Claims for Return of Looted Art: The Scope and Legacy of the HEAR Act: Zuckerman v. The Metropolitan Museum of Art.

AuthorDrawdy, Stephanie

The US Supreme Court seemed inclined to fold its arms and look out the proverbial window when it recently refused to review a case that time-barred a restitution claim over a Picasso sold in late 1930s Europe. By its refusal, America's highest court has raised questions over the application of the Holocaust Expropriated Art Recovery (HEAR) Act of 2016, which was passed for the very purpose of eliminating time-bars to such claims. Among those questions are the following: is the result in line with US policy on the issue, dating back to the Washington Conference Principles of 1998? Does it risk Holocaust victims and heirs potentially being dissuaded from filing claims for return of family heirlooms 'sold' or taken during Nazi reign? And what are the implications for victims of other genocide and war?


As previously discussed by this author, (1) Zuckerman v. The Metropolitan Museum of Art involves the 1938 sale of Picasso's The Actor by German Jews Paul and Alice Leffmann to non-Nazi buyers. (2) The monies received in that sale "constituted the majority of the Leffmanns' available resources" at that time and were used to pay for their safe passage out of Europe into Brazil. (3) After the war, the Leffmans did not demand return of The Actor, which by then was in America. (4)

The Leffmanns' great-grandniece, Laurel Zuckerman, demanded return of The Actor in 2010 from the Met. Having been gifted the modernist masterpiece in the early 1950s, the Met was unwilling to give up the painting, which is valued at approximately $100 million. After expiration of a tolling agreement between the parties, Zuckerman filed suit in New York District Court in 2016, alleging that The Actor should be returned because it was sold under duress. (5)

The District Court granted the Met's motion to dismiss Zuckerman's claims, holding that Zuckerman failed to prove duress under New York law. (6) On appeal, the Second Circuit affirmed the lower court's decision, but under an altogether different doctrine--the time-bar of laches. (7) In its conclusion, the appellate court found "that the HEAR Act does not preempt the Met's laches defense and that Zuckerman's claims are barred by laches." (8) The Second Circuit found the application of laches appropriate owing to the prejudice the Met would suffer if required to defend claims in the face of 70 years of implausible delay by the Leffinanns and their heirs:

It is eminently understandable that the Leffmanns did not bring any claim for the Painting during the course of World War II and even, perhaps, for a few years thereafter, given their specific circumstances. However, it is simply not plausible that the Leffmanns and their heirs would not have been able to seek replevin of the Painting prior to 2010. (9) In her petition for certiorari, Zuckerman cited US Supreme Court precedent to argue that the Second Circuit's dismissal based on laches was inappropriate in the face of Zuckerman's compliance with HEAR's Congressionally-created statute of limitations. Zuckerman pointed to "an unbroken line" of cases from "over a century" in which the Supreme Court held "laches cannot bar a claim at law brought within a federal statute of limitations". (10) Zuckerman also alleged that the Second Circuit "improperly found laches applied despite allegations in the complaint that the Met had unclean hands because it inaccurately listed, and failed to diligently investigate, the true provenance of The Actor." (11)


In its "narrow ruling" that found the laches defence available to the Met, the Second Circuit noted a necessary element of laches was a showing that the Leffmanns had "inexcusably slept" on their rights. (12) In finding this element satisfied, the Appellate Court noted the Leffmanns did not pursue a claim for The Actor even though they "actively and successfully pursued other claims for Nazi-era losses". (13) Zuckerman noted in her petition that the latter point "appears nowhere in the complaint" however. (14)

The Second Circuit was also alleged to have made other unjustified assumptions. As an example, the Court's conclusion to apply laches was founded on its determination that, since the purchaser of The Actor in the original 1938 sale was not "unknown", The Actor was not "difficult to locate". (15) Yet, the record indicates the "immediate history of the Painting" after its sale in 1938 is "unclear". (16)

That assumption also runs counter to the fact that the only published provenance for The Actor did not appear until after the Leffmanns' deaths and--even then--it was flawed. The Actor's provenance was unpublished for an approximate fifteen-year window after it was gifted to the Met in 1952. (17) In 1967, after the Leffmanns were no longer alive, the Met published a provenance that referenced Mr Leffmann as owner in 1912--with no reference to his ownership leading up to World War II. (18) From 1967 until 2010, the Met's provenance listed "P. Leffmann, Cologne (in 1912); a German private collection (until 193 8)". (19) This error persisted even as the Met's staff revised the provenance "many times in other ways" with "[m]ore than a dozen members of [The Met's] curatorial...

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