Charleston, SC. Nixon Peabody’s Arts & Cultural Institutions team was part of the joint three-firm effort that recently secured the dismissal by a U.S. District Court of a lawsuit challenging the ownership of more than 140 artworks by Dutch “Old Masters” owned by the Kingdom of the Netherlands. The two other participating firms were Baker & Miller PLLC of Washington, DC, and Womble Bond Dickinson LLP of Charleston, SC.
The three law firms secured the dismissal of all claims against the Kingdom of the Netherlands, its Ministry of Education, Culture & Science, and its Cultural Heritage Agency (all represented by the international law group at Baker & Miller), and twenty Dutch museum defendants (all represented by the Nixon Peabody team). Womble Bond Dickinson was South Carolina counsel for both groups of defendants.
The dispute arose out of events that occurred early in World War II. The artworks came into ownership by the Netherlands as part of the country’s national collection in 1951, after having been previously returned to it by occupying authorities in post-war Germany. In late 2018, the plaintiff filed a lawsuit in the U.S. District Court of South Carolina, asserting ownership as a descendant of an alleged wartime owner of the paintings. Most of the plaintiff’s claims were previously considered and denied by the Minister of Education, Culture & Science, based on the detailed published recommendation of the Dutch Restitution Committee, an independent advisory body.
On March 6, 2020, following oral argument, U.S. District Judge Bruce Howe Hendricks issued an order granting the joint motion to dismiss filed in Berg v. The Kingdom of the Netherlands, et al. (D.S.C. No. 18-cv-3123-BHH). First, the court determined that it lacked subject matter jurisdiction. It recognized that the Ministry of Education, Culture & Science and Cultural Heritage Agency are political subdivisions of the Netherlands and thus entitled to the same level of sovereign immunity as the Kingdom. Applying the recent decision by the U.S. Court of Appeals for the District of Columbia Circuit, de Csepel v. Hungary, 859 F.3d 1094 (D.C. Cir. 2017), the court recognized that no exception to the Foreign Sovereign Immunities Act (FSIA) applied to permit the court to take jurisdiction over these sovereign defendants. The court also found that the plaintiff failed to demonstrate that he has standing to bring claims against any of the Dutch defendants.
Further, the court found there was a lack of personal jurisdiction, holding that it would be unconstitutional for the court to exercise personal jurisdiction over any of the museums—both private and public—as the plaintiff failed to demonstrate that any of the museums had sufficient “minimum contacts” with South Carolina to satisfy due process. Lastly, the court recognized that venue was improper in South Carolina.
On March 30, 2020, the plaintiff filed a motion to alter or amend the district court’s judgment, asserting that he now had standing to bring the lawsuit. On June 11, 2020, the district court denied the motion.
“We are very proud of our strong joint effort that persuaded the court to issue such a rigorous and thorough analysis of why the claims against the Netherlands government and Dutch museums cannot move forward,” said Sarah Erickson André, a partner in Nixon Peabody’s Complex Commercial Disputes and Arts & Cultural Institutions team. A copy of the court’s order, amended on March 12, 2020, is available here.
In addition to Ms. André, the Nixon Peabody team consisted of Kristin M. Jamberdino and Thaddeus J. Stauber, head of the firm’s Arts & Cultural Institutions team. Nixon Peabody’s co-counsel were Donald I. Baker and Lucy S. Clippinger of the international law group at Baker & Miller in Washington, DC, and James Myrick of Womble Bond Dickinson in Charleston, South Carolina.
