by saying that the FSIA was created so that when going after a foreign agent, there’s one standard, the federal standard, not fifty fucking laws from fifty fucking states. They were like, “it’s way more efficient, bro!”

Counsel for TBC Thaddeus Stauber, in his opening statement laid it out like this:

But for Mr. Cassirer’s retirement to San Diego, California would have no interest in this case. As this Court in Verlinden tells us, the FSIA arises out of Congress and the executive’s shared goals of normalizing relations among nations during the Cold War and bringing the U.S. in line with international law norms, as recognized by this Court in Philipp v. Hungary — Germany. To achieve these goals, the FSIA establishes a federal regime that is intended to ensure fair and uniform treatment regardless of where in the United States a foreign state is held.

Thaddeus Stauber

Despite this colorful argument, the justices seemed to be having none of it. Justice Kagan grilled him on his logic, arguing that the FSIA basically says, unless this is some nation-to-nation dispute that needs to be handled diplomatically, a foreign entity should be treated like any Joe Blow who fucks over some American. Yet good ole Thaddeus Stauber seems to think that his client still seems to deserve some special treatment because they’re not American.

He went on to say, “Listen, assholes. The painting isn’t in California. It wasn’t stolen in California. The defendants aren’t in California. It’s only the petitioner who is conveniently located in California. So if I’m some asshole who wants to sue someone over something I don’t like, and California is the only place that has a law I could win under, by your dumb fucking logic, all I gotta do is move to Cali, sue there, and get my wish. I mean seriously, WTF?”

Justice Breyer however, was also rather unimpressed, giving this testy exchange:

Stephen G. Breyer

Well, so let’s follow through what you say. I see what—I think I see it.

It says the foreign state, Spain, shall be liable in the same manner and to the same extent as a private individual under like circumstances.

Thaddeus J. Stauber

Yes.

Stephen G. Breyer

Your view is the like circumstance is you’re in a federal court.

Thaddeus J. Stauber

Yes.

Stephen G. Breyer

Okay.

Here, they happen to be suing under California law for property law.

Thaddeus J. Stauber

Yes.

Stephen G. Breyer

Conversion, I think.

Justice Stephen Breyer

Thaddeus J. Stauber

Yes.

Stephen G. Breyer

Okay? Fine.

Now let’s see.

So we pretend that we are in a federal court suing for conversion.

How do we get into federal court? I mean, it’s sort of interesting.

I mean, is it supposed to be an arising-under case? Do we pretend it’s arising under? Maybe we should pretend it’s a bank conversion case, in which case maybe the law of the Vatican applies.

I don’t know. I mean, how do we do this? It sounds a little complicated, your view.

At least the opposite view is simple.

You say what it was. It was a state claim.

State claims belong here in—under these circumstances, under diversity jurisdiction, and so we apply California law.

Okay? But what is your view? We don’t even know what the claim is supposed to be.

Thaddeus J. Stauber

Your Honor, we would submit that our view is actually the simpler view because, if you have a uniform federal common law choice test that will apply in all of the federal circuits and therefore apply in all of the 50 states, then you will not end up with a disparity of treatment for a foreign state regardless of where it appears.

Stephen G. Breyer

Okay.

My only problem with that is I can’t think of any private individual who would be treated that way.

Breyer’s point being that because the US tends to favor state law, a lot of laws for common crimes are only written at the state level, so the federal government often doesn’t even fucking have their own separate laws for them. This happens to be one of those cases. Like, he can’t even think of a federal law that would apply here, but clearly Cassirer has a case. They stole his shit!

Thaddeus Stauber went on to argue:

California’s choice-of-law rule test does not take into consideration the very federal and international concerns which are taken into consideration under the federal common law. In other words, in this particular case, California’s choice-of-law test does not take into consideration the Terezin Declaration or the Washington Principles or the Holocaust Era Art Restitution Act of 2016. It does not take into consideration those national policies which formulate the United States’ position that these court — these cases should be brought to a fair and just resolution through some sort of negotiation or alternative resolution in respect for the laws of all states, not just the United States. And by forcing a federal court to use the state law choice, you are in effect handcuffing that federal court judge who is attempting to administer their case in a fair and balanced way to take into consideration these competing interests which are at play in extraordinary expropriation cases.

In the end, SCOTUS was unmoved by Stauber’s creative arguments, and issue a unanimous decision, once again determining the ninth circuit are fucking idiots and should be ignored, Spain and it’s stupid Spanish law can get fucked, and Cassirer made a more compelling argument. So they go back to California to argue their case under California law. If they’re lucky, assuming they win, the painting may be returned to them. Then again, maybe not. Who knows?