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                    http://www.latimes.com/features/lifestyle/cl-klimt_hz2b10kf,1,6701095.photo

                      June 11, 2004
                      Los Angeles Times

                      Payoff: Supreme validation
                      By Anne-Marie O'Connor, Times Staff Writer

                      Los Angeles attorney Randol Schoenberg has invested an inordinate
                      amount of his career on a case that, until now, many legal experts
                      considered impossible to win.

                      For six years, Schoenberg has represented Maria Altmann, an
                      88-year-old Cheviot Hills woman who is trying to reclaim six
                      valuable Gustav Klimt paintings seized by the Nazis from her uncle
                      in Vienna and now in the possession of the Austrian national
                      museum.

                      The legal saga has taken him from Vienna to the U.S. Supreme Court
                      where, in February, he argued his contention that U.S. courts have
                      legal jurisdiction over the Klimt case. "I went in there thinking, 'We
                      have very little chance,' " he said.

                      But the justices ruled 6 to 3 in Schoenberg's favor on Monday,
                      elevating him to that rarefied cadre of attorneys who argue a case
                      before the Supreme Court and prevail.

                      "It still hasn't sunk in completely that we won," said Schoenberg, an
                      intense 37-year-old who speaks rapid fire, strafing his listener with
                      the details of arcane legal precedents that support elements of his
                      case.

                      The Supreme Court ruling made Schoenberg's decision two years ago
                      to leave a prestigious law firm to file the lawsuit seem, in hindsight,
                      like a good career move. His law firm at the time did not wish to
                      pursue what it considered a highly speculative contingency case
                      against a foreign government.

                      "People were skeptical about its prospects, especially on the
                      jurisdiction issue, until this Monday," Schoenberg said. "Some of
                      them still are."

                      "I remember the words of Randol's first boss: 'Maria, I'm very sorry,
                      we cannot continue on the case because the U.S. marshals are not
                      going to Vienna to take the paintings off the wall,' " Altmann said.
                      "That's when he went on his own."

                      Schoenberg first won a Los Angeles federal court ruling allowing the
                      case to go forward, then the U.S. 9th Circuit Court of Appeals
                      affirmed the ruling. The high-powered Century City law firm
                      representing Austria must have known it had a dogged adversary. In
                      1995, Schoenberg represented his family, the heirs of the brilliant
                      Viennese composer Arnold Schoenberg ó his grandfather ó who
                      were upset that USC's Schoenberg Institute was being used for such
                      things as an "Introduction to Concert Music."

                      A couple of preliminary injunctions later, the Schoenberg archive was
                      relocated from USC to a luxuriously appointed palace near Gustav
                      Mahler's old place in Vienna and granted a million-dollar subsidy.

                      Unlike when Schoenberg represented such clients as Michael Jackson
                      and Kim Basinger, the art seized by the Nazis was more than just a
                      legal wrangle.

                      In this case, Schoenberg and Altmann were inextricably bound in the wave of Austrian Jewish
                      migration fleeing the Nazis. Many Vienna Jewish families knew one another ó the father of the
                      philosopher Ludwig Wittgenstein helped Freud escape ó and remained a tightly knit community
                      where they settled. The diaspora brought a host of talented creators and intellectuals to the United
                      States.

                      Schoenberg's composer grandfather had already met with a less than welcoming climate in Vienna for
                      his ultramodern atonal compositions, as well as the anti-Semitism that drove him out of Berlin.

                      Schoenberg's maternal grandfather was another Vienna composer, Eric Zeisl, who eventually wrote
                      scores for Los Angeles films and such television shows as "Lassie Come Home."

                      Maria Altmann's husband, Fritz, who dreamed of being an opera singer but settled on becoming an
                      engineer, was a friend of Zeisl, and Maria was close to Zeisl's wife, Gertrud.

                      Schoenberg's father, Ronald Schoenberg of Brentwood, became a judge. While his composer
                      grandfather died in 1951, before Schoenberg was born, the deep sense of shared destiny in the family
                      was underlined even by the anagram of their names ó Arnold, Ronald and Randol.

                      "I always felt really lucky to have grandfathers who left so much behind even though I never knew
                      them," Schoenberg said. "I felt it was so fortunate to grow up and be a grandchild of these amazing
                      people. I remember pretty early on starting to listen to my grandfather's music a lot. It really has
                      helped me. I have an open ear. I have one bias from it: I tend to favor complexity over simplicity."

                      That bias became a leitmotif: at Princeton, Schoenberg did his undergraduate thesis on combinatorial
                      set theory, a mathematics thesis that was tangentially related to Arnold Schoenberg's 12-tone atonal
                      musical compositions, whose deeply psychological components influenced everyone from Aaron
                      Copland to the composers of film scores.

                      Altmann too had a complex link to the case: Her family was dispossessed by the Nazis, and when
                      they managed to get her husband out of Dachau, they fled over the German border to safety. Two of
                      the six contested Klimt paintings were portraits of her famous art patron aunt, Adele Bloch-Bauer.

                      Not to mention her personal ties to Schoenberg. "I've known Randol since he was a baby," Altmann
                      said.

                      Schoenberg seems to have inherited the more cerebral muses of his composer grandfather.

                      He focused his arguments at the Supreme Court on a 1994 case that had been ruled on by Justice
                      Antonin Scalia, who wrote an opinion in a landmark civil rights case, Landgraf vs. USI Film Products,
                      in which the question arose over whether punitive damages can be awarded retroactively. In that case,
                      Scalia concurred that jurisdictional limitations do not pose retroactivity problems.

                      When Scott Cooper, one of the attorneys representing Austria, argued that Austria ó which
                      maintains the paintings were willed to the museum ó believed it was shielded from lawsuits in the
                      United States over expropriated valuables like art, Scalia responded: "I don't know that we protect
                      expectations of the sort you're talking about."

                      The ruling does not return the paintings to Altmann. It simply lifts the stay on hearing the case in
                      U.S. federal court. The case could still be slowed from going forward by any number of legal motions
                      filed by Austria's attorneys.

                      Schoenberg is preparing to press for a prompt court date, citing Altmann's advanced age. But he did
                      take a moment for a family celebration for the victory.

                      After all, he said: "How many people argue a case before the Supreme Court and win?"

                      *
 

                      Times staff researcher Robin Mayper contributed to this report.
 
 

OLD BATTLE CAN GO ON
Justices Rule That Dispute Over Art Seized by Nazis May Proceed in U.S.
Courts

BY CHARLES DELAFUENTE

No one disputes that the Nazis looted numerous paintings belonging to
Ferdinand Bloch-Bauer, an Austrian art collectorÓand a JewÓwhen he fled
Vienna in 1938 as the German army was marching in.

What is in dispute more than 60 years later, however, is who should be the
rightful owner of that artworkÓprimarily six paintings by Gustav Klimt
valued in the tens of millions of dollars. A niece of Bloch-Bauer is
entangled in a dispute with the Austrian government over whether that
artwork belongs to her as his heir or should remain in the national art
gallery, where it turned up after the war..

This week, the U.S. Supreme Court ruled that Maria V. Altmann may pursue her
fight for the artwork in American courts under the Foreign Sovereign
Immunities Act of 1976.

The Supreme Court on Monday expanded the reach of the statute, ruling that
it may apply retroactively in some kinds of lawsuits involving issues going
back to the 1930s.

The court upheld a ruling by the 9th U.S. Circuit Court of Appeals, based in
San Francisco, which had affirmed a district courtăs denial of the Austrian
governmentăs motion to dismiss. Republic of Austria v. Altmann, No. 03-13
(June 7).

The ruling comes at a time when questions are being raised about how much
U.S. courts should be used as a forum for foreign individuals, companies and
governments to resolve their legal disputes. Such questions have been
raised, for instance, over the Alien Tort Statute of 1789. In Altmann, the
Justice Department said in an amicus brief that it would be unprecedented to
allow lawsuits against foreign governments over expropriated property to be
heard in U.S. courts.

The justices, however, did not address the issue of expropriation. Rather,
the 6-3 ruling, in which Justice John Paul Stevens wrote for the majority,
focused on the relatively narrow jurisdictional question of retroactivity.

The case is expected to return to U.S. District Court for the Central
District of California in Los Angeles, where questions of factÓincluding
whether Bloch-Bauer intended to bequeath the six paintings to the national
gallery, as the defendants claimÓwill have to be decided.

The ruling is not expected to create a surge in World War II-era suits
against foreign governments, in part because treaties pre-empted many
potential legal actions against governments stemming from wartime events.
There are other cases involving art looted by the Nazis that could be
affected, but broader applicability of the courtăs ruling in Altmann seems
unlikely, say some experts.

"There were lots and lots of human rights violations committed by various
people before 1976," says Steven M. Schneebaum, a lawyer in Washington,
D.C., who is an expert on the use of international law in U.S. courts. "But
I doubt there are going to be very many cases in which there is a real live
plaintiff and a real live defendant."

What makes cases like Altmann unusual, Schneebaum says, is the presence of
"somebody who could point to a particular object and say, ňThis is mine.ă "
He also said retroactivity alone "does not open the floodgates" to
litigation against foreign governments because plaintiffs still have to come
within one of the exceptions to immunity that the act requires and meet
other procedural hurdles.

The decision was based in large part on the courtăs determination of
congressional intent. It found "clear evidence that Congress intended the
act to apply to pre-enactment conduct," Stevens wrote. He reasoned that the
statutory language in the preamble, 28 U. S. C. § 1602, providing that
"claims of foreign states to immunity should henceforth be decided by courts
of the United States and of the states in conformity with the principles set
forth in this chapter," created retroactivity.

"This language is unambiguous: Immunity ňclaimsăÓnot actions protected by
immunity but assertions of immunity to suits arising from those actionsÓare
the relevant conduct regulated by the act; those claims are ňhenceforthă to
be decided by the courts," the court held.

The majority turned aside the governmentăs amicus brief opposing
retroactivity. "While the United Statesă views on such an issue are of
considerable interest to the court, they merit no special deference,"
Stevens noted. "In contrast, should the [U.S.] State Department choose to
express its opinion on the implications of exercising jurisdiction over
particular petitioners in connection with their alleged conduct, that
opinion might well be entitled to deference as the considered judgment of
the executive on a particular question of foreign policy."

Justice Anthony M. Kennedy disagreed with the majorityăs statutory analysis,
writing, "The single acknowledged exception to the rule against
retroactivity is when the statute itself, by a clear statement, requires it.
[This act] does not meet this exception because it contains no clear
statement requiring retroactive effect."

Kennedy also expressed concern that "to reach its conclusion, the court must
weaken the reasoning and diminish the force of the rule against the
retroactivity of statutes, a rule of fairness based on respect for
expectations; the court abruptly tells foreign nations this important
principle of American law is unavailable to them in our courts; this is so
despite the fact that treaties and agreements on the subject of
expropriation have been reached against a background of the immunity
principles the court now rejects."

Altmann's lawyer, E. Randol Schoenberg of Los Angeles, says he believes the
decisionăs impact "will depend on what types of cases people bring*. The
Altmann case is a very unusual one that, with luck, will be able to get
through that minefield. But most other cases will not."

One thing is clear: Whether they occur in the U.S. courts or some other
forum, there still are a few final battles from World War II left to fight.
©2004 ABA Journal
 

Los Angeles Jewish Journal
Court Clears Way for Suit Over Nazi Loot

by Tom Tugend, Contributing Editor

Maria Altmann, the niece of Adele Bloch-Bauer, with a reproduction of one of
the two Gustav Klimt paintings that were stolen by the Nazis. Her family is
in a lawsuit against the Austrian government to get the originals back.
Photo by Lawrence K. Ho/LA Times

"Iam thrilled that there is justice in this world," said a jubilant Maria
Altmann, after celebrating her victory with a family dinner outing.

"This is more than just a Jewish case and itÝs more than I had hoped for,"
added the 88-year old Cheviot Hills resident.

The "case" referred to a U.S. Supreme Court decision on Monday, which
represented a path-breaking legal advance for families of Holocaust victims
and survivors seeking restitution.

The court ruled that Americans can sue foreign governments in U.S. courts
over looted art, stolen property and war crimes dating back to the Holocaust
era and World War II.

The decision is both a legal milestone and a personal triumph for Altmann,
who is seeking the return from Austria of paintings confiscated by the Nazis
in 1938.

Involved are six paintings by Austrian artist Gustav Klimt, now valued at
$150 million, including a stunning portrait of Adele Bloch-Bauer, AltmannÝs
aunt.

Austria, backed by Washington, has been fighting the return of the
paintings, now hanging in its national gallery, arguing that under a U.S.
statue a sovereign state is immune to lawsuits filed in American courts.

However, a 6-3 majority of the Supreme Court upheld AltmannÝs contention
that there were retroactive exceptions to the immunity, in this case for
property seized in violation of international law.

The court decision will likely have major international ramifications, said
professor Michael J. Bazyler of the Whittier Law School, who analyzed the
Altmann case in his book "Holocaust Justice: The Battle for Restitution in
American Courts" (New York University Press, 2003).

The most immediate impact will be on pending actions against the French and
Polish governments, which have also claimed immunity against lawsuits in
U.S. courts.

Holocaust survivors and their heirs are suing the French railroad system for
transporting them to concentration camps, and other suits are pending
against Poland for the return of seized property, Bazyler said.

Germany may also be open to new property claims, said law professor Burt
Neuborne of New York University, who was the lead counsel in suits to
recover Holocaust-era deposits in Swiss banks.

Other beneficiaries could be Korean women who were forced to serve as sex
slaves for Japanese soldiers in World War II.

However, the court decision will not affect a number of class action suits
against European insurance companies, or slave labor suits against foreign
factories and mines, since such suits are against private companies, not
governments, Bazyler and Neuborne noted.

The Supreme Court decision leaves an opening for the U.S. State Department
to intervene on behalf of Austria, although a recent U.S.-Austria treaty is
ambiguous on that point.

In any case, it behooves the Jewish community to exert pressure on the State
Department to stay out of the follow-up on the case, said Marc Stern,
general counsel for the American Jewish Congress, who filed an amicus brief
in the case.

Bet Tzedek Legal Services of Los Angeles also filed a brief on AltmannÝs
behalf.

The entire case now goes back to the U.S. District Court in Los Angeles,
where a trial will determine the original question whether the paintings
belong to Altmann or the Austrian national gallery.

The victory was especially sweet for E. Randol Schoenberg, a 37-year old
Brentwood lawyer, who had single-handedly argued the case against
high-powered lawyers for the Austrian and American governments in his first
Supreme Court appearance. ItÝs "a dream come true," he said.

He is himself a descendant of a prominent Austrian-Jewish family as the
grandson of composer Arnold Schoenberg.

Austrian Consul General Peter Launsky-Tiefenthal said in Los Angeles that he
had not received any immediate reaction from his government.

Schoenberg will discuss the Altmann case and related issues on Friday, June
25, during 6:30 p.m. services and a following dinner at Mishkon Tephilo, 206
Main Street, Venice. For information and dinner reservations, call (310)
392-3029.
 
 

DAILY EXPRESS
Unsuitable
by Yonatan Lupu
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The Supreme Court ruled on Monday that California resident Maria Altmann can sue the Austrian government in the United States to recover six valuable paintings stolen from her family by the Nazis. The ruling came after four years of litigation and decades of persistence by Altmann to recover the artwork, which was painted by Art Nouveau master Gustav Klimt and is valued at about $150 million. Austria's lawyers argued that U.S. courts did not have jurisdiction to hear the case because, at the time the events took place, Austria was entitled to immunity as a foreign sovereign. Altmann, however, successfully argued that the case could be brought under the Foreign Sovereign Immunities Act (FSIA), which allows for certain exceptions to another country's immunity. The central question the Court weighed was whether the FSIA, which became law in 1977, applies retroactively to Altmann's suit. A majority of justices ruled that it does, but billed their decision as "narrow" because they only ruled on whether U.S. courts had jurisdiction in the case, not on whether Altmann could in fact recover the paintings.

But far from having a narrow effect, the case could have far-reaching implications--none of them particularly good. For one thing, the very people that one might expect the Court's decision to help--those seeking reparations--will probably be hurt by it. In recent years, the United States has negotiated agreements with its former enemies to cover reparations for war crimes and illegal expropriations of property during World War II. Those negotiations, and the agreements they have produced so far, have relied on the assumption that the same issues would not also be litigated. After Altmann, that might no longer be true; as a result, payments could be delayed--and victims might not live long enough to see them.

And that's just the beginning of the problems with this ruling. Because Altmann is not limited to Holocaust reparation claims or even to World War II-related claims, it creates the possibility for a wide range of litigation against foreign countries. Therefore, as the dissenting opinion by Anthony Kennedy, joined by William Rehnquist and Clarence Thomas, points out, the ruling "injects great prospective uncertainty into our relations with foreign sovereigns" by granting courts jurisdiction over, and potentially reopening, issues that the executive branch--primarily the State Department--has been dealing with for decades.

Shortly after it was passed, courts ruled that the FSIA applied to events dating as far back as 1952, when the State Department first articulated a policy allowing foreign governments to be sued in the United States. Prior to 1952, foreign sovereigns enjoyed absolute immunity from such suits, a doctrine that was first recognized in U.S. law in an 1812 case. In the 1980s, a series of federal district and circuit court decisions declined to apply the FSIA to cases involving unpaid bonds issued by the Tsarist Russian government in 1916; the Imperial Government of China in 1911; and the Porfirio Diaz regime in Mexico between 1886 and 1910. The courts reasoned that Congress did not intend the statute to apply retroactively to pre-1952 events. Now the Supreme Court has ruled the opposite.

It's not hard to imagine how reopening claims from more than 50 years ago could harm U.S. foreign policy. Indeed, the State Department submitted a Statement of Interest in Altmann arguing that such claims should be addressed through diplomatic and political means, not legal ones. Pending cases that could be cleared to go forward by Altmann include suits against Japan, Poland, Mexico, and France--all of which derive from World War II-era or earlier events. It is also likely that unpaid bond claims similar to the ones thrown out in the 1980s will now be brought against many other countries. Such litigation could undermine and embarrass the State Department, alienate U.S. allies, and even result in retaliatory foreign litigation. These developments would be especially damaging because many of the countries implicated, though once adversaries, are now among America's closest friends.

The decision is also bad law: For one thing, it counters a general presumption, spanning all aspects of U.S. jurisprudence and legislation, that applying laws retroactively is unjust; and it could set a precedent for similarly applying other statutes. It also overlooks a key principle in U.S. law that courts should decline to hear cases regarding issues that are more properly addressed by other branches of government. Traditionally, foreign policy has been just such an issue. As the Supreme Court itself stated in 1918, "the conduct of the foreign relations of our Government is committed by the Constitution to the Executive and Legislative--'the political'--Departments of the Government, and the propriety of what may be done in the exercise of this political power is not subject to judicial inquiry or decision." Indeed, based on this principle, a U.S. District Court in California declined last year to rule on the question of pre-1952 applicability of FSIA to another case against Austria for Nazi-era property seizures.

Perhaps most strikingly, Altmann could ultimately have negative consequences for other Holocaust and World War II-era victims seeking reparations. In response to a growing number of lawsuits against Austria in the late 1990s, the State Department and the Austrian government signed the General Settlement Fund agreement in 2001, requiring Austria to pay approximately $210 million to resolve Holocaust-era property claims; in turn, the agreement assured Austria that it would not face further litigation regarding confiscated property. Similar agreements were also reached with Switzerland and Germany. Already, Austria's payments are being held up by a class-action suit in a New York federal court. Following the Supreme Court's decision, this delay could last even longer, and other restitution payments may get caught up in litigation as well. As the Federal District Court for New Jersey wrote last year in dismissing a case seeking restitution from German companies for forced labor, "Matters of Holocaust-era restitution are best resolved through dialogue, negotiation, and cooperation as opposed to prolonged and uncertain litigation; and this provides some measure of justice and compensation to aged victims in their lifetimes." Would that the Supreme Court agreed.

Yonatan Lupu is an attorney in Washington, D.C.