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Attorneys for Plaintiff
285 West Fourth Street
New York, New York 10014




Plaintiff, 09-CV-10013 (LAK)


SAMMLUNG OSKAR REINHART “AM RÖMERHOLZ”, jury of all issues so triable.



Plaintiff ANDREW ORKIN, by his attorneys Law Offices of Richard A. Altman, for his

complaint against defendants, alleges as follows:


1. This action seeks, inter alia, to recover possession of a pen-and-ink drawing (“the

Drawing”) created by Vincent van Gogh, and to adjudicate and determine plaintiff’s entitlement

thereto. The Drawing was previously owned by plaintiff’s great-grandmother, and sold by her under

duress during the Nazi era in Germany for a fraction of its fair value. It is presently in the possession

and control of the defendants, who received it by bequest from the purchaser, a Swiss collector

named Oskar Reinhart, and who have refused despite demand to restitute it to plaintiff.

2. The Drawing is entitled Les Saintes-Maries de la Mer and van Gogh created it in June

1888. The medium is pencil, quill pen and brown ink on paper and the dimensions are 43 x 60 cm.

A copy of the Drawing is annexed as Exhibit A.

3. The Drawing is currently part of the collection of the defendants Museum Oskar Reinhart

Am Stadtgarten (“the Museum”) and/or Sammlung Oskar Reinhart “Am Römerholz” (“the

Collection”), both located in Winterthur, Switzerland, and plaintiff brings this action seeking to

recover ownership and possession of the Drawing, and for ancillary relief associated therewith and

arising therefrom.


4. Plaintiff is the great-grandson of the true and original owner of the Drawing, a woman

named Margarethe Mauthner. Plaintiff and his two siblings, and their two maternal first cousins, are

her sole heirs.

5. Plaintiff is a natural person, a citizen of Canada, and a United States permanent resident.

6. Defendant The Swiss Confederation is the European nation of Switzerland, and is a

“foreign state” within the meaning of 28 U.S.C. §1603(a).

7. Defendant Museum Oskar Reinhart Am Stadtgarten (“the Museum”) is, on information

and belief, an art museum located at Stadthausstrasse 6, Winterthur, Switzerland.

8. Defendant Sammlung Oskar Reinhart “Am Römerholz (“the Collection”) is, on

information and belief, an art museum located at Haldenstrasse 95, Wintherthur, Switzerland.

9. On information and belief, both the Museum and the Collection house works of art which

belonged at one time to Oskar Reinhart, a Swiss art collector (see ¶¶51-56, infra).

10. According to the internet website of the Museum, “[f]rom 19 February 2009 to 1 August

2010 the two museums of the collector Oskar Reinhart in Winterthur are to merge temporarily”

because the building housing the Collection is being renovated. See http://www.

museumoskarreinhart.ch/01einfo/011e_info.asp (accessed February 24, 2010).

11. Defendants Museum and Collection are each “an agency or instrumentality of a foreign

state” within the meaning of 28 U.S.C. §1603(b).

12. Both defendant Museum and defendant Collection are, on information and belief, owned

and operated by the government of the defendant Swiss Confederation.

13. Defendants are engaged in commercial activity in United States, as appears more fully

infra at ¶¶82-104.


14. This action is brought pursuant to the Foreign Sovereign Immunities Act, 28 U.S.C.

§1602 et seq. (“FSIA”) and the Alien Tort Claims Act, 28 U.S.C. §1350.

15. The FSIA is the sole basis for the exercise of jurisdiction to adjudicate claims against

foreign states in the Courts of the United States.

16. Pursuant to that statute, a foreign state is generally immune from suit in the Courts of

the United States.

17. However, there are several exceptions to the immunity from suit, and if a claim falls

within one or more of the exceptions, the Court may assert subject matter jurisdiction over the claim,

and personal jurisdiction over the foreign state and its agencies or instrumentalities. Those

exceptions are contained in 28 U.S.C. §§1605-07.

18. One applicable exception which arises from the claims asserted herein is the so-called

“takings” exception.

19. Pursuant to that exception, contained in 28 U.S.C. §1605(a)(3), the Courts of the United

States have jurisdiction over a foreign sovereign if (1) rights in property are at issue; and (2) the

property was “taken”(3) in violation of international law; and either (4)(a) “that property...is present

in the United States in connection with a commercial activity carried on in the United States by the

foreign state,” or (4)(b) “that property...is owned or operated by an agency or instrumentality of the

foreign state and that agency or instrumentality is engaged in a commercial activity in the United

States.” Id.

20. All four requirements are satisfied here.

21. This case seeks to adjudicate rights to valuable personal property worth, on information

and belief, $5 million or more.

22. The Drawing was “taken” within the meaning of §1605(a)(3).

23. Property is “taken” if it is either expropriated by a foreign state, or is acquired by the

foreign state from some other person, so long as the taking was in violation of international law.

24. The Drawing was taken in violation of international law.

25. The defendant The Swiss Confederation is a foreign state within the meaning of 28

U.S.C. §1603(a).

26. The defendant Museum is an agency or instrumentality of defendant The Swiss

Confederation within the meaning of 28 U.S.C. § 1603(b), and is thus also a foreign state within the

meaning of §1603(a).

27. The defendant Collection is also an agency or instrumentality of defendant The Swiss

Confederation within the meaning of 28 U.S.C. § 1603(b), and is thus also a foreign state within the

meaning of §1603(a).

28. On information and belief, the defendant Museum and the defendant Collection are

separate legal persons, corporate or otherwise, and are organs of defendant The Swiss Confederation,

or a majority of their shares or other ownership interests are owned by defendant The Swiss

Confederation, and are not citizens of a State of the United States.

29. The defendants have been and are engaged in commercial activity in the United States

within the meaning of §1605(a)(3), as appears more fully in ¶¶82-104 infra.

30. As such, the defendants are not immune from the jurisdiction of courts of the United

States, and are subject to such jurisdiction.

31. Accordingly, the Court has subject matter jurisdiction of the claims asserted herein and

personal jurisdiction over the defendants.

32. This Court also has subject matter jurisdiction pursuant to the Alien Tort Claims Act,

28 U.S.C. §1350, which provides for jurisdiction of claims by aliens for torts committed in violation

of the law of nations.

33. This Court also has supplemental jurisdiction of the state law claims, pursuant to 28

U.S.C. §1367.

34. The defendants are subject to personal jurisdiction pursuant to New York Civil Practice

Law and Rules §301.

35. The exercise of such personal jurisdiction over the defendants in this Court is consistent

with due process of law under the Fifth and Fourteenth Amendments to the Constitution.


36. Venue is proper in this District, pursuant to 28 U.S.C. §§1391(b)(3) and 1391(f)(3), in

that the defendants are doing business in this District and may be found in this District.


I. Margarethe Mauthner: Pioneering European Avant-Garde Arts Promoter and Translator

37. Margarethe Mauthner was born on July 7, 1863 into a German family of Jewish descent.

38. She became a pioneering German proponent and collector of avant-garde art, was a close

associate of such artists as Max Liebermann and Lovis Corinth, and was an early promoter of the

work of Vincent van Gogh, soon after he died in 1890, with nothing like the fame he later acquired.

39. She acquired numerous works by van Gogh, including Les Saintes-Maries de la Mer and

another drawing, Garden with Flowers, in 1906 and 1907, respectively. Eventually she owned more

than six works by van Gogh.

40. In 1906, she undertook the first translation of van Gogh’s letters, into German, and wrote

and published articles in a German art journal, Künst & Künstler, and other publications.

41. In that same year, she acquired the Drawing from Paul Cassirer, a prominent Berlin art

expert, art dealer and personal friend.

42. From 1921 until November 1938, she lived in Berlin with her daughter, Edith Orgler

(née Pinkuss), her son-in-law, Dr. Adolf Orgler, and her grandchildren, Friedrich, Else and Irmgard

Orgler, at Im Dol 45 in Berlin-Dahlem, Germany, where she kept her art collection.

43. During the early to mid-1930’s, neither Mauthner, who was at that time in her late sixties

and early seventies, nor her daughter, Edith, who was in poor health, generated any income. Dr.

Orgler, a physicist, was the breadwinner for the Mauthner/Orgler family (i.e., Margarethe Mauthner,

Edith Orgler, Adolf Orgler, Irmgard Orgler and to some extent Else Orgler).

44. Mauthner’s role as a contributor to the cultural life of Germany and Europe came to an

end under the Nazi regime. Mauthner and her family were subjected to the many racial laws,

decrees, and practices that the Nazi government imposed against Germans of Jewish descent,

beginning immediately after Hitler became Chancellor on January 1, 1933.

45. For example, in April 1933, Germany enacted the Law for the Restoration of the

Professional Civil Service, which barred “non-Aryans” from employment, among other things, as

instructors in all public educational institutions, as officials of public works, public banks and

insurance companies, and as employees of public or semi-public agencies.

46. In May 1933, Germany revoked the licenses of non-Aryans as tax consultants, judges,

professors, and as instructors and lecturers in universities and colleges, and Dr. Orgler, his family’s

sole breadwinner, lost his position as a result.

47. As a result of these and many other anti-Semitic measures, Mauthner and her family

ultimately were dispossessed of almost all of their property, and lost their livelihoods and many

relatives and friends who were exterminated. They were deprived as well of their homeland, a

country their family had lived in and contributed to economically, culturally and scientifically for


48. Shortly after Hitler’s accession to power, the family began preparing to leave Germany

as conditions worsened for Jewish citizens, and began planning and assisting the departure of

younger and more mobile members of the immediate and extended Mauthner-Orgler family. In order

to survive and finance the flight of family members, they urgently needed liquid assets.

49. As a result, Mauthner was forced to sell important artworks in her collection. Eventually,

the family was forced to sell their home, as well as a significant part of their furnishings and

household goods, under great duress and at prices well below market value.

41. Friedrich Orgler, Mauthner’s grandson, and some of his cousins emigrated to South

Africa in 1933. Else Orgler, Mauthner’s granddaughter, joined her brother and other relatives in

South Africa in 1935.

50. At the age of 75, Mauthner finally fled Berlin via Hamburg for South Africa with her

daughter Edith, her son-in-law Dr. Adolph Orgler, and the youngest of her three grandchildren, her

teenaged granddaughter, Irmgard.

40. The small family group was fortunate to escape the terrible fate of most other German

Jews, re-uniting in early 1939 in Johannesburg, South Africa with her two older grandchildren

Friedrich and Else Orgler, who Mauthner had assisted to leave Germany earlier in the Hitler-Nazi

era. In 1947, Mauthner died in South Africa.

51. Else Orgler was plaintiff Andrew Orkin’s mother, Friedrich Orgler was his uncle, and

Irmgard Orgler was his aunt.

II. Oskar Reinhart: Swiss Art Collector

52. Oskar Reinhart (1885-1965) was the descendant of a family dynasty of traders from

Winterthur, Switzerland. Apart from his business, his father Theodor’s main interest was art. Oskar

Reinhart was privileged to grow up among the young Swiss and German artists for whom his father

acted as patron.

53. In 1924, Oskar Reinhart left the family business and became a full-time art collector.

54. That same year he purchased the Villa “Am Römerholz” as both a place of residence and

a home for the art collection that he had built up.

55. Around 1940, he donated his collection of eighteenth- to twentieth-century French,

German, Swiss, Austrian and other European art to the city of Winterthur. Since 1951 these works

have been on display at the defendant Museum and/or the defendant Collection.

56. In 1958 he made a will bequeathing the remaining part of his collection and the Villa

“Am Römerholz” to the Swiss nation, and it became their property upon his death in 1965. The

collection was re-opened to the public in 1970.

57. The Drawing was contained within that bequest, and defendants thereby came into

possession of it, paying no consideration therefor. A description of the circumstances of Reinhart’s

acquisition of the Drawing follows.

III. The Transaction: Reinhart’s Acquisition

of a Nazi-era Flight Asset from Mauthner

58. Around 1925, Reinhart first saw two of Mauthner’s van Gogh drawings, Les

Saintes-Maries de la Mer and Garden with Flowers. By that time he had retired from his family’s

business and was devoted full time to collecting art. In his diary, he wrote that he thought

Mauthner’s two van Gogh drawings were beautiful and estimated each was worth around 12,000

Swiss Francs (“CHF”).

59. Around 1926, Reinhart offered to buy them both for 21,000 Reichsmarks (“RM”). But

at that time Mauthner was only willing to sell Garden with Flowers for RM 12,000. After some

negotiations, she sold it to Reinhart for RM 10,000.

60. In late October 1933, later in the year of Hitler’s accession to power, Mrs. Mauthner,

through Erich Hancke, a German artist and friend of hers, offered to sell the Drawing at issue here,

Les Saintes-Maries de la Mer, to Reinhart for CHF 12,500.

61. As a German Jew living in Nazi Germany and experiencing escalating insecurity and

persecution, Mauthner had little or no bargaining power vis-à-vis Reinhart.

62. In fact, correspondence and personal papers from October and November 1933,

including Reinhart’s own, establish that Mauthner desperately needed money and needed it urgently,

to assure the safe departure from Germany and well-being of younger members of her beloved family

circle, in a time of escalating anti-Jewish attacks and increasing anti-Semitic laws and

discrimination, including the levy of departure taxes on Jews who wished to leave.

63. The increasingly desperate plight of Jews in Nazi Germany was already widely

publicized internationally, and the severe challenges they faced were becoming well known. For

example, on April 24, 1933, Frederick T. Birchall, the New York Times correspondent in Berlin,

wrote that the Jews in Germany were facing an impending catastrophe. He wrote that the Nazis had

relegated them to a position even lower than second-class citizens: They were “to be like toads under

the harrow.” Thousands of them had been deprived of homes and driven from employment but

lacked the funds necessary to leave.

64. Similarly, American reporter Dorothy Thompson wrote from Berlin in May 1933 that

Germany’s Jews were “truly in a hopeless state,” because they were no longer permitted to earn a


65. Those Jews with the means to escape Germany were required by the Hitler government

to leave behind nearly everything they had. The New York Times reported in early May that Jewish

refugees were arriving in Paris at a rate of 200 a day, and that nearly all were “reduced to a state of


66. With this notorious climate as a transactional backdrop, Reinhart, through Bruno

Cassirer, a friend and fellow collector of Mauthner’s, counter-offered for only RM 8,000, stating that

Mauthner’s asking price was not commensurate with the market climate.

67. To the extent that the market was seriously depressed, however, this resulted in large part

from Berlin’s status as a major European art center, and the fact that many other persecuted Jewish

art collectors in Nazi Germany were trying to sell their artworks to survive or flee Germany at that


68. Reinhart said that he was willing to accept Mauthner’s offer of RM 8,500 only if he paid

in “registered marks,” which effectively reduced the price by another twenty-five percent.

69. Because of the dire urgency of her situation, including as a matriarch who wished to

secure the future of the youngest generation of her family, and because of the risk of accepting

registered marks, Mauthner accepted immediate payment of Reinhart’s lower offer of RM 8,000.

70. On November 17, 1933, Reinhart agreed to buy the Drawing for RM 8,000. The RM

8,000 purchase price was significantly less than Mauthner’s original asking price in Swiss francs,

and because he paid in Reichsmarks, was less than half of that asking price, which was already far

less than the Drawing’s actual value at the time.

71. Despite Mauthner’s obviously great financial and other difficulties, Reinhart not only

drove the price down but more significantly forced her to accept payment in either regular German

Reichsmarks or in registered marks, which not only traded abroad at a considerable discount but

which were traceable by Nazi authorities within Germany as Jewish assets, and thus would have

been subject to confiscation.

72. Reinhart was aware of Mauthner’s financial and social situation in Nazi Germany, and

clearly took advantage of it to obtain a price far more favorable to him than he would have paid had

Mauthner not been under great duress.

73. The Drawing was in Mauthner’s possession in Berlin at the time of the sale, and was

subsequently delivered to Reinhart.



74. In December 1996, the Swiss Federal Council of defendant The Swiss Confederation

appointed an “International Commission of Experts” (“ICE”) to initiate a study of its own activities,

dealings and collaborations with the Hitler regime and Axis powers during the Nazi era. The

Commission’s work was supervised by Jean-François Bergier, a Swiss historian, and was published

in 2002.

75. The Commission, supported by a staff of 100, worked for more than five years, and

eventually published 27 volumes on various aspects of the Swiss relationship with Nazi Germany.

The Commission’s final report was entitled “Switzerland, National Socialism and the Second World

War: Final Report of the International Commission of Experts.”

76. Volume One, entitled “Flight Assets–Looted Assets; The Transfer of Cultural Property

to and through Switzerland from 1933 to 1945, and the Question of Restitution,” was a nearly 600-

page treatise, and addressed many specific transactions, including the one at issue here.

77. The Bergier Report considered the circumstances of Reinhart`s purchase of the Drawing

from Mauthner, and concluded that the purchase was “morally questionable.” It said “[t]hat prices

have been negotiated is in the art trade courant normal [i.e., standard practice-ed.]. But..looking

back it appears to be morally questionable, because he [Reinhart] knew about their [the Mauthner

family’s] plight. This is clear from the correspondence provided. Reinhart did not want to pay in

Swiss francs but in Reichsmarks, which represents about 10 000 francs and represents a discount of

at least 2,000 francs.” (counsel’s translation). A copy of the page from the German-language report

is annexed as Exhibit B.

78. Under the circumstances, the Drawing was manifestly a “flight asset”, i.e., a cultural

asset that was sold because of the extreme situation of the time, to finance Mauthner’s family’s

day-to-day survival and its coerced flight from Nazi Germany.

79. Because of his experience and status as a prominent collector and art dealer, Reinhart

knew or should have known that the Drawing was a flight asset at the time of the transaction.

80. The ICE report specifically noted that between 1933 and 1945 Switzerland was a trade

center for flight assets from Nazi Germany.

81. Moreover, the ICE concluded that many Holocaust-era flight assets are now part of the

collections of Swiss museums, because numerous private collections, which were later bequeathed

to the state, were established from the forced break-up of Jewish collections.

82. The Drawing is one such flight asset, and it is in the possession of defendants.


83. Defendants are and have been engaged in extensive and wide-ranging commercial

activities in the United States, and in this District, and are and have been engaged in “commercial

activit[ies] carried on in the United States by a foreign state,” as defined by 28 U.S.C. §§1603(d) and


84. Those activities are sufficient to satisfy the jurisdictional requirements of 28 U.S.C.

§§1605(a)(2) and (3).

85. Defendant The Swiss Confederation owns and operates a National Tourist Office at 608

Fifth Avenue in Manhattan, within this District.

86. On information and belief, defendant The Swiss Confederation also owns and operates

two other National Tourist Offices, in Chicago, Illinois and in El Segundo, California.

87. Those offices promote tourism to Switzerland and conduct advertising campaigns

directed to Americans in New York and throughout the United States.

88. Defendant The Swiss Confederation has a consular office in Manhattan, within this

District, located at 633 Third Avenue. That office promotes Swiss cultural and business interests

in New York.

89. On information and belief, The Swiss Confederation owns a non-profit organization

called the Swiss-American Council of Women, which promotes the business and commercial

interests of its members and provides small business services to Swiss women in New York. It has

an office at 222 East 44th Street in Manhattan, within this District.

90. On information and belief, the defendants own or lease real property in Manhattan to

promote their commercial interests and activities, or have done so in the past.

91. The defendant Museum derives a benefit from the promotional activities of The Swiss

Confederation, in that the Museum is a significant tourist attraction and cultural center.

92. From February to April 1994, defendant Museum placed on temporary exhibition an

extensive selection of the works in its collection at the Metropolitan Museum of Art in Manhattan,

within this District. The exhibition, entitled “Caspar David Friedrich to Ferdinand Hödler: A

Romantic Tradition,” included 150 paintings and drawings from the defendant Museum’s collection.

93. The exhibition also was at the Los Angeles County Museum of Art in California between

September 1993 and January 1994.

94. The exhibition was widely promoted in the United States by the defendants.

95. The catalog was placed on sale in both museums in conjunction with the exhibitions.

96. Defendant Museum derived substantial income from the exhibitions from residents of

and visitors to New York City and Los Angeles.

97. The Swiss Federal Office for Culture of the Defendant Swiss Confederation and the

Defendant Collection has published a 700-page hard-cover illustrated English-language “Complete

Catalogue” of the works in its collection, entitled “Oskar Reinhart Collection ‘Am Römerholz’


98. The catalog was published by a Swiss publisher named Scalo and more recently by

Schwabe in Basle and Paul Holberton in London.

99. Scalo had offices in the Soho and Chelsea Districts of Manhattan.

100. Defendant Collection also published another catalog of the works in its collection,

written by Christina and Matthias Frehner, in German, entitled “Sammlung Oskar Reinhart ‘Am

Römerholz’ Winterthur” [“Sammlung” is German for “collection”].

101. Both catalogs are available for sale through Amazon and Barnes & Noble, and copies

are available for sale from suppliers in New York and elsewhere in the United States.

102. Defendants Collection and Museum derive income from the sale of their catalog, which

currently sells for about $140, from United States persons and others.

103. By its exhibition here and the publication of its catalogs, the defendants intended to

promote the Collection and Museum in the United States, with the intention of attracting American

tourists to its exhibition at the Metropolitan Museum, and also attracting American tourists to

Switzerland including to the defendants’ museums in Winterthur, for the purpose of benefitting from

their many travel expenditures including entrance fees and selling merchandise to them.

104. The defendants Collection and Museum are also described in travel guides to

Switzerland, published in New York. The Collection and Museum are visited by many U.S. citizens

every year, accept entrance fees from them, sell items in their gift shops and cafés, and accept

payments by U.S. credit card for these purchases.


105. Many international legal authorities have long regarded sales made under political,

social or economic duress in Nazi Germany between 1933 and 1945 as violations of international

law, equivalent to actual confiscations by the Nazis, and Courts in the United States, including in

this district, have so held.

106. The legal invalidity of transactions involving artworks sold between 1933 and 1945

because of Nazi persecution was first formally recognized in 1943, in the “Inter-Allied Declaration

Against Acts of Dispossession Committed in Territories Under Enemy Occupation or Control.” The

United States and the other Allied nations had made a declaration in London, England regarding the

“dispossession practised by the Governments with which they are at war against the countries and

peoples who have been so wantonly assaulted and despoiled,” and warned all governments and

people, including in neutral countries such as Switzerland, that they:

reserve all their rights to declare invalid any transfers of, or dealings with, property,
rights and interests of any description whatsoever which are, or have been, situated
in the territories which have come under the occupation or control, direct or indirect,
of the Governments with which they are at war or which belong or have belonged,
to persons, including juridical persons, resident in such territories. This warning
applies whether such transfers or dealings have taken the form of open looting or
plunder, or of transactions apparently legal in form, even when they purport to be
voluntarily effected. (emphasis added)

107. This position became part of the foundation for post-war military government Allied

and German restitution laws. For instance, Military Government Law No. 59, from 1945,

established a presumption that any sale of personal property by a Jewish resident of Germany made

after January 30, 1933 was an “act of confiscation” and required all persons, including innocent

possessors, to return confiscated property to the original owners.

108. During those years between 1933 and 1945, defendant The Swiss Confederation

became a haven for a great deal of property acquired by such sales, because of its official position

of neutrality.

109. Many art dealers and collectors emigrated to Switzerland and took advantage of the dire

conditions of Jews in Germany at that time, and the ICE Report extensively documents many of the

transactions which took place.

110. In recent years, museums in Switzerland, Germany, the Netherlands, France, Great

Britain and the United States have all returned artwork that victims of Nazi persecution sold under

duress, in circumstances similar to those in which Mauthner sold the Drawing to Reinhart.

111. For example, in the summer of 2000, the Grison Art Collection in Chur returned a Max

Liebermann painting to the heir of Max Silberberg, a Breslau art collector, because they determined

that Silberberg had been forced to sell the painting in 1934 to Paul Cassirer, due to the pressures of

living in Nazi Germany.

112. Berlin’s National Gallery returned a painting to the heirs of a Jewish family that had

sold it at so-called “Jew auctions” in 1935 in order to survive because they could not find work.

According to an article in Art & Auction in March 2001, the painting in question “falls into the

category of works that were not seized outright but were sold at auction by families who desperately

needed money as a result of the Nazis’ anti-Semitic policies. In the past, the German government

has viewed those auctions as legal sales, but now...it recognizes works of art and other property sold

under coercion as having been looted.”

113. According to the Los Angeles Times of January 16, 2000, Berlin’s National Gallery

also returned a van Gogh drawing to Greta Silberberg, whose father-in-law was forced to sell it in

1935 for $6000 in order to raise money.

114. According to the New York Times of March 29, 2004, a painting that a Jewish citizen

was forced to sell in Berlin in 1937 in order to finance his escape from Germany was returned to his

heirs, who in turn donated it to a German museum, and German Chancellor Schröder called the

return of the painting to its Jewish owners the historical and ethical obligation of Germany.

115. In February 2006 the Dutch government agreed to return numerous works held in at

least seventeen of its national museums to the heirs of Jacques Goudstikker, a prominent art dealer

who died aboard ship, while escaping Holland soon after the German invasion in 1940.

116. Hermann Göring had visited the gallery within days of Goudstikker’s flight, and

ultimately acquired the entire collection for a fraction of its value, in a coerced transaction arranged

by his dealer, a German named Alois Miedl.

117. In January 2006 the government of Austria agreed to return five Gustav Klimt paintings

to Mrs. Maria Altmann, whose family was forced to leave them behind when they fled Vienna in


118. The return of the paintings occurred after five years of litigation, including to the

Supreme Court of the United States. The case of Altmann v. Republic of Austria, 541 U.S. 677

(2004), established the rule, essential to the successful prosecution of these restitution cases, that the

FSIA was retroactive and applicable to violations of international law occurring before its enactment

in 1976.

119. In 1998, the U.S. Congress enacted, and the President signed, three statutes intended

to provide redress to victims of Nazi persecution, and to establish public policy in favor of

restitution: The Holocaust Victims Redress Act (Pub.L. 105-158), The Nazi War Crimes Disclosure

Act (Pub.L. 105-167) and The United States Holocaust Assets Commission Act (Pub.L. 1050186).

120. Later that year, an international conference was held in Washington, DC. It established

a set of Principles on Nazi-Confiscated Art (the “Washington Principles”). Those principles were

endorsed by the governments of Switzerland, one of the defendants here, and forty-three other

countries who participated.

121. The participants adopted a set of principles to deal with Nazi-confiscated art. Among

the principles was identifying confiscated art, making accessible relevant records and archives,

establishing a central registry, encouraging heirs to come forward with their claims, and achieving

a just and fair result when legitimate claims are brought.

122. On January 14, 1999, the International Council of Museums released a study entitled

“Recommendations Concerning the Return of Works of Art Belonging to Jewish Owners.” These

recommendations similarly encourage the investigation and identification of works with dubious

provenance, the creation of procedures for making such information accessible, and the adoption of

national legislation to facilitate the return of objects.

123. In November 1999, the American Association of Museums adopted “Guidelines

Concerning the Unlawful Appropriation of Objects During the Nazi Era.” The guidelines lay out

in detail the similar goals of increasing provenance research, providing greater access to the public,

and achieving equitable and appropriate resolution of claims.

124. Earlier this year, another international conference was held in Prague, Czech Republic,

to re-examine the Washington Principles in the light of the ten years of experience since their

enactment. That conference, attended by representatives of sixty countries, including the U.S. and

Switzerland, reaffirmed the commitment of its participants to restitute property sold and taken under

the circumstances described above.


125. On or about April 19, 2006, plaintiff made a formal demand to the defendant Collection

for the return of the Drawing. The demand was made through the New York Holocaust Claims

Processing Office (“HCPO”), a government agency which is a division of the Banking Department

of the State of New York, and which seeks to assist claimants in the recovery of property taken from

victims of the Nazi regime. A copy of the demand letter is annexed as Exhibit C.

126. On May 3, 2006, the director of the Swiss Federal Office of Culture, Dr. Jean-Frédéric

Jauslin, wrote a letter to the HCPO acknowledging the demand letter and promising a review. A

copy is annexed as Exhibit D.

127. On November 8, 2006, the HCPO wrote a letter to Dr. Jauslin, asking when a response

might be made. A copy is annexed as Exhibit E.

128. On December 7, 2006, the defendant Collection sent a letter refusing to return the

Drawing. A copy of the letter is annexed as Exhibit F.

(Declaratory Judgment; 28 U.S.C. §2201)

129. Plaintiff re-alleges paragraphs 1 through 128.

130. A dispute has arisen between plaintiff and defendants concerning the Drawing, and the

issues in this case are ripe for declaratory relief.

131. Plaintiff contends, and defendants dispute, that the Drawing was a flight asset.

132. Plaintiff contends, and defendants dispute, that title to the Drawing never passed to

Reinhart, or that the title is voidable.

133. Plaintiff contends, and defendants dispute, that the Drawing was transferred to Reinhart

under conditions which gave Mauthner the right to rescind the transaction.

134. Plaintiff contends, and defendants dispute, that plaintiff has the right to rescind the

transaction as Mauthner’s heir.

135. Plaintiff contends, and defendants dispute, that plaintiff presently has title to the

Drawing, as the heir of Mauthner, and that he has a sole and complete interest in the Drawing.

136. Plaintiff contends, and defendants dispute, that plaintiff is presently entitled to

possession of the Drawing.

137. Plaintiff is entitled to a declaration that the above-described contentions are true and

correct, and that he is entitled to restitution of the Drawing.

(Replevin; Recovery of Chattel)

138. Plaintiff re-alleges paragraphs 1 through 128.

139. The defendants never acquired good title to the Drawing, because they were not good-

faith purchasers for value, having acquired possession of the Drawing by gift and bequest, paying

no consideration therefor.

140. Reinhart did not acquire good title to the Drawing because the transaction was voidable

under two provisions of the German Civil Code in effect since 1900.

141. Those provisions governed the agreement between Mauthner and Reinhart for the

purchase and sale of the Drawing.

142. Under those provisions, the sale of the Drawing was voidable, because it was entered

into under political, social and economic duress.

143. Under the laws of the State of New York, a demand and refusal is a prerequisite to a

claim for replevin and recovery of a chattel.

144. The time to bring a claim for replevin and recovery of a chattel is three years from the

date of the refusal.

145. This action is timely.

146. The plaintiff’s two siblings and two first cousins, the other heirs of Margarethe

Mauthner, have assigned all of their right, title and interest to the Drawing to the plaintiff.

147. Plaintiff is entitled to a judgment declaring that he is entitled to sole possession of and

title to the Drawing, and directing that the Defendants deliver it to him forthwith.


148. Plaintiff re-alleges paragraphs 1 through 128.

149. The German Civil Code, or Burgerliches Gesetzbuch (“BGB”), was in force during the

times relevant, having been enacted in 1900.

150. Under BGB §123, a party may rescind a contract if he or she entered into it because of

a threat.

151. Under BGB §138, a contract may be declared void ab initio if it is entered into when

one party is at a distinct disadvantage in bargaining, e.g., being under duress, being in dire need, the

terms favor the other party.

152. The historical circumstances of the economic pressures on Jewish citizens during the

Nazi era constitute evidence to support a claim for rescission under these two sections regarding

sales which took place in Germany.

153. Mauthner would not have sold the Drawing or other property which she owned had it

not been for these pressures.

154. Under New York law, similar grounds exist for rescission of contracts.

155. Plaintiff is entitled to the rescission of the original contract for the sale of the Drawing,

and to the rescission of Reinhart’s donation of the Drawing to the defendants, and to the restitution

of it to him as Mauthner’s heir with a sole and complete interest in the Drawing.


156. Plaintiff re-alleges paragraphs 1 through 128.

157. The possession and continued detention of the Drawing by the defendants is a

conversion of personal property to which plaintiff is entitled.

158. Plaintiff is entitled to damages against the defendants for the conversion of the Drawing

in the amount of the present value thereof.

(Damages for Violation of International Law)

159. Plaintiff re-alleges paragraphs 1 through 128.

160. The defendants violated international law by knowingly participating in and profiting

from the Nazi persecution of Mauthner.

161. They did so by obtaining artworks, including but not limited to the Drawing, from

Reinhart with knowledge that such artworks had been flight assets, and that Reinhart had obtained

them through or under conditions of political, social and economic duress.

162. They did so by profiting therefrom, by accepting them in Reinhart’s bequest, and by

acquiring them without paying any consideration therefor.

163. As recognized by the Holocaust Victims Redress Act of 1998, such actions were in

violation of numerous international treaties, customary international laws, and fundamental human

rights laws prohibiting war crimes, including the United Nations Charter, the Universal Declaration

of Human Rights, the Geneva Convention of 1929, the supplemental Geneva Convention of the

Treatment of Non-Combatants During War Time, the Nuremberg Principles, the Covenant on Civil

and Political Rights, and the Hague Convention of 1907.

164. As a result of these violations of international law, plaintiff has been injured, and is

entitled to judgment against defendants for compensatory damages in an amount to be determined

by the Court.

(Unjust Enrichment)

165. Plaintiff re-alleges paragraphs 1 through 128.

166. The continued retention and claim of ownership of the Drawing is an unjust enrichment

of the defendants.

167. Defendants are in possession of property which they should not in equity and good

conscience be permitted to retain.

168. Defendants paid no consideration whatsoever for the property and came into possession

of the Drawing when they knew, or should have known, that it was a flight asset of its German

Jewish owner, a victim of unjust Nazi persecution who had parted with it under conditions of duress.

169. Defendants should be directed to restitute the Drawing to plaintiff, or in the alternative

to compensate him for its present value.


WHEREFORE, plaintiff demands relief as follows:

1. On the first claim, a declaration that plaintiff’s contentions of fact and law in that claim

are correct, and that he is the sole and true owner of the Drawing;

2. On the second claim, a judgement declaring that plaintiff is entitled to sole possession of

the Drawing, and ordering the defendants to deliver it to him forthwith;

3. On the third claim, a judgment declaring that the acquisition of the Drawing by Reinhart

and by the defendants was null and void ab initio, and that plaintiff is entitled to the restitution of

the drawing to him;

4. On the fourth claim, for damages in the amount of the present value of the Drawing plus


5. On the fifth claim, for compensatory damages in an amount to be determined by the Court;

6. On the sixth claim, a judgment directing defendants to restitute the Drawing to plaintiff,

or to compensate him for its present value.

And for such further relief as may be just, including the costs and disbursements of this


Dated: New York, New York

March 1, 2010


Attorneys for Plaintiff
285 West Fourth Street
New York, New York 10014