No. XXXX

In the Supreme Court of the United States

_________________

MUSEO DE ARTE LATINOAMERICANO DE VALENTÍN ALSINA,

PETITIONER

v.

AMY GOODMAN, RESPONDENT

_________________

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TWELFTH CIRCUIT

_________________

BRIEF FOR RESPONDENT

_________________

TEAM: O Counsel for Respondent

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QUESTIONS PRESENTED

1. Does the Immunity from Seizure Act, 22 U.S.C. §2459, which grants immunity from seizure

to foreign artwork while on loan in the United States, permit a theft victim to sue a foreign

lender in possession of the victim’s stolen painting for damages, where the statute is silent in

title, purpose, and text regarding any other courses of legal action beyond seizure?

2. Is a theft victim barred by the equitable defense of laches; where a painting was stolen during

World War II when its true owner was forced to flee Nazi-invaded Vienna; where the true

owner was unable to locate the painting following the War, and where the institution

currently in possession failed to take any action to track the painting’s title and made no

showing that it suffered from the loss of evidence or financial harm as result of the theft

victim’s delay in filing suit.

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TABLE OF CONTENTS

Questions Presented..........................................................................................................................i

Table of Authorities........................................................................................................................iv

Opinions Below ..............................................................................................................................vi

Jurisdiction......................................................................................................................................vi

Statement of the Case ......................................................................................................................1

Summary of the Argument ..............................................................................................................3

Argument .........................................................................................................................................5

THIS COURT SHOULD AFFIRM THE TWELFTH CIRCUIT’S JUDGMENT AS A MATTER OF LAW BECAUSE A GRANT OF IMMUNITY UNDER THE IMMUNITY FROM SEIZURE ACT, 22 U.S.C. §2459, DOES NOT PRECLUDE A SUIT FOR DAMAGES, AND THE PRESENT ACTION IS NOT BARRED BY THE DEFENSE OF LACHES ..............................................................................................................5

A. Since the Immunity from Seizure Act grants immunity to foreign-owned

artwork from seizure while in the United States, but it does not grant immunity to the foreign lender from a claim for damages arising out of said artwork, Goodman should be able to move forward with her lawsuit. ........................................6 1. The plain language of the Immunity from Seizure Act supports the

interpretation of the Act that allows Goodman to move forward with her claim for damages....................................................................................................8

2. The case law interpreting the Immunity from Seizure Act supports the claim that the statute allows Goodman to move forward with her lawsuit for damages ...............................................................................................10

3. Public policy favors interpreting the Immunity from Seizure Act to allow Goodman to move forward with her lawsuit, as this interpretation will discourage the lending of stolen artwork and allow art theft victims to recover damages for their property........................................................................12

B. The equitable defense of laches does not bar Goodman’s suit for damages

since MALVA failed to show that Goodman and her predecessors in title unreasonably delayed filing suit against the museum and that MALVA suffered undue prejudice as a result of any delay........................................................14 1. Goodman did not unreasonably delay filing this lawsuit against MALVA

iii

because when weighed against MALVA’s inaction, Goodman and her predecessors in title were diligent in their search for Casas .................................15

a. Goodman and her predecessors in title acted diligently in searching

for the stolen painting ......................................................................................16

b. MALVA’s failure to search for title to Casas upon its inheritance of the Painting undermines the success of its laches defense ..............................23

2. MALVA has not met its burden of proof in demonstrating that it suffered

prejudice as a result of Goodman’s alleged delay in commencing this action......26 Appendix..................................................................................................................................... 1-A

iv

TABLE OF AUTHORITIES

UNITED STATES SUPREME COURT CASES Connecticut Nat’l Bank v. Germain

503 U.S. 249(1992)............................................................................................................10 Dean v. U.S.

129 S. Ct. 1849 (2009).........................................................................................................9 I.N.S. v. Nat’l Ctr. for Immigrants’ Rights, Inc.

502 U.S. 183 (1991).............................................................................................................9 Mead Corp. v. Tilley

490 U.S. 714 (1989).............................................................................................................9 Lamie v. U.S. Trustee

540 U.S. 526 (2004).............................................................................................................9 UNITED STATES COURTS OF APPEALS CASES Autocephalous Greek-Orthodox Church of Cyprus v. Goldberg & Feldman Fine Arts, Inc.,

917 F.2d 278 (7th Cir. 1990) .................................................................................23, 24, 25 DeWeerth v. Baldinger

836 F.2d 103 (2d Cir. 1987) ..............................................................................................27 Kunstsammlungen Zu Weimar v. Elicofon

678 F.2d 1150 (2d Cir. 1982) ............................................................................................18 Robins Island Pres. Fund, Inc. v. Southold Dev. Corp.

959 F.2d 409 (2d Cir. 1992) ............................................................................19, 21, 27, 28

UNITED STATES DISTRICT COURTS CASES Delocque-Fourcaud v. The Los Angeles County Museum of Art

No. 2:03-cv-05027-R-CT (C. D. Cal 2003).......................................................................11 Deutsch v. Metro. Museum of Art

No. 04 Civ. 8587 (S.D.N.Y. 2004) ....................................................................................11 DeWeerth v. Baldinger

804 F. Supp. 539 (S.D.N.Y. 1992) .............................................................................passim Erisoty v. Rizik

No. CIV. A. 93-6215, 1995 WL 91406 (E.D. Pa. Feb. 23, 1995) ..............................passim Finnerty v. Wireless Retail, Inc.

624 F. Supp. 2d 642 (E.D. Mich. 2009) ............................................................................14 Greek Orthodox Patriarchate of Jerusalem v. Christie’s, Inc.

No. 98 CIV. 7664 (KMW), 1999 WL 673347 (S.D.N.Y. Aug. 30, 1999) ..................18, 21 Kamat v. Kurtha

No. 05 CV. 10618 KMH THK, 2009 WL 103643 (S.D.N.Y. Jan. 15, 2009) ...................16 Magness v. Russian Fed'n

84 F. Supp. 2d 1357 (S.D. Ala. 2000) ...............................................................................11 Malewicz v. City of Amsterdam

362 F. Supp. 2d 298 (D.D.C. 2005).......................................................................11, 12, 13 Romanov v. Florida Int’; Museum

No. 95-001285- CI-008 (Cir. Ct. Pinellas Cty. Fla 1995) .................................................11

v

STATE COURT CASES 269 Associates v. Yerkes

449 N.Y.S.2d 593 (N.Y. Civ. Ct. 1982) ......................................................................15, 26 Glenesk v. Guidance Realty Corp.

321 N.Y.S2d 685 (N.Y. App. Div. 1971) ..........................................................................26 Knorr v. Smeal

836 A.2d 794 (N.J. 2003) ..................................................................................................14 O’Keefe v. Snyder

416 A.2d 862 (N.J. 1980) ..................................................................................................16 Solomon R. Guggenheim Found. v. Lubell

569 N.E.2d 426 (N.Y. App. Div. 1991)......................................................................passim Solomon R. Guggenheim Found. v. Lubell

153 A.D.2d 143 (N.Y. App. Div. 1990) ..........................................................23, 26, 27, 29 U.S. ex rel. U.S. Dept of Agric. v. Scurry

940 A.2d 1164 (N.J. 2008) ................................................................................................14 Wertheimer v. Cirker’s Hayes Storage Warehouse Inc.

752 N.Y.S.2d 295 (App. Div. 2002)......................................................................19, 21, 25 STATUTES Federal Immunity from Seizures Act,

22 U.S.C.A. § 2459 (West 2011).....................................................................................6, 8 SECONDARY SOURCES 111 Cong. Rec. 25,928-29 (1965) (statement of Rep. Rogers) .......................................................9 Alexandra Minkovich, The Successful Use of Laches in World War II-Era Art Theft Disputes:

It's Only A Matter of Time, 27 Colum. J.L. & Arts 349 (2004).............................22, 23, 28 H.R. Rep. No. 89-1070, at 3577 (1965).................................................................................6, 7, 10 Jessica L. Darraby, Art, Artifact, Architecture and Museum Law: Immunity from Seizure Act

§ 6:134 (West 2010) ........................................................................................................7, 8 Marilyn E. Phelan, Scope of Due Diligence Investigation in Obtaining Title to Valuable Artwork,

23 Seattle U. L. Rev. 631 (2000) .................................................................................24, 25

Norman J. Singer & J.D. Shambie Singer, Sutherland Statutory Construction, § 47:23 (7th ed. 2010)..........................................................................................................9

Rodney M. Zerbe, Immunity from Seizure for Artworks on Loan to United States Museums, 6

Nw. J. Int'l L. & Bus. 1121, 1124, 1129 (1984-1985) ...........................................10, 12, 13

vi

OPINION BELOW

The United States Court of Appeals for the Twelfth Circuit's order and opinion affirming

in part and reversing in part the decision of the district court, remanding to the district court for

further proceedings is unreported. Goodman v. Museo de Arte Latinoamericano de Valentín

Alsina, No. 10-1550 (12th Cir. Nov. 12, 2010). The United States District Court for the Southern

District of DePaulia's order and opinion granting Petitioner-Defendant's motion for summary

judgment is also unreported. Goodman v. Museo de Arte Latinoamericano de Valentín Alsina,

No. 12 X 123 (S.D. DeP. 2010).

JURISDICTION

The judgment of the United States Court of Appeals for the Twelfth Circuit was entered

on November 12, 2010. On November 12, 2010, this Court granted Petitioner’s writ of

certiorari. The jurisdiction of this Court is invoked under 28 U.S.C. § 1254(1).

STATUTORY PROVISION

The Immunity from Seizure Act, 22 U.S.C. §2459, prohibiting seizure under judicial

process of cultural objects imported for temporary exhibition or display, is reproduced in the

Appendix of this brief.

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STATEMENT OF THE CASE

In the wake of World War II, art thefts have led to a thriving international market where

museums’ and galleries’ illegal possession of coveted works comes at the expense of persecuted

victims and their families. Lawsuits asserting rights to stolen artwork have given victims a

chance to gain a small sense of justice and equity.

A Victim’s Search for her Stolen Artwork

Fearing Nazi persecution, Respondent’s grandmother and predecessor in title, Yulia

Komarova (“Komarova”) was forced to flee Vienna in 1938 leaving her private collection of

paintings, including a Xul Solar painting entitled Casas (the “Painting”), in a warehouse for

safekeeping. Goodman v. Museo de Arte Latinoamericano de Valentín Alsina, No. 10-1550, slip

op. at 2 (12th Cir. Nov. 12, 2010). It was not until 1950 that Komarova was able to obtain any

information regarding the contents of the warehouse. Id. At which time, merely five years

before her death, Komarova learned that all of the contents in the warehouse, including Casas,

had been stolen. Id. Though Komarova did not register Casas with any post-war databases or

make claims against the Austrian government for the return of the Painting, her knowledge of

such resources was limited upon moving to the United States. Id.

The Resurfacing of Casas and the Chain of Wrongful Possession

In 1946, Thomas Brown (“Brown”) purchased Casas in a flee market in Vienna. Id.

Never having loaned or publicly displayed the Painting, Brown sold Casas to Argentinean,

Francisco Moreno (Moreno), who neglected to do a title search upon purchase. Id. at 2-3. In

1990, an image of Casas appeared in a catalogue, published in Spanish, attributing ownership of

the painting to Moreno. Goodman, slip op. at 3. Following Moreno’s death, Petitioner, Museo

de Arte Latinoamericano de Valentín Alsina (“MALVA”) gained possession of Casas. MALVA

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is owned and administered by the private, non-profit, non-governmental Moreno Foundation. Id.

In January 2007, MALVA reached an agreement with the DePaulia Museum of Modern Art

(“MMA”) to loan the Xul Solar collection, which included Casas, to the American museum. Id.

The exhibition was advertized throughout the national art industry, and Casas was granted

immunity from seizure under the Immunity from Seizure Act (“ISA”), 22 U.S.C. §2459 while on

display in the MMA. Id. Casas went on display in the MMA in January 2010. Id. at 4.

Judicial Resistance to the Rightful Reclamation

Ten days after Casas went on display, Respondent Amy Goodman (“Goodman”),

Komarova’s sole surviving heir, presented a demand to MALVA to return the painting to

Goodman, the rightful owner. Id. Three months later, MALVA denied Goodman’s demand,

prompting Goodman to file this suit in the U.S. District Court for the Southern District of

DePaulia for MALVA’s unlawful acquisition of Casas and damages for the conversion of the

Painting. Goodman, slip op. at 4.

In response, MALVA filed a motion for summary judgment on May 1, 2010, arguing

that the government’s grant of immunity to Casas under the ISA barred any U.S. court from

ruling in any manner that would interfere with MALVA’s possession of Casas while in the

MMA or from awarding damages in the amount of Casas’ fair market value. Id. In the

alternative, MALVA pleaded that Goodman’s claim was barred by the statute of limitations and

laches. Id. Though holding that the ISA did not bar Goodman’s claim, the district court held

that MALVA’s laches defense was a complete bar to the action. Id.

The United States Court of Appeals for the Twelfth Circuit, on appeal, affirmed the

district court’s holding that ISA did not bar Goodman’s claim. Id. at 5. In addition, the Twelfth

Circuit reversed the district court’s holding that Goodman’s claim was barred by the statute of

3

limitations and laches because MALVA failed to make the necessary showing that it suffered

legal harm or prejudice as a result of Goodman’s alleged delay filing this suit. Id. at 8.

Petitioners appeal the Twelfth Circuit’s decision and present two issues before this

Supreme Court.

SUMMARY OF THE ARGUMENT

Both challenges to Respondent Amy Goodman’s (“Goodman”) claim for damages and

conversion of the painting, Casas (or the “Painting”), require this Court to affirm the Twelfth

Circuit’s decision. Pursuant to the Immunity from Seizure Act (“ISA” or “Act”), Goodman

should be allowed to proceed with her lawsuit for damages against Petitioner (“MALVA”). The

statute grants immunity from seizure to the foreign-loaned artwork in that the United States

judicial process cannot take possession of an object while it is on display in the United States.

By giving this extra protection to artwork and its borrowing museum, Congress intended for the

ISA to encourage foreign owners to lend their art to the United States. By its literal terms, the

ISA makes it clear that the Act prohibits physical seizure of loaned objects while in the United

States, but the ISA is silent regarding bans on lawsuits for damages relating to a piece or

collection of art. The title, provisions, and purpose of the ISA solely focus on protecting artwork

from seizure and therefore, the Act should not be read to assume that it provides a complete ban

on all lawsuits. If this Court allows Goodman to go forth with her lawsuit and Congress, in

reviewing the decision, believes that this Court did not interpret the ISA as the legislature had

intended, then it is solely Congress’ role to change or add verbiage to the statute’s text.

In addition to a plain language reading of the ISA, leading case law interpreting the Act

as well as sound policy suggest that the ISA should only ban seizure of loaned cultural artifacts

and not lawsuits for damages. If the terms of the ISA are unnecessarily expanded, then such an

4

interpretation could have the effect of promoting the lending of stolen artwork. If foreign lenders

know that no legal action can arise out of the loaned artwork, then there will be no incentive to

do background checks and verify titles to these pieces or collections. Further, an interpretation

as Petitioner suggests will have a chilling effect by leaving individuals like Goodman powerless

to recover damages for stolen property that is rightfully hers. The ISA was enacted to encourage

the lending of legitimate artwork and other cultural objects and not to allow for the United States

to become a safe haven for theft. Accordingly, Goodman should be able to proceed with her suit

because the plain language of the ISA, the case law interpreting the Act, and public policy

concerns all suggest that the statute is limited solely to prohibiting the seizure of loaned artwork.

Further, Goodman’s claim is not barred by MALVA’s affirmative defense of laches

because the moving party, MALVA, has failed to satisfy both elements of the defense. To assert

successfully a defense of laches, the MALVA must demonstrate that i) Goodman has

unreasonably delayed filing suit, and ii) MALVA has suffered as a result of that delay. First, in

weighing the equities of the respective parties, Goodman did not unreasonably delay in filing this

lawsuit against MALVA because she and her predecessors in title were diligent in their search

for the stolen Painting. In light of the specific facts and circumstances of this case, Goodman

acted reasonably as a non-institutional claimant by keeping her eyes and ears open in her efforts

to locate the Painting. Further, the amount of time between Goodman locating the Painting and

commencing this action does not constitute a significant delay, as she demanded that MALVA

return Casas merely ten days after it went on display at the DePaulia museum. Similarly, her

grandmother, Komarova, acted reasonably as an individual collector in her efforts to locate the

Painting after it was stolen from a warehouse where she stored her possessions when forced to

flee Nazi-occupied Vienna. Moreover, governments have just recently begun to declassify Nazi

5

documentation including information about stolen artwork. Thus, until recently, Goodman’s

sources for locating and recovering Casas were limited. In contrast, MALVA, an art museum

with expansive resources at its disposal, failed to take any steps to track Casas’ title or

provenance. Since laches is a determination in equity, MALVA’s vigilance upon inheriting the

Painting is equally important as Goodman’s diligence and its failure to act weighs in Goodman’s

favor as the rightful owner.

Additionally, MALVA did not suffer legal harm or prejudice as a result of an alleged

delay, and short of such causation, MALVA has failed to establish a successful laches defense.

In spite of the sixty-five years that have passed since the Painting was stolen, MALVA has not

been prejudiced by the loss of evidence, as Nazi documentation was at MALVA’s disposal to

establish title. Similarly, MALVA has failed to allege that it has suffered financial harm as a

result of the delay. In fact, MALVA has benefited from the time that it has been in possession of

Casas by being able to enjoy and exhibit the Painting. As such, the balance of equities requires

this Court to hold that Goodman’s claim is not barred by laches. Therefore, this Court should

affirm the Twelfth Circuit’s ruling because both of Petitioner’s challenges fail.

ARGUMENT THIS COURT SHOULD AFFIRM THE TWELFTH CIRCUIT’S JUDGMENT AS A MATTER OF LAW BECAUSE A GRANT OF IMMUNITY UNDER THE IMMUNITY FROM SEIZURE ACT, 22 U.S.C. §2459, DOES NOT PRECLUDE A SUIT FOR DAMAGES, AND THE PRESENT ACTION IS NOT BARRED BY THE DEFENSE OF LACHES. After World War II, millions of individuals and their families, including Holocaust

victims and those who were forced to flee from their homes to escape Nazi persecution, became

victims of theft. Title to artwork that was stolen during the War continues to present courts with

the challenge of balancing divergent parties’ competing interests in such property. Today, this

Court has the opportunity to rectify the injustice suffered by one such victim and her family

6

members. Respondent, Amy Goodman (“Goodman”) and her predecessors in title, including her

grandmother, Yulia Komarova (“Komarova”) have already suffered from conversion, theft, and

years of deprivation from their rightfully owned painting, Casas (or the “Painting”). This Court

can provide Goodman the chance to have her case heard fairly, evening the scale of justice and

moving away from an image of American culture that is based upon false pretexts and deception

for which there is no legal recourse. In denying Petitioner’s, Museo de Arte Latinoamericano de

Valentín Alsina (“MALVA”) contention that this action is barred by Immunity from Seizure Act

(“ISA” or the “Act”), 22 U.S.C §2459, and its affirmative defense of laches, this Court’s holding

will promote intolerance for irresponsible trading practices and illegal art trafficking.

This Court should affirm the Twelfth Circuit’s holding that the ISA does not bar a suit for

damages and that the defense of laches is not applicable. First, a grant of immunity to the

Painting under the ISA does not bar a claim for damages against MALVA as the lending

institution. Second, MALVA’s laches defense fails as the museum has failed to demonstrate that

Goodman unreasonably delayed filing this lawsuit and that MALVA suffered legal harm or

prejudice as a result of any alleged delay.

A. Since the Immunity from Seizure Act grants immunity to foreign-owned artwork from seizure while in the United States, but it does not grant immunity to the foreign lender from a claim for damages arising out of said artwork, Goodman should be able to move forward with her lawsuit.

The Immunity from Seizure Act (ISA), 22 U.S.C. § 2459 grants immunity from seizure

of artwork by judicial process but not immunity from a lawsuit for damages relating to that piece

or collection of art. The ISA was passed on October 19, 1965 with the purpose of encouraging

the lending of foreign-owned artwork or other objects of cultural significance to the United

States for temporary display. H.R. Rep. No. 89-1070, at 3577 (1965). Under the ISA, if the

President or one of his designees determines that the artwork is of cultural significance, on loan

7

to the United States for temporary not-for-profit exhibition, and is of national interest, then

public notice granting immunity must be published in the federal register. Jessica L. Darraby,

Art, Artifact, Architecture and Museum Law: Immunity from Seizure Act § 6:134 (West 2010).

Once notice is published, then a U.S. attorney or the Attorney General in a given district may

intervene and quash any judicial proceeding attempting to seize the foreign-owned work while in

the United States. H.R. Rep. No. 89-1070 at 3577. Owners are much more likely to lend out

their art as a result of the ISA’s guarantee of a safe harbor to the foreign lenders where their

artwork will not be seized or attached while in the United States. See id. In turn, the ISA

increases international cooperation and greatly benefits the citizens of the United States by

providing the opportunity to view and learn about artwork and other important cultural objects

that they might not have been able to see otherwise. See id.

In the present case, Respondent should be able to proceed with her lawsuit for damages

relating to Casas because MALVA’s grant of immunity under the ISA only protects Casas from

seizure while in the United States and not a lawsuit against MALVA for damages. First, the text

of the ISA only bars seizure of artwork and not a suit for damages against the foreign lender. If

Congress intended for the ISA to ban lawsuits for damages as well, then the legislature, not this

Court, should be the governmental institution in charge of adding words to the statute. Next, the

few court cases that exist concerning the ISA all suggest that a suit for damages is entirely

permissible under the ISA. Finally, public policy favors an interpretation of the ISA in a way

that permits suits for damages since a statutory bar would promote lending of stolen artwork to

the United States without consequence and unfairly prejudice theft victims like Goodman.

Moreover, United States museums will not be deprived of artwork collections under this

8

interpretation of the ISA because there are plenty of perfectly legitimate cultural objects and

collections for museums to borrow.

1. The plain language of the Immunity from Seizure Act supports the interpretation of the Act that allows Goodman to move forward with her claim for damages.

To begin, the plain language of the ISA only prohibits seizure of artwork but not damages

relating to that artwork. The ISA states, in part:

Whenever any work of art or other object of cultural significance is imported into the United States from any foreign country…for the temporary exhibition or display thereof within the United States…no court of the United States, any State, the District of Columbia, or any territory or possession of the United States may issue or enforce any judicial process, or enter any judgment, decree, or order, for the purpose or having the effect of depriving such institution, or any carrier engaged in transporting such work or object within the United States, of custody or control of such object….

22 U.S.C.A. § 2459(a) (West 2011). The ISA is best understood to mean that the judicial

process may not physically seize or have the effect of seizing a piece of foreign-owned art from a

borrowing museum, but the specific wording of the ISA does not bar a suit for damages against

the lender which relates to that artwork. See id. As such, foreign lenders can be certain that their

artwork or other cultural objects will not be seized while in the United States, but it is possible

that the lenders may be susceptible to other legal proceedings in the United States, such as a suit

for monetary damages. See Darraby, supra, § 6:134.

Petitioner argues that the Act’s wording should not be read so narrowly; however,

Congress would not have drafted the Act as is if it had in fact intended for the ISA to bar

lawsuits for damages. First, if the legislature wanted the ISA to preclude a suit for damages as

well as seizure, the title of the bill would not be the “Immunity from Seizure Act.” The United

States Supreme Court has consistently advocated that a statute’s title can be used in resolving its

9

text’s ambiguities. See e.g. I.N.S. v. Nat’l Ctr. for Immigrants’ Rights, Inc., 502 U.S. 183, 189

(1991); Mead Corp. v. Tilley, 490 U.S. 714, 723 (1989). Second, by clearly laying out the

prohibition against seizure of artwork, it logically follows that the legislature was excluding the

ban of other types of lawsuits under the ISA. The statutory interpretation canon of expressio

unius stands for this exact principle in that the inclusion of one thing means the exclusion of

another. Norman J. Singer & J.D. Shambie Singer, Sutherland Statutory Construction, § 47:23

(7th ed. 2010). Thus, if Congress had aimed to prohibit lawsuits for damages as well as physical

seizure, then there would be clear language in the bill detailing this type of immunity. Lastly, if

Congress intended or wanted to add wording that indicated a ban against lawsuits for damages,

then the legislature, not this Court, is charged with that responsibility. The court’s role is to

interpret statutory language and “resist reading words or elements into a statute that do not

appear on its face.” Dean v. U.S., 129 S. Ct. 1849, 1853 (2009). If Congress believes that this

Court’s interpretation of the ISA is incorrect, then it is Congress’ role to amend the statute.

Petitioner also looks to the legislative history behind the statute in attempting to argue

that the ISA’s language bars suits for damages. Petitioner relies on a single Colorado

Congressman Rogers’ statement, “the bill would assure the country that if they did send the

objects to us, they would not be subjected to a suit and an attachment in this country. . . ,” to

indicate that the ISA was passed in order to prohibit seizure of artwork and a suit for damages.

111 Cong. Rec. 25,928-29 (1965) (statement of Rep. Rogers). However, this argument is

meritless because it is based on one Congressman’s solitary sentence, which is buried in the

midst of varying opinions. This single opinion does not have the binding force of the law. In

fact, reviewing each Congressman’s opinions and intentions for a proposed bill, often leaves the

court with more confusion than clarity. See Lamie v. U.S. Trustee, 540 U.S. 526, 539 (2004).

10

Rather, by simply interpreting the ISA based on the statute’s plain language, this court can avoid

a plethora of untrustworthy interpretations and viewpoints. In general, this Court should be

weary of legislative history because it is not the law, and it is not helpful when the text’s plain

language is not absurd, but rather, yields a fair and just result. Here, a plain reading of the ISA

yields fair and just results. Artworks such as Casas will be safe from seizure, but the foreign

lenders will not be immune carte blanche to all types of legal recourse and thereby will be

responsible for their dealings.

Moreover, the ISA contains a clearly stated purpose, which suggests that this Court need

not look any further than the text itself. See H.R. Rep. No. 89-1070 at 3577. It is apparent that

Congress’ goal was to encourage a cultural exchange of objects increasing international relations

and not to irrationally provide a blanket ban to foreign lenders from lawsuits. Rodney M. Zerbe,

Immunity from Seizure for Artworks on Loan to United States Museums, 6 Nw. J. Int'l L. & Bus.

1121, 1124, 1129 (1984-1985). Overall, the most trustworthy form of statutory interpretation is

to “presume that [the] legislature says in a statute what it means and means in a statute what it

says there.” Connecticut Nat’l Bank v. Germain, 503 U.S. 249, 253-254 (1992). Accordingly,

this Court needs only to look at the plain language of the text and hold that the ISA does not bar

Goodman’s suit for damages.

2. The case law interpreting the Immunity from Seizure Act supports the claim that the statute allows Goodman to move forward with her lawsuit for damages.

The courts’ interpretations of the ISA have been consistent in holding that the ISA only

grants immunity from seizure of foreign-owned artwork and other cultural objects and not

immunity from a lawsuit for damages. In Magness v. Russian Federation, an Alaskan district

court held that an art exhibit on loan to the United States could not be seized by judicial process

11

in order to allow the plaintiffs to recover damages awarded to them in a previous lawsuit

concerning expropriation of the artifacts. 84 F. Supp. 2d 1375, 1358-1359 (S.D. Ala. 2000).

While the court offered that the plaintiffs could recover on their judgment against the Russian

Federation in another fashion, it was clear that the ISA precluded them from seizing the artwork

as a form of partial payment. Id.

In the most recent case concerning the ISA, Malewicz v. City of Amsterdam, heirs of a

Russian painter brought suit for damages against the City of Amsterdam whose museum had

claimed to own pieces of a Russian painter’s collection, which it had loaned to the United States.

362 F. Supp. 2d 311, 301-304 (D.D.C. 2005). The D.C. District Court reasoned that because the

heirs were not seeking judicial seizure of the collection, the City’s reliance on the ISA was

misplaced. Id. at 312. In furtherance of Magness, the court clarified that the ISA does not bar

“suits for declarations of rights or for damages arising under an alleged conversion,” provided

that jurisdictional issues are satisfied. Id. at 312.

Further, three unpublished, straightforward cases litigating the terms of the ISA provide

additional support for the statutory interpretation that Goodman advocates. See Romanov v.

Florida Int’l Museum, No. 95-001285- CI-008 (Cir. Ct. Pinellas Cty. Fla 1995); Delocque-

Fourcaud v. The Los Angeles County Museum of Art, No. 2:03-cv-05027-R-CT (C.D. Cal 2003);

Deutsch v. Metro. Museum of Art, No. 04 Civ. 8587 (S.D.N.Y. 2004). In each case, the

defendant art exhibitions were granted immunity under the ISA and the plaintiffs were not able

to seize the artwork to which they claimed title. Id. However, the holdings in each case are

consistent with the textual interpretation of the ISA that definitively prohibits seizure but not

lawsuits for damages. Id. Consistent with Magness, here, Goodman is not suing the borrowing

institution. See 84 F. Supp. 2d at 1358-1359; Goodman v. Museo de Arte Latinoamericano de

12

Valentín Alsina, No. 10-1550, slip op. at 4 (12th Cir. Nov. 12, 2010). Further, just as the heirs

in Malewictz, Goodman is not attempting to seize the Painting, but rather is simply attempting to

sue the lender. See 362 F. Supp. 2d at 311; Goodman, slip op. at 4. In keeping with precedent’s

consistent interpretation, this Court should allow Goodman to proceed with her lawsuit because

she is suing the lender, MALVA, for damages and not attempting to seize the Painting.

3. Public policy favors interpreting the Immunity from Seizure Act to allow Goodman to move forward with her lawsuit, as this interpretation will discourage the lending of stolen artwork and allow art theft victims to recover damages for their property.

It is sound public policy to restrict the ISA to its terms of immunity from seizure in order

to promote the lending of artwork with good title. Congress anticipated that the ISA would

greatly benefit society artistically, educationally, and diplomatically by enhancing America’s

knowledge of foreign artwork and building relationships with historically hostile countries.

Zerbe, supra, at 1124. However, it is absurd to presume that the ISA would have been passed if

Congress thought that the Act would ultimately promote the lending of stolen objects. If this

Court interprets the ISA in a way that immunizes foreign lenders from lawsuits for damages, the

United States will become a safe haven for stolen goods as foreign lenders will continue the

black market art trade in America knowing that they cannot be sued in United States courts. The

interpretation that Petitioner suggests not only provides no incentive for foreign lenders or

borrowing institutions to verify the authenticity and title to a collection before lending out or

exhibiting the artwork, but also encourages art theft. Congress’ intent to provide a genuine

educational experience and cultural exchange would be greatly undermined if the ISA merely

provided a loophole to escape this country’s justice system. The ISA was enacted to protect

borrowing institutions from losing possession of a loaned cultural artifact, providing an

additional layer of comfort and security to foreign lenders to encourage an honest and

13

responsible cultural exchange. Id. at 1128. While, the ISA assures foreign lenders that their

artwork will be safe while in the United States, nowhere does the Act provide such protection to

the lender itself. Id. at 1121.

Yet, Petitioner argues that allowing a lawsuit for damages to go forward will halt the

lending of foreign artwork; however, there is no proof that this assumption is a reality. On the

contrary, the ISA ensures that U.S. museums will have legitimate artwork to exhibit and works to

increase the number of collections lent to the United States. Even supposing that the majority of

artwork in the U.S. has not been rightfully gifted or purchased by foreign lenders, there is no

justification for allowing United States’ museums to exhibit stolen artwork. Moreover,

Petitioner has put forth no evidence that after the Malewicz decision, which allowed lawsuits for

damages under the ISA, foreign lenders have become less receptive to loaning artwork to

American museums. See 362 F. Supp. 2d at 312. If there were going to be a major decrease in

the lending of foreign artwork due to a plain language reading of the ISA, as in Malewicz, this

country would have surely noticed those effects in the six years since that decision.

Furthermore, if this Court barred Goodman from moving forward with her lawsuit, it

would have adverse effects for an entire art community as well as the art theft victims. These

victims would be silenced and barred from pursuing justice, art thefts would be encouraged

because of a lack of consequence, and museums would lose the motivation to do proper

background checks on their artworks. In addition, Goodman, the wronged victim, would be

entirely prohibited from seeking recourse for the theft if she could not move forward with this

action. Goodman should not have to suffer further injustice after her family’s history of Nazi

persecution and the theft of her grandmother’s possession all in the name of cultural expansion

as United States increases its access to stolen property and promotes an already flourishing black

14

market for artwork. Taken as a whole, the ISA stands for the United States’ commitment to

cultural cooperation, responsibility, and exchange but not for the principles of theft and

prejudice.

Therefore, this Court should hold that Goodman may proceed with her lawsuit for

damages against MALVA because the ISA only protects borrowing institutions and the artwork

they exhibit but does not protect the foreign lender from suits for damages. By the literal terms

of the ISA, a plaintiff can sue for damages but not for seizure of foreign-owned artwork on

display in the United States. The current case law interpreting the ISA is clear in that the lender

is not protected from a lawsuit when he or she possesses stolen artwork. Finally, sound public

policy supports an interpretation that the ISA prohibits seizure but not a lawsuit to recover

damages because the United States should not become a safe haven for stolen goods. As a

victim of theft, Goodman should be allowed to recover damages for property that is rightfully

hers.

B. The equitable defense of laches does not bar Goodman’s suit for damages since MALVA failed to show that Goodman and her predecessors in title unreasonably delayed filing suit against the museum and that MALVA suffered undue prejudice as a result of any delay.

In a demand and refusal jurisdiction, such as this, claims asserted by the original owners

of stolen property demanding the return of such property may be barred by the affirmative

defense of laches. The doctrine of laches is an equitable defense “invoked to deny a party

enforcement of a known right when the party engages in an inexcusable and unexplained delay

in exercising that right which results in prejudice [to] the other party.” U.S. ex rel. U.S. Dept of

Agric. v. Scurry, 940 A.2d 1164, 1170-71 (N.J. 2008) (quoting Knorr v. Smeal, 836 A.2d 794,

800 (N.J. 2003)). As an affirmative defense, the defendant bears the burden of proof and must

satisfy both elements of the doctrine. Finnerty v. Wireless Retail, Inc., 624 F. Supp. 2d 642, 665

15

(E.D. Mich. 2009). To assert successfully an affirmative defense of laches, the proponent must

demonstrate that i) “the [non-moving party] has unreasonably delayed filing suit,” and ii) “the

[proponent] has suffered harm as a result of that delay.” 269 Associates v. Yerkes, 449 N.Y.S.2d

593,597 (N.Y. Civ. Ct. 1982). As a doctrine that balances the parties’ competing interest in

equity, courts consider both parties’ reasonableness. Solomon R. Guggenheim Found. v. Lubell,

569 N.E.2d 426, 431 (N.Y. App. Div. 1991). Generally, in a demand and refusal jurisdiction,

courts are reluctant to dismiss cases on laches grounds because the degree of harm to which the

defendant suffers must be great when ownership of personal property is disputed. See DeWeerth

v. Baldinger, 804 F. Supp. 539, 544 (S.D.N.Y. 1992), rev’d, 38 F.3d 1266 (2d Cir. 1994).

Accordingly, since Petitioner has failed to carry its burden of proof for both elements of

its defense, this Court should hold that laches does not bar Goodman’s claim against MALVA.

First, equity demands a finding that Goodman did not unreasonably delay in filing this lawsuit

because of the horrific and unique circumstances under which the disputed painting, Casas (or

the “Painting”) was stolen and the difficulties Goodman and her predecessors faced in attempting

to locate the Painting. Moreover, this Court must weigh MALVA’s failure to take cautionary

steps to search for title upon inheriting Casas. Second, even if this Court concludes that the

delay was unreasonable, a laches defense still fails because MALVA has not shown that it

suffered any form of prejudice, namely evidentiary or financial harm, as a result of an alleged

delay in filing suit.

1. Goodman did not unreasonably delay filing this lawsuit against MALVA because when weighed against MALVA’s inaction, Goodman and her predecessors in title were diligent in their search for Casas.

Balancing the equities, Goodman did not unreasonably delay commencing this action, as

she was diligent in her attempts to find and recover Casas. Under laches, “to establish a lack of

16

diligence as a matter of law, the moving party must show that the owner’s failure to demand the

return of the property upon discovering the stolen property’s location was unreasonable under

the circumstances.” Kamat v. Kurtha, No. 05 CV. 10618 KMH THK, 2009 WL 103643, at *4

(S.D.N.Y. Jan. 15, 2009). Reasonable diligence is not based on a common standard but rather

varies based on the particular facts of a case. O’Keefe v. Snyder, 416 A.2d 862, 873 (N.J. 1980);

Guggenheim, 569 N.E.2d at 431. Further, when assessing delay, courts should focus on the

reasonableness of a true owner’s delay rather than on the length of the delay. DeWeerth II, 804

F. Supp. at 553. Here, Goodman and her predecessors in title acted diligently, as non-

institutional claimants, in claiming title to Casas when information regarding its whereabouts

became available to them, whereas MALVA, an art institution with access to a plethora of art

resources, failed to take any steps to locate the Painting’s title.

a. Goodman and her predecessors in title acted diligently in searching for the stolen painting.

Goodman did not unreasonably delay filing this lawsuit since MALVA has failed to

demonstrate that Goodman did not diligently search for Casas. In determining whether a party

unreasonable delayed filing suit, courts must consider whether the original owner acted

diligently in searching for and retaining a right to the stolen property. Kamat, 2009 WL 103643,

at *4. A failure to take significant steps to locate missing artwork is not per se unreasonable, but

rather, “the value of the property stolen, the manner in which it was stolen, and the type of

institution from which it was stolen will all necessarily affect the manner in which a true owner

will search for missing property.” Guggenheim, 569 N.E.2d at 431.

Generally, courts are reluctant to find as a matter of law that the original owner lacked

diligence in searching for his stolen property. Kamat, 2009 WL 103643, at *4. In Solomon R.

Guggenheim Foundation v. Lubell, a museum claimed ownership over a Marc Chagall gouache

17

that had been stolen over twenty years prior to filing a lawsuit. 569 N.E.2d at 427. At the time

of the theft, the museum failed to report the missing work to law enforcement authorities or to

register it in any stolen art databases. Id. Although the museum failed to take any action other

than to search its premises to locate the missing work, such behavior was not unreasonable per

se. Id. at 431. Though an examination of such diligence was an unnecessary consideration

under the statute of limitations grounds that the court was considering, it was determined that the

inquiry was relevant to a laches claim. Id. at 320. However, the court cautioned that due to the

diverse circumstances under which art theft cases arise it would be impracticable, if not

impossible to create a standardized diligence requirement without unnecessarily burdening the

true owners. Id.

Similarly, though reviewing an art theft victim’s claim under the discovery rule and not a

laches analysis, the district court of Pennsylvania’s ruling in Erisoty v. Rizik is instructive in

determining whether victims were reasonably diligent in searching for their missing artwork, as

the diligence analysis is the same. No. CIV. A. 93-6215, 1995 WL 91406, at *10 (E.D. Pa. Feb.

23, 1995). The Erisoty court held that the family from whom a painting was stolen was

sufficiently diligent in its attempt to recover the art, even though they failed to notify the

international art market that the painting was stolen over thirty years ago. Id. at *13.

Recognizing that it is reasonable for one’s search efforts to wane as time passes, the court

concluded that because the painting had been located within a few years after it was purchased,

though many years after it was stolen, such action was sufficient to constitute a continuing

vigilance. Id. at *14. The court therefore held that the family’s lack of contact with law

enforcement officials was not unreasonable and that a “more plausible approach” was “to keep

eyes and ears open.” Id. at *13.

18

Further, equity demands less of private or individual claimants who lack knowledge of

and connections to the art world to demonstrate reasonableness in their search for missing

property as opposed to sophisticated art collectors such as museums. See id. The Erisoty court

drew a sharp distinction between the diligence expected of institutional claimants versus non-

institutional claimants, like Goodman, reasoning that a lower standard of diligence for non-

institutional claimants is justified because of private collectors’ “lack of familiarity with the art

world.” Id. Notably, the court focused on the family’s actions after learning of stolen art

databases for locating its missing painting rather than its alleged lack of diligence for failing to

discover that such databases existed. 1995 WL 91406, at *13. Analogously, in DeWreeth v.

Baldinger, the court gave due consideration to the claimant’s identity in its laches analysis where

the individual owner was disadvantaged by her lack of “institutional resources to trace the stolen

art.” 804 F. Supp at 553.

However, without consideration for the art theft victim’s status, a court may mistakenly

determine that a victim lacked diligence in searching for his missing work and thereby

unreasonably delayed filing suit. See Greek Orthodox Patriarchate of Jerusalem v. Christie’s

Inc., No. 98 CIV. 7664 (KMH), 1999 WL 673347, at *10 (S.D.N.Y. Aug. 30, 1999). Applying

French law, the district court in Greek Orthodox Patriarchate of Jerusalem v. Christie’s, Inc.

determined in non-controlling dicta that an order of monks asserting ownership over an ancient

palimpsest lacked diligence through its failure to search publicly for the missing artifact. Id. at

*3. Relying on authority where the claimant was a museum, rather than an individual, the Greek

Orthodox court employed a rigid standard for the non-institutional claimant, and concluded that

the order of monks was not diligent in its search for the missing manuscript. Id. at **9-10 (citing

Kunstammlugen Zu Weimar v. Elicofon, 678 F.2d 1150 (2d Cir. 1982)). In a like fashion, in

19

Wertheimer v. Cirker’s Hayes Storage Warehouse Inc., the court’s failure to question whether a

private art collector’s actions to recover his misappropriated paintings were reasonable in light of

the aftermath of World War II resulted in a finding for the defendant art gallery. 752 N.Y.S.2d

295, 297 (App. Div. 2002). Neglecting to do a general analysis of private art theft victims’

behavior post-World War II allowed for the court to hastily conclude that the private collector’s

initial report of the missing painting to authorities and the commencement of a lawsuit to recover

the art followed by forty years of inaction automatically constituted a lack of diligence. Id. at

296-97.

Only in extreme cases of delay where federal policy is not implicated will the court

appropriately find that an original owner failed to act diligently. In Robins Island Preservation

Fund, Inc. v. Southold Development Corp., a nonprofit corporation sought ownership interest and

possessory rights in the island based on an inheritance that dated back to 1791, even though the

corporation failed to take any steps previously to assert ownership. 959 F.2d 409, 414 (2d Cir.

1992). Thus, the court stated that, “it requires no strenuous debate to conclude that two centuries

is too long,” and the corporation’s lack of diligence and constituted unreasonable delay in filing

suit. Id. at 424.

In the case at bar, Goodman and her predecessors in title acted diligently in searching for

the stolen painting and did not unreasonably delay in commencing this action. Just as it was

reasonable for the museum in Guggenheim not to conduct its search beyond the museum’s

premises or contact authorities, here, it was reasonable for Goodman not to have conducted an

extensive search for Casas or report it to authorities. See 569 N.E.2d at 431; Goodman, slip op.

at 2. As Guggenheim instructed, this Court should consider the “manner in which [Casas] was

stolen, and the type of institution from which it was stolen.” Guggenheim, 569 N.E.2d at 431.

20

As a private individual who lacks institutional resources to trace a painting that was

stolen during World War II and is unfamiliar with the art world, Goodman should be excused for

her failure to locate Casas prior to its appearance in exhibit in DePaulia. Although anticipation

of the exhibition was reported in DePaulia prior to Goodman’s discovery of Casas in 2010, it

would have been inconceivable for someone with no connections in the art world to be aware of

the Painting’s location before Goodman made her initial demand to MALVA. Goodman, slip

op. at 3. Goodman was not a regular participant in the world of fine art, and thus, her failure to

discover the advertisements of Casas in the exhibition at the DePaulia Museum of Modern Art

(“MMA”) does not constitute a lack of diligence. For the same reasons, it would be

unreasonable to assume that Goodman would have run across one of the catalogues published in

Spanish that were circulating to promote the Xul Solar exhibit, which included Casas that was

touring Argentinean museums. Id. Just as it was not unreasonable per se for the family in

Erisoty to wane in their search efforts as decades passed, it was not unreasonable per se for

Goodman not to be in contact with the police or to actively search for the Painting within the art

community. See 1995 WL 91406, at *10; Goodman, slip op. at 2. Rather, it was reasonable for

Goodman to “keep [her] eyes and ears open” for any leads on the painting, just as she had done

when the Painting arrived in the MMA. See 1995 WL 91406, at *10; Goodman, slip op. at 4.

The fact that Casas was located only a few years after advertisements about its exhibition in

DePaulia and a mere ten days after it went on display is sufficient to demonstrate Goodman’s

continuing vigilance, just as the family in Erisoty was deemed diligent in locating the painting

within a few years of its purchase, though many years after it was stolen. See 1995 WL 1406, at

*13, Goodman, slip op. at 4.

21

The dissent’s reliance on Greek Orthodox and Wertheimer is misplaced. Not only was

the Greek Orthodox court’s laches analysis simply dicta, but more importantly, the court

inappropriately applied a heightened standard of diligence for a non-institutional claimant who

had no connection to the art world. 1999 WL 673347, at *9-10. Similarly, neglecting to

consider the unique circumstances of the case and failing to properly balance the private owner’s

diligence with that of the institutional defendant, the decision in Wertheimer undermines the

balance that laches requires. 752 N.Y.S.2d at 296-97. Applying such an exacting standard of

diligence is problematic because the equitable nature of laches demands an application that does

not disadvantage individuals who do not have the same resources and contacts, as do institutions

such as art museums. See DeWeerth, 804 F. Supp. at 553. Not only was Komorova forced to

flee her home and leave her possessions behind, but neither she nor her descendants knew the

proper resources to consult in order to recover the stolen Painting. Goodman, slip op. at 2.

These particular circumstances for the non-institutional claimant are vital to consider when

weighed against the resources to which a museum such as MALVA has at its disposal.

This case is further distinguishable from Robins Island, where the assertion of title to an

island was after two centuries of inaction. See 959 F.2d at 424. Goodman’s assertion of title

over the stolen Painting is sufficient evidence of her diligence because she did not knowingly

wait an extended period of time to claim title to the work. Goodman, slip op. at 4. In fact,

Goodman demanded that MALVA return the painting only ten days after it went on display in

the MMA. Id. Assuming arguendo that Goodman had come across an advertisement that the

painting would be on display in the MMA prior to 2010 it was not unreasonable for Goodman to

have waited, at most three years, until Casas arrived in DePaulia to confirm its identity and make

a demand. Id. at 3-4. Since delay is not determined according length but rather according to

22

reasonableness, and three years, unlike two centuries, is not an unreasonable amount of time to

delay in asserting ownership under these circumstances, this Court should hold that Goodman

did not unreasonably delay filing this action. See DeWeerth II, 804 F. Supp. at 553.

Similarly, Komarova acted reasonably as a private collector in her attempt to recover

Casas after World War II. Casas was stolen from Komarova’s warehouse in Vienna, Austria by

the Nazis during World War II. Goodman, slip op. at 2. Because Komarova was forced to flee

Vienna in 1938, fearing Nazi persecution, it was not until the end of the war that Komarova was

able to inquire into the whereabouts of the Painting, for which information was unavailable. Id.

Only in 1950 did she first learn that the warehouse containing Casas had been looted and that the

Painting had been stolen. Id. Though Komarova did not register the missing painting with any

post-war databases or make claims against the Austrian government for the return of the

painting, her failure to act is excusable in light of the tragic and chaotic events that surrounded

this time period coupled with the lack of available documentation to recover her possessions. Id.

As such, art thefts that occurred during World War II are distinguishable from other art

thefts in general, and thus demand different treatment. Alexandra Minkovich, The Successful

Use of Laches in World War II-Era Art Theft Disputes: It's Only A Matter of Time, 27 Colum.

J.L. & Arts 349, 372 (2004). Thefts, like the one at issue, were frequently at the hands of Nazis,

a governmental party, while the thieves’ victims were mercilessly enslaved, tortured, and

murdered. Id. Even the judicial system was biased against helping the displaced surviving

victims and their families recover their possessions. Id. Such factors are vital considerations in

the determination of reasonableness. See Guggenheim 569 N.E.2d at 431. Further, even if

Komarova had taken additional steps to locate the stolen work, it would have been to no avail.

“Allied governments have only just recently declassified their World War II era documents, and

23

as a result, information about the postwar location of art stolen by the Nazis is [only today]

becoming publicly available for the first time.” Minkovich, supra, at 375. These documents are

invaluable to searches for lost artwork. Id. As such, MALVA has failed to demonstrate that

there was any unreasonable delay in filing suit before such documents became available, and

thus Goodman and Komarova were reasonably diligent in their search given their limited

resources under the circumstances.

b. MALVA’s failure to search for title to Casas upon its inheritance of the Painting undermines the success of its laches defense.

Since laches is a determination in equity, Goodman’s diligence is not the only factor this

Court must consider in analyzing the first element of the defense. A good faith purchaser’s

“vigilance is as much in issue as [the true owner’s] diligence.” Solomon R. Guggenheim Found.

v. Lubell, 153 A.D.2d 143, 152 (N.Y. App. Div. 1990) aff'd, 569 N.E.2d 426 (1991). Placing the

burden of locating the missing artwork onto the wronged owner thereby foreclosing that owner’s

right to recover his property if that burden is not met is inappropriate for an equitable

determination. Guggeneheim, 569 N.E.2d at 431; Erisoty. 1995 WL 91406, at *11. Rather, the

burden of investigating the background of the given artwork is placed on the potential purchaser,

thereby affording greater protection to the wronged owner. Guggeneheim, 569 N.E.2d at 431;

Erisoty. 1995 WL 91406, at *11.

Equity weighs in the true owner’s favor when artwork is purchased under suspicious

circumstances or without inquiry into valid title. See Erisoty, 1995 WL 91406, at *14;

Autocephalous Greek-Orthodox Church of Cyprus v. Goldberg & Feldman Fine Arts Inc., 717 F.

Supp. 1374, 1401 (S.D. Ind. 1989) aff'd sub nom., 917 F.2d 278 (7th Cir. 1990). For instance,

though conceding that the family could have been “more aggressive in their search,” the court in

Erisoty admonished the purchaser, a professional art restorer, for his failure to inquire into the

24

painting’s prior ownership and the consignor’s identity while knowing that “the [p]ainting was in

five pieces – suspicious circumstances to say the least.” Erisoty, 1995 WL 91406, at *14.

Consequently, the court held that the family’s delay in filing suit was not unreasonable. Id.

Similarly, the court in Autocephalous Greek-Orthodox Church of Cyprus v. Goldberg &

Feldman Fine Arts Inc. concluded that an art dealer’s “cursory inquiry” into the suspicious

circumstances surrounding the sale of the mosaic tiles at issue, in addition to the dealer’s

complete lack of inquiry into the seller’s capacity to convey property rights in the mosaics was

not sufficient to conclude that the dealer had acted reasonably in purchasing the art. 717 F.

Supp. at 1404. Due to the dealer’s failure to take any affirmative steps to investigate the

mosaics’ title, the court concluded that the dealer did not purchase the mosaics in good faith, and

such behavior outweighed any doubt that the dispossessed church had not acted diligently in

pursuing its search. Id. These cases confirm the presumption that stolen artwork cases require a

higher standard of diligence of the good faith purchaser’s behalf as opposed to of the theft

victim.

The rationale for holding good faith purchasers to a higher standard of diligence is

grounded in policy. Professor and Chair of the International Cultural Property Committee of the

International Law Section of the American Bar Association, Marilyn Phelan explains:

Because of the myriad impediments art theft victims confront in seeking to locate and recover their stolen property, the greater resources and access to information that collectors of valuable art objects typically enjoy and the repeated efforts of courts…to encourage art buyers and collectors to investigate art objects, nothing justifies expunging the ownership rights of theft victims unless persons found in mistaken possession of stolen materials can establish that they had no reasonable way to learn that the disputed item was stolen.

Marilyn E. Phelan, Scope of Due Diligence Investigation in Obtaining Title to Valuable Artwork,

23 Seattle U. L. Rev. 631, 656-57 (2000).

25

In contrast, a failure to balance the equities of both parties undermines the equitable

nature of the doctrine of laches and results in a skewed analysis. See e.g. Wertheimer, 752

N.Y.S.2d at 297. Neglecting to consider any of the defendant art gallery’s efforts to determine if

artwork lost after World War II had valid title, the Wertheimer court prematurely concluded that

a private collector’s inaction over the past forty years, in spite the claimant’s predecessor in

title’s initial efforts to reclaim the painting, constituted a lack of diligence and unreasonable

delay. Id.

In the present case, MALVA’s failure to search for proper title of Casas upon inheriting

the Painting demonstrates a lack of diligence on its part, weighing in favor of Goodman’s

reasonableness and present right to move forward in her suit. Goodman, slip op. at 12.

Possessors who fail to conduct appropriate title searches are not considered good faith

purchasers. See Erisoty, 1995 WL 91406, at *14; Autocephalus, 917 F.2d at 1404. Here, even

though MALVA inherited the Painting rather than purchasing it, its inaction is akin to that of the

“good-faith” purchasers in Erisoty and Autocephalus. See Erisoty, 1995 WL 91406, at *14;

Autocephalus, 917 F.2d at 1404; Goodman, slip op. at 12. “Collectors who decline to investigate

material because they fear the results of such an investigation must be regarded as blameworthy,

at least when compared to the theft victim under the balance of equities standard.” Phelan,

supra, at 657. MALVA’s complete failure to do a title search for Casas should be regarded as

blameworthy.

Accordingly, reliance in Wertheimer in this case is misguided as the case clearly

illustrates the inequity in failing to consider each party’s diligence where there has been an art

theft. 752 N.Y.S.2d at 297. Short of weighing Goodman and her predecessor’s actions to locate

Casas against MALVA’s inaction in searching for title, any determination would be inequitable.

26

As an art institution, MALVA had far superior recourses at its disposal to investigate Casas’ title

as compared to a private family’s ability to locate the Painting in the wake of World War II.

MALVA’s failure to act diligently in light of its institutional resources undermines its

assertion of laches against Goodman’s claim. In turn, the balance of equities weighs in

Goodman’s favor. For this Court to hold otherwise would simply “encourage illicit trafficking in

stolen art.” Guggenheim, 569 N.E.2d at 431.

2. MALVA has not met its burden of proof in demonstrating that it suffered prejudice as a result of Goodman’s alleged delay in commencing this action.

Even if this Court determines that Goodman unreasonably delayed in filing her lawsuit,

MALVA did not suffer prejudice as a result of the delay and therefore has not successfully

pleaded all of the elements for its defense of laches. In order for laches to succeed, the moving

party must show prejudice in addition to delay. Guggenheim, 153 A.D.2d at 152. Since laches

“principally involves a question of the inequity of permitting a claim to be enforced,” a finding

only of delay, without a finding of “substantial prejudice or harm” will not satisfy the defense,

and thus, a causal connection between delay and prejudice is required. 269 Associates, 449

N.Y.S2d at 593. A finding of prejudice may be shown in the form of “injury, change of position,

intervention of equities, loss of evidence or other disadvantage resulting from such delay.”

Glenesk v. Guidance Realty Corp., 321 N.Y.S2d 685, 688 (N.Y. App. Div. 1971). Though the

requisite harm can take a variety of forms, courts most commonly look to the loss of evidence

and financial harm that the original owner’s delay caused to the good faith purchaser.

DeWeerthII, 804 F.Supp. at 554.

On its own, the loss of testimonial evidence is inadequate to sustain a supposition of

prejudice. Id. In DeWeerth I, the original owner sued a subsequent good faith purchaser in

replevin for the return of a Claude Monet painting that had been stolen during World War II.

27

836 F.2d 103, 105 (2d Cir. 1987). The original owner did not claim ownership over the Monet

until she discovered its location forty years after the painting’s disappearance. Id. at 106. Re-

filing the case, the good faith purchaser in DeWeerth II argued that because of the forty-year

delay, she was prejudiced by the loss of testimonial evidence from the passing of the individual

who had sold her the painting; however, the trial court concluded that this argument failed

because the purchaser’s assumption that an unavailable witness’ testimony would have been

favorable to her case was misguided. 804 F.Supp. at 554. In relying on this one piece of

evidence, the good faith purchaser “failed to exhaust [other] obvious paths of inquiry” that may

have disproved the existence of any evidentiary prejudice. Id.

Distinguishably, when an excessive amount of time has lapsed and all evidence

pertaining to ownership is gone, a court may find that the good faith purchaser was prejudiced by

the delay. Robins Island, 959 F.2d at 424. The court in Robins Island held that the developer

was unfairly prejudiced by the loss of evidence after the claimant corporation had delayed filing

suit for two centuries. Id. After two centuries lapsed there were no witnesses or documentation

available to support or refute the developer’s ownership claim. Id. The court reasoned, “because

[the] case turns on an interpretation of ancient and unascertainable facts, the law favors repose.”

Id.

A good faith purchaser’s claim that she was harmed due to the original owner’s lack of

diligence in searching for the missing work has not proven adequate to constitute a material

change in the purchaser’s circumstances. See Guggenheim, 153 A.D.2d at 150. The logic

behind this argument is that had the purchaser not been able to purchase the artwork, then the

purchaser would not have suffered prejudice in the form of financial harm. However, the

consequence of this logic suggests that simply purchasing art results in economic harm.

28

Minkovich, supra, at 377. “If this argument were accepted by the courts, every purchaser of

stolen art could automatically satisfy the second requirement of the laches defense, thereby

weakening the equitable principles which support the defense and rendering the second

requirement meaningless.” Id. Moreover, a purchaser is not prejudiced by financial harm if

forced to surrender the artwork since she can elect to sue the gallery that sold her the art for lack

of due care in searching for the art’s title. DeWeerth II, 804 F.Supp. at 554.

In the present case, MALVA has not suffered prejudice as a result of Goodman’s alleged

delay in filing suit. First, MALVA did not suffer any prejudice in the form of loss of evidence.

Unlike the two-hundred year time-lapse in Robins Island, here, a mere sixty-five years have

passed since the Painting was stolen and there still exists relevant documentation of the artwork.

See Robins, 959 F.2d at 424; Goodman, slip op. at 2. It is simply inadequate to rely on the

presumption that the passing of the Thomas Brown and Francisco Moreno, the individuals above

MALVA in Casas’ chain of possession, caused the loss of witnesses available to testify to the

circumstances surrounding the purchase of Casas. Goodman, slip op. at 18. As in DeWeerth II,

MALVA’s reliance on such particular evidence, assuming that it would be in its favor, cannot

constitute a showing of prejudice. See 804 F.Supp at 554. Further, like the purchaser in

DeWeerth II, MALVA failed to examine all avenues available to resurrect such crucial evidence.

See 804 F.Supp at 554, Goodman, slip op at 12. Notably, “the recent declassification of

government documents relating to Nazi-era art theft causes precisely the opposite result [of

prejudice] by increasing the amount of evidence available about the theft.” Minkovich, supra, at

376. Such documentation adequately counters any prejudice MALVA may have suffered from

the loss of testimonial witnesses. As the Twelfth Circuit recognized, if MALVA had searched

for the painting’s title and found nothing, then it could be reasonable to conclude that the original

29

owner’s failure to give notice of the stolen work was harmful to MALVA, thereby satisfying the

second element of laches. Goodman, slip op. at 12. However, “short of such causation . . .

laches must fail.” Id. MALVA’s failure to search this newly available documentation defeats a

finding of evidentiary prejudice to satisfy laches.

Second, MALVA did not suffer any financial prejudice. Since MALVA has failed to

allege any such prejudice, the museum will not suffer financial harm merely upon its payment of

damages to Goodman. Id. As Goodman is not demanding Casas return, MALVA will remain in

possession of the Painting and can elect either to sell or exhibit the Painting to counter the effect

of any financial loss offset by this action. Further, “the delay alone could be viewed as having

benefited [MALVA], in that it gave [the museum] that much more time to enjoy [and exhibit]

what [it] otherwise would not have had.” Guggenheim, 153 A.D.2d at 150. As such, possession

of Casas “does not put [MALVA] in the position of facing loss of the asset . . . whereas a ruling

for [MALVA] would leave [Goodman], as the theft victim, with no recourse at all.” DeWeerth

II, 804 F.Supp. at 553. Thus, a balance of equities requires this Court to reject of a finding of

prejudice under the laches defense.

As the party with the burden of proof, MALVA has failed satisfy both elements of its

laches defense. Goodman did not unreasonably delay filing this lawsuit because she and her

predecessors acted diligently in their search for Casas in comparison to MALVA’s complete

failure to investigate the circumstances under which it inherited the Painting. In addition,

MALVA has not demonstrated that any alleged delay caused the museum to suffer legal harm or

prejudice. Thus, this Court should affirm the Twelfth Circuit’s decision and hold that

Goodman’s claim is not barred by laches.

30

CONCLUSION

For all of the foregoing reasons, Respondent Amy Goodman respectfully requests that

this Honorable Court affirm the decision below and enter a judgment in her favor.

Respectfully Submitted,

By: __________________________________

One of her attorneys Counsel for Respondent Team: O January 11, 2011

1-A

APPENDIX

22 U.S.C.A. § 2459 (West 2011). Immunity from seizure under judicial process of cultural objects imported for temporary exhibition or display (a) Agreements; Presidential determination; publication in Federal Register

Whenever any work of art or other object of cultural significance is imported into the United States from any foreign country, pursuant to an agreement entered into between the foreign owner or custodian thereof and the United States or one or more cultural or educational institutions within the United States providing for the temporary exhibition or display thereof within the United States at any cultural exhibition, assembly, activity, or festival administered, operated, or sponsored, without profit, by any such cultural or educational institution, no court of the United States, any State, the District of Columbia, or any territory or possession of the United States may issue or enforce any judicial process, or enter any judgment, decree, or order, for the purpose or having the effect of depriving such institution, or any carrier engaged in transporting such work or object within the United States, of custody or control of such object if before the importation of such object the President or his designee has determined that such object is of cultural significance and that the temporary exhibition or display thereof within the United States is in the national interest, and a notice to that effect has been published in the Federal Register. (b) Intervention of United States attorney in pending judicial proceedings

If in any judicial proceeding in any such court any such process, judgment, decree, or order is sought, issued, or entered, the United States attorney for the judicial district within which such proceeding is pending shall be entitled as of right to intervene as a party to that proceeding, and upon request made by either the institution adversely affected, or upon direction by the Attorney General if the United States is adversely affected, shall apply to such court for the denial, quashing, or vacating thereof. (c) Enforcement of agreements and obligations of carriers under transportation contracts

Nothing contained in this section shall preclude (1) any judicial action for or in aid of the enforcement of the terms of any such agreement or the enforcement of the obligation of any carrier under any contract for the transportation of any such object of cultural significance; or (2) the institution or prosecution by or on behalf of any such institution or the United States of any action for or in aid of the fulfillment of any obligation assumed by such institution or the United States pursuant to any such agreement.