Re: U.S. Appeals Court Rules Spanish Museum May Keep Nazi Looted Art #announcements #holocaust

Herbert Lazerow

   The initial question in this case was whether California or Spanish law would apply to determine the ownership of a painting that was bought in the U.S. 60 years ago by a Spaniard, kept in Spain during that time, and was transferred to a Spanish foundation.  Judge Walter in a thorough opinion in 2015 ruled that Spanish law applied.  On appeal to the 9th circuit, the court affirmed that opinion, but remanded to Judge Walter to determine the factual question of whether the last requirement of Spanish law had been met, being whether the acquirer was a good faith purchaser. Under Spanish law, one needs to not only not know that the work had been stolen.  One must also have engaged in the due diligence that a reasonable purchaser would have exercised at the time under the circumstances of this purchase. After taking testimony, Judge Walter found that the purchaser was a good faith purchaser. A three-judge panel of the 9th circuit affirmed. The Cassirer's options now are two.  They can petition the 9th CIrcuit to hear the case en banc, which means that it would be heard by a panel of around 11 judges; or they can petition the U.S.. Supreme Court to grant certiorari and hear the case. Success in neither case is likely.  En banc hearings are usually granted only to decide important questions of law, and this appears to be primarily a question of fact. The Supreme Court usually grants certiorari when there is a conflict between two circuit courts on the appropriate legal rule.
Herbert Lazerow
Professor of Law, University of San Diego
5998 Alcala Park, San Diego CA 92110
Author: Mastering Art Law (Carolina Academic Press, 2d ed. 2020)

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