Twenty-Year Legal Battle over Nazi-Looted Pissarro Painting Continues

by Jana Farmer on May 7, 2025

The Supreme Court has once again vacated the Ninth Circuit's decision in Cassirer v. Thyssen-Bornemisza Collection Foundation, and remanded for further consideration in light of California's recently enacted amendment to California's Code of Civil Procedure, Assembly Bill 2867.

At the center of the litigation is Camille Pissarro's 1897 Impressionist masterpiece Rue Saint Honoré, après midi, effet de pluie. The work belonged to Berlin collector Lilly Cassirer until 1939, when she was forced to surrender it to a Nazi art dealer as a condition for obtaining exit visas.

After changing hands several times — including an unlicensed export from post-war Germany, a sale through a Beverly Hills gallery, and private ownership in St. Louis — the painting was purchased in 1976 by Baron Hans-Heinrich Thyssen-Bornemisza. It has been on continuous public display in Madrid since 1992, when Spain's state-controlled Thyssen-Bornemisza Collection Foundation (TBC) acquired the Baron's collection.

Litigation
In 2005, Lilly Cassirer's grandson, California resident Claude Cassirer, filed suit in the Central District of California under the Foreign Sovereign Immunities Act (FSIA), seeking either the painting's return or damages. The litigation produced eight published Ninth Circuit opinions addressing jurisdiction, statutes of limitation, and choice-of-law rules.

In 2017, the district the court determined that under federal common law, Spanish substantive law should apply to the dispute over the painting's ownership. Under Spanish law, the holder of stolen property can acquire title by three years of adverse possession, regardless of the owner's knowledge that the painting may have been expropriated in violation of the law. Under California law, by contrast, a thief cannot pass good title even to an innocent buyer.

After a bench trial, the district court awarded the title to the painting to TBC and the Ninth Circuit affirmed. In 2022, the Supreme Court unanimously vacated the Ninth Circuit's decision and remanded the case, holding that in a FSIA case involving non-federal claims against a foreign sovereign, California choice-of-law rules should have been applied, rather than federal common law.

On remand, the Ninth Circuit again selected Spanish law based on California's choice-of-law principles and re-affirmed TBC's ownership. The Ninth Circuit's decision and its outcome were heavily criticized. While the legal issues were complicated, the moral underpinning was clear: there was no dispute that the painting was looted by the Nazis.

Intervening Legislation
In September 2024, the California Legislature unanimously enacted AB2867, which adds a new subsection (c)(6) to California's Code of Civil Procedure § 338 and requires that California substantive law apply in all pending and future cases brought by California residents seeking to recover stolen artworks — including Nazi-looted works — and applying retroactively to cases still in the appellate pipeline.

Filed December 6, 2024, the certiorari petition in Cassirer asked the Supreme Court to grant the petition, vacate the judgment of the Ninth Circuit, and remand to the Ninth Circuit (the process known as "GVR," where a decision is not usually accompanied by a written opinion of the court) for application of the new choice-of-law statute, AB 2867.

Petitioners argued that AB 2867 requires application of California's rule that a thief cannot convey good title. They also raised Supremacy Clause, preemption questions under the Holocaust Expropriated Art Recovery (HEAR) Act, and public policy arguments, but emphasized that a simple GVR is a typical practice when an intervening change in law occurs.

On March 10, 2025, the Supreme Court issued an order granting certiorari, vacating the Ninth Circuit's judgment, and remanding for further consideration in light of California's AB2867.

The Ninth Circuit must now decide the case under California's new statute, which was tailor-made to address the legal hurdles faced by the Cassirer family and on its face requires application of California substantive law. Because substantive California law recognizes no passage of title by theft, and the statute of limitations (six years from actual discovery) appears to be satisfied, the remand significantly increases the likelihood that the painting will have to be returned.

Analysis
California's new law and the Supreme Court's decision are likely to reverberate beyond the single Pissarro at issue. AB 2867 strengthens the legal tools available to California in seeking the recovery of looted art, aligning state law with international efforts to address historical injustices stemming from political persecution.

The Supreme Court's GVR further underscores the impact of state legislation on international art restitution cases and highlights the evolving legal landscape concerning the recovery of stolen cultural property. Notably, the Court's willingness to grant GVR in light of intervening state legislation — rather than an intervening decision from the Supreme Court or a state supreme court — may inspire similar legislative initiatives in other states.

After all, the HEAR Act, aimed at removing procedural barriers that had prevented Holocaust victims and their heirs from recovering artworks stolen by the Nazis, was the result of a bipartisan effort. At the same time, institutions and individuals holding artworks with contested provenance may face increased legal risks, prompting a renewed focus on acquisition practices and provenance due diligence.

This article was published in the May 6, 2025, posting of Westlaw Today.