Museum of Fine Arts v. Seger-Thomschitz

Filing 920101014

Opinion

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var WPFootnote1 = '                   Of the District of New Hampshire, sitting by designation.\
'

var WPFootnote2 = '                   At the time, Kallir was known professionally as Otto\
Nirenstein or Otto Kallir-Nirenstein. He legally changed his name\
to Kallir in 1933.\
'

var WPFootnote3 = '                   The parties have not attempted to convert the various\
currencies noted in the opinion to present day dollars. We simply\
report the sums as they appear in the record.\
'

var WPFootnote4 = '                   Blodgett bequeathed another Kokoschka painting, Portrait\
of a Youth -- which depicts Hans Reichel as a boy -- to her\
daughter. Seger-Thomschitz claimed ownership of that painting as\
well, but the U.S. District Court for the Eastern District of\
Louisiana found that Blodgett\'s daughter had acquired title through\
acquisitive prescription (a civil law doctrine analogous to adverse\
possession) and that Seger-Thomschitz\'s claims were time-barred in\
any event. See Dunbar v. Seger-Thomschitz, 638 F. Supp. 2d 659,\
663-64 (E.D. La. 2009). The Fifth Circuit recently affirmed that\
decision. See Dunbar v. Seger-Thomschitz, No. 09-30717, 2010 WL\
3292678 (5th Cir. Aug. 20, 2010).\
'

var WPFootnote5 = '                   Hans died in 1979. His will designated Raimund as his\
sole heir.\
'

var WPFootnote6 = '                   The judgment reads, in relevant part: "IT IS ORDERED AND\
ADJUDGED that Defendant Dr. Claudia Seger-Thomschitz does not have\
a valid claim to the painting Two Nudes (Lovers) by Oskar Kokoschka\
because any claim by defendant to that painting is time-barred."\
'

var WPFootnote7 = '                   One commentator explains that "[s]orting the legitimate\
transaction from the illegitimate sixty or seventy years later can\
be extremely difficult":\
\
              Much art was Aryanized, or subjected to forced sales for\
prices significantly below market value (if any value\
ever actually materialized for the seller), and some art\
was sold at infamous "Jew auctions," which are now\
universally recognized as illegal. But some sales before\
April 26, 1938, were legitimate and for fair market value\
or close thereto. Some people were able to voluntarily\
sell art on the open market, albeit not much modern art\
after Hitler declared it "degenerate". Additionally,\
because so many Jews were compelled to forfeit "flight\
asset[s]" to pay for their passage out of the Reich, the\
European art market reflected depressed prices.\
\
Jennifer Anglim Kreder, The New Battleground of Museum Ethics and\
Holocaust-Era Claims: Technicalities Trumping Justice or\
Responsible Stewardship for the Public Trust?, 88 Or. L. Rev. 37,\
49-50 (2009). Cf. Schoeps v. Museum of Modern Art, 594 F. Supp. 2d\
461, 466 (S.D.N.Y. 2009) (holding, on facts similar to those\
presented here, that a triable issue existed as to whether the\
original transfer was voluntary under German law); Bakalar v.\
Vavra, No. 08-5119, 2010 WL 3435375, at *10-15 (2d Cir. Sept. 2,\
2010) (Korman, J., separately concurring) (discussing some of the\
relevant legal considerations under New York law).\
'

var WPFootnote8 = '                   A number of alternative approaches are noted in Ashton\
Hawkins et al., A Tale of Two Innocents: Creating an Equitable\
Balance Between the Rights of Former Owners and Good Faith\
Purchasers of Stolen Art, 64 Fordham L. Rev. 49, 77 & nn. 174-75\
(1995), and Steven A. Bibas, Note, The Case Against Statutes of\
Limitations for Stolen Art, 103 Yale L.J. 2437, 2440-48 (1994). \
They include variations on the doctrine of adverse possession,\
rules tying accrual to the date the possessor acquired the\
property, and the rule that a cause of action for conversion\
against an innocent purchaser does not accrue until there has been\
a demand for, and a refusal to surrender, the property. New York\
explicitly follows the demand and refusal rule. See Solomon R.\
Guggenheim Found. v. Lubell, 569 N.E.2d 426, 429 (N.Y. 1991). The\
case law suggests that such a rule could potentially be applied in\
Massachusetts as well. See Atl. Fin. Corp. v. Galvam, 39 N.E.2d\
951, 952 (Mass. 1942); In re Halmar Distribs., Inc., 968 F.2d 121,\
129 (1st Cir. 1992); see also W. Page Keeton et al., Prosser and\
Keeton on Torts 93-94 (5th ed. 1984). Because Seger-Thomschitz\'s\
concession removes these issues from our consideration, we do not\
express any opinion on them.\
'

var WPFootnote9 = '                   As the district court explained, a catalogue raisonné is \
a comprehensive scholarly listing of an artist\'s works. Museum of\
Fine Arts, 2009 WL 6506658, at *2 n.4.\
'

var WPFootnote10 = '                   "Laches requires proof of (1) lack of diligence by the\
party against whom the defense is asserted, and (2) prejudice to\
the party asserting the defense." Costello v. United States, 365\
U.S. 265, 282 (1961).\
'

var WPFootnote11 = '                   An important collateral benefit is that donations to a\
501(c)(3) organization are tax-deductible. See Bob Jones Univ. v.\
Simon, 416 U.S. 725, 727-28 (1974).\
'

var WPFootnote12 = '                   The MFA contends that Seger-Thomschitz\'s foreign affairs\
preemption argument is forfeited because it was raised for the\
first time in her reply brief. That is not correct. Seger-Thomschitz specifically argued for foreign affairs preemption in\
her opening brief. She then developed that argument further in her\
reply brief. There was no forfeiture.\
'

var WPFootnote13 = '                   We recognize that the Supreme Court\'s decision in\
Medellín v. Texas, 552 U.S. 491 (2008), may have cast doubt on the\
continuing vitality of Garamendi. See, e.g., A. Mark Weisburd,\
Medellín, the President\'s Foreign Affairs Power and Domestic Law,\
28 Penn St. Int\'l L. Rev. 595, 625 (2010) ("One fairly clear\
consequence of Medellín is that the very broad language used in\
American Ins. Ass\'n v. Garamendi no longer carries weight."\
(footnote omitted)). But see In re Assicurazioni Generali, S.P.A.,\
592 F.3d 113, 119 n.2 (2d Cir. 2010) (concluding that Medellín is\
consistent with a broad understanding of Garamendi); Movsesian v.\
Victoria Versicherung AG, 578 F.3d 1052, 1059 (9th Cir. 2009)\
(acknowledging Medellín but nonetheless applying Garamendi\
broadly). We express no opinion on that issue. Even if the\
Garamendi doctrine retains its full force, it does not aid Seger-Thomschitz in this case.\
'

var WPFootnote14 = '                   Seger-Thomschitz also relies on what she characterizes as\
"statements of high ranking U.S. officials." However, the first\
statement -- remarks by former Ambassador Stuart Eisenstadt at the\
Prague Holocaust Era Assets Conference -- was delivered in the\
speaker\'s personal capacity and so does not represent the position\
of the executive branch. The second statement -- remarks by\
Ambassador J. Christian Kennedy at the State Department in 2009 --\
was stricken from the record for procedural reasons and is not\
otherwise publicly available. Neither statement can be used to\
support Seger-Thomschitz\'s preemption argument, and she has not\
directed our attention to any other statements of executive branch\
policy akin to the official letters and testimony that the Supreme\
Court considered in Garamendi.\
'

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