April 21, 2010 // Franchising.com // San Francisco, CA. In a rare en banc hearing before the U.S. Court of Appeals for the Ninth Circuit in San Francisco, Nixon Peabody Commercial Litigation and Arts & Cultural Institutions partner Thaddeus J. Stauber argued on behalf of the Thyssen-Bornemisza Collection Foundation (the "Foundation") and the Kingdom of Spain. The Kingdom of Spain is represented by William M. Barron of Smith, Gambrell & Russell in New York, who worked with Mr. Stauber in preparation for the hearing but could not attend himself.
The eleven-judge en banc panel heard arguments regarding the application of the Foreign Sovereign Immunities Act of 1976 ("FSIA") to a claim filed by a California resident seeking possession of a painting owned by the Foundation, a world-renowned museum in Madrid, Spain.
In 2000, plaintiff Claude Cassirer petitioned the Foundation for a painting by Camille Pissarro which was lawfully acquired by the Foundation in 1993. The Foundation reviewed the complete historical record regarding Mr. Cassirer's claim and respectfully denied it. Mr. Cassirer then filed a lawsuit in the United States against the Foundation and the Kingdom of Spain asserting ownership of the painting. The Foundation and the Kingdom of Spain, which are not accused of any wrongdoing in connection with the painting, asserted that they are entitled to sovereign immunity (immunity from lawsuits filed in the United States) and are, consequently, not subject to the jurisdiction of the courts of this country.
In the United States, the FSIA governs whether a foreign state or one its agencies or instrumentalities is entitled to claim sovereign immunity in a lawsuit. Under the FSIA, sovereign immunity is presumed, subject to certain exceptions delineated by the statute. The defense argued that the FSIA does not allow a court in the United States to take jurisdiction over a foreign sovereign who, like the Foundation and Kingdom of Spain, has not committed any unlawful behavior. Similarly, the defense believes that the FSIA requires Mr. Cassirer to first seek redress from the alleged offending state, Germany, and if the claim has not been resolved, then pursue it Spain, which has a civil legal system where the courts are open to non-Spanish citizens, before filing a claim in this country.
A decision resolving this appeal (which was filed in 2006) is eagerly awaited—as stripping the Foundation of their sovereign immunity and allowing the case to proceed in U.S. courts would set a perilous precedent for countries and their agencies around the world.
Partner Walter T. Johnson and associate Sarah E. André, both former Ninth Circuit clerks, worked on the briefing and pre-argument phases of this case.