A Houston museum will get to keep a painting that a family had alleged was sold under duress to a Nazi art dealer in the 1930s after an appellate panel determined a doctrine intended to keep courts from second-guessing official actions of foreign governments mandated dismissal of the lawsuit.
In a unanimous 24-page ruling issued Wednesday, the U.S. Court of Appeals for the Fifth Circuit affirmed U.S. District Judge Keith P. Ellison’s April 2023 dismissal of the lawsuit brought by the heirs of Dr. Max Emden against the Museum of Fine Arts, Houston. The lawsuit revolved around who is the rightful owner of a 1764 painting by Bernardo Bellotto called “The Marketplace at Pirna.”
Central to the court’s ruling was a doctrine that was also front-and-center during oral arguments before the court in April: the act of state doctrine. The panel determined that the root of the dispute was an official restitution decision made by the Dutch government in the wake of World War II.
Emden, a German Jewish merchant and the grandfather of the plaintiffs in the suit, already owned two Bellotto paintings when he purchased “Marketplace” in 1930. He sold three paintings under “Nazi-orchestrated duress” to a Nazi art dealer when the Nazis began invading Europe at the beginning of World War II, the heirs allege.
The heirs argued a clerical error resulted in the museum taking possession of the painting and that the error cannot be an “official act” of the Dutch government — meaning there’s no bar on courts here ensuring the painting is restituted to the rightful owners.
MFAH issued a statement to The Lawbook Thursday saying the court’s ruling had “definitively resolved” the dispute in its favor.
“The museum advised the court on three occasions — first, at the time of the plaintiffs’ initial filing, October 2021, again at the time of their second, amended filing in July 2022 and again at the time of their appeal, in November 2023 — that the MFAH had previously researched the claims’ merits and had shared the independent international provenance investigation, which demonstrated that the claims of a forced sale, or sale at less than fair market value, were not valid,” the statement reads. “No new information has come to light to alter our conclusion that the 1938 sale initiated by Dr. Emden was voluntary.”
William “Bill” Richmond of Platt Richmond, who represents the Emden heirs, issued a statement to The Lawbook Thursday that the family’s legal team is evaluating next steps and expects to continue trying to have ownership of the artwork restored to Juan Carlos Emden, Nicolas Emden and Michel Emden.
“With the painting having gone from Hitler’s possession to now ultimately on display at the Museum of Fine Art Houston, the Dutch government simply does not have a procedure for relief,” the statement reads. “The U.S. court system is the proper venue for resolving this longstanding legal and moral issue.”
At oral arguments, Judge Catharina Haynes had asked Richmond whether the heirs would be able to petition the Dutch government in the event the court affirmed dismissal of the suit. Richmond said at that time, and reiterated in his statement Thursday, that because the painting is currently in the United States, that isn’t an avenue for relief that his clients can take.
In 1928, German art dealer and collector Hugo Moser purchased a painting called “After Bellotto” by an unknown imitator of Bellotto’s “Marketplace.” Both Emden and Moser lost possession of their paintings as World War II began. The mix-up that led to the filing of this suit decades later is rooted in the efforts of The Monuments Men and Women — a group of curators, art historians, librarians, artists and architects tasked with returning art stolen by the Nazis — and the Dutch government to restitute stolen artwork at the end of the war.
In May 1948, Moser wrote to Dutch officials explaining he was the rightful owner of “After Bellotto,” which he left in Amsterdam when he fled Nazi occupation. The Dutch government restituted “Marketplace” instead of “After Bellotto” to Moser.
In 1952, Moser sold it to an American collector using what the Emden heirs allege is a “completely fabricated provenance.” One year later, that collector, Samuel Kress, placed the artwork on long-term loan with the Museum of Fine Arts, Houston. In 1961, the painting was donated to the museum, where it still hangs today.
The Fifth Circuit wrote that the act of state doctrine precluded it from doing anything but dismissing the Emdens’ lawsuit.
“The most straightforward and charitable reading of the Emdens’ complaint inevitably requires a ruling by a U.S. court that the Dutch government invalidly sent Moser the By Bellotto Pirna. The Emdens may be right,” Judge Jerry E. Smith wrote for the court. “… But, per the act of state doctrine, it is not our job to call into question the decisions of foreign nations. As pleaded, the SNK’s shipping Moser the By Bellotto Pirna is an official act of the Dutch government. The validity and legal effect of that act is one that we may not dispute.”
The Netherlands Art Property Foundation, which is referred to in court documents by its Dutch name Stichting Nederlands Kunstbezit, or “SNK,” was the government agency that handled postwar restitution.
The Lawbook has previously covered in detail the allegations in the lawsuit and the oral arguments before the Fifth Circuit.
The Emden family is also represented by Alen Samuel of Platt Richmond.
The MFAH is represented by Thaddeus J. Stauber and Aaron M. Brian of Nixon Peabody and Elizabeth Eoff and Richard A. Schwartz of Munsch Hardt Kopf & Harr.
The case number is 23-20224.