UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT DAVID CASSIRER; THE ESTATE No. 19-55616 OF AVA CASSIRER; UNITED JEWISH FEDERATION OF SAN D.C. No. DIEGO COUNTY, a California non- 2:05-cv-03459- profit corporation, JFW-E

Plaintiffs-Appellants, ORDER v. THYSSEN-BORNEMISZA COLLECTION FOUNDATION, an agency or instrumentality of the Kingdom of Spain,

Defendant-Appellee.

Filed July 9, 2024 Consuelo M. Callahan, Carlos T. Bea, and Sandra S. Ikuta, Circuit Judges.

Order; Statement by Judge Graber 2 CASSIRER V. THYSSEN-BORNEMISZA COLLECTION FOUND.

SUMMARY *

Foreign Sovereign Immunities Act

The panel filed an order denying a petition for panel rehearing and denying a petition for rehearing en banc in a case in which the panel affirmed the district court’s judgment in favor of the Thyssen-Bornemisza Collection, an instrumentality of the Kingdom of Spain, in an action under the Foreign Sovereign Immunities Act seeking the return of a Pissarro painting stolen by the Nazis in 1939 Germany. Respecting the denial of rehearing en banc, Judge Graber, joined by Judge Paez, wrote that she regretted the denial of rehearing en banc because this case is exceptionally important, and it includes not only a legal component, but also a moral component. Judge Graber wrote that the court should reach the result that is both legally compelled and morally correct and should hold that, under California’s choice-of-law test, California law, not Spanish law, applies.

ORDER

The panel unanimously voted to deny the petition for panel rehearing. Judge Callahan and Judge Ikuta voted to deny the petition for rehearing en banc, and Judge Bea so recommended. The full court was advised of the petition for rehearing en banc. A judge requested a vote on whether to rehear the matter en banc. The matter failed to receive a * This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. CASSIRER V. THYSSEN-BORNEMISZA COLLECTION FOUND. 3

majority of the votes of the nonrecused active judges in favor of en banc consideration. Fed. R. App. P. 35(a). Plaintiffs- Appellants’ petition for panel rehearing and rehearing en banc, Dkt. 155, is DENIED. Judges Owens, Friedland, and Collins did not participate in the deliberations or vote in this case.

GRABER, Senior Circuit Judge, with whom Senior Circuit Judge PAEZ joins, respecting the denial of rehearing en banc:

I regret this court’s denial of rehearing en banc. In 1939, Nazis stole a painting by Camille Pissarro from the Cassirers, a prominent Jewish family, in Germany. In 2000, the sole remaining heir, Claude Cassirer, discovered the painting in a Spanish museum that is an instrumentality of Spain. Spain refused to return the painting, and Claude filed this action against the museum’s foundation (“TBC”) in 2005. The only remaining question before this court is whether, applying California’s choice-of-law test, California law or Spanish law applies. We must ask, in the context of this particular dispute, which jurisdiction’s interest in enforcing its laws would be more impaired by applying the other jurisdiction’s law. That inquiry favors applying a new, specific, modern law that will frustrate the purpose of the other jurisdiction’s law only minimally. The test disfavors applying an old, general, isolated law that will eviscerate the purpose of the other jurisdiction’s law. The answer here is clear: California’s law applies. California’s law is new (enacted in 2010), specific to the 4 CASSIRER V. THYSSEN-BORNEMISZA COLLECTION FOUND.

recovery of stolen art, and consistent with nearly all domestic and international