[CPProt.net] FW: USC Law Magazine Fall 2004

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From: E. Randol Schoenberg [mailto:randols at bslaw.net] 
Sent: 15 February 2005 19:22
To: E. Randol Schoenberg
Subject: USC Law Magazine Fall 2004


http://lawweb.usc.edu/lawmag/features/main.html

LITIGATING LOSS

USC alumni work to draw attention to - and right the wrongs of -
Holocaust-era theft 

Randy Schoenberg '91 remembers seeing the stunning golden painting during a
trip to the Austrian Gallery as a small boy: Gustav Klimt's portrait of
Adele Bloch-Bauer, today one of the artist's most revered paintings. "That's
Maria's aunt," Schoenberg's mother told him. 

She was referring to Maria Altmann, a close Schoenberg family friend whose
uncle fled Vienna in 1938, just as the Nazis invaded Austria. The family's
personal belongings, including six Klimt paintings, were seized by Nazis. 

The story of the escape from Nazi horrors was familiar to Schoenberg. He
didn't know, however, that it would one day consume his professional life. 

In February2004, Schoenberg appeared before the U.S. Supreme Court to argue
that Altmann has the right to sue the Austrian government in U.S. courts to
recover her family's artwork. The issue before the justices: Whether the
Foreign Sovereign Immunities Act's (FSIA) expropriation exception affords
U.S. courts jurisdiction over claims against foreign states based on conduct
that occurred prior to the enactment of the Act in 1976 and before the
United States adopted the restrictive theory of sovereign immunity in 1952,
which limited immunity in cases involving commercial activity. 

On June 7, against all odds, the court ruled 6-3 in Altmann's favor. Whether
she will be able to recover the paintings is yet to be seen. But the ruling
does allow her to continue fighting the case on U.S. soil.

For many, the landmark decision not only breaks new ground in U.S. and
international law but also sets the stage for other Holocaust-era victims to
pursue similar claims. For Altmann, it is an opportunity to win back the
artwork, valued at $150 million, and to fulfill her dream of seeing them
hang in museums in North America. 

"I'm thrilled that there's justice in the world," Altmann told reporters
after her Supreme Court victory. 

So far, the law has been on her side, but at 88 years old, time is not. 

OVERDUE COMPENSATION

Michael Bazyler calls it the greatest murder and the greatest theft in
history. When the Nazis murdered six million Jewish men, women and children,
they also stole assets worth an estimated $230 billion - $320 billion in
today's dollars - from Europe's Jewish population. Priceless family
heirlooms. Records, documents and certificates. Historical artifacts and
masterful works of art. Family homes. Unthinkable loss compounded by more
unthinkable loss.

"The greatest evil of the Holocaust was mass murder," says Bazyler, a 1978
graduate of USC Law School and author of Holocaust Justice: The Battle for
Restitution in America's Courts (New York University Press, 2003). "No one
can forget that. And restitution for property stolen during the Holocaust
can never make up for the heinousness of the genocide that the Nazis
perpetrated. But the survivors deserve some measure of com-pensation for
their financial losses."And they are getting some compensation, finally,
through the American courts.

Bazyler, himself the child of Holocaust survivors, has been researching and
writing about Holocaust restitution litigation for the past five years. A
professor of international law at Whittier Law School, he always has been
interested in issues of international human rights law. For many years, he
avoided studying the Holocaust because of his own personal connection to it.
But in the mid-1990s, as the media began reporting allegations that Swiss
banks were withholding money deposited by Jewish families before the
Holocaust, Bazyler began studying the legal and moral aspects of Holocaust
restitution in the context of his research work in human rights. His new
book examines Holocaust litigation and the impact such cases have had on
U.S. courts.

"The real hero of this story is the American justice system," he writes in
the preface to Holocaust Justice. "It is a tribute to the U.S. system of
justice that American courts were able to handle claims that originated more
than 50 years ago in another part of the world. The unique features of the
American system of justice - including the right of foreign citizens to file
suit in the United States over human rights abuses in foreign lands; the
recognition of jurisdiction over foreign defendants who do business in the
United States; class action lawsuits; fixed and affordable court filing fees
for civil cases; a judiciary that is independent from political branches of
government - are precisely the factors that make the United States the only
forum in the world where Holocaust claims could be heard today."

Whether that system will work in Maria Altmann's favor has yet to be
determined.

DAVID V. GOLIATH

Adele Bloch-Bauer died in 1925. Her husband, Maria Altmann's uncle Ferdinand
Bloch-Bauer, died in exile in 1945, leaving all of his possessions to his
nieces and nephews. Altmann, who arrived in the United States as a refugee
in 1942, is the remaining survivor. Under post-war restitution laws, some
Austrian families whose possessions were stolen by Nazis were able to
retrieve their property or receive compensation from the gov-ernment. In
order to recover the bulk of their property in a timely fashion, the
Bloch-Bauer family surrendered its claim on the Klimt paintings. The
Austrian government then turned the paintings over to the state museum. 

In the late 1990s, a new law in Austria recognized the rights of Holocaust
victims to recover stolen property - including items that may have been
"improperly" negotiated away during initial property settlements. Altmann
tried to sue in Austrian courts to recover the paintings but ultimately
could not afford the court's $135,000 filing fee. Another concern was the
strain of potentially lengthy proceedings on the octogenarian.

Schoenberg decided to try another strategy, and in 2000 Altmann filed suit
in U.S. District Court, alleging that the Austrian government was
withholding stolen property in violation of international law. The Austrian
government argued that the U.S. courts have no jurisdiction over a sovereign
foreign state in such a case, but the judge found that the case fit into the
Foreign Sovereign Immunities Act's expropriation exception, which limits
sovereign state immunity in cases where possession of stolen property
violates international law. 

In December 2003, the 9th U.S. Circuit Court of Appeals upheld the District
Court's ruling, noting that the Austrian government profits from the
paintings "by authoring, promoting, and distributing books and other
publications exploiting these very paintings" in the United States. The
Austrian government appealed the ruling, and the U.S. Supreme Court heard
oral arguments in the case in February.

Altmann's Supreme Court victory has been likened to a David-over-Goliath
decision. Not only did Thomas Hungar, deputy to U.S. Solicitor General
Theodore Olson, argue on behalf of the Austrian government before the Court,
but foreign governments ranging from Mexico to Japan also filed amicus
briefs in support of Austria. A win for Altmann, opponents argued, would
open the floodgates to any number of similar cases from the past against
foreign governments, adversely affecting U.S. foreign relations.

Schoenberg says Austria's arguments are exaggerated because most such suits
would be denied by the courts for other reasons. 

Bazyler, who helped another family win a landmark settlement against a
foreign government in 1996, agrees. In Bazyler's case, Siderman v. Republic
of Argentina, the 9th Circuit held that Argentina implicitly waived its
immunity under FSIA by continuing to operate businesses expropriated by the
military from the Sidermans - and actively advertising and soliciting
clients in the United States. The case marked the first time a lawsuit
brought before a U.S. court led to a foreign government being held
accountable for damages from human rights abuses that occurred abroad.

"These cases against Austria and Argentina are very fact-specific," Bazyler
said. "There are a few exceptions to sovereign immunity, and these
exceptions don't come up very often. In the Altmann case, Austria is using
the painting for commercial activities in the U.S., and that's the hook.

"When we won the Siderman v. Argentina case, people called me from all over
the world to see if their claim against other foreign governments could be
pursued, but I couldn't help them because their specific facts did not fit
within any of the sovereignty exceptions."

Still, Bazyler says there are thousands of other Nazi-looted artwork in
circulation. According to Holocaust Justice, the Nazis between 1933 and 1945
stole approximately 600,000 pieces of art worth more than $20 billion today.
Prior to the Altmann case, many other individuals have filed lawsuits over
property plundered during the Holocaust, but most of them are against
museums or private collections. Altmann v. Austria is the first of its kind
against a government.

"This case so far has been an enormous success, and it's so important,"
Bazyler says. "As an older graduate of USC Law School, I'm looking at a
younger graduate, and I'm cheering for him. This is great, this is
inspirational! It shows that when you persevere, you just don't know how far
you'll succeed."

PERSONAL MISSION

On Sept. 10, Altmann overcame another legal challenge when U.S. District
Judge Florence-Marie Cooper denied the Austrian government's motion to
dismiss the case. A trial date has been set for Nov. 1, 2005.

For Schoenberg - whose grandmother grew up in pre-war Vienna and often told
stories of Viennese artists and thinkers of her time, such as Klimt, Freud
and Mahler - this case is as much a personal mission as it is a professional
challenge.

"It's very personal for me to be able to work on these cases, and not just
because Maria is a close family friend," says Schoenberg, who also is
representing a law student in another high-stakes, high-profile Nazi art
theft case, Bennigson v. Alsdorf, involving a Pablo Picasso oil painting
worth an estimated $10 million. Next year, the California Supreme Court will
determine whether California courts have jurisdiction to adjudicate
ownership of personal property brought into the state for sale.

"This is my family's history as well," Schoenberg says. "This was an
incredible generation of people - so educated, so cultured. The world lost
so much during the Holocaust. It's meant a lot to me to tell this story to a
new generation."

For more information on Altmann v. Austria, visit http://www.adele.at/.

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