Two pending cases have invoked the new law
A recent article in the New York Times highlights the change that the recent passage of the Holocaust Expropriated Art Recovery (HEAR) Act of 2016 has had on disputes about the timeliness of claims for allegedly Nazi-looted art. The odd part, however, is that the case cited by the Times is not one in which the HEAR Act has been invoked or argued, though it could be some day. As far as we are aware, there has been briefing on the effect of the HEAR Act in two cases, my clients’ claim against the Stiftung Preussischer Kulturbesitz (SPK) and Germany in U.S. District Court in Washington, DC, and Laurel Zuckerman’s claim as representative of the Leffmann estate in U.S. District Court in Manhattan. Only two months after its passage, the law is already changing the terms of debate.
In our case, the SPK and Germany have moved to dismiss. Among the arguments they made was that my clients’ claims were time-barred by the District of Columbia statute of limitations, an argument we opposed on its own terms last year. Promptly after the passage of the HEAR Act, we filed a letter to alert the court to the new law because it preempted the law under which the defendants had made their argument. As we argued, the HEAR Act mooted the argument as the defendants had made it. In addition, we pointed out to the court that a second argument made by the defendants had also been mooted, namely, the claim that individual claims like my clients’ conflict with U.S. policy and are thus preempted. As with the statute of limitations argument, we had opposed that point with authority like this statement by the Ninth Circuit in the Von Saher case:
Von Saher is just the sort of heir that the Washington Principles and Terezin Declaration encouraged to come forward to make claims, again, because the Cranachs were never subject to internal restitution proceedings. . . . Perhaps most importantly, this litigation may provide Von Saher an opportunity to achieve a just and fair outcome to rectify the consequences of the forced transaction with Göring during the war, even if such a result is no longer capable of being expeditiously obtained.
Von Saher v. Norton Simon Museum of Art at Pasadena, 754 F.3d 712, 723 (9th Cir. 2014). We had already argued that our clients were similarly just the sort of heirs the Washington Principles intended. Nonetheless, we cited, the new law makes clear beyond any remaining doubt that private litigation remains available. The law states as follows in subsection eight:
(8) While litigation may be used to resolve claims to recover Nazi-confiscated art, it is the sense of Congress that the private resolution of claims by parties involved, on the merits and through the use of alternative dispute resolution such as mediation panels established for this purpose with the aid of experts in provenance research and history, will yield just and fair resolutions in a more efficient and predictable manner.
Most relevant is the very first clause of the paragraph: “litigation may be used to resolve claims to recover Nazi-confiscated art.” Plain English dictates that stating something may be used means. . . .that it...
