United States: Guelph Treasure Heirs Explain Why Case Belongs In U.S. Court

Last Updated: May 12 2016
Article by Nicholas M. O'Donnell

We filed yesterday the opposition to the motion to dismiss my clients' claims over the 1935 forced sale of the Guelph Treasure, or Welfenschatz. The motion was filed two months ago by defendants Germany and the Stiftung Preussischer Kulturbesitz. As we noted when Germany first moved to dismiss the complaint last fall, Germany's arguments were revisionist and alarming in a number of troubling ways, most seriously because they tried to excuse persecution of Jews before an arbitrary date as an internal affair not subject to U.S. court jurisdiction, and because it repudiated Germany's international commitments under the Washington Principles to address restitution claims on the merits. The abject failure of the Advisory Commission, which Germany tries to portray here as some sort of arbitration (which it is not) is also at the fore.

A full copy of the opposition and associated papers (including the supporting appraisal of the 1935 value, barely a third of the price that was paid and not freely available) can be read or downloaded here. Our clients are confident that the court will agree that it has jurisdiction to adjudicate the defendants' wrongful retention of their ancestors' property and that Germany's excuses are too little and too late. The stakes here are high: readers know our view of the state of Germany's national level restitution policy of optics over substance. As an overview of the issues involved in the pending motion, the introduction from our opposition is reproduced here: 

*   * *

The Nazi death camps did not spring fully formed into history. Indeed, the Holocaust did not begin in 1942 when the Nazis—including those involved in the facts of this case—conspired at the Wannsee Conference to plan the industrialized murder of every Jew in Europe. It did not begin when German troops crossed into Poland on September 1, 1939 and started World War II. It did not even begin when Germans smashed the homes and businesses of Jews on November 9, 1938—the infamous Kristallnacht. The Holocaust began on January 30, 1933, when Adolf Hitler became Chancellor of Germany, and the institutionalized persecution of German Jews commenced immediately. Plaintiffs' ancestors were swept up in that storm. From the moment the Nazis took power, the collection of art dealers that each owned part of the iconic collection of Medieval devotional art and reliquaries known as the Welfenschatz, or Guelph Treasure, were in the sights of officials stretching all the way to Hitler. And when the levers of power began to pivot towards the Welfenschatz—in 1933—those Jewish art dealers had no chance.

Defendants presently seek the jurisdictional dismissal (or the parallel avoidance of substance, their premature and unwarranted statute of limitations defense) of Plaintiffs' case for a simple reason: this case can only be litigated and won by endorsing the coercive and rapacious acquisition of the art in question in this case by Hermann Goering. That is to say, Defendants could only prevail in this case by endeavoring to prove substantively the validity of a scheme hatched in a letter to Hitler, prosecuted with the knowledge and support of Goering, to take the Welfenschatz from Plaintiffs' ancestors. Germany's international reputation could never recover from such an endeavor, and Defendants are understandably keen to avoid it if they can. Plaintiffs respectfully submit that the Court should not indulge them, because the legal arguments they offer here are insufficient reason to do so.

Plaintiffs are the successors to those men whose world and professional lifeblood was taken by Germany—a Defendant in this case. They come before this Court because Congress conferred jurisdiction over claims such as the Plaintiffs' pursuant to the Foreign Sovereign Immunities Act (FSIA). The FSIA identifies those circumstances in which foreign sovereigns (Germany) and their instrumentalities (the SPK) cannot claim sovereign immunity and are subject to this Court's jurisdiction under what are known as the expropriation and commercial activity exceptions to sovereign immunity. In this case, the FSIA confers jurisdiction over Plaintiffs' claims arising out of their allegations that the Welfenschatz was conveyed under duress in 1935 to a straw man for the Prussian government at the bidding of Hermann Goering. The reasons that the FSIA applies here are straightforward. Any transaction involving Jews in Germany 1935 carries a legal presumption of coercion and invalidity, a presumption that was imposed by the victorious Allies that had to defeat Defendant Germany in a war it had started, the worst that the world has ever seen. After the war, the Allies established principles of international law that recognized Germany's genocide and disregard for property for what it was. Jewish victims of persecution like the Plaintiffs' ancestors are victims of takings in property in violation of international law. As a result, and because the Defendants are engaged in commercial activity in the United States, this case presents precisely the category of claims over which § 1605(a)(3) of the FSIA, the expropriation exception, creates jurisdiction.

Against this, Defendants take a position that is almost too remarkable to believe. Germany, the instigator of the Holocaust and World War II, contends that the persecution and expropriation of property from its Jewish residents were a sufficiently internal affair so as not to be a violation of international law. In addition to the callousness that this argument reflects, it is a contention that has been rejected by every court thus far to consider claims to Nazi-looted art brought under the expropriation exception. Defendants offer a variety of excuses for this assertion, but they all boil down to this: Germany believes that it has done enough when it comes to Nazi-looted art. As the First Amended Complaint makes clear, nothing should be further from the truth. The obvious absurdity is Germany's argument that while the actions of Nazi allies like Hungary against their own citizens are not immune from review, Germany's destruction of its own Jewish population (including Plaintiffs' ancestors) was somehow a purely internal affair that should not be subject to jurisdiction.

In the alternative, the FSIA provides jurisdiction over Plaintiffs' claim for unjust enrichment pursuant to § 1605(a)(2), the commercial activity exception. If Defendants' characterization of the 1935 transaction were to carry the day, then it would be, in their own words, a purely commercial event. Defendants' actions in Germany, and their actions in the United States, would meet the elements of that exception to sovereign immunity.

Despite Defendants' various arguments, there are no legal, prudential, or equitable impediments to Plaintiffs' claims. Plaintiffs' case is squarely in line with the foreign policy of the United States and does not provide any basis to constrain this Court's jurisdiction. There has been no adjudication to date in Germany that is entitled any comity or deference. There is, indeed, no administrative remedy available that Plaintiffs could exhaust, but even if there were they are not required to do so before bringing this action. Defendants disingenuously refer to the Advisory Commission created by Germany in 2003 that presided over an unsuccessful mediation as "the chance [for Plaintiffs] to make their claim." Motion at p. 35. The Advisory Commission is a non-binding body that renders recommendations to German museums, nothing more. Defendants well know this and proclaim as much routinely.

Not only is the Advisory Commission a mere consultative body, it is also a sham. In thirteen years it has presided over a paltry number of disputes relative to the scale of Nazi-looted art in German museums, and has established in recent years that it exists only to create a pretense of offering fair and just solutions to victims of Nazi plunder and their heirs. In the Plaintiffs' case, it heard compelling evidence of the fractional value that the 1935 transaction supposedly gave to the Plaintiffs' ancestors—to which they were not allowed free access—established by an expert appraisal by Sotheby's. It saw the documents in which Goering and Hitler's henchmen discussed explicitly the small portion of the Welfenschatz's actual worth that the transaction paid. It heard nothing in response from Defendants, yet it waved away Plaintiffs' claim in a conclusory recommendation. Since then, the Advisory Commission has continued to embarrass itself with recommendations that make pronouncements such as the suggestion that conditions for Jewish bankers in 1935 in Germany were not really all that bad, a contention that would come as a great surprise to Germany's Jews of the time.

This deficiency underscores why the Defendants' forum non conveniens argument fails to persuade. Germany is not an adequate forum. Its courts are hostile to restitution claims and would not hear this case. Even if, as Defendants self-servingly suggest, they would not themselves raise the statute of limitations in Germany, it would not mean that Plaintiffs would find a viable forum there. Substantively, Germany has proven a complete inability to address substantively the question of Nazi looted art. Despite the adoption of the 1998 Washington Principles on Nazi-Stolen Art, the 1999 "Erklärung der Bundesregierung, der Länder und der kommunalen Spitzenverbände zur Auffindung und zur Rückgabe NS-verfolgungsbedingt entzogenen Kulturgutes, insbesondere aus jüdischem Besitz" vom 9. Dezember 1999" (the "Collective Declaration") that committed Germany's federal government and 16 states to the Washington Principles, and the creation of the Advisory Commission itself, Germany's national level restitution policies are completely incoherent. Even more tragically, given Germany's admirable confrontation of its past in other respects, when it comes to art, Germany is more at home in the company of the countries of Eastern Europe that barely acknowledge the historical reality at all (as the Motion concedes). The "progress" that Defendants tout is taken out of context and is out of date. In short, Germany is hurtling in the wrong direction when it comes to Nazi-looted art, tragically ironic given Germany's sole responsibility for the issue. The Defendants' gloating in the Motion about the recommendation of the useless and compromised Advisory Commission that they themselves control only proves the point.

Further, even if Germany were an adequate alternate forum, Defendants have not met their burden to meet the public and private factors necessary to disturb Plaintiffs' choice of forum. Two Plaintiffs are United States citizens. There is no meaningful difference in the burden that the translation of documents imposes; whether the case is there or here it will be litigated in a language that is foreign to one side of the case. This Court is entirely competent to consider the application of German law.

Lastly, Plaintiffs' claims are timely. Defendants' assertion of the statute of limitations flouts two decades of international commitments by dozens of nations around the world to reach the merits of Nazi-looted art claims. It is sad that Germany, responsible above all others in the first instance, is the first such nation in history to plead the passage of time as a defense to its art looting war crimes. Legally, the fact-intensive argument advanced by Defendants is wholly premature on a motion to dismiss. It is also wrong as a matter of actual fact. Germany itself, through the adoption of its various policies, has agreed to hold disputed objects like the Welfenschatz in trust pending any resolution. It did not break that promise until 2014. Furthermore, the documents that demonstrate the high level conspiracy involving Goering were only recently available from their archival sources.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Nicholas M. O'Donnell
 
In association with
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.