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SEPTEMBER 13, 2004 | INTERNATIONAL Print | Email
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Holocaust Survivor Can Try Case in U.S.

LOS ANGELES - An 88-year-old Holocaust survivor who claims that the
Austrian government has six paintings that the Nazis stole from her family
may get her day in court.
After winning a U.S. Supreme Court ruling earlier this year that
Austria can be sued in U.S. courts, Maria V. Altmann beat back another
jurisdictional challenge from the European nation Friday.
U.S. District Judge Florence-Marie Cooper issued the decision.
"This was their last-ditch effort to try and derail this case on
jurisdictional grounds, and the judge rejected it," Altmann's lawyer, E.
Randol Schoenberg of Burris & Schoenberg in Los Angeles, said.
But Scott P. Cooper of Proskauer Rose in Los Angeles, representing
the Republic of Austria, said the case is far from trial.
"There's a lot of case left before anybody knows the answer to when
the case will go to trial," Cooper said. "Among other things, they are going
to have to prove all of their factual allegations that provide the basis for
Altmann, the niece of a Czech sugar magnate, sued in 2000, claiming
that six Gustav Klimt paintings worth an $150 million and housed in the
Austrian Gallery had been stolen by the Nazis and given to Austria.
The most famous of the works, and one of the most famous paintings
in the world, was of Altmann's aunt, Adele Block-Bauer.
- David Houston

© 2004 Daily Journal Corporation. All rights reserved.

Metropolitan News-Enterprise

Monday, September 13, 2004

Page 1

Austria’s Motion to Dismiss Suit Over Looted Art Denied


U.S. District Judge Florence-Marie Cooper of the Central District of
California Friday denied a motion by the Austrian government to dismiss a
lawsuit charging it with wrongful possession of valuable artwork looted by
the Nazis.
Cooper ruled for the second time that the claims by Maria V. Altmann, 88, of
Cheviot Hills fall under the "expropriation" exception to the protections
granted foreign governments from U.S. civil process by the Foreign Sovereign
Immunities Act.
Friday’s ruling, which obviated the need for a hearing that was scheduled
for today, follows a U.S. Supreme Court ruling earlier this year that
allowed the suit to proceed. The 6-3 decision held that the FSIA, rather
than the law in effect in the 1940s when the paintings came into Austria’s
possession, determines the scope of any immunity in the case.
Altmann seeks to recover–or be compensated for–six Gustav Klimt paintings
owned by her uncle, Czech banker and sugar magnate Ferdinand Bloch. The
paintings, with an estimated value of $150 million, are now part of the
collection of the Austrian Gallery in Vienna.
The high court granted review after a Ninth U.S. Circuit Court of Appeals
panel ruled that Austria could not possibly have expected sovereign immunity
to apply to artworks thatwere stolen by Nazis and were allegedly retained
illegally by the government after the war.
In her original order, Cooper held that Altmann had pled the three elements
of the expropriation exception–that the property was taken in violation of
international law, that it is "owned or operated" by an agency or
instrumentality of a foreign government, and that the agency or
instrumentality is engaged in commercial activity in the United States.
Cooper noted that the paintings have been reproduced and sold numerous times
in the United States in the form of posters and catalogs.
In fact, some of the Klimt works apparently have become part of American
commercial and popular culture. It is possible to purchase reproductions of
the most famous of the paintings–the golden, Byzantine-influenced "Adele
Bloch-Bauer I," a portrait of Altmann’s aunt–on wristwatches, calendars, and
other goods.
There are Klimt computer games, playing cards and stationery.
In its latest motion, Austria again raised an issue that the Supreme Court
declined to consider–whether Altmann’s failure to exhaust her legal remedies
in Austria precluded her from claiming that the republic’s retention of the
paintings violated international law.
Altmann’s attorney, E. Randol Schoenberg of Los Angeles, argued that the
$135,000 filing fee and the burden of potentially lengthy proceedings on his
octogenarian client rendered the Austrian remedy inadequate.
Cooper’s previous ruling in favor of the plaintiff on that issue was upheld
by the Ninth Circuit and is now the law of the case, the district judge said
Friday. Nor did Austria cite any new law or facts that would support
reconsideration, Cooper said.
She rejected Austria’s urging that she revisit the issue on the basis of a
comment in Justice Stephen Breyer’s concurring opinion in the high court
case, joined by Justice DavidSouter, that exhaustion might be required.
"Justice Breyer’s concurring opinion is mere dictum," Cooper wrote, since
the issue was not before the court. "...Even if the opinion were not dictum
on an issue the court refused to consider, it is not the opinion of the
Court, and it is therefore not binding."

Copyright 2004, Metropolitan News Company