As noted in the below post, last week the Supreme Court of the United States (“SCOTUS”) declined to hear an art provenance case, Norton Simon Museum of Art at Pasadena et al. v. Marei Von Saher, which has a rather long history as well as the artworks at issue.  The claims involve the fate of two life-size panels, Adam and Eve (collectively, “the Cranachs”), circa 1530, painted by renowned German Renaissance artist Lucas Cranach the Elder.  The Cranachs are part of the permanent collection of the Norton Simon Museum of Art (“Museum”) in Pasadena, California.

As plaintiff in the initial action filed in the United States District Court for the Central District of California back in 2007, Marei Von Saher claims she is the rightful owner of the Cranachs, which were forcibly purchased by the Nazis from her late husband’s family during World War II.  The district court dismissed Von Saher’s complaint as insufficient to state a claim upon which relief can be granted, and such dismissal led to her appeal before the United States Court of Appeals for the Ninth Circuit.

In a detailed opinion last June, the Ninth Circuit reversed and remanded the district court’s dismissal of Von Saher’s action.  The panel held that because the Cranachs were never subject to postwar internal restitution proceedings abroad in the Netherlands, there was no conflict of Von Saher’s claims with any federal policy on recovered art.  The panel held that Von Saher’s claims against the Museum and the remedies sought did not conflict with foreign policy, and instead this was a dispute between private parties.  The panel remanded the case for “further development” on the issue of whether the litigation of the case implicated the Act of State Doctrine.

Under the Act of State Doctrine, “[e]very sovereign state is bound to respect the independence of every other sovereign state, and the courts of one country will not sit in judgment on the acts of the government of another, done within its own territory.” Underhill v. Hernandez, 168 U.S. 250, 252 (1897).  Further, “Act of [S]tate issues only arise when a court must decide—that is, when the outcome of the case turns upon—the effect of official action by a foreign sovereign.”  W.S. Kirkpatrick & Co., Inc. v. Envtl. Tectonics Corp., Int’l, 493 U.S. 400, 406 (1990).

On remand, even if it is determined by the district court that the transfer of the Cranachs is a sovereign act, the district court also must determine the applicability of any exception to the Act of State Doctrine.  The Ninth Circuit panel recognizes that its remand places the district court in a “delicate position” and although the remand “necessitates caution and prudence, [the panel] believe[s] that the required record development and analysis can be accomplished with faithfulness to the limitations imposed by the [A]ct of [S]tate [D]octrine.”

In the next chapter of the case, in view of the Ninth Circuit’s decision, which remains intact after SCOTUS’ refusal to hear the case, it appears that Von Saher’s claims will encounter further complex legal issues on remand that could terminate the case.

For a detailed background and history of this case and the acquisition of the Cranachs by Von Saher’s late husband’s father, Jacques Goudstikker, click here.