[00:00:00] Speaker 03:
17-7064 at L. Alan Philip at L versus Federal Republic of Germany, a foreign state at L appellates.

[00:00:09] Speaker 03:
Mr. Freeman for the appellates, Mr. O'Donnell for the appellees.

[00:00:47] Speaker 01:
Good morning, Your Honors.

[00:00:48] Speaker 01:
Good morning.

[00:00:49] Speaker 01:
May it please the Court, I'm Jonathan Freiman on behalf of the Federal Republic of Germany and the Prussian Cultural Heritage Foundation, and I am reserving five minutes for rebuttal.

[00:00:59] Speaker 01:
Your Honors, the expropriation exception provides no jurisdiction over the foreign sovereign defendants in this case unless the amended complaint alleges that a forced sale of an art collection amounted to a genocidal taking in violation of international law.

[00:01:16] Speaker 01:
This court in Simon found that a sovereign can take property from its own national in violation of international law when the expropriations themselves amount to genocide.

[00:01:27] Speaker 01:
That phrase recurs three times in the decision.

[00:01:30] Speaker 01:
International law, as Simon holds, defines genocide.

[00:01:33] Speaker 01:
to include takings that cause conditions of life calculated to bring about a group's physical destruction in whole or in part.

[00:01:42] Speaker 01:
And the amended complaint here doesn't come anywhere near that.

[00:01:45] Speaker 01:
I want to point out four things that the complaint doesn't allege and four things that the complaint does allege, which make that clear.

[00:01:52] Speaker 01:
The complaint doesn't allege that anyone involved in the negotiations ever so much as mentioned that the consortium owners were Jewish.

[00:02:01] Speaker 01:
You can look at the letters that are appended to the complaint.

[00:02:04] Speaker 01:
You can look at the allegations of the complaint itself.

[00:02:07] Speaker 01:
You can go over the complaint with a fine-tooth comb.

[00:02:09] Speaker 01:
That allegation is never made.

[00:02:11] Speaker 01:
There's no allegation, second, that the property taken.

[00:02:14] Speaker 03:
Well, it does allege

[00:02:23] Speaker 03:
I'm just looking for this.

[00:02:26] Speaker 03:
It does allege that, quote, Nazis wanted the art because it was valuable.

[00:02:40] Speaker 03:
Wait, I'm sorry.

[00:02:41] Speaker 03:
Here, I'm looking at paragraph 25.

[00:02:44] Speaker 03:
Ah, here.

[00:02:48] Speaker 03:
He alleges the art dealers were Jewish, and the collection was wrongfully appropriated, not least because they were regarded as states' enemies for holding the art.

[00:03:09] Speaker 03:
So the allegation is that they themselves were

[00:03:17] Speaker 03:
regarded as States and because they were holding our treasure that the State wanted because they were Jewish.

[00:03:23] Speaker 03:
That's what this sentence says.

[00:03:25] Speaker 01:
Well, yes, Your Honor, but there's no allegation that anyone actually involved in the negotiations ever mentioned the Jewishness of the owners of the member firms.

[00:03:33] Speaker 04:
You have, it seems to me, a really tough argument to make to try and somehow separate this from the other horrors that were taking place in Nazi Germany at this time.

[00:03:46] Speaker 04:
And that's a hard argument to make, isn't it, when we have allegations of evidence of collaboration at the highest levels, that this art collection was a target, a high target for the Nazis in their plans.

[00:04:08] Speaker 04:
And you've got to be able to somehow

[00:04:10] Speaker 04:
make this look like it's just a business deal that – a normal business deal that took place in the wake of the Depression.

[00:04:20] Speaker 04:
That seems to me to be turning a blind eye towards the reality of what was taking place in Nazi Germany.

[00:04:26] Speaker 01:
Well, Your Honor, I don't mean at all to suggest that this was – this is alleged to have been simply a business transaction during the Depression.

[00:04:34] Speaker 01:
There's no question that the amended complaint alleges discriminatory treatment of Jews in the period from 1933 to 1935.

[00:04:40] Speaker 01:
There's no question that the amended complaint alleges persecution of Jews during that period.

[00:04:46] Speaker 01:
In terms of the first of the four things that I wanted to point out, let me mention that the letter from Krebs that is cited in the complaint, one of the two letters before the sale in the complaint, doesn't even know who owned the Guelph treasure at the time.

[00:05:00] Speaker 01:
It doesn't do what?

[00:05:01] Speaker 01:
The letter from Krebs that is in the complaint, and that's at – I'll give Your Honor the exact site for that.

[00:05:08] Speaker 01:
That's pages 105 to 106 of the Joint Appendix.

[00:05:12] Speaker 01:
It says that, according to reliable information, the largest section of the Guelph treasure has not yet been sold and is in the safekeeping of banking companies.

[00:05:20] Speaker 01:
That's 106.

[00:05:21] Speaker 01:
It doesn't even know that there's a consortium of art dealers.

[00:05:24] Speaker 01:
Later on, of course, it is known.

[00:05:26] Speaker 01:
But the point is that the desire to purchase the Guelph treasure, the Welford Schatz, from the beginning is, as Your Honor said, because it was understood to be an important part of German cultural history and tradition and cultural heritage, et cetera.

[00:05:38] Speaker 01:
I want to move on to the second of the four things that's not alleged in the.

[00:05:41] Speaker 03:
Well, let me just ask you.

[00:05:42] Speaker 03:
What do you do with both briefs cite the HVRA, the statute?

[00:05:50] Speaker 03:
And Congress is a finding in that statute that the Nazi policy of looting art was a critical element and incentive in their campaign of genocide.

[00:06:05] Speaker 03:
So not only do we have the allegations of the complaint, we have a congressional finding that the seizure of art was a critical part of the genocide here.

[00:06:15] Speaker 01:
And I'm sorry, was Your Honor quoting the Heer Act there?

[00:06:17] Speaker 01:
Yeah.

[00:06:18] Speaker 01:
Yes, Your Honor, there's no question that that is a finding in the Heer Act.

[00:06:22] Speaker 01:
But we're talking about now negotiations from 1933 to 1935.

[00:06:27] Speaker 01:
So the takings that occurred later, the storm troopers marching into houses or the forced sales

[00:06:34] Speaker 01:
a token amount happened, as Your Honor knows, from the DeCheppel case in the period much later than this.

[00:06:40] Speaker 01:
So this is before the Nuremberg laws.

[00:06:42] Speaker 01:
This is before the laws for the organization of Jewish property.

[00:06:45] Speaker 01:
This is before Kristallnacht.

[00:06:46] Speaker 03:
I understand all that, but we had allegations

[00:06:49] Speaker 03:
We have two things.

[00:06:50] Speaker 03:
This is a motion to dismiss the allegations in the complaint that attacks on Jewish people and Jewish merchants had already begun at this point, that concentration camps had been opened.

[00:07:01] Speaker 03:
And Congress in two different statutes, both the FSIA and the Holocaust statute, has defined the Holocaust as beginning in 1933.

[00:07:15] Speaker 03:
Well, Your Honor, the question is not... But isn't that, I mean, how could we possibly, given Congress's definitions of the period of the Holocaust under these two statutes as beginning in 1933, how could we possibly write an opinion that said it hadn't begun at this time?

[00:07:35] Speaker 01:
Well, Your Honor, this case does not require the court to write an opinion that says when the Holocaust began or didn't begin.

[00:07:41] Speaker 01:
This case requires the court to decide whether the act in question.

[00:07:45] Speaker 03:
Well, your whole argument is, you just told me that this is pre-Nürnberg laws, pre several other things, and I was simply pointing out to you that the Congress of the United States disagrees with you about when the oppression of Jews in Germany began.

[00:08:01] Speaker 03:
And I just don't see how a court could possibly accept your argument, given these findings about when it began.

[00:08:10] Speaker 01:
Your Honor, the question is not when the Holocaust began.

[00:08:12] Speaker 01:
The question is whether the takings alleged in the complaint are themselves genocide.

[00:08:18] Speaker 01:
And that's a question as to whether the property allegedly taken

[00:08:21] Speaker 01:
was essential to survival.

[00:08:23] Speaker 01:
That's what Simon says.

[00:08:24] Speaker 01:
That's what the Genocide Convention says.

[00:08:26] Speaker 01:
That's what US law says, incorporating the Genocide Convention.

[00:08:30] Speaker 01:
And the property that's essential to survival, as defined in international law, and that's what this court has to apply, is food, medicine, shelter, clothing.

[00:08:38] Speaker 01:
It's not an art collection that sold for millions of dollars after years of negotiations when the sellers could travel outside of Germany and did, according to the amended complaint, in order to sell the art or to leave.

[00:08:51] Speaker 01:
years before the deportations to concentration camps and ghettos began.

[00:08:56] Speaker 01:
That's not an allegation of a taking that caused conditions of life calculated to bring about a group's physical destruction in whole or in part.

[00:09:04] Speaker 01:
It's an allegation of a heavily negotiated negotiation that stalls at times, where attempts to keep other builders out of the picture.

[00:09:11] Speaker 01:
These are not things you do if you're taking property in an effort to commit genocide, to prevent the sellers from having conditions of life that allow them to survive.

[00:09:22] Speaker 01:
And that's, of course, the focus of genocide.

[00:09:24] Speaker 02:
Isn't that a good argument for the jury at the next step?

[00:09:28] Speaker 01:
No, Your Honor.

[00:09:29] Speaker 01:
Under Helmrich, under the Supreme Court decision in Helmrich, it's a question for this Court to determine whether the allegations in the amended complaint amount to allegations of a taking in violation of the international law of genocide.

[00:09:40] Speaker 01:
And it's not, going back to Judge Tatel's question, a question of whether this occurs in the Nazi era.

[00:09:45] Speaker 01:
or whether it occurs within the period defined as the Holocaust.

[00:09:48] Speaker 04:
The question is whether this takes place as part of a concerted effort to eliminate Judaism and Jews in Germany.

[00:09:55] Speaker 04:
And that's the first question I ask where you have a really tough burden to try and tease this out as somehow being separate and apart from the other examples that we've heard.

[00:10:07] Speaker 01:
Well, Your Honor, I don't think that is the test, because the law of genocide requires both an intent element and an act element.

[00:10:13] Speaker 01:
And the act element, as defined in Simon, is whether this is a genocidal act if and only if it imposes conditions of life calculated to bring about the destruction of European Jewry.

[00:10:24] Speaker 01:
This transaction

[00:10:26] Speaker 01:
not about whether, years later, there are acts that, in fact, do, of course, bring about the destruction of a large part of European Jewry.

[00:10:35] Speaker 01:
That's not it.

[00:10:35] Speaker 01:
It's whether this act, this transaction with these sellers for millions of dollars, and this act, on its face, Judge Wilkins, going back to your question under Helmrich, on the face of the complaint, this taking does not

[00:10:49] Speaker 01:
can create conditions of life calculated to bring about the physical destruction of the group.

[00:10:55] Speaker 03:
So is it your point that this is not a taking?

[00:10:58] Speaker 01:
Your Honor, assuming, arguing that this is a taking, the question is whether it's a taking in violation of international law, whether it's a taking that is itself a genocidal act.

[00:11:09] Speaker 03:
You said they received millions of dollars for it, so I was wondering whether you're arguing that it was a commercial deal, not a taking.

[00:11:17] Speaker 01:
Well, it's clearly an allegation of a sale under duress.

[00:11:20] Speaker 03:
Well, you accept, for purposes of this case, that it was a taking, right?

[00:11:24] Speaker 01:
We accept that it's an allegation of a sale under duress and even if it is a taking, it's not a taking in violation of international law because it's not a taking that is itself an act of genocide.

[00:11:34] Speaker 03:
So if we don't agree with you about that point, if we think that the question before us is whether or not

[00:11:41] Speaker 03:
this act of a taking of art owned by Jewish art dealers.

[00:11:50] Speaker 03:
If we think that that is part of the, as Simon put it, and Congress put it, the strategy of the German government to deny Jews their rights.

[00:12:06] Speaker 03:
If we don't think your laser-like focus on this sale has merit, do you lose then?

[00:12:17] Speaker 03:
In other words, is that the end of your argument about whether or not this is a violation of international law?

[00:12:24] Speaker 01:
Well, no, Your Honor, because international law does not define genocide as any taking that occurs under a regime.

[00:12:32] Speaker 03:
I just asked you if we don't agree with that.

[00:12:35] Speaker 03:
If we think that given all the allegations in the complaint and given the findings that Congress has made about the period of the genocide and the seizure of art as part of it, if we think that you look beyond the individual incident,

[00:12:54] Speaker 03:
and conclude that this is part of it.

[00:12:57] Speaker 03:
Do you lose that or do you have another argument?

[00:13:01] Speaker 01:
Well Your Honor, on the jurisdictional side, if this Court concludes that any alleged taking after January 1933 until the end of the war

[00:13:10] Speaker 01:
is an allegation of a genocidal taking, then yes, you're ruling against us on the jurisdictional question.

[00:13:17] Speaker 01:
Again, that's not what Simon held.

[00:13:19] Speaker 01:
Simon is very clear that it's a narrow exception, and in the circumstances of that case, in 1944 and 1945,

[00:13:27] Speaker 01:
when the very clothes are being taken from the backs of the Jews who are being deported to ghettos and then concentration camps for their murders, where their last remaining property is taken away.

[00:13:36] Speaker 01:
Of course that's property that is essential to survival and is intended to cause the physical destruction of the group.

[00:13:42] Speaker 01:
That's entirely different from the situation we have here.

[00:13:45] Speaker 01:
But, Your Honor, even if you rule against us on jurisdiction, there are, of course, two other issues in the case.

[00:13:50] Speaker 01:
One is the question as to whether these state law causes of action have been preempted by federal foreign policy, and the other is whether the exhaustion doctrine of comedy requires that this case first be heard in a German court.

[00:14:03] Speaker 03:
You want to go on to those?

[00:14:05] Speaker 01:
Yes, Your Honor.

[00:14:07] Speaker 01:
I would begin with the preemption doctrine.

[00:14:11] Speaker 01:
It's long been established, in fact, since shortly after the end of the war, that United States foreign policy is for the nations where the alleged Nazi-eluded art is located to oversee the restitution process.

[00:14:23] Speaker 01:
That US foreign policy comes to its culmination in the US spearheading of the Washington principles.

[00:14:29] Speaker 01:
And the Washington principles themselves, of course, which are organized by the United States,

[00:14:33] Speaker 01:
where the United States State Department is leading matters.

[00:14:36] Speaker 01:
Stuart Eisenstadt is at the helm of that.

[00:14:39] Speaker 01:
Those principles say that nations ought to create commissions within their own nations in accordance with their own legal traditions to resolve these issues.

[00:14:50] Speaker 01:
And, in fact, there's a preference for alternative dispute resolutions.

[00:14:54] Speaker 01:
In fact, that preference for alternative dispute resolutions, Judge Tatel, is reinforced itself in the Heer Act, where, again, there is a preference given to mediation panels in the Senate report.

[00:15:03] Speaker 03:
But the Heer Act actually extended statutes of limitation to facilitate just this kind of case, didn't it?

[00:15:11] Speaker 01:
Well, it extended statutes of limitations.

[00:15:12] Speaker 01:
It said nothing to alter U.S.

[00:15:13] Speaker 01:
foreign policy.

[00:15:14] Speaker 03:
No, but, well, wait a minute.

[00:15:19] Speaker 03:
It was passed by Congress.

[00:15:25] Speaker 03:
Why would Congress extend

[00:15:28] Speaker 03:
of limitations for a case just like this if it thought that litigation like this was contrary to American foreign policy.

[00:15:37] Speaker 01:
Oh, I take issue with your assertion that it's a case just like this.

[00:15:39] Speaker 01:
There's nothing in the Act or in the legislative history that says that the Act is in some way directed towards even thinking about cases against foreign sovereigns.

[00:15:48] Speaker 03:
In fact, the legislative history… Well, it was passed in part to overrule part of the Ninth Circuit decision that had done just that.

[00:15:55] Speaker 01:
Well, the decisions that are cited in the legislative history are the decisions involving Toledo Museum of Art, Detroit Institute of Fine Arts.

[00:16:03] Speaker 01:
These are domestic suits against US museums involving art in the United States.

[00:16:07] Speaker 01:
Absent some kind of clear statement in the HERE Act, and there's none because it involves statutes of limitations,

[00:16:13] Speaker 01:
Absent some kind of clear statement, there's no reason to think that U.S.

[00:16:15] Speaker 01:
foreign policy, which has been clearly expressed by the Solicitor General on behalf of the State Department before the U.S.

[00:16:21] Speaker 01:
Supreme Court in the von Sayre amicus brief, has been changed.

[00:16:24] Speaker 01:
The U.S.

[00:16:24] Speaker 01:
foreign policy involves what happens when the art is located in foreign sovereigns and when those foreign sovereigns create a commission.

[00:16:32] Speaker 01:
And the U.S.

[00:16:33] Speaker 01:
says very clearly that plaintiffs cannot be given the opportunity to sort of try again by bringing plaintiffs to U.S.

[00:16:40] Speaker 01:
courts.

[00:16:40] Speaker 04:
You've used the word preference, that there's a preference in U.S.

[00:16:44] Speaker 04:
policy for having this resolved in front of the Advisory Commission.

[00:16:48] Speaker 04:
But preference is different than a bar from using the U.S.

[00:16:53] Speaker 04:
courts.

[00:16:54] Speaker 01:
I spoke loosely, Your Honor.

[00:16:55] Speaker 01:
What the Solicitor General, in fact, says in the von Sayre brief is that plaintiffs should not be able to come to U.S.

[00:17:00] Speaker 01:
courts after they've brought something before the Advisory Commission.

[00:17:03] Speaker 01:
And the reason for that is it undermines this very purpose of restitution within the nations where the art is located.

[00:17:09] Speaker 04:
It undermines the Washington principles.

[00:17:11] Speaker 04:
What do we make of the allegations by Philip that the Advisory Commission is a sham?

[00:17:17] Speaker 04:
We're looking at this on

[00:17:20] Speaker 04:
on the complaints, we have that allegation in front of us.

[00:17:23] Speaker 04:
What are we to make of that?

[00:17:24] Speaker 01:
Well, Your Honor, you should look at them in the same way that you look at such allegations with regard to a forum non-convenience issue or an enforcement of judgments issue.

[00:17:33] Speaker 01:
The allegation that a German advisory commission is a sham without specific allegations regarding the way in which it's a sham, and there are none here, is a conclusory assertion that does not pass muster under ICBAL.

[00:17:44] Speaker 03:
Have you, is that issue before us?

[00:17:47] Speaker 03:
Did you challenge in your brief the district court's ruling on that specific question?

[00:17:57] Speaker 03:
I had read your brief as saying the plaintiffs should be required to exhaust their remedies in German courts.

[00:18:04] Speaker 01:
Yes, these are two separate issues, Your Honor.

[00:18:05] Speaker 03:
And the issue we were just talking about, is that before us?

[00:18:09] Speaker 01:
Yes, Your Honor.

[00:18:10] Speaker 01:
All three issues are before you.

[00:18:11] Speaker 01:
All three were accepted by this Court.

[00:18:14] Speaker 01:
Yes, Your Honor.

[00:18:15] Speaker 01:
The preemption issue is distinct from the comity exhaustion issue.

[00:18:19] Speaker 01:
The preemption issue, as I said, involves whether plaintiffs who have brought a claim before a foreign advisory commission may try again in the United States if they don't get what they want in the foreign advisory commission.

[00:18:30] Speaker 01:
The comedy exhaustion issue, Your Honor, raises the question as to whether they ought to be obliged to bring their claims first in a German court if they insist on bringing their claims in court after the advisory commission.

[00:18:44] Speaker 01:
And under the NML decision, which is of course cited by the amicus in support of the plaintiffs,

[00:18:48] Speaker 01:
makes very clear that comedy survives the enactment of the Foreign Sovereign Immunities Act.

[00:18:53] Speaker 01:
That's something that's also made clear by the Supreme Court decision in Altman, which acknowledges that the act of state doctrine, of course, the Supreme Court says, survives the enactment of the Foreign Sovereign Immunities Act.

[00:19:03] Speaker 01:
Just like the Foreign Nonconvenience Doctrine, the Foreign Sovereign Immunities Act does not alter substantive law.

[00:19:08] Speaker 01:
So these traditional common law prudential principles continue to apply.

[00:19:12] Speaker 01:
So the comedy doctrine applies.

[00:19:15] Speaker 01:
And as we've pointed out, comedy requires the exhaustion of remedies when it's a claim against a foreign sovereign under the expropriation exception.

[00:19:23] Speaker 03:
What do you do with all the language in Republic of Argentina?

[00:19:27] Speaker 03:
which suggests quite clearly that, you know, with respect to issues like comedy, Congress took care of that in the FSIA, that all of these defenses are now governed by the plain language of the FSIA, nothing else, that the courts don't have any right to fashion additional comedy remedies.

[00:19:52] Speaker 01:
Your Honor, we're using different names for the same case, but that's the NML case that I was referencing a moment ago.

[00:19:58] Speaker 01:
And no, Your Honor.

[00:20:01] Speaker 01:
What the NML case says is that comedy concerns are incorporated in the FSIA, but it also says very clearly that comedy survives.

[00:20:10] Speaker 01:
Because what happens there is Argentina says, we're immune under the Foreign Sovereign Immunities Act from any kind of post-judgment discovery.

[00:20:16] Speaker 01:
And the Supreme Court says, no, you're not.

[00:20:19] Speaker 01:
But comedy is still an available defense.

[00:20:22] Speaker 01:
That's from the direct text of NML.

[00:20:25] Speaker 01:
And the reason for that, Your Honor, is that comedy, of course, includes lots of different contexts.

[00:20:30] Speaker 01:
It includes the application of foreign law.

[00:20:33] Speaker 01:
It includes the act of state doctrine.

[00:20:35] Speaker 01:
It includes the prudential exhaustion requirement.

[00:20:38] Speaker 01:
There are many aspects of comedy, one of which is the jurisdictional aspect.

[00:20:41] Speaker 01:
that Congress codified in the Foreign Sovereign Immunities Act.

[00:20:43] Speaker 01:
But again, as both Republic of Argentina versus NML recognizes, and as I mentioned a moment ago, as the Altman case in the Supreme Court also recognizes, these other comedy doctrines survive the enactment of the Foreign Sovereign Immunities Act.

[00:20:55] Speaker 04:
If we agreed with you on your prudential exhaustion argument, how are we to think about this?

[00:21:01] Speaker 04:
Is your argument that we have the power

[00:21:05] Speaker 04:
as a matter of prudence to require exhaustion in the German courts, but that we need not do that depending on the equities of the case?

[00:21:14] Speaker 04:
Is that how it works?

[00:21:15] Speaker 01:
Well, Your Honor, the Supreme Court in the Pimentel decision involving the Republic of the Philippines makes clear that exhaustion is required under the doctrine of comity.

[00:21:24] Speaker 01:
when the events at issue involve historical events of great political importance.

[00:21:29] Speaker 01:
And there's no question that the allegations here involve such events.

[00:21:33] Speaker 01:
So even if it is at some level a discretionary doctrine, this court is guided by Pimentel in this case.

[00:21:39] Speaker 01:
And I want to draw the parallels with the Pimentel case for a moment.

[00:21:42] Speaker 01:
So the Pimentel case involves competing claims by the Republic of the Philippines itself and victims of human rights abuses from the previous regime, Ferdinand Marcos' regime, to a pot of money that is present in the United States.

[00:21:57] Speaker 01:
In the same way, of course, this case involves competing claims between the foreign sovereign here, the Federal Republic of Germany, and the Prussian Cultural Heritage Foundation, and those who are the descendants of alleged violations of international human rights.

[00:22:10] Speaker 01:
But here, it's even more severe in terms of comedy, because the property is not located in the United States, as it was in Pimentel, but located in Germany, such that a court would need to say, you, the Federal Republic of Germany, and your

[00:22:25] Speaker 01:
instrumentality must turn over property in Germany over to the United States.

[00:22:32] Speaker 01:
And so the Pimentel rationales of that is true.

[00:22:35] Speaker 01:
And this isn't just any property in Germany.

[00:22:37] Speaker 01:
This is a national treasure, right?

[00:22:40] Speaker 01:
It is a national treasure, Your Honor, and that's why it's held in an institution similar to the Smithsonian Institution here in Washington.

[00:22:46] Speaker 01:
So we think comity concerns are absolutely under their apex, and whether there is any discretion at all, it's not present here under the guiding law of Pimentel, and exhaustion must be required.

[00:22:58] Speaker 01:
I want to take a moment to, the plaintiffs have of course alleged that it would be futile to go before a German court, and so exhaustion should not be required.

[00:23:06] Speaker 01:
And the futility requirement is an important aspect of the doctrine because it does involve concerns of fairness.

[00:23:13] Speaker 01:
People should not be forced to exhaust their remedies in a court that there's no reason to think would be impartial or fair.

[00:23:19] Speaker 01:
But the plaintiff's argument, as the plaintiff's expert himself acknowledges, is just that German courts, as he says, are fickle.

[00:23:26] Speaker 01:
And it's not clear whether they'd be able to bring a claim despite the fact that he acknowledges, in a previous case of Sachs,

[00:23:32] Speaker 01:
Someone who brought a restitution claim regarding Nazi confiscated art and lost before the advisory commission went to a German court and then won.

[00:23:43] Speaker 01:
In those circumstances, Your Honor, it's impossible to conclude that it would be futile for plaintiffs to exhaust the remedies in a German court.

[00:23:51] Speaker 01:
And, Your Honor, going back to the sham issue for a moment, because ultimately there is an allegation, kind of an underwriting allegation here, that you can't trust Germany.

[00:24:02] Speaker 01:
You can't trust the Federal Republic of Germany.

[00:24:04] Speaker 01:
You can't trust its courts.

[00:24:05] Speaker 01:
You can't trust its advisory commission.

[00:24:07] Speaker 01:
I would point out, as we have in our briefs, that this is 83 years after the transaction had issued.

[00:24:13] Speaker 01:
This is the Federal Republic of Germany, which is a staunch ally of the United States and one of the leading democracies in the world, and has been found by courts in the United States across the board.

[00:24:23] Speaker 01:
to have courts that are fair and are impartial.

[00:24:27] Speaker 01:
And there's no reason to think that they would not be fair and impartial here, and no reason to think that the Advisory Commission, which, Your Honors, was led by the retired Chief Justice of the Federal Constitutional Court of Germany and included the first president of the reunified Germany after the fall of the Berlin Wall, was anything but a fair and impartial tribunal.

[00:24:46] Speaker 03:
Can I take you back to the first point we were talking about?

[00:24:49] Speaker 03:
I want to make sure I completely understand your argument about why this isn't taking in violation of international law.

[00:24:56] Speaker 03:
Is the point that there's no evidence that the purchasers here

[00:25:03] Speaker 03:
knew the art, did this because the art dealers were Jewish.

[00:25:08] Speaker 03:
Is that the key point?

[00:25:11] Speaker 01:
What is your key point about this?

[00:25:13] Speaker 01:
No, that's not our key point, Your Honor.

[00:25:15] Speaker 01:
That's a point that the Court should bear in mind.

[00:25:17] Speaker 01:
But I would say our key point.

[00:25:19] Speaker 01:
I would say our key point is that the property taken here was not essential for survival and so did not impose conditions of life intended, calculated to bring about the physical destruction of the group.

[00:25:32] Speaker 02:
How do we know it's not essential for survival?

[00:25:34] Speaker 01:
I'm sorry, Your Honor?

[00:25:35] Speaker 02:
How do we know it's not essential for survival?

[00:25:38] Speaker 02:
Just because it's an art collection?

[00:25:39] Speaker 01:
No, there's a number of things from the complaint that you can use to come to that inevitable conclusion.

[00:25:44] Speaker 01:
One is that they received millions of dollars.

[00:25:47] Speaker 01:
Another is that there's no allegation that they were unable, excuse me, Your Honor.

[00:25:51] Speaker 03:
Suppose they had received a million dollars instead of, how much was it?

[00:25:57] Speaker 01:
3.5.

[00:25:57] Speaker 01:
It was several million dollars, Your Honor.

[00:25:59] Speaker 01:
Suppose it was one.

[00:26:00] Speaker 01:
It was 3.5 million Reichsmarks.

[00:26:02] Speaker 01:
I don't have the exact.

[00:26:03] Speaker 01:
Right, right.

[00:26:04] Speaker 01:
Transaction.

[00:26:04] Speaker 03:
Suppose it was one million dollars.

[00:26:06] Speaker 03:
Is your point that the payment took it out of this category?

[00:26:14] Speaker 03:
You're not arguing that, are you?

[00:26:15] Speaker 03:
Well, we're arguing that this is, in fact, a factor to consider in looking at whether this – Well, now I'm asking you how we – if it's a factor, then I'd like you to explain to me how we evaluate that factor.

[00:26:28] Speaker 03:
They claim – I think they claim it was 15 percent of the value of the art.

[00:26:33] Speaker 01:
No, Your Honor.

[00:26:33] Speaker 01:
Their claim is that it was 33 percent of the value of the art.

[00:26:35] Speaker 01:
Okay.

[00:26:35] Speaker 03:
Well, suppose it was 15 percent.

[00:26:37] Speaker 01:
Would that have made a difference?

[00:26:38] Speaker 01:
No, I don't think it would matter, Your Honor.

[00:26:39] Speaker 03:
About 10 percent.

[00:26:40] Speaker 01:
Yeah.

[00:26:41] Speaker 01:
Your Honor, the – Five?

[00:26:42] Speaker 01:
Your Honor, the question is to whether it's calculated to bring about the physical destruction of the group and whether, in fact... It's their livelihood, right?

[00:26:51] Speaker 04:
This is their livelihood that was being...

[00:26:53] Speaker 01:
They are art dealers, yes.

[00:26:54] Speaker 01:
There's no allegation that they had no other inventory.

[00:26:59] Speaker 03:
In fact, it's clear from the... Well, excuse me, but the complaint is full of allegations that at this particular time art dealers, they had lost many of their customers.

[00:27:10] Speaker 03:
It was extremely difficult.

[00:27:11] Speaker 03:
They really had no choice but to sell it at this profit, at this price.

[00:27:15] Speaker 03:
Those are the allegations in the complaint.

[00:27:17] Speaker 01:
Well, Your Honor, the allegations are, of course, that the art was located in Amsterdam and that they were free to and did travel outside of Germany and that all the one of them ultimately did.

[00:27:25] Speaker 03:
Well, you might succeed at that on summary judgment, but the allegation in the complaint is the members of the consortium were completely cut out of the economic life of Germany.

[00:27:44] Speaker 03:
Major dealers' collections were liquidated because they could not legally be sold.

[00:27:49] Speaker 03:
Paragraph 20.

[00:27:51] Speaker 03:
Jewish RTOs lost their Jewish customers.

[00:27:55] Speaker 03:
I mean, these are the allegations in the complaint.

[00:27:58] Speaker 03:
And you may be right, as I said, if you file a motion for summary judgment.

[00:28:04] Speaker 03:
But at this stage, where we have to accept these allegations as true and view them in the light most favorable to the plaintiffs, their whole argument is that, number one, yes, it's art, but this was their livelihood, which you conceived in your briefs.

[00:28:22] Speaker 03:
This was their livelihood.

[00:28:24] Speaker 03:
And they claim their livelihood was being destroyed

[00:28:26] Speaker 03:
because of discrimination against Jewish purchasers and everybody else, they couldn't sell it.

[00:28:33] Speaker 03:
That's the allegations of the complaint.

[00:28:35] Speaker 01:
You can and should take those allegations as true at this stage, but they're not enough.

[00:28:40] Speaker 03:
What else is needed?

[00:28:41] Speaker 03:
That's what I'm looking for.

[00:28:42] Speaker 03:
Even if they allege that they... If you want to win your case, what is it that they didn't say that they should have said here?

[00:28:49] Speaker 01:
Well, it's not what they didn't say what they should have said because there's nothing that they could have said.

[00:28:53] Speaker 01:
It's not that they can amend the complaint and fall within the assignment exception.

[00:28:57] Speaker 03:
I understand that.

[00:28:57] Speaker 03:
I understand that.

[00:28:58] Speaker 03:
I'm asking you what's missing in this complaint.

[00:29:01] Speaker 01:
Well, what's missing, Your Honor, under the assignment for an act to be a genocidal taking to create conditions of life that makes the destruction of the group more likely.

[00:29:15] Speaker 01:
You have to have the sorts of things that you had in Simon or at the chapel.

[00:29:18] Speaker 03:
Or let me give you an example, Your Honor.

[00:29:20] Speaker 03:
In fact, the allegation in Simon was that they were destroying the livelihood of Jews in Hungary at the time.

[00:29:33] Speaker 03:
And here we have the same allegations.

[00:29:36] Speaker 03:
They're not stealing their food, but these people are in the business of selling art, and this is part of the process of destroying their ability to make a living.

[00:29:47] Speaker 03:
That's the allegation.

[00:29:50] Speaker 01:
Preventing someone from practicing their chosen profession is unquestionably persecution, is unquestionably discrimination, but it is not a taking.

[00:30:00] Speaker 01:
And as Simon said, the taking

[00:30:03] Speaker 01:
must be an act of genocide.

[00:30:05] Speaker 01:
A law prohibiting someone from being an art dealer, economic conditions making it impossible for someone to be an art dealer, that doesn't amount to a tape of genocidal under Simon.

[00:30:17] Speaker 01:
And I can give you what Your Honor asked for examples.

[00:30:19] Speaker 01:
Well, what would be examples of a taking other than Simon?

[00:30:22] Speaker 01:
And Simon is not about just taking away their livelihood, as Your Honor knows.

[00:30:25] Speaker 01:
It's about taking away their last worldly possessions en route to their murder as Jews.

[00:30:30] Speaker 01:
So that's a very different case.

[00:30:32] Speaker 01:
But what would be enough – what would be enough, Your Honor, is if subsistence farmers had their seed stock taken by the government.

[00:30:39] Speaker 01:
That's genocidal, because that intends to starve the people to death.

[00:30:42] Speaker 01:
That creates conditions of life that aim to destroy part or all of the group.

[00:30:47] Speaker 01:
If, in fact, you could have a combination, Your Honor, of laws in a taking, if you said Group X may only be carpenters and then you seized their carpentry tools, well, that would be a taking that was itself genocidal.

[00:31:00] Speaker 02:
Your argument is that if I'm a lawyer and the government says basically we're going to prevent you from practicing as a lawyer, or we'll just take all of the revenue from your law office,

[00:31:21] Speaker 02:
That's not really genocidal, even if it's done as part of an attack on my race, because I could still go work at McDonald's or something and support myself.

[00:31:36] Speaker 01:
That's correct, Your Honor, it's persecution, but it's not genocide.

[00:31:39] Speaker 01:
Genocide has enumerated definitions of what genocidal acts are.

[00:31:44] Speaker 01:
There may even, Your Honor, just assuming arguendo, there may be a genocidal intent there, but there's still not a genocidal act.

[00:31:49] Speaker 01:
There's nothing that's taken, let alone something that's taken that itself imposes conditions of life that will destroy part or all of the group.

[00:31:57] Speaker 03:
Let me go back to the... I hear what you're saying, but...

[00:32:02] Speaker 03:
Here's a congressional finding, quote, the Nazi policy of looting art, looting art was a critical element in their campaign of genocide.

[00:32:17] Speaker 03:
That's a congressional finding.

[00:32:21] Speaker 01:
Yes, Your Honor.

[00:32:23] Speaker 01:
This court is required to, in the context of the expropriation exception, to interpret the international law of genocide.

[00:32:32] Speaker 01:
And even if this court were, and that's a judicial requirement, right?

[00:32:36] Speaker 01:
It's not a question as to what Congress has concluded about a historical matter.

[00:32:40] Speaker 01:
This court has to conclude on these facts, on the facts of this case, whether this was a taking in violation of the international law of genocide, whether it was a genocidal act.

[00:32:49] Speaker 04:
And Congress is not, of course... If we agreed with the congressional finding, then this would be a genocidal act, right?

[00:32:56] Speaker 04:
No, Your Honor.

[00:32:58] Speaker 04:
Wait, wait.

[00:32:58] Speaker 04:
Let me see.

[00:32:58] Speaker 04:
As I understand it, the looting of art treasures, according to this statement, was genocidal.

[00:33:05] Speaker 01:
Yes, Your Honor.

[00:33:06] Speaker 04:
Congress is not specifying in that statement... So you're saying this wouldn't be a... this is not, in your view, this is not looting of art treasures.

[00:33:14] Speaker 04:
Your Honor, later in history, there were unquestionably examples of— Is this—your argument is this is not—this case before us does not allege looting.

[00:33:24] Speaker 01:
This is not an alleged genocidal taking into chapel, Your Honor.

[00:33:30] Speaker 01:
The defendants don't even contest.

[00:33:32] Speaker 03:
I'm sorry.

[00:33:32] Speaker 03:
I have been advised that I need to interrupt you, and we need to call a recess, because apparently there's smoke coming out of something.

[00:33:41] Speaker 03:
So the Court will take a brief recess until we figure out where this smoke is coming from.

[00:33:46] Speaker ?:
Thank you, Your Honor.

[00:34:18] Speaker 03:
OK, I think we are all safe.

[00:34:24] Speaker 03:
Let's see.

[00:34:24] Speaker 03:
Mr. Freeman, you are way over, partially, because of our questions.

[00:34:29] Speaker 03:
So we'll go ahead and hear from the plaintiffs, and then you can have a couple minutes on the bottle.

[00:34:34] Speaker 03:
OK?

[00:34:34] Speaker 00:
Thank you, Your Honor, and may it please the court.

[00:34:40] Speaker 00:
My name is Nicholas O'Donnell, and I represent the plaintiffs and appellees in this action.

[00:34:45] Speaker 00:
The expropriation of the Foreign Sovereign Immunities Act provides jurisdiction over the claims in this case precisely because Germany's vast scheme to plunder the artwork of Europe has always been considered a crime against international law.

[00:34:59] Speaker 00:
And as Judge Tatel noted, that finding has been expressed recently by Congress.

[00:35:05] Speaker 00:
I think considering that aspect of the transaction we're talking about, it is critical to remember two parts about the context in which this takes place.

[00:35:13] Speaker 00:
The first is, as Congress found, as cannot be disputed, that the specific targeting of art collections owned by Jews was a fundamental component of the Nazi regime.

[00:35:24] Speaker 00:
The Nazi regime cannot be parsed and divided into its genocidal and non-genocidal components.

[00:35:31] Speaker 00:
It is quite literally the reason the term was invented.

[00:35:35] Speaker 00:
As a result, the prominence of that looting

[00:35:39] Speaker 00:
puts into question and has been expressed since even before the war ended in the Inter-Allied Declaration of 1943, known as the London Declaration, the need to address Germany's plundering of art from people because of who they were.

[00:35:55] Speaker 00:
And Congress has found this.

[00:35:57] Speaker 00:
In addition, and the discussion this morning focused quite a bit on the nature of the property taken and the nature of the taking.

[00:36:07] Speaker 00:
There is, in fact, no question that the economic destruction of Germany's Jews was the intended result from January 30, 1933.

[00:36:17] Speaker 00:
This was not an incidental component that arose later.

[00:36:20] Speaker 00:
It was not an afterthought.

[00:36:23] Speaker 00:
It does not matter that the death camps were not organized until 1941, although as we note, and as is pleaded in the complaint, one of the correspondents about getting this collection back was a participant at the Fonzie Conference at which the extermination of European Jews was planned.

[00:36:45] Speaker 00:
But more to the point,

[00:36:47] Speaker 00:
And the case that appellants do not spend much time talking about is the De Geppe case, because the De Geppe case, also in Hungary, like Simon, decided by this court last year, is not a taking at a gunpoint at the side of a railroad track.

[00:37:04] Speaker 00:
The De Geppe case concerned an art collection which the owners brought to a museum, thinking that perhaps it would be safe there.

[00:37:10] Speaker 00:
And of course, it turned out quite differently.

[00:37:13] Speaker 00:
And like our case, like the Altman case, like the Kasira case, like the Malevich case, the question is not is the artwork sold and used dollar for dollar for the next day's survival.

[00:37:29] Speaker 00:
It's that the targeting of the Jewish people as such

[00:37:33] Speaker 00:
to take their property, to take away their ability, as Judge Wilkins noted, to practice their chosen profession, which, by the way, was one of the first decrees of the Nazi regime, was to expel Jews from the Reich's Chamber of Culture, without which you couldn't practice in the cultural arts.

[00:37:54] Speaker 00:
I think it's interesting, and this is not

[00:37:58] Speaker 00:
in the briefing, because I observed it last week in Berlin at the monument to the German resistance, which on a wall text noted that the National Socialists called on the population to boycott Jewish businesses on April 1st, 1933, and began excluding the Jews from economic life.

[00:38:17] Speaker 00:
Those are their words.

[00:38:19] Speaker 00:
And it's exactly what they intended to do, and it's exactly what they did.

[00:38:22] Speaker 02:
But one of your friends on the other side's argument that

[00:38:29] Speaker 02:
the evidence even as pled is that they sought this art because of its importance to the nation, not because they were trying to deprive the owners of ownership as Jews.

[00:38:49] Speaker 00:
Because, Your Honor, I think on the record and as pled, it is both.

[00:38:53] Speaker 00:
And a substantial motivation, it is true that Mayor Krebs' letter to Hitler himself does not mention my clients, but it is alleged, because it is true, that the consortium's ownership of this collection incensed the Nazis, the very idea that not only were Jewish art collectors able to conduct their business, but that they would be in possession of this

[00:39:15] Speaker 00:
archetypal German art was part of the motivation.

[00:39:20] Speaker 00:
And again, that goes to who they are, not simply what the collection is.

[00:39:27] Speaker 00:
Likewise, in that letter, again, we can look throughout the record, throughout this period of history, and guess about what was not said.

[00:39:37] Speaker 00:
Yes, it is true that we don't have a complete record of who said what to who.

[00:39:41] Speaker 03:
So under your view of this, what?

[00:39:46] Speaker 03:
What are the allegations that need to be made with respect to a specific transaction?

[00:39:51] Speaker 03:
I mean, I understand your point about the overall picture in Germany at the time and the congressional findings and the allegations.

[00:39:59] Speaker 03:
What has to be alleged with respect to this transaction?

[00:40:05] Speaker 00:
Your Honor, what has to be alleged with this transaction.

[00:40:07] Speaker 03:
You're taking in violation of international law.

[00:40:09] Speaker 00:
Taking in violation of international law is that as a starting point, the context is a critical component of the allegation.

[00:40:14] Speaker 00:
This is a unique circumstance.

[00:40:16] Speaker 00:
Second, that the transaction was not at arm's length as a result.

[00:40:23] Speaker 00:
After that, and this is.

[00:40:24] Speaker 03:
And you have those, and those allegations are in the complaint.

[00:40:27] Speaker 03:
Yes, Your Honor.

[00:40:28] Speaker 00:
And the defendants may endeavor to prove at trial that my clients received fair, adequate, and readily available compensation.

[00:40:36] Speaker 00:
They didn't, but they can try.

[00:40:38] Speaker 00:
And that's what has to be alleged, is the lack of that adequate compensation.

[00:40:44] Speaker 00:
It's alleged clearly the price was inadequate on its face.

[00:40:47] Speaker 00:
They were not able to access all of it.

[00:40:49] Speaker 00:
And a further portion of it consisted of second-rate artworks that they were essentially foisted upon them.

[00:40:55] Speaker 00:
And that's enough, because that's the target, that's the intent of the genocidal regime.

[00:41:04] Speaker 00:
Likewise, and it goes to this sort of starting presumption, but it's an additional layer in this case, this is not merely a case involving Jews on one side and a counterparty on the other, this is a case in which Hermann Göring,

[00:41:17] Speaker 00:
right after the acquisition makes a great show of presenting it to Hitler, and it is alleged in the complaint because it is true.

[00:41:23] Speaker 04:
Are you planning on dealing with the preemption and exhaustion issues?

[00:41:27] Speaker 00:
Yes, Your Honor, I'd be happy to move to those.

[00:41:29] Speaker 03:
Let's just finish the point you were making.

[00:41:31] Speaker 00:
I was going to say, Your Honor, with regard to Göring specifically,

[00:41:35] Speaker 00:
It is well known, it is alleged because it is true, that Guring, despite his vast and essentially complete power over people's lives, still went to the pretense of papering transactions, particularly acquiring corporations, acquiring some sort of paper trail.

[00:41:52] Speaker 00:
And that's what happened here.

[00:41:53] Speaker 03:
And one more question, and then I too want you to get to Judge Griffith's question.

[00:41:57] Speaker 03:
What role did the congressional finding about

[00:42:02] Speaker 03:
the Nazi seizing of Jewish artwork play in the way we interpret the statute.

[00:42:09] Speaker 03:
Your Honor.

[00:42:10] Speaker 03:
Council seem to say that's irrelevant.

[00:42:12] Speaker 00:
It's not irrelevant.

[00:42:13] Speaker 00:
It would be relevant

[00:42:15] Speaker 00:
You know, congressional findings, of course, are not the law itself.

[00:42:19] Speaker 00:
I think it would be relevant only if the intent were unclear, which I think appellants need to argue to prevail.

[00:42:27] Speaker 00:
But if they convince the court that the statute were sufficiently unclear, then the next step would be to look to the congressional findings, which... I take it your point is, based on the allegations as a complaint, you don't need the congressional findings.

[00:42:38] Speaker 00:
Correct, Your Honor.

[00:42:39] Speaker 00:
Is that right?

[00:42:39] Speaker 00:
Correct.

[00:42:40] Speaker 00:
Good.

[00:42:40] Speaker 00:
Correct.

[00:42:43] Speaker 00:
that the allegations of the complaint are consistent with the congressional findings.

[00:42:48] Speaker 00:
With regard to the preemption and comity arguments, the case is not preempted and state law claims are not preempted by the foreign policy of the United States as this court and other courts of appeal have repeatedly held.

[00:43:01] Speaker 00:
I think it's important to address the appellant's argument about the Solicitor General's brief in the Von Sager case.

[00:43:07] Speaker 00:
Bonsacher case concerned property that had been the subject of claims in the Dutch post-war restitution legal regime.

[00:43:15] Speaker 00:
The Dutch, like the Germans, adopted a very short time-limited series of laws to allow people to make claims.

[00:43:23] Speaker 00:
The Houtstikker family, Murray Bonsacher is Jacques Houtstikker's heir, another victim of Hermann Göring by the way,

[00:43:29] Speaker 00:
the Husteker family made claims to the Dutch panel, which was not an advisory commission.

[00:43:35] Speaker 00:
It was a panel.

[00:43:36] Speaker 00:
It was the adjudicatory scheme under Dutch law at the time.

[00:43:40] Speaker 00:
That panel ruled against them.

[00:43:43] Speaker 00:
And what the Ninth Circuit, what the Solicitor General expressed a concern about was US courts being asked to come to a result different than that Dutch panel in the 1950s.

[00:43:56] Speaker 00:
That example has no parallel to this case, because I do want to spend some time in my remaining time talking about the Advisory Commission and what it is and what it isn't.

[00:44:05] Speaker 00:
The Washington Conference on Holocaust-era Assets in 1998 resulted in the Washington Conference Principles on Nazi Confiscated Art, which fundamentally are aspirational.

[00:44:15] Speaker 00:
They exhort the participants to reach just and fair solutions.

[00:44:18] Speaker 00:
And in connection with that, five countries, Germany among them, in Europe adopted some sort of new approach.

[00:44:26] Speaker 00:
And the advisory commission founded in 2003 is that approach in Germany.

[00:44:30] Speaker 00:
It is an advisory commission.

[00:44:31] Speaker 00:
There is no dispute that it is not an arbitration.

[00:44:35] Speaker 00:
It is a mediation if it needs to even be characterized in a legal sense.

[00:44:38] Speaker 00:
But the participants are free to ignore its recommendations and German museums are not required to go to it.

[00:44:46] Speaker 00:
The parallel between the Advisory Commission in 2014 and the panel in the Netherlands that the Solicitor General was concerned about 10 years ago are, I think, quite different.

[00:44:57] Speaker 00:
With regard to comedy, the appellant's argument there has shifted quite a bit.

[00:45:01] Speaker 03:
The appellants now argue that we... By the way, let me just, before you go on... Please.

[00:45:07] Speaker 03:
What role does, in your mind, does Congress's extension of the statute of limitations play in all of this?

[00:45:14] Speaker 00:
It is a very important role, Your Honor, because as Judge Griffith noted,

[00:45:18] Speaker 00:
the expression of the preference of something in lieu of litigation acknowledges the availability of the litigation.

[00:45:25] Speaker 00:
And sovereign defendants in particular have been arguing for 20 years that claims like ours violate the foreign policy of the United States.

[00:45:32] Speaker 00:
And they have been unsuccessful even before this.

[00:45:35] Speaker 00:
But the HERE Act

[00:45:37] Speaker 00:
we submit is a conclusive expression of the policy of the United States with regard to this issue.

[00:45:43] Speaker 00:
It is, again, if that statement were considered to be unclear, then one would look to the congressional record in which it is absolutely unambiguous in a unanimous political moment, something we don't hear very often these days, that all of the participants and sponsors

[00:45:59] Speaker 00:
were tired of claimants not getting their day in court.

[00:46:02] Speaker 00:
And so the idea, as the panel has mentioned earlier, that Congress, in passing that law, nonetheless intended to allow claimants to be cut off or to be required to go elsewhere, those are inconsistent, and I think the statute can't be read that way.

[00:46:17] Speaker 00:
The point I'll make about comedy is,

[00:46:21] Speaker 00:
In the briefing below, the defendants and appellants argued that the Advisory Commission recommendation should be considered like a decision entitled to respect.

[00:46:31] Speaker 00:
It was a traditional comedy argument that a judgment of the courts of Germany should be afforded respect.

[00:46:37] Speaker 00:
And to be clear, we are not attacking the courts of Germany.

[00:46:40] Speaker 00:
That's a complete red herring in this case.

[00:46:43] Speaker 00:
We are saying there is no claim to be brought in Germany.

[00:46:46] Speaker 00:
And this is true.

[00:46:47] Speaker 00:
We know this because the defendant's expert, Professor Thiessen, acknowledges that it is at best a speculative possibility.

[00:46:54] Speaker 00:
Appellant's counsel referred to the Sachs case, which is true.

[00:46:56] Speaker 03:
Is it speculative that there's a procedure available, or is it speculative that you would succeed?

[00:47:04] Speaker 00:
Speculative that there's a procedure available.

[00:47:06] Speaker 00:
I mean, one can go to court, but that the claim could be heard.

[00:47:10] Speaker 00:
Could be what?

[00:47:11] Speaker 00:
Could be heard at all in the courts of Germany, because it can't.

[00:47:16] Speaker 00:
And the record below establishes that the fight on that below was primarily on the forum nonconvenience argument, which the defendants have abandoned on appeal for the moment, or at least are not pressing for the moment, because the judge, in a sound and thorough review of that record, concluded that the alternative forum was not available.

[00:47:32] Speaker 00:
And that finding, which is subject only to an abusive discretion review, is not even before us right now.

[00:47:39] Speaker 00:
And so rather than stick with that, because we've never argued that the advisory commission is a decision and it's not, the sort of singular exception that the appellants are in effect asking this court to make is create an exception for comedy in the unique circumstance in which a country has enacted an advisory panel with no legal effect so that they can just do that and go about their way.

[00:48:07] Speaker 00:
The advisory commission is an issue.

[00:48:09] Speaker 04:
What's wrong with pursuing the claims in German courts?

[00:48:12] Speaker 00:
German courts will not hear Holocaust-related property claims.

[00:48:16] Speaker 00:
They have a 20-year bar to those claims, procedurally.

[00:48:21] Speaker 00:
They can't be brought.

[00:48:23] Speaker 00:
The sex case is an outlier.

[00:48:25] Speaker 00:
It happened, but it's a unique event.

[00:48:28] Speaker 00:
The stretching that's being requested here is by the appellants, which asked the court to shoehorn into the FSIA a requirement that for a country that's enacted a panel, which as we alleged is not particularly serious, but if they want to prove that it's something that it's not, they can try that.

[00:48:46] Speaker 00:
But that's a defense.

[00:48:48] Speaker 00:
As the court has noted in a number of questions, this is on a motion to dismiss.

[00:48:51] Speaker 00:
That is a defense that the appellants can raise.

[00:48:55] Speaker 00:
I want to make one final point in my... Excuse me.

[00:48:57] Speaker 03:
So your argument then is that, at least on this record, we don't have to decide the question that Simon left open about exhaustion because there's no possibility of exhaustion here at all.

[00:49:08] Speaker 00:
Correct.

[00:49:08] Speaker 00:
And the Pimentel case that... That's your argument.

[00:49:11] Speaker 00:
That's our argument.

[00:49:12] Speaker 03:
And I think... What would your position be if it was...

[00:49:16] Speaker 03:
if suit in Germany was possible?

[00:49:20] Speaker 00:
I think it's still a prudential question, Your Honor.

[00:49:22] Speaker 00:
And I think the Pimentel case cited by the appellants actually helps us, because that concerned Filipino victims of the Marcos regime.

[00:49:30] Speaker 00:
And the logic or the analysis of saying, well, you need to go to the courts of your own country first before coming after the property, the location of the property and the comedy argument really is beside the point.

[00:49:41] Speaker 00:
It's the people and the availability.

[00:49:44] Speaker 00:
The last one I want to make, as I just come up against my time, is we certainly acknowledge that the court's holding last year in Djeppel takes a disjunctive view of the commercial nexus requirement with regard to Germany, the Federal Republic of Germany, as opposed to the SPK, the Prussian Cultural Heritage Foundation.

[00:50:03] Speaker 00:
We would just ask the court to revisit that question in the context of this case.

[00:50:08] Speaker 00:
The statute is written in the disjointive.

[00:50:09] Speaker 03:
Well, how can we do that in this case?

[00:50:12] Speaker 03:
Well, Your Honor, I think the question is... I mean, we're bound by De Shepple, right?

[00:50:19] Speaker 03:
This panel is bound by the decision of De Shepple.

[00:50:22] Speaker 03:
I think, I think... Is this case distinguishable?

[00:50:26] Speaker 00:
On the commercial nexus question, no.

[00:50:28] Speaker 00:
Okay.

[00:50:29] Speaker 03:
So...

[00:50:32] Speaker 03:
You agree on the question of whether Germany's proper party, the Sepul, decides the case, right?

[00:50:38] Speaker 03:
Yes.

[00:50:39] Speaker 00:
So I will just limit my remarks.

[00:50:41] Speaker 00:
May it please the court by saying the precedent of US policy and the direction of US policy is clear and unambiguous, is in favor of claimants like ours.

[00:50:51] Speaker 00:
And we ask the court to affirm the decision of the district court.

[00:50:53] Speaker 00:
Thank you.

[00:50:55] Speaker 03:
Okay, Mr. Freeman, you used up all your time, but you can take two minutes, if you'd like.

[00:51:01] Speaker 03:
Thank you, Your Honor.

[00:51:01] Speaker 03:
And maybe you'd start with the exhaustion question.

[00:51:04] Speaker 01:
Thank you, Your Honor.

[00:51:04] Speaker 01:
I thought I had reserved five for rebuttal, but I'm happy to use two.

[00:51:07] Speaker 01:
Taking the points in reverse order, comedy.

[00:51:10] Speaker 01:
Opposing counsel misstated a few things.

[00:51:12] Speaker 01:
Our expert, in fact, did say that German courts

[00:51:15] Speaker 01:
are available.

[00:51:16] Speaker 01:
That's pages 187 to 189 of the joint appendix, as well as 293 to 294 of the joint appendix.

[00:51:21] Speaker 01:
The district court did not find that German courts were futile.

[00:51:24] Speaker 01:
That's page 345 of the joint appendix.

[00:51:27] Speaker 01:
To the extent there's any doubt as to whether the German courts could entertain such a claim, deference is due to Germany's interpretation of its own law.

[00:51:35] Speaker 01:
The only question is what level of deference currently pending before the Supreme Court in the animal science products case.

[00:51:41] Speaker 01:
Your Honors, first of all, it doesn't matter whether the commission was in the 50s, as it was in Bonsayer, or it was 10 years ago, as here, or less than 10 years ago.

[00:51:50] Speaker 01:
It's part of the same policy of the foreign nations where the art is located, overseeing the restitution proceedings.

[00:51:56] Speaker 01:
The distinction between arbitration and mediation doesn't matter.

[00:51:59] Speaker 01:
The Washington principles talk about alternative dispute resolutions and contemplate both.

[00:52:03] Speaker 01:
As to the HERE Act and preemption in foreign policy, it says nothing about suits against foreign sovereigns.

[00:52:11] Speaker 01:
It says nothing about suits over art located abroad, and it cites domestic cases.

[00:52:15] Speaker 01:
The jurisdictional issues, Your Honor.

[00:52:18] Speaker 01:
First of all, there's a difference between genocide and discrimination or persecution.

[00:52:24] Speaker 03:
In dishevel, this Court allowed the plaintiffs to amend their complaint under that statute.

[00:52:32] Speaker 01:
Under the FSIA, Your Honor?

[00:52:33] Speaker 03:
No, under the HERE Act.

[00:52:36] Speaker 01:
The plaintiffs had the opportunity of amending the complaint after the hearing.

[00:52:40] Speaker 03:
Yeah, because the court found the act controlling, and they were allowed to amend their complaint to take advantage of the longer statute of limitations.

[00:52:50] Speaker 01:
As to the congressional finding of the Nazi looted art being a part of the genocide, we don't think that that's irrelevant, but it doesn't mean that this transaction was part of that looting of art.

[00:53:03] Speaker 01:
Congress did not say that every sale from 1933 to 1945 involving a German governmental entity was part of that genocide.

[00:53:11] Speaker 03:
No, it didn't, but counsel's argument is that any allegation about a forced

[00:53:16] Speaker 03:
sale at a less than fair market value is enough to survive a motion to dismiss.

[00:53:25] Speaker 01:
An allegation of a sale below market value or of a forced sale or of an outright expropriation is enough to allege a taking, but it's not enough to allege a taking that is itself a genocidal act.

[00:53:36] Speaker 01:
And that's the question under Simon.

[00:53:38] Speaker 01:
And Your Honor needs to look for that, again, to the international law definition of genocide.

[00:53:43] Speaker 01:
Genocide is the worst crime there is.

[00:53:45] Speaker 01:
There's no question that genocide did occur in Germany with regard to the Jews.

[00:53:49] Speaker 01:
But the question is whether this act was a genocidal act.

[00:53:52] Speaker 01:
And in order to determine that question, and Your Honor, Judge Taylor, I refer you back to the oral argument in Helmerich a couple of days ago, this court needs to look at the international law sources.

[00:54:02] Speaker 01:
And we've cited them in the brief.

[00:54:03] Speaker 01:
There is no authority.

[00:54:05] Speaker 01:
finding that there's a genocidal taking in circumstances anything like this.

[00:54:10] Speaker 01:
And so to find that there's one here, to find that there was a genocidal taking here is to expand the narrow exception created in Simon to essentially eviscerate the domestic taking rule in any circumstance where a country later is involved in genocidal acts.

[00:54:25] Speaker 01:
Your Honor, that's hindsight bias.

[00:54:27] Speaker 01:
That's the reason the complaint weaves back and forth between the present and future.

[00:54:31] Speaker 01:
As opposing counsel noted just a few moments ago, one of the participants in the sale would later, years later, be part of the WANSI conference, at which opposing counsel said the destruction of European Jewry was planned.

[00:54:43] Speaker 01:
You can't look at the events of 1933 to 1935 through the lens of what happened later.

[00:54:48] Speaker 01:
The question is, was it a genocidal act when it happened under international law?

[00:54:53] Speaker 01:
Thank you, Your Honors.

[00:54:55] Speaker 03:
Thank you both.

[00:54:56] Speaker 03:
The case is submitted.