Marei von Saher vs. Norton Simon Museum of Art at Pasadena, et al.
This case concerns two sixteenth-century oil paintings looted in 1940 from the collection of noted Dutch Jewish art collector and dealer Jacques Goudstikker. The two paintings in question, "Adam" and "Eve" by Lucas Cranach the Elder, were acquired by the Norton Simon Museum of Art in Pasadena, California in or around 1971, and have been regularly on view. In May of 2007, Marei von Saher, who is the Goudstikker's sole heir, filed a complaint in the Federal Court for the Central District of California seeking to recover the looted property. She alleged that her claim was timely pursuant to Cal. Code. Civ. Proc. §354.3, which extended the limitations period for the recovery of Nazi-looted art in museums and galleries until December 31, 2010.
The museum moved to dismiss the complaint, and the court granted the motion. The court held that section 354.3 was an unconstitutional intrusion into the federal foreign affairs power and also found that the regular three-year limitations period under Cal. Code. Civ. Proc. §338 had expired. On appeal, the United States Court of Appeals for the Ninth Circuit affirmed the lower court’s ruling that section 354.3 was an unconstitutional infringement on the federal government’s exclusive power to conduct foreign affairs. However, the Ninth Circuit reversed the lower court’s decision on §338, concluding that von Saher’s claim was not time-barred on the face of the complaint and that she should be allowed to amend her complaint to allege timeliness under §338.
In April 2010, von Saher petitioned the U.S. Supreme Court for a Writ of Certiorari, arguing that the issue of the District Court ruling a state statute unconstitutional should be heard by the nation’s highest court. Three amicus briefs were filed on behalf of the plaintiff—from a group of Californian organizations, from the Attorney General of California, and from the Commission for Art Recovery. At the request of the court, the Solicitor General filed an amicus brief providing the views of the United States, which argued that §354.3 improperly infringed on the federal government’s foreign affairs powers. The Supreme Court denied von Saher’s petition on June 27, 2011. While this petition was pending, the California legislature extended the statute of limitations for all stolen art claims -- not just Holocaust-era claims as has been the case with Cal. Code. Civ. Proc. §354.3 -- to six-years from the time of “actual” discovery of the location of the stolen artwork and the information about the theft needed by the victim to make the claim.
Von Saher filed an amended complaint with the District Court on November 8, 2011. Defendants’ Motion to Dismiss was granted on March 22, 2011. The court found, based largely on the brief submitted by the Solicitor General in the Supreme Court, that the claims themselves were preempted by the foreign affairs doctrine.
The constitutionality of a similar statute to the one in von Saher was at issue in Movsesian v. Victoria Versicherung which went through the California Federal Courts at the same time the von Saher case was under consideration. Von Saher and Movsesian were designated as “related cases” and were heard together by the same three-judge panel on the same day. The initial decisions by the panel found that both §354.3 and §354.4 impermissibly intruded on the federal government’s foreign affairs powers. Both plaintiffs sought rehearing. Von Saher’s decision for rehearing was denied on January 14, 2010. On December 10, 2010, the three-judge panel granted rehearing in Movsesian and reversed its prior decision. The Defendants in Movsesian then sought rehearing en banc by the Ninth Circuit, which was granted. On February 23, 2012, the Ninth Circuit held that section 354.4, which extended the statute of limitations for insurance claims brought by Armenian Genocide victims, is preempted under the foreign affairs doctrine.
On June 6, 2014, the U.S. Court of Appeals for the Ninth Circuit reversed the decision of the District Court in von Saher. The court found not only an absence of conflict between von Saher’s claims and federal policy since the Cranachs were never subject to internal restitution proceedings but believe her claims are consistent with the Washington Principles and not preempted by it. The panel stated that von Saher is just the type of case that the Washington Principles encourage, the first time the Ninth Circuit has invoked the policy. While this does allow for a more extensive view, the court did remand for further development on the act of state doctrine which could defeat the claims. The act of state doctrine bars domestic courts from reviewing actions taken by a foreign government (see Yale University vs. Konowaloff). The Norton Simon Museum petition for a rehearing has been denied
Lucas Cranach the Elder, Adam ca. 1530, Eve ca. 1530Claimed
- Movsesian Motion to Stay the Mandate Granted, March 23, 2012
- ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS, March 22, 2012
- Movsesian APPELLEES HARRY ARZOUMANIAN, GARO AYALTIN, MIRAN KHAGERIAN AND ARA KHAJERIAN MOTION TO STAY THE MANDATE, March 14, 2012
- Movsesian, et al v. Versicherung Opinion, February 23, 2012
- Motion to Stay Issuance Of Mandate and for Leave to File a Petition for Rehearing and Rehearing En Banc in the Ninth Circuit Court of Appeals, June 27, 2011
- Ninth Circuit’s Decision, August 19, 2009
Court Rulings & Decisions
- Order Denying Defendants' Motion to Dismiss, April 2, 2015
- Petition for Writ of Certiorari Denied, January 20, 2015
- Norton Simon Petition for Rehearing Denied, August 14, 2014
- Von Saher v. Norton Simon - Reversed and Remanded, June 6, 2014
- Court version of Norton Simon Judgement, September 7, 2011
- Order Amending Opinion and Denying the Petitions for Rehearing and En Banc and Amended Opinion, January 14, 2010
- Order Granting Defendants' Motion to Dismiss, October 18, 2007
Current Possessor Briefs
Press & Scholarly
Press & Scholarly
- Court Says Statute of Limitations for Recovery of Stolen Art Runs Anew Against Subsequent Purchasers/Transferees, The National Law Review, May 1, 2015
- Why is the Norton Simon Museum Refusing to Return Nazi-Looted Art?, An Open Letter, Ronald S. Lauder, World Jewish Congress, April 2015
- Restitution of Cultural Objects Taken During World War II (Part II), The National Law Review, March 20, 2015
Museums’ Use of Technical Defenses: Von Saher and Beyond: a detailed history of the Von Saher claim against the Norton Simon; there is also a discussion about objects held by foreign museums (The Foreign Sovereign Immunities Act and foreign sovereign-owned property in the US and outside the US).
- Restitution of Cultural Objects Taken During World War II (Part I), The National Law Review, March 19, 2015
Some of the most important developments in the restitution of cultural objects and other assets confiscated in the period surrounding World War II have occurred only within the last decade or so. The cultural objects that the Allied forces recovered were returned to the countries from whose citizens or museums they had been taken (in a process known as “external restitution” for those countries to then return to their owners (“internal restitution”). There are still challenges of Nazi-Era Restitution; a suit was recently filed in the US District Court for the District of Columbia highlights a number of these challenges. In that case, three Jewish art dealers are seeking return of the Guelph Treasure.
- Norton Simon makes move in Adam and Eve paintings lawsuit, Claudia Palma, The Pasadena Star-News, March 19, 2015
Claudia Palma writes about the Norton Simon Art Foundation’s recent motion to dismiss Marei von Saher’s lawsuit against the Norton Simon Museum in regards to the ownership of Lucas Cranach the Elder’s Adam and Eve paintings. Larry Kaye is quoted in the article.
- Adam, Eve, and George, William Poundstone, Art Info, February 9, 2015
William Poundstone published a continuation and update of a January post about the Stroganoff saga within Marei von Saher's case against Pasadena's Norton Simon Museum over Adam and Eve by Lucas Cranach the Elder. Poundstone delves into the history of the Stroganoff collection in an attempt to analyze claims made by the museum.
- Supreme Court rejects Norton Simon’s appeal in looted art case, Sarah Cascone, The Art Newspaper, January 21, 2015
In an article quoting Larry Kaye, Laura Gilbert reports that the U.S. Supreme Court today declined to hear the Norton Simon Museum’s appeal concerning Adam and Eve paintings by Lucas Cranach the Elder: “The case will go back to California’s District Court, but the next step is uncertain, says von Saher’s lawyer Lawrence Kaye of Herrick Feinstein. “Not all the museum’s technical defenses have been decided,” he says, such as whether the case should be dismissed because it was brought after the statute of limitations expired. But after eight years, Kaye hopes a judge will hear the case based on its merits.”
- It's Time to Give Us Back Our Nazi-Looted Paintings, Marei von Saher letter to editor, Wall Street Journal, July 25, 2014
- Norton Simon Museum seeks rehearing after 'Adam and Eve' setback, Mike Boehm, Los Angeles Times, July 22, 2014
- Court seems to boost claim to 'Adam' and 'Eve' at Norton Simon Museum, Mike Boehm, Los Angeles Times, July 7, 2014
- Time to Evict Nazi-Looted Art From Museums, Ronald Lauder, Wall Street Journal, June 29, 2014
- Nazi Art-Looting Case May Proceed, Court Rules, Patricia Cohen, The New York Times, June 6, 2014
- Three paintings dating from the Golden Age returned to the Goudstikker heirs, The Advisory Committee on the Assessment of Restitution Applications for Items of Cultural Value and the Second World War, November 5, 2013
- The Restitution Struggle: Malaise, Indifference, and Frustration - The article quotes Charles Goldstein speaking on the Norton Simon case., William Cohan, ARTnews, September 11, 2013
- Suit over Norton Simon artwork enters a final phase, Mike Boehm, Los Angeles Times, May 2, 2012
- State Law Holocaust-Era Art Claims and Federal Executive Power, Jennifer Anglim Kreder
- Norton Simon's Disputed 'Adam and Eve' Getting Closer Look from Supreme Court, Mike Boehm, Los Angeles Times, October 4, 2010
- Appeals court overturns Holocaust looted-art law, but Norton Simon suit continues, Mike Boehm, LA Times, August 19, 2009
- California's Holocaust Era Statute of Limitations Struck Down -- But Heir Allowed to Pursue Claim for Cranachs, Carla Shapreau, IFAR Journal, vol 11, no 2, pp 10-11