Orkin v. The Swiss Confederation, et al.09 Civ. 10013 (S.D.N.Y. 13 Jan. 2011), presented claims in New York federal court by a Canadian citizen against defendants who allegedly bought a van Gogh drawing from a Swiss art collector.  The complaint alleged that the plaintiff’s grandmother allegedly sold the drawing in 1933 under duress and at an artificially low price in order to finance her family’s escape from Nazi Germany. 

The Court does not address arguments such as personal jurisdiction, untimeliness, and failure to state a claim. Instead, and the reason the case is noteworthy for international practice, is that it addresses subject matter jurisdiction under the Foreign Sovereign Immunities Act (FSIA). The plaintiff had alleged that the defendant was an agency or instrumentality of the Swiss Confederation, thus making an FSIA exception mandatory for the case to succeed. The only plausible one, the “takings” exception, requires a plaintiff to establish each of the following four elements:

  1. There must be rights in property at issue;
  2. The property must have been “taken”;
  3. The taking “was in violation of international law; and either
  4. “Th[e] property is present in the United States in connection with a commercial activity carried on in the United States by that foreign state”; or the “property . . . is owned or operated by an agency or instrumentality of the foreign state and that agency or instrumentality is engaged in a commercial activity in the United States”

The District Court found the fourth prong entirely missing. Because, in so finding, the Court looked outside the pleadings, it gave the plaintiff a last chance to submit evidence.

The District Court also dismissed claims under the Alien Tort Statute (ATS), finding that the statute provides a basis for federal jurisdiction against private, i.e., non-governmental actors.  Accordingly, held the District Court, the statute was unavailable under the plaintiff’s own theory of the case (since the plaintiff had alleged that the defendant here was a governmental actor); in addition, the ATS is available for torts only, “committed in violation of the law of nations or a treaty of the” U.S. This too was missing.

In a concluding paragraph, the District Court stated that the “depredations and atrocities of the Nazi regime, which included the misappropriation of artifacts of great cultural and personal worth, cannot be overstated”. Nonetheless, the Court found, the case should be dismissed absent additional evidence.