RALEIGH, N.C. — A bipartisan group of ten current and former members of Congress filed an amicus brief today urging the U.S. Supreme Court to take a case involving a 2016 federal law that enables Holocaust survivors and their heirs to recover artwork lost during the Holocaust. The brief supports the descendants of German Jews who sold a painting under duress to fund their escape from the Nazis. Their painting, Pablo Picasso’s masterwork, The Actor, now hangs in The Metropolitan Museum of Art in New York.
The brief was filed on behalf of U.S. Senators Richard Blumenthal (D-Conn.) and Chris Dodd (D-Conn., retired), and U.S. Representatives Steve Cohen (D-Tenn.), Ted Deutch (D-Fla.), Eliot Engel (D-N.Y.), Bob Goodlatte (R-Va., retired), Morgan Griffith (R-Va.), Jerry Nadler (D-N.Y.), David Price (D-N.C.), and Deborah Wasserman Schultz (D-Fla.). The current and former members of Congress were represented on the brief by Poyner Spruill attorneys Drew Erteschik, Mike McIntyre (a member of Congress from 1997 to 2015), David Dreifus, Saad Gul, J.M. Durnovich, and Cosmo Zinkow.
The case involves the interpretation of the Holocaust Expropriated Art Recovery Act of 2016 (“HEAR Act”). Congress passed the HEAR Act to provide a remedy for Holocaust survivors and their heirs in view of the largest displacement of artwork in human history: the Nazis’ forced displacement of artwork from Jewish families in Europe during the 1930s and 1940s. Many Holocaust survivors and their heirs had pursued legal claims to recover this lost artwork, but courts were dismissing these claims on timeliness grounds—an obvious injustice. To ensure that these claims would not fail on timeliness grounds, the HEAR Act created a temporary window in which these claims can be brought and decided on their merits.
In this case, however, the U.S. Court of Appeals for the Second Circuit adopted an interpretation of the HEAR Act that countermands the Act’s fundamental purpose. The Court recognized laches—a timeliness defense under state law—as a valid defense to claims under the HEAR Act. In other words, the court recognized a timeliness defense to a federal law that sought to eliminate timeliness defenses. Also contrary to the HEAR Act’s purpose, the Court dismissed the petitioner’s claims on timeliness grounds at the pleadings stage, before she could conduct any discovery or pursue factual development to further support her claims.
The amicus brief on behalf of current and former members of Congress—many of whom sponsored or co-sponsored the HEAR Act—explains that the Second Circuit’s approach is incompatible with the fundamental purpose of the Act. The brief describes how, if left undisturbed, the Second Circuit’s decision would eviscerate the protections of the HEAR Act that Congress sought to provide to Holocaust survivors and their families.
About the Attorneys
Drew Erteschik focuses on high-stakes litigation. Clients trust him to take the lead on their most significant matters, and he is frequently called upon to litigate cases that attract significant public interest. Chambers USA has profiled his “highly acclaimed practice,” and he has been repeatedly recognized in The Best Lawyers in America, Benchmark Litigation, and various other peer-review publications. Drew is a board-certified specialist in appellate practice, and is currently the chair of the North Carolina Bar Association’s Appellate Rules Committee and co-chair of the American Bar Association’s Judicial Division Amicus Committee.
Mike McIntyre served for 18 years as member of Congress, representing North Carolina’s Seventh Congressional District in the U.S. House of Representatives from 1997 to 2015. His practice is centered on government relations on the national, state, and local levels. He also provides legal advice on a wide range of matters, including business, real estate, agribusiness, energy, environmental, military, sports, and entertainment matters. Economic development has been at the forefront of Congressman McIntyre’s work, and he has won international, regional, state and local awards for his leadership in the economic arena. He has also served as Chairman of the U.S. House Agriculture Subcommittee on Rural Development. Over the course of his career, Congressman McIntyre has successfully championed the business and economic needs of counties and communities, including fire, police and EMS units, airports, schools, colleges and universities, hospitals, health clinics, senior centers, parks, and community facilities. He practiced law for 15 years prior to his election to Congress in 1996.
David Dreifus is a past chair of the firm’s Litigation Section, and has over 35 years of experience helping clients find creative resolutions to difficult disputes. He focuses his practice on disputes among owners of closely held businesses, minority shareholder disputes, disputes between buyers and sellers of businesses, and cases involving banking and accounting issues. David also has significant experience in the forensic investigation of fraudulent financial transactions. From 2013 to 2018, David served as counsel to the Monitor of the National Mortgage Settlement, the largest consumer financial protection settlement in United States history.
Saad Gul leads the firm’s privacy and cybersecurity team, while also maintaining an active appellate practice. Before law school, he clerked for Chief Judge John C. Martin of the North Carolina Court of Appeals and Justice Patricia Timmons-Goodson of the North Carolina Supreme Court. Saad joined Poyner Spruill after working for two major Washington, D.C. law firms.
John Michael (J.M.) Durnovich represents individuals, businesses, and government bodies facing a wide range of challenges, with a concentration in high-stakes governmental disputes, whistleblower claims, constitutional litigation, and business disputes. In addition, he regularly represents clients through appeals at all levels of state and federal courts, including at the U.S. Supreme Court.
Cosmo Zinkow is a member of the firm’s Litigation Section. He represents businesses, government entities, and individuals in a wide range of civil lawsuits and appeals. In 2019, he was part of the appellate team that successfully petitioned the U.S. Supreme Court for a writ of certiorari.