Book Review: “A Tragic Fate: Law and Ethics in the Battle over Nazi-Looted Art”(2017)

By Jason Barnes*

Screen Shot 2017-10-25 at 4.06.39 PM.pngThe recent movie Woman of Gold and the Holocaust Expropriated Art Recovery Act enacted in 2016 reflect a steady interest in U.S. restitution of Nazi-expropriated art.  It is thus with impeccable timing that Nicholas O’Donnell’s first book— A Tragic Fate: Law and Ethics in the Battle over Nazi-Looted Art (2017), arrives on the scene, offering a treatise on the restitution of Nazi-looted art in the United States.  In it, O’Donnell describes the most important restitution-related litigation, international gatherings, and treaties in remarkable narratives that manage to stay fascinating while incorporating immense detail and nuance.

O’Donnell’s success on this front likely results from his background. He studied art history at Williams College and law at Boston College Law School. Now, he works as litigation partner at the Boston law firm, Worcester & Sullivan, where he has tried important art restitution cases, such as Philipp et al. v. Federal Republic of Germany et al., 15-cv-00266 (D. D.C.) (restitution of the Guelph Treasure).  He serves as the editor of the Art Law Report and is a member of the Art Law Committee for the New York City Bar Association.  A Tragic Fate really combines O’Donnell’s two loves—art and law—making him perfectly situated to write on the subject of Nazi-era looted art. O’Donnell is at an ease in his discussion of both the complex litigation procedural devices as well as the artists and art at issue in various cases.  His passion and knowledge of the subject are readily apparent in the monograph.

O’Donnell is at his best when telling the war stories in the battle for Nazi-looted art in the legal arena.  Most of the book is divided by restitution narratives, with each chapter covering an individual “battle” to recover an artwork through litigation.  These case-summary narratives include most, if not all, of the key restitution cases in the United States:  The Portrait of Wally (Chapter 3), Portrait of Adele Bloch Bauer (Chapter 4), the Herzog Collection (Chapter 7) and so on. It is through telling these narratives that O’Donnell explains the laws governing restitution. Any one of these individual case summaries on its own is illuminating but it is having them compiled together under one cover that makes the book particularly valuable.  It welcomes the juxtaposition of the different barriers to recovery, exposes the good-faith purchasers and jurisdictions that display a heightened hostility towards restitution claims, and shows how the obstacles to restitution claims have evolved over time.   

The author’s skill of narrative is not confined to discussing U.S. litigation. It likewise applies to his discussion of the important international gatherings that form the international framework for the restitution of Nazi-looted art.  O’Donnell spends pages analyzing the 1998 Washington Conference—the first and arguably most important gathering on the restitution of Nazi-looted art.  In his exposition of the seminal conference, O’Donnell analyzes many of the nations’ statements offered at the conference.  This tact allows O’Donnell to nicely introduce the differing ways in which nations have responded to the issue of the restitution of artwork looted during the Nazi era.  He later returns to comparative law in Chapter 19, wherein he discusses nation-based restitution regimes.  These introductions to comparative law are a welcome addition to a book primarily focused on U.S. restitution because they give the reader the necessary context to make any normative judgments on U.S. restitution or ruminate on potential reforms.

Because of the technical nature of the book and O’Donnell’s consistent preference for both detail and accuracy, A Tragic Fate may be less accessible to a non-lawyer. Chapters, especially those focusing on particular litigation cases, read very much like a brief, both in structure and language.  The book is riddled with legal jargon, cross referencing, and is written in a style that though clear, at times, feels too formal. Arguably the biggest impediment to lay readers is the immense substantive legal detail that O’Donnell covers in the book. At the same, this very feature will certainly be welcomed by law students and lawyers interested in delving into the intricacies of property restitution practice.

The substantive content alone favors those with some formal legal education. The introduction quickly breezes through important aspects of U.S. restitution law, including discussion of statute of limitations rules such as discovery and demand-and-refusal.  But this introduction functions more as a refresher for those far removed from law school than a sufficient exposition for someone never introduced to those concepts before.  This criticism applies with even greater force to later discussions of complicated legal concepts, such as the Act of State Doctrine, Bernstein letters, general versus specific jurisdiction, Foreign Sovereign Immunities Act (FSIA), Federal Tort Claims Act (FTCA), and so on. 

In the midst of the case summaries, O’Donnell also opts to go into immense detail on the procedural nuances of the various cases – the different iterations of the lawsuit, how the parties have changed over time, jurisdictional issues.  For instance, in the chapter on Femme en Blanc (Chapter 3, pp 79-82), O’Donnell discusses the motions practice of the various litigants, including procedural decisions like a §1404 venue transfer request.  It’s noble that O’Donnell focuses on the procedural minutiae which oftentimes prove very important for ultimate success in trial.  But one wonders if the benefit of accuracy and detail is outweighed by decreased accessibility.  O’Donnell tries to militate against this unfortunate result by consistently defining terms and including a nice glossary and index to the end of his monograph. 

A Tragic Fate is an educational journey – well worth undertaking.  The book is well-researched and written with the clarity one would expect from an effective advocate and proponent of restitution of Nazi-era looted art.  The book will serve as good educational resource to law students and practitioners interested in learning more about this particular area of art law or simply general litigation in the United States; or those looking for mere entertainment by some incredible stories on some very important artwork.

Disclaimer: Book reviews are no substitute for reading and interacting with the book herein reviewed.

About the reviewer: Jason Barnes is a third-year JD candidate at Columbia Law School. He is serving as the Fall 2017 Legal Fellow with the Center for Art Law.  His note on the Holocaust Expropriated Art Recovery Act is forthcoming in the Columbia Journal of Transnational Law.  He can be reached at jpb2193@columbia.edu.

WYWH: Review of “Successes and Challenges Facing the Return of Stolen Art and Cultural Heritage Property”

By Mia Tomijima*

On April 21st, New York Law School’s Center for International Law presented the Otto L. Walter Lecture entitled “Successes and Challenges Facing the Return of Stolen Art and Cultural Heritage Property.” The guest speaker for the evening was Sharon Cohen Levin, Chief of the Money Laundering and Asset Forfeiture Unit in the Criminal Division of the United States Attorney’s Office for the Southern District of New York. According to the U.S. Attorney’s Office website, Levin and her Asset Forfeiture Unit “pioneered the use of federal forfeiture laws to recover and return stolen art and cultural heritage property.” The event was well-attended and received by approximately 50 people, who came to hear Ms. Levin discuss the many famous art law cases that her office has handled over the past two decades, and the investigatory and legal strategies used for each one. A week later, on Monday, April 27, the New York Times broke the news that Levin is leaving the forfeiture unit and the Attorney’s Office after 29-years of tenure to join a private law firm, WilmerHale.

Sharon Cohen Levin image

In her opening remarks, Levin talked about her unit that uses forfeiture laws to locate and seize proceeds derived from criminal activities and then distributes them back to victims and appropriate law enforcement agencies. She provided an overview of the relevant forfeiture laws that she uses in her work, including 18 U.S.C. §981 (Civil forfeiture) and 18 U.S.C. §542 (Entry of goods by means of a false statement), among others. Levin described how it is illegal to “knowingly” move stolen property, and how her office is able to show intent through false customs statements and declarations. It is through this inventive use of preexisting law that her office was able to return over 100 items, ranging from fine art by Basquiat and Rembrandt, to ancient gold platters, and even a complete dinosaur skeleton.

The audience listened intently as Levin talked about a number of the cases that her office has handled. The survey started with U.S. v. An Antique Platter of Gold, 184 F.3d 131 (2d Cir. 1999), a case involving a gold phiale that was improperly excavated in Italy and smuggled into Switzerland. Thereafter, the phiale was flown to a buyer in the US. Levin explained that under Article 44 of Italy’s patrimony law, antiquities found and removed from Italian ground after 1902 belongs to the nation, a law that provided the basis for the U.S. government to bring an action on behalf of Italy. The 1999 decision was groundbreaking (no pun intended) because it set precedent that false statements on a customs documents serve as a basis for forfeiture. After the court ordered the forfeiture of the phiale, a twin phiale in the Metropolitan Museum of Art was also returned to Italy.

c6988-kohkerstatueatsothebys

Next, Levin discussed her work on the case U.S. v. a 10th Century Cambodian Sandstone Sculpture, 12 Civ. 2600 (GBD) (S.D.N.Y. 2013). This action sought the forfeiture of the Duryodhana statue, which was removed from the Prasat Chen Temple at Koh Ker in Cambodia in 1972 and was being auctioned at Sotheby’s in 2013. Like the Antique Platter of Gold case, the U.S. Government in the Koh Ker statue case was able to bring a forfeiture action on behalf of the Kingdom of Cambodia under Cambodian national ownership laws. The invoice and customs declaration form from 2010 misleadingly listed the statue as “Koh Ker style,” while Sotheby’s knew the statue had been taken directly from Koh Ker. While the auction houses in this case vehemently defended the interests of its consignor to sell the work, the lucky break in Levin’s investigation was finding records from the now-defunct UK auction house Spink that provided clear information on how the Duryodhana was transported from Cambodia via Thailand, to Belgium and then to the United Kingdom. The fact that the statue had missing feet and that the feet were still in situ at the temple only underscored its illicit removal. Levin said she even traveled to Cambodia to interview one of the looters involved in the actual removal of the item from the temple back in the 70’s, and she described his remorse in desecrating the Temple. The Duryodhana, along with two similar statues at the Met and one at the Norton Simon Museum, were all returned to Cambodia with ceremony in 2013 and 2014.

Levin briefly described her work on the case involving the forfeiture of a full Tyrannosaurus Bataar skeleton. In U.S. v. Tyrannosaurus Bataar Skeleton, 12 Civ. 4760 (PKC) (S.D.N.Y. 2012), the U.S. Attorney’s office used Mongolian cultural heritage laws to bring an action on its behalf. In this case, Eric Prokopi, a commercial paleontologist, excavated the dinosaur remains, reconstructed parts of the skeleton and put it up for auction in New York, where the skeleton was seized. As with all of the cultural heritage forfeitures, the crux of the investigation was to develop a record to show that this item originated in the country demanding its return. For the Tyrannosaurus Bataar, Levin built this proof of origin with affidavits provided by helpful paleontology experts.

Levin also described her office’s work in returning looted objects from currently war-torn countries, such as Iraq and Syria, which included her work on the case of U.S. v. One Iraqi Assyrian Head, 13 C.V. 5015. In the Q&A session following the lecture, Levin explained that in order for her office to return objects, the U.S. government must have diplomatic relations with the source country. As an example, her office is holding onto forfeited objects from Iran, until the day when diplomatic channels are bridged and the cultural valuables can be returned.

$19 million settlement frees "Portrait of Wally" after 13 year of legal disputes

In conclusion, Levin talked about U.S. v. Portrait of Wally, 663 F. Supp.2d 232 (S.D.N.Y. 2009), a landmark case that broke open the floodgates for other art restitution cases involving Nazis-era looted art. (Please see here for a more complete description of this case). Levin noted that the critical evidence in the case was the detailed letters between the original owner of the Schiele portrait, Jewish art dealer and collector Lea Bondi Jaray, and Rudolph Leopold, the Austrian collector who insisted that he was the rightful owner of the portrait, that documented their relationship and interactions. Additional evidence was developed from the trial testimony of Leopold himself. The case that lasted more than a decade was settled for the reported amount of $19 million dollars and a promise to display “Portrait of Wally” with an explicit wall label describing the civil forfeiture proceeding. Levin joked that this may be the only time a piece of art uses the word “forfeiture” in its description.

Less than a week after her lecture ended, the New York Times ran a story about Sharon Levin leaving the U.S. Attorney’s office to join a private law practice at the firm of WilmerHale. On Monday, April 27th, WilmerHale announced that it has hired Levin as a partner in the Financial Institutions Practice of its New York office. Accompanying the announcement, Ms. Levin told the New York Times “I had bigger cases that involved more complex issues, but ‘Portrait of Wally’ was special. [It] enabled me to use today’s forfeiture laws to correct a historical injustice.” With the Levin era at its end, art and cultural heritage restitution advocates wonder whether her successor will be as interested in and dedicated to the pursuit of art and cultural heritage matters. The helpful precedent and the ongoing need remain.

Select Sources:

*About the Author: Mia Tomijima is a recent graduate of Brooklyn Law School, where she received a certificate in intellectual property and served as Chair of the Art Law Association. She received a bachelor’s degree in art history from UCLA, and has worked with museums, auction houses, and law firms on both coasts. Mia is a post-graduate fellow with Center for Art Law. 

Disclaimer: This and all articles are intended as general information, not legal advice, and offer no substitution for seeking representation.

Stalled Disbursement of Wally Settlement

By Lesley Sotolongo

After a 13-year legal battle that seemed to have ended in 2011, Egon Schiele’s 1912 Portrait of Wally remains embroiled in disputes. By way of re-introduction: the painting was taken from the owner, the Bondi family, in 1939 by another dealer and Nazi party member; it was later acquired under questionable circumstances by an Austrian Schiele collector Rudolf Leopold. After a famous and protracted litigation, the case was settled in favor of the Bondi heirs in the amount of $19 million. (See “Schiele — still stolen? Ruling on Portrait of Wally (110 pages)” and “$19 million settlement frees “Portrait of Wally” after 13 year of legal disputes”).

However, it appears that barely any of the $19 million settlement has been dispersed to the heirs due to yet another legal claim. Robert Roistacher, the boyfriend of one of the heirs, filed a compensation claim seeking $2.75 million as a finders fee. Roistacher argued pro se that he was entitled to compensation alleging that his efforts to contact the Manhattan District Attorney’s Office led to the painting’s seizure by authorities and eventually the settlement.

On February 10, 2014, US District Judge Katherine Forrest in New York dismissed Roistacher’s claim for compensation on jurisdictional grounds, noting that his grievance with Bondi’s estate was a moral rather than a legal one. Roistacher may appeal, given his unwavering position that he was not acting as a volunteer in the restitution efforts.

Sources: U.S. v. Portrait of Wally, 105 F. Supp. 2d 288 (S.D.N.Y. 2000); Roistacher v. Bondi, et. al., No. 11 Civ. 8200  (S.D.N.Y. 2014); The Art Newspaper.

*Nota Bene*

Center for Art Law presents “Portrait of Wally Evening” on March 3, 2014. Those in NYC and interested in sharing Portrait of Wally thoughts and stories over a casual dinner followed by the screening of the documentary narrating the history of recovering the painting should RSVP by March 2, 2014. The screening is co-sponsored with Holocaust Restitution Practicum (Benjamin N. Cardozo School of Law). Details Here.

About the Author: Lesley Sotolongo is a third-year law student at Benjamin N. Cardozo School of Law and may be reached at Lesley.Sotolongo@law.cardozo.yu.edu.

Disclaimer: This article is intended as general information, not legal advice, and is no substitute for seeking representation.

NAZI ART LITIGATION ALERT: SEIZED SCHIELE PAINTING CASE CLEARED FOR…

Nazi Art Litigation Alert: Seized Schiele Painting Case Cleared for

By David Bario
Am Law Litigation Daily
October 08, 2009

One Schiele painting in New York has been off limits to art lovers ever since it was seized by Manhattan’s district attorney in 1997 while on loan from Vienna. The 1912 painting “Portrait of Wally” has remained in U.S. custody, locked in a Queens warehouse, as government lawyers and heirs to a Jewish art dealer battled with Austria’s Leopold Museum over allegations that the work was stolen by the Nazis.


Now, thanks to a ruling by Manhattan federal district court judge Loretta Preska, the long-simmering litigation over “Portrait of Wally” may finally be headed for trial–and the painting may be closer to seeing the light of day. Late last month, Judge Preska denied motions for summary judgment by the Leopold Museum and the Justice Department, finding that the question of whether the Leopold knew the portrait was allegedly stolen when it was brought to the U.S. is a triable issue of fact. Here’s the judge’s 110-page opinion. [Hat tip to Courthouse News.]

The backstory shares elements with other cases involving allegedly looted Nazi art, though the Schiele case has garnered particular attention in part because of the number of reversals involved.

Manhattan assistant U.S. attorney Barbara Ward is leading the government’s case. Bondi’s heirs are represented by Howard Spiegler of Herrick Feinstein. We reached out to the Leopold Museum’s lead lawyer, William Barron of Smith, Gambrell & Russell, to see how he felt about the prospects of a trial. Barron told us that he was still having the judge’s opinion translated into German for the museum foundation’s board and could not comment