The Federal Bar Association achieved one of its legislative priorities last December when President Obama signed Congressional legislation that will assist Holocaust survivors and their families to reclaim art taken from them by the Nazis.

Since 2013, the FBA has encouraged Congress to ease the considerable legal barriers that have barred putative owners from recovering art and other items expropriated from them by the Nazis.

In 2013, the FBA first underscored the importance of Congressional action in responding to what has been called the ‘‘greatest displacement of art in human history,” involving over 6500,000 pieces of art taken by the Nazi regime from 1933 to 1945.  Approximately 100,000 pieces still remain missing.  The FBA, in its Issues Agenda in 2013, supported Congressional establishment of an American commission to resolve the difficult identification and ownership issues that were arising in claims over such artworks.  An American commission, FBA suggested, could be similar to commissions established in Europe, pursuant to the Washington Conference Principles on Nazi-Confiscated Art signed by the United States and the international community.

State Statutes of Limitations Posed Barriers
Innovative approaches, like commissions, became necessary because of the unsuccessful efforts of rightful claimants to use the American courts to seek recovery. In particular, lawsuits against a field of American museums allegedly holding Nazi-taken artwork largely failed because of state-derived and time-based procedural defenses to claims, even when claimants had been able to document the provenance of their claims based upon exhaustive research and resources. For example, in Von Saher v. Norton Simon Museum of Art, 592 F.3d 954 (9th Cir. 2009), the Ninth Circuit Court of Appeals invalidated a California law that enlarged the state limitations period specifically for Nazi-confiscated-art claims.  The court held that the California law was an unconstitutional infringement of the federal government’s exclusive authority over foreign affairs.

Bipartisan Support for a Federal Response
As litigants became more frustrated, and public awareness about Nazi-confiscated art rose through films like The Monuments Men and Woman in Gold, support grew for a federal law that waived statutes of limitations in state and federal courts. That led to the introduction last spring of The Holocaust Expropriated Art Recovery (HEAR) Act of 2016 by a bipartisan group of Senators (Senators John Cornyn (R-TX), Ted Cruz (R-TX), Chuck Schumer (D-NY) and Richard Blumenthal (D-CT)). FBA provided testimony and correspondence in support of the legislation during its consideration by the Senate Judiciary Committee. The HEAR Act raced to the finish line and received approval by the House and the Senate over a quick 3-day span prior to the conclusion of the 114th Congress. President Obama signed the measure into law (Public Law 114-308) on December 16, 2016.

What the HEAR Act Does
The new law establishes a new federal statute of limitations to govern the filing of civil claims in state or federal courts to recover Nazi-stolen artwork and other items. Under the new law, parties will be permitted to file claims for recovery for up to six years after they discover the location of such artwork or, if discovery occurred prior to enactment of the law, six years after December 16, 2016, the date of enactment.  The statute of limitations will remain in effect until January 1, 2027, when new claims to recover such artwork will be subject to any other applicable statutes of limitations.

Observers have noted that while the legislation is not perfect, it should reduce the sometimes lengthy wrangling in federal proceedings over the assertion of technical defenses under laws in the corresponding state where the case is brought.

Bruce Moyer is government relations counsel for the FBA. He also serves as counsel to the National Association of Assistant U.S. Attorneys. © 2017 Bruce Moyer. All rights reserved.