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. CERTIFYING QUESTION TO THYSSEN-BORNEMISZA THE CALIFORNIA COLLECTION FOUNDATION, SUPREME Defendant-Appellee. COURT

Appeal from the United States District Court for the Central District of California John F. Walter, District Judge, Presiding

Argued and Submitted December 12, 2022 Pasadena, California

Filed May 22, 2023 Before: Consuelo M. Callahan, Carlos T. Bea, and Sandra S. Ikuta, Circuit Judges.

Order; Dissent by Judge Bea 2 CASSIRER V. TBC

SUMMARY*

Certification of Question to State Supreme Court

In an action brought by the Cassirer family under the Foreign Sovereign Immunities Act, seeking the return of a Pissarro painting stolen by the Nazis and now in the possession of Thyssen-Bornemisza Collection Foundation (TBC), an entity created and controlled by the Kingdom of Spain, the panel certified to the California Supreme Court the following question concerning the third step in California’s governmental interest choice-of-law test: Whether, under a comparative impairment analysis, California’s or Spain’s interest is more impaired if California’s rule that a person may not acquire title to a stolen item of personal property (because a thief cannot pass good title, and California has not adopted the doctrine of adverse possession for personal property), were subordinated to Spain’s rule that a person may obtain title to stolen property by adverse possession. Applying the first step of California’s governmental interest test, the panel concluded that the issue in question was a question of personal property law: whether TBC or the Cassirers own the painting; and the relevant law of the two jurisdictions of Spain and California was different. Applying the second step of the test, the panel concluded that a true conflict existed between Spanish and California law, meaning that each jurisdiction had 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. TBC 3

legitimate interest in the application of its law and policy. The third step of the test required application of the law of the jurisdiction whose interest would be the more impaired if its law were not applied. The panel concluded that it needed the California Supreme Court’s guidance on how to apply the third step because the existing California caselaw applying the comparative impairment analysis to tortious, and typically physical, injuries did not provide guidance in the context of property law, where it was necessary to determine which jurisdiction’s interests would be more impaired when the issue was one of allocating title to stolen property. The panel wrote that, in deciding to exercise its discretion to invoke the certification process, it considered that the case raised important, unresolved public policy ramifications of broad application regarding the ownership of stolen property, and that the issues were particularly thorny and substantial, given that stolen property cases may involve two innocent claimants to a specific piece of valued property which must be awarded to one claimant or the other. Further, in the spirit of comity and federalism, the panel re