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Solving Legal Challenges In Innovative Ways

Innovative Problem Solving of Legal Issues

 

BGH principals have a proven record of addressing and solving legal challenges and exposures in an innovative way which have improved capabilities and added value in a variety of contexts. Clients can depend upon BGH attorneys to address their legal problems by seeking to solve problems efficiently and by expanding the range of possible solutions. Examples of this type of thinking and problem solving include the following:     

 

Improving Techniques for Investigating Organized Crime in Greater Los Angeles 

As an Assistant United States Attorney in the Central District of California, Organized Crime Strike Force Unit, John Byrne pioneered a cooperative and cost-effective investigative strategy for criminal gangs that were wreaking havoc in the greater Los Angeles metropolitan area. This strategy entailed close collaboration in major cases between the Federal Bureau of Investigation, the Bureau of Alcohol Tobacco and Firearms, and the Los Angeles Police Department. This innovative and collaborative investigative strategy eradicated dangerous, predatory gang activity in discrete areas of Los Angeles, and curtailed gang activities in others.

Based on the foregoing, his general work as a federal prosecutor convicting major organized crime figures in Southern California, his sensitivities to the needs of both witnesses and victims of violent organized crime, Mr. Byrne received letters of commendation from federal agencies and two prestigious awards recognizing his contributions.  Mr. Byrne brings the same personal concerns for clients and innovative thinking to all BGH cases.

 

Investigative “Due Diligence” to Protect Superior Possessory Rights in Valuable Artworks

During the 1990’s – and before the recovery of Nazi looted art became popular in the international media --   Tom Hamilton and Lloyd Goldenberg launched a company (Trans-Art International, LC. (Trans-Art)) that introduced the concept of informed due diligence inquiry (which  characterizes normative business transactions) to U.S. and international art collectors. This initiative responded to the global epidemic of international stolen art and antiquities, as well as to the increasing international awareness that vast quantities of artworks and other collectibles looted during World War II and confiscated during the Nazi era (1933-45) increasingly were appearing on the international market. Moreover, many of these materials already were widely disseminated in both public and private collections, and so in the possession of unsuspecting collectors as well as their estates and trusts.   

Because the international art market historically has operated under lax commercial conventions that characteristically fail to investigate the ownership background or “provenance” of particular artworks offered for sale, untold thousands of stolen artworks and cultural property contraband circulate undetected in the art market. These materials pose risks to collectors and to their estate and financial planning objectives because under the commercial law that applies throughout the U.S. good title to stolen property never can be conveyed -- regardless of the innocence or good faith of the acquirer or the amount of time that has elapsed since the theft.

Accordingly, under U.S. commercial law stolen artworks potentially can be recovered by former owners regardless when, where, or how the artwork was stolen, or the innocence or good faith of the person in mistaken possession. This commercial law principle exposes private collectors – as well as their estates and trusts – to perpetual liability. Several leading estate planning commentators pointed out that the recovery of a valuable artwork in an estate or trust can sabotage planning objectives, and spawn fiduciary and malpractice liability for attorneys and other professional advisors.[1] As the title of a cover article that Hamilton and Goldenberg authored for the November/December 2001 American Banker’s Association Trust & Investments Magazine cryptically noted “Art in an Estate or Trust: A Deal or a Steal?”

Trans-Art addressed this exposure by offering a comprehensive, informed, and well-documented “due diligence” investigative service calculated to find out whether a particular artwork was reported or reasonably indicated to have been stolen. This service both diminished the risk that a particular art work in fact was stolen, as well as helped preclude any judicial remedy that a former owner or heir might have to recover this item. It did so by responding to the discrete judicial criteria that courts throughout the U.S. invoke to determine whether the applicable statute of limitations to recover a particular artwork has expired, or whether the claim similarly is barred under relevant equitable principles. This service thereby conferred upon the current possessor of the artwork the functional equivalent of good title -- and the corresponding assurance that this artwork could not be removed from an estate or trust where it was designated to play a key role, such as providing liquidity for estate taxes or as a special bequest. 

Leading academic and estate planning commentators applauded Trans-Art’s due diligence investigative initiative as a resourceful and cost effective way to mitigate risk, as well as to secure the functional equivalent of good title to potentially problematic materials.[2] The service thereby enabled attorneys, trustees and other professional advisors to discharge fiduciary and other professional responsibilities for an otherwise highly problematic category of assets.

Both Hamilton and Goldenberg lectured extensively to leading national bar, banking and other professional groups about the several benefits of informed due diligence for artworks and other valuable collectibles. 

 

Expanding Theories of Recovery for Holocaust Art Victims and Their Heirs  

 BGH principals also have developed landmark recovery opportunities in the now notoriously problematic field of Holocaust art restitution that have expanded capabilities for Holocaust victims and their heirs to recover Nazi-era artworks.

During the Nazi reign (1933-1945), the official discriminatory policies of the Nazi government to exclude Jews from the economy of Germany forced countless thousands of Jews to relinquish valuable paintings, sculptures and other artworks at deeply discounted prices. Excluded from professions and businesses such as banking, Jewish collectors no longer could earn a living and were confronted with escalating taxes and expenses. Only by selling their personal property and liquidating other assets could Jews who remained in Germany survive in this rapidly deteriorating economic environment.  Valuable artworks and other collectibles were an early casualty of Nazi predatory policies.

Jewish collectors were forced to auction or consign artworks to dealers at increasingly diminished prices as the market became saturated with materials that other persecuted collectors  were forced to abandon.  In Schoeps v. Moma[3],   BGH attorneys Byrne and Hamilton secured a court ruling that recognized the legal right under U.S. law of a Holocaust victim or heir to recover artworks lost as a consequence of Nazi policies and predation, even if the persecuted collector had consigned the item to a fellow persecuted Jewish art dealer. This ruling expanded the capability of Holocaust victims and their heirs to recover artworks forfeited as a consequence of Nazi duress because in many instances persecuted Jewish collectors continued to deal with their established art dealers, many of whom themselves were persecuted Jews.

A June 25, 2015 World Jewish Restitution Organization (WJRO) Report Concerning Current Approaches of United States Museums to Holocaust-Era Claims, Annex 1 (prepared by the national law firm Dickstein Shapiro LLP), identifies BGH’s case of Schoeps v. Museum of Modern Art, 594 F. Supp. 2d 461 (S.D.N.Y. 2009), as the only reported case against a U.S. museum seeking the recovery of a Nazi-confiscated artwork to survive a motion to dismiss or summary judgment. (WJRO Report, p. 32).  After surveying the reported judicial decisions in which Holocaust victims or their heirs sought to recover a Nazi-era artwork from a U.S. museum, the memorandum concluded that “[a]ll of these case demonstrate that it is nearly impossible for victims of the  Holocaust and their heirs to have their restitution claims heard on the facts and merits.” (WJRO Report, p. 37).

These narratives show that BGH attorneys practice law with an innovative, problem solving mentality.  They will address your legal problems not only with superior credentials and extensive experience, but also by seeking to solve your problems efficiently and in a way that advances your best legal interests.      

 

 

 



[1]  Several leading estate planning commentators underscored the exposure that stolen art poses to the estate and financial plans of art collectors. See, e.g. Robert E. Madden, Steps to Take When Stolen Art Work is Found in an Estate, 24 EST. P. 459, 464 (Dec. 1997); Peter Spero, Asset Protection Aspects of Art, 3 J. Asset Protection 58, 60 (Jan./Feb. 1998); Leigh-Alexandra Basha,  Stolen Art: What Estate Planners and Trustees Need to Know, 137 TR. & EST. 459, 464 (Dec. 1998).

[2] Id. Also see  Marilyn E. Phelan, Scope of Due Diligence Investigation in Obtaining Title to Valuable Artworks , 23 Seattle U. L. Rev.  631, 733 (2000).

 

[3]  594 F. Supp.2d 461 (S.D.N.Y. 2009).

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