Orkin v. Taylor

The 9th Circuit Court of Appeals has upheld a lower-court ruling denying an attempt by the descendants of a Jewish art collector. They sought to to recover this work, Vue de l’Asile et de la Chapelle de Saint-Rémy by Vincent Van Gogh. Elizabeth Taylor bought the work at an auction in 1963 for $260,000. It may fetch up to $15 million at an auction today. The opinion is here. The San Francisco Chronicle has a summary here.

Van Gogh painted the work in 1889 after entering an asylum in Provence. This was only 1 year before he committed suicide. Margarete Mauthner purchased the work in 1907, but left the painting behind when she fled Berlin and went to South Africa in 1939. Mauthner's four descendants claimed she sold the work under duress in 1939.

Both parties "vigorously dispute[d] the circumstances under which Mauthner parted with the painting". This suit really highlights the phrase often uttered with respect to art litigation: a tale of two innocents. Neither party seems to be in the wrong here.

The claimants argued that Mauthner sold the painting under duress, not that the Nazis confiscated it. They brought suit against Taylor, however that claim was thrown out under a 12(b)(6) motion. The district court essentially found that the claimants did not bring a legally recognizable claim. This appeal centered on whether the Holocaust Victims Redress Act created a private right of action, and whether the action was timely.

The Holocaust Victims Redress Act did not create a right of action according to the 9th Circuit. The "Act was a limited bill, passed with an understanding of constitutional limitations on congressional power."

With respect to the timeliness of the action, the court held the action was time-barred as well. California has adopted the "discovery rule". An action for the recovery of art accrues when the rightful owner discovers the location of the work. However, the California Supreme Court has held that the discovery rule incorporates a requirement which accrues the action when the claimant "reasonably could have discovered" the claim. At the very least, the claim could have been discovered in 1990, when Taylor attempted to auction the painting at Sotheby's. She was also listed as the owner of the painting in a 1970 catalogue. Thus the Federal cause of action was inapplicable, and the State claim was time-barred.

Most commentators have agreed this was the right decision. Working against the claimants was the fact that painting was not actually seized by the Nazis, even though the court was interpreting the District Court's ruling in a light most favorable to the plaintiffs. It would have been a difficult case to win on the merits, and would have taken Nazi restitution litigation a step too far in my view. I wonder how exactly the claimants learned of the work and their possible claim. The court didn't really analyze in much detail what the claimants should have done, but did note the various points that Taylor publicized her ownership.