Appellate court unanimously affirms trial court decision recognizing Spain’s Thyssen-Bornemisza Collection Foundation as the owner of Pissarro painting

August 17, 2020

Media Relations Manager
Courtney DeMesme-Anders

Los Angeles, CA. In a case-resolving decision, the U.S. Court of Appeals for the Ninth Circuit has ruled that a Camille Pissarro painting is rightfully owned by Nixon Peabody’s Spanish client, the Thyssen-Bornemisza Collection Foundation in Madrid. The appellate court’s decision affirms the district court’s decision which found that, after a full trial on the merits, the Foundation is the owner of the painting.  The painting will remain on public display at the Foundation, as it has since 1992.

“We are pleased with the appellate court’s unanimous confirmation of the Foundation’s ownership of the Pissarro painting,” said Nixon Peabody attorney Thaddeus J. Stauber, counsel to the Foundation.

In April 2019, U.S. District Judge John F. Walter issued a lengthy decision recognizing that the Foundation’s documented and extensive pre-acquisition due diligence proved that it did not know that the painting had been taken during World War II when the Foundation purchased it—and the more than 700 other artworks comprising the Thyssen-Bornemisza Collection—in a public sale in 1993 from the renowned art collector Baron Hans Heinrich Thyssen-Bornemisza.

In 2005, the American heirs of the original owner, Lily Cassirer Neubauer, filed a complaint alleging, without any evidence, that the Foundation and its prior owners knew that the painting had been taken during World War II. The plaintiffs did not disclose that Lily Cassirer Neubauer, the plaintiffs’ predecessor, had been compensated for her loss of the painting by the German government in 1958, as she requested at the time, in the form of a monetary payment equal to the painting’s then-current fair market value. Despite the painting’s extensive post-war publication and exhibition history, the family did not pursue a claim to the painting for more than forty years. After a public trial in December 2018, Judge Walter issued his precedent-setting April 2019 decision, explaining that the allegations were unfounded and ruling that the Foundation properly acquired and owned the painting. The plaintiffs’ appealed the well-founded and reasoned decision.

Today, the panel unanimously rejected the plaintiffs’ arguments. As an initial point, the panel denied the plaintiffs’ request that the panel revisit its prior holdings, including its holdings that Spanish law does not violate international norms on art ownership and that it governed the plaintiffs’ substantive claims. The panel also held that the district court applied the correct standard in judging the historical evidence that its determination that the Foundation properly owned the painting was supported by the evidence. Further, the panel confirmed the trial court’s finding that the Baron himself was not aware of the painting’s WWII history when he acquired it in 1976 from a reputable New York City gallery.

“Due to the Foundation’s early instructions to thoroughly and transparently investigate the modern day claims, the painting’s complete provenance history—which demonstrated clearly that the Plaintiffs’ family was compensated for the painting and that neither the Baron nor the Foundation had any reason to connect the painting to the Plaintiffs’ predecessor—was provided to the courts,” Mr. Stauber said. The careful examinations, by both the trial and appellate courts, confirm that the Foundation acted properly and lawfully in acquiring and displaying the painting.”

The case is Cassirer v. Thyssen-Bornemisza Collection Foundation, No. 19-55616, U.S. Court of Appeals for the Ninth Circuit. A decision can be found on the court’s website.

The Nixon Peabody team consists of Mr. Stauber, partner and head of the firm’s Arts & Cultural Institutions team, partner Sarah Erickson André, counsel Aaron Brian, and associate Irene Scholl-Tatevosyan.

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