The suit was instigated by Dunbar after she received a letter from Seger-Thomschitz seeking the return of the work of art. Dunbar defended the action under Louisiana's limitations rules, arguing the claims were barred by prescription. Louisiana Civil Code article 3491 gives title to a current possessor to "one who has possessed a movable as owner for ten years acquires ownership by prescription." Seger-Thomschitz argued that "Louisiana law should not be applied at all" and that the Terezin Declaration, a non-binding document promulgated at the Prague Holocaust Assets Conference in 2009 preempts state law. The court was not convinced:
Appellant has not met the burden of establishing extraordinary circumstances to justify consideration of a new legal theory for the first time . . . Appellant offered no compelling reason why she failed to present this theory to the district court nor does it appear that a miscarriage of justice will result from our failure to address it. We are unpersuaded that this novel theory should be explored for the first time on appeal.
Ms. Seger-Thomschitz was also unsuccessful in her bid to seek the return of another Kokoschka work from the MFA Boston in June of last year.