Rue Saint-Honore, Afternoon, Rain Effect

Camille Pissarro
Rue Saint-Honoré, Afternoon, Rain Effect,
1897

CASES AND RECOVERY EXPERIENCE

Spain: Claude Cassirer v. Kingdom of Spain, et al.

In 2000, Claude Cassirer, the grandson of Lilly Cassirer Neubauer, learned that a painting from his family’s collection was hanging in the Thyssen-Bornemisza Collection Foundation in Madrid. The painting, “Rue Saint-Honoré, Afternoon, Rain Effect” by Camille Pissarro, was stolen from his grandmother through a forced sale for a pittance in Germany in 1939. In 1976, it was acquired by the renowned collector Baron Hans Heinrich Thyssen-Bornemisza when he resided primarily in Lugano, Switzerland. In 1988, the Baron (who had since married a Spanish woman) lent his art collection of some 775 paintings including this Pissarro to the Spanish government for a period of nine and a half years, in exchange for $50 million. Five years later, following the Baron’s death in 1992, Spain purchased the entire collection for approximately $327 million, having already allocated and renovated the Villahermosa Palace near the Prado to serve as a museum to house it. The museum is operated by a Foundation that by law includes several government officials on its board.

In 2001, the Commission for Art Recovery approached the Foundation and petitioned the Ministry of Culture of Spain to recover Cassirer’s family heirloom. The effort was unsuccessful in spite of Spain’s having agreed to the Washington Principles.

In May 2005, Claude Cassirer, then aged 84, filed suit in U.S. District Court in California against the Kingdom of Spain and the Thyssen-Bornemisza Foundation. The first issues raised by the defendants related to several provisions of the Foreign Sovereign Immunities Act (FSIA) and challenging Cassirer’s right to sue Spain in California. After briefings on several issues and granting Cassirer sixty days to provide information on Spain’s commercial activities in the U.S., in June of 2006 the district court denied the defendants’ motions to dismiss on grounds of jurisdiction, standing, a case of controversy, and the subject matter based on sovereign immunity. The lower court's ruling was mostly upheld by the 9th Circuit on September 8, 2009, including the question of whether the FSIA applies when the entity being sued is not the one responsible for the original 1939 expropriation (in this case, an agent of the Nazi government). The 9th Circuit Court of Appeals ruled for Mr. Cassirer on that issue and all others but, reaching the conclusion that the FSIA did not clearly require that Cassirer should have exhausted all remedies in Spain before bringing suit in the US, sent the case back to the lower court to conduct a prudential analysis. Mr. Cassirer, now 89 years old, petitioned for a rehearing en banc, and we post the briefs here.