One More Time: The Cassirer v. Thyssen-Bornemisza Collection Saga Continues

This case has been litigated for 20 years, and has been reported on extensively by this Newsletter throughout its various stages. A quick summary: In 1939, Nazi agents stole a painting by Camille Pissarro entitled Rue St. Honoré, après midi, effet de pluie from Lilly Cassirer Neubauer under the pretense of a “sale” to secure her departure from Germany. The painting was eventually purchased by Thyssen-Bornemisza Collection (“TBC”), a museum under the auspices of the Kingdom of Spain, where Lilly’s descendants, the Cassirers, learned of its location in 2000. Cassirers sued in California federal court to recover the painting. By 2022, the case had reached the U.S. Supreme Court, which determined that the lower courts had mistakenly applied federal choice of law rules to determine ownership, and should have applied California’s choice of law rules instead. All parties understood that this choice of law analysis was dispositive as to who would own the painting: under California substantive law, the Cassirers would recover the painting, because a true owner’s title is superior to that of one who acquires title through a thief.

Under Spanish adverse possession law, how-ever, TBC will have acquired prescriptive title, having had no knowledge of the prior Nazi theft. In January 2024, the Ninth Circuit found that California choice of law rules required application of Spanish substantive law, and there-fore that TBC had rightful title to the painting. The Cassirers petitioned the Ninth Circuit for rehearing en banc, which was denied in July 2024.

Meanwhile, the California State Legislature passed AB 2867. AB 2867 amends Section 338 of the California Code of Civil procedure so that California substantive law shall apply in all claims by California residents for recovery of stolen artwork and adds a new cause of action for recovery of artwork “taken or lost as a result of political persecution.” As the California State Legislature noted, legislatures “have the authority to mandate California substantive law as the rule of decision in specified matters.” AB 2867 further provided that California substantive law shall “apply to all currently pending actions, including actions in which the time to file a petition for a writ of certiorari has not yet expired.” At the time of AB 2867’s enactment, the Cassirer plaintiffs were still eligible to file a petition for a writ of certiorari and thus fall within the purview of AB 2867. The Cassirer plaintiffs were granted an extension and filed the cert petition on December 6, 2024.

On March 10, 2025, the Supreme Court granted the certiorari petition, vacating the Ninth Circuit’s judgment and remanding “for further consideration in list of [AB 2867].”

It might appear that California has stacked the deck in favor of the Cassirers, and that the Ninth Circuit proceedings will inevitably result in the painting being returned to the family. However, I expect that TBC will challenge AB 2867’s constitutionality, in particular its retroactive application, its applicability to property that has no connection with California other than the happenstance of the family members living there today, and possibly other issues as well. Stay tuned.