First trial in the US over Nazi-stolen art could pave the way for similar restitution claims

The first case of Nazi-looted art to go to trial in the United States could set a precedent for similar lawsuits, says the lawyer for the heir of a Viennese art collector murdered in the Holocaust who was awarded the Egon Schiele watercolor. Portrait of the artist’s wife (1917).

“In many ways, yes,” said Oren Warshavsky, a partner at the BakerHostetler law firm who represented Eva Zirkl. The case, which ended a nearly decade-long legal battle on August 1, could pave the way for others in the United States to claim ownership of art stolen by the Nazis.

“Although other cases have discussed the Expropriated Artwork Recovery Act, Law No. 114-308 (the ‘HEAR Act’), this is the first full trial in which it was applicable, and the first time a party with a claim had to prove title by a preponderance of the burden of proof,” Warshavsky said. “As such, future courts will have an example of how the burden of proof of title is applied under the HEAR Act. Because this was a three-party dispute (and one group of heirs of Holocaust victims prevailed over another as well as the owner), the court explained in detail the weighing of evidence for successful and unsuccessful claims. In addition, because the owner owned the artwork for 60 years, the court was able to truly develop how a record should be created. Since the claims of the Rieger heirs were excluded by forfeiture, but the claims of the Mayländer heirs were not, the court provided a very good discussion of how forfeiture could be applied in the future.”

In passing the HEAR Act of 2016, Congress estimated that the Nazis confiscated or otherwise misappropriated hundreds of thousands of works of art and other property across Europe as part of their genocidal campaign against the Jewish people and other persecuted groups, calling it the “largest art expulsion in human history.” After World War II, the United States and its allies attempted to return stolen artwork to their countries of origin, but many remain in the wrong hands. In 1998, the United States joined 43 other nations in convening a conference known as the Washington Conference that produced principles on Nazi-confiscated artwork. It stated, among other things, that “prompt steps should be taken to achieve a just and fair resolution” of claims related to artworks that have not been returned when the owners or their heirs can be identified. That same year, Congress passed the Holocaust Victims Redress Act, which had the same goal and stated: “All governments should use their best efforts to facilitate the return of private and public property, such as works of art, to the rightful owners in cases where assets were confiscated from the claimant during the Nazi regime and there is sufficient evidence that the claimant is the rightful owner.”

The New York State Supreme Court in Monroe County awarded the painting – which shows Shiele’s rosy-cheeked wife, Edith Harms, wearing an ochre jacket over an abstractly patterned dress that fades into the background – to the Susan Zirkl Memorial Foundation Trust, a charity dedicated to autism research. Read more about this complicated three-way dispute.

Warshavsky said there “may” be more similar cases in the near future and that other potential plaintiffs have already consulted the firm.

“To succeed in a restitution case, a plaintiff must first have a cognizable claim; this decision does not affect that requirement. However, the decision clearly shows that courts can examine the evidence and reach the right result. The case brought by the Maylander heirs focused as much on the legal issues as on the art world issues – whereas many previous cases have not,” Warshavsky said. “So someone who feels they will not succeed because they do not have a watertight historical record now has reason to be encouraged. With the court explaining and analyzing many of the issues related to duress and negligence, the parties now have more clarity on how to assess their chances of success and navigate these complex issues. We have had a few more people reach out to us in the last few days.”

Anyone wishing to make a claim in the United States must act quickly, as the HEAR Act expires on December 31, 2026. “This means that any claims not made before that date will not be eligible for the benefits it provides,” warns Warshavsky.

“This case reflects what Congress intended when it enacted the HEAR Act: a chance to make a reasonable claim for the return of a work of art while also considering the real-world implications of how and when the work was taken,” Warshavsky explained. “This case and its lessons should only help people considering making restitution claims. The pretrial process, the trial, and the decision itself should provide a meaningful guide to how to win these cases. An important point is that while the HEAR Act is litigated under state law, it helps balance certain equities and evidentiary hierarchies.”