On October 5, 2009, ERI filed an amicus brief in Von Saher v. Norton Simon Art Museum, a case in which the daughter-in-law of a Dutch art dealer sued a California art museum for restitution of two Renaissance masterpieces that were stolen by German occupying forces during the Second World War and eventually found their way into the museum’s collections.  Ms. von Saher sued under California’s section 354.3, a law that revived restitution claims for Nazi-looted art that would have been prohibited by the statute of limitations.  A three-judge panel of the United States Court of Appeals for the Ninth Circuit invalidated Section 354.3, reasoning that the state statute interfered with the federal government’s constitutional powers to manage foreign affairs and resolve wars.  The plaintiff filed a petition for rehearing to the Ninth Circuit, and ERI’s brief supported that petition.

This case could have implications for the preemption of other state laws, including laws under which ERI has sued. In its brief, ERI argued that the panel overreached in striking down Section 354.3 when it could instead have interpreted the law as having a more limited scope, that there was nothing improper about the California law’s intent to provide a forum for Holocaust-era restitution claims to out-of-state plaintiffs in suits against foreign defendants, and that wartime art restitution does not fall within the class of foreign affairs powers that is exclusively reserved to the President and Congress.

The Ninth Circuit slightly modified its opinion but denied rehearing on January 14, 2010.  Ms. von Saher then petitioned the Supreme Court to review the case; the Supreme Court is expected to announce in October whether it will hear the case.