The 5 ½ inch Bronze Greek Horse in the Geometric Style. Screenshots from Sotheby’s auction catalogue for the May 2018 sale “The Shape of Beauty: Sculpture from the Collection of Howard and Saretta Barnet.” The page has since been removed from the site.
By Lucy Siegel.
In 2018, the trustees of the 2012 Saretta Barnet Revocable Trust, in conjunction with Sotheby’s auction house, filed a complaint in the United States District Court for the Southern District of New York against the Ministry of Culture and Sports of the Hellenic Republic, an agency of Greece. The suit was in response to a last minute letter sent by Greece urging Sotheby’s to pull an ancient Greek figurine from auction.
Screenshot: Sotheby’s auction catalogue for the May 2018 sale “The Shape of Beauty: Sculpture from the Collection of Howard and Saretta Barnet.” The page has since been removed from the site.
Figurines and Friday Night Emails
The eighth-century B.C.E. bronze statue of a Greek Geometric period horse was part of Howard and Saretta Barnet’s collection until 2017, when the trustees of the Saretta Barnet Revocable Trust consigned the piece to Sotheby’s to be sold at auction in May 2018. The auction, “The Shape of Beauty: Sculpture from the Collection of Howard and Saretta Barnet,” was advertised and promoted for months leading up the day of the auction, although an online catalog of objects accessible to Greece only became available in April. Thus, on the Friday night before the Monday auction, Dr. Elena Korka, head of the General Directorate of Antiquities and Cultural Heritage of the Hellenic Republic Ministry of Culture and Sports, sent an email to the auction house questioning the ownership of the figurine. Korka explained the issues with the public sale of the figurine, citing Greek patrimony laws and the UNESCO Convention on Cultural Property. In response, Sotheby’s decided to pull the figurine from the sale, potentially reducing revenue from the auction by an estimated $250,000, based on the bronze horse’s original auction estimate.
Sotheby’s and the Barnet Family filed their complaint against Greece in an attempt to reestablish the credibility and legitimacy of their ownership of the figurine. In a 2018 article, the Center for Art Law addressed the original complaint in greater detail, noting that this suit marked the first time an auction house had sued a government. The original complaint based the suit on interference without lawful justification and sought declaratory relief to determine the rightful owner of the figurine. This article will examine the decisions issued by both the district and Second Circuit court, and provide analysis relating to the future of the figurine and implications of this case.
Round One: United States District Court for the Southern District of New York
Since Sotheby’s and the Barnet family were exclusively seeking declaratory relief in the district court, they were not seeking compensation for the financial loss from not selling the figurine. Rather, the auction house and Barnet family (“the Plaintiffs”), represented by Gary Stein of Schulte Roth & Zabel LLP, asked the district court to declare that they were the rightful owners of the figurine, not the nation of Greece. In turn, the Hellenic Republic (“the Defendant”), represented by Leila Alexandra Amineddoleh of Amineddoleh and Associates LLC, moved to dismiss the suit on the basis of lack of subject-matter jurisdiction, meaning the court does not have the power to hear the case or make any decision.
Amineddoleh claimed that Greece, as a foregin sovereign nation, should be granted sovereign immunity based on the Foreign Sovereign Immunities Act (FSIA). The FSIA applies to all litigation in US courts against foreign states and governments, including state actors, and determines the basis for granting immunity. Sovereign states are presumed immune from litigation in U.S. courts, but the FSIA deprives sovereigns from immunity when one of the Act’s enumerated exceptions applies. Generally speaking, immunity is respected when sovereigns commit public acts, or acts typically performed by governments, thus resulting in US courts lacking subject-matter jurisdiction over cases concerning immune parties. Yet, foregin states do not receive immunity for acts determined to be of private nature. The FSIA includes more specific exceptions that strip foreign powers of their immunity, such as the “commercial-activity exception,” which allows a plaintiff to haul a foreign sovereign into court when the alleged act is commercial “in nature.” The exception requires that the commercial act have a “direct effect” in the U.S. This is also known as the direct-effect clause.
The Plaintiffs argued that Greece’s act of sending the urgent email satisfied the conditions of the commercial-activity exception. They also claimed the act of sending the letter was a private, and therefore inherently commerical, act because private entities have the ability to send letters claiming ownership of property. The district court agreed with the Plaintiffs, deciding the court had jurisdiction to hear the case because Greece did not have immunity based on the direct-effect clause of the commercial-activity exception in the FSIA.
The state of Greece continued to argue they should be protected from suit under the FSIA by filing an interlocutory appeal regarding the denied motion to dismiss based on lack of subject-matter jurisdiction. As a result, no merits of the case would be discussed until a higher court ruled on the jurisdictional question.
Round Two: The United States Court of Appeals for the Second Circuit
The question of jurisdiction passed to the higher federal court, the United States Court of Appeals for the Second Circuit. As stipulated by the interlocutory appeal, the Defendant was exclusively appealing the motion to dismiss based on lack of jurisdiction. Attorneys for Greece took specific issues with the wording of the direct-effect clause of the FSIA.
- First, to prove direct-effect, the Plaintiffs must identify Greece’s predicate act which serves as the basis for the Plaintiff’s claims. The predicate act is the action taken by Greece outside the United States, and is the element of the claim that, if proven, entitles Sotheby’s and the Barnet Family to relief under their theory of the case. The predicate act, also known as the core action, serves as a basis for and validates the direct-effect claim.
- Second, the Plaintiffs need to establish that the predicate act was taken “in connection with a commercial activity” by Greece outside of the United States. The district court concluded the act of Greece sending the letter was both the predicate act and related commercial activity.
The Defendant noted that the only act in question is Greece’s act of sending the letter to the auction house. Furthermore, the Defendant argued the direct-effect clause only applies when “a suit seeks relief for an ‘act’ that a foregin state undertakes ‘in connection with a commercial activity.” The act of sending the letter is both the predicate act and the connection with commercial activity, and therefore does not satisfy the direct-effect clause of the commercial activity exemption. The Second Circuit confirmed that the isolated letter cannot serve as both the predicate act and the connection with commercial activity, thus rendering the Plaintiffs’ reasoning for not granting Greece immunity invalid and rejecting the district court’s conclusion that it had subject-matter jurisdiction.
In addition, Greece claims the act of sending the letter was a uniquely sovereign act. As explained in the letter, the urgent message was an attempt to impose its national patrimony laws. Throughout the letter, Greece refers to national laws and policies and their specific applications to the figurine. The letter cites a 1932 Greek law known as “Greek National Law 5351/1932 on Antiquities,” which nationalized all Greek antiquities as property of the Greek government. The letter also references a more recent 2002 law, “Greek National Law 3028/2002 on the Protection of Antiquities and Cultural Heritage in General,” which states “all movable ancient monuments belong to the State in terms of ownership and possession, are imprescriptible and extra commercium,” meaning that the property was not eligible for private ownership. This law also declares the “Greek State shall care for the protection of cultural objects originating from Greek territory whenever they may have been removed from it and wherever they are located.” Greece noted in its letter that these laws regulate the export of artifacts and determine criminal liability depending on the circumstances.
In addition, the letter mentions Greek criminal law concerning the illegal possession of nationalized antiquities, specifically “Greek Criminal Law (Act 3028/2002, article 55),” which claims “the illegal acquisition and trading of cultural property of great value . . . constitutes a serious criminal offence, irrespective of where it takes place.” Thus, the Plaintiffs are committing a crime in the eyes of Greek law by maintaining ownership of the figurine.
In June 2020, the court held that the activity of sending such a letter was not commercial, reasoning that Greece’s enforcement of and citation to its patrimony laws in the letter, specifically relating to nationalized property was not enough to constitute “commercial activity” and that enforcement of a patrimony law was archetypical “sovereign activity.” The nationalization of property is an explicitly sovereign act, and therefore Greece was acting as a sovereign power instead of a commercial power. Thus, the court held that Greece is immune from suit in the United States pursuant to the FSIA and no U.S. court has jurisdiction to hear the case as a result of the lack of subject-matter jurisdiction. The Second Circuit reversed and remanded Barnet et al v. Ministry of Culture and Sports of the Hellenic Republic back to the lower court, with instructions to dismiss.
Ramifications and Responses
After the litigation concerning jurisdictional matters, the ownership and possession of the horse figurine are still not resolved. The figurine has not been returned to Greece yet, but the Greek Culture Ministry stated it would now seek repatriation of the figurine. In a public statement, a Sotheby’s spokesperson claimed to be disappointed with the decision and affirmed their belief that the Barnets can legally sell the figurine. The spokesperson stated, “we, together with our client, are reviewing next steps.” Thus, it remains unclear who actually owns the figurine, be it Greece or the Barnet estate.
While ownership issues have not be resolved, the precedent established by the Second Circuit’s decision cannot be understated. Now, a sovereign nation attempting to protect their cultural heritage, while exercising their police power through patrimony and nationalization laws, can legitimately red flag sales of affected antiquities without fear of litigation. As Greece attempts to recollect its history from around the world, it may only be a matter of time before other nations follow suit.
Yet, Sotheby’s and the Barnet Family’s original complaint did encourage other auction houses and galleries to retaliate against sovereign nations who interfered with sales. In fact, Leila Amineddoleh, the attorney who represented Greece, tells the Center for Art Law, “after the Plaintiffs in Barnet won in district court, Safani Art Gallery in NY sued the Republic of Italy for contacting the Manhattan DA about a problematic antiquity.” According to the complaint filed in 2019, the gallery is suing not only for declaratory relief, but is demanding the immediate return of the artifact, known as the “Head of Alexander,” to the Safani Gallery. Amineddoleh notes that “the Second Circuit’s decision came out after Safani was filed so it will be interesting to see how the case against Italy proceeds in light of the Second Circuit reversal,” since Safani also involves exceptions to the FSIA. Regardless, the precedent set throughout Barnet et al v. Ministry of Culture and Sports of the Hellenic Republic reveals the evolving complexity of the art world and art law field, and it will be exciting to see what moves both the Plaintiffs and Defendant make next to ensure ownership of the figurine.
- Jennie Nadel, Case Review: Sotheby’s v. Greece, Ctr. for Art L. (Sep. 24, 2018), https://oldprod-itsartlaw.altumagency.com/2018/09/24/case-review-sothebys-v-greece/. ?
- Complaint, Barnet et al v. Ministry of Culture and Sports of the Hellenic Republic, No. 1:18-cv-04963 (S.D.N.Y. June 5, 2018). ?
- 28 U.S.C. §§ 1602-1611 (2012). ?
- David P. Stewart, The Foreign Sovereign Immunities Act: A Guide for Judges, Federal Judicial Center (2013), available at https://www.fjc.gov/sites/default/files/2014/FSIAGuide2013.pdf. ?
- 28 U.S.C. § 1605(a)(2) (2012). ?
- 28 U.S.C. §§ 1604-1611 (1976). ?
- Barnet et al v. Ministry of Culture and Sports of the Hellenic Republic, 391 F. Supp. 3d 291 (S.D.N.Y. June 5, 2018). ?
- Barnet et al v. Ministry of Culture and Sports of the Hellenic Republic, 961 F.3d 193, 12 (2d Cir. July 9, 2020). ?
- 28 U.S.C. § 1605(a)(2) (2012). ?
- 28 U.S.C. § 1605(a)(2) (2012). ?
- Barnet et al v. Ministry of Culture and Sports of the Hellenic Republic, 961 F.3d 193, 18 (2d Cir. July 9, 2020). ?
- Barnet et al v. Ministry of Culture and Sports of the Hellenic Republic, 961 F.3d 193 (2d Cir. July 9, 2020). ?
- Barnet et al v. Ministry of Culture and Sports of the Hellenic Republic, 961 F.3d 193, 17 (2d Cir. July 9, 2020). ?
- Amineddoleh & Associates Secures Second Circuit Win for the Greek Ministry of Culture in a Landmark Cultural Heritage Case, Amineddoleh & Associates LLC (Jun. 9. 2020), https://www.artandiplawfirm.com/litigation-update-amineddoleh-associates-secures-second-circuit-win-for-the-greek-ministry-of-culture-in-a-landmark-cultural-heritage-case/. ?
- Tasos Kokkinidis, Greece Wins Case in Dispute With Sotheby’s Over Ancient Artifact, Greek USA Reporter (Jun. 10, 2020), https://usa.greekreporter.com/2020/06/10/greece-wins-case-in-dispute-with-sothebys-over-ancient-artifact/. ?
- Kate Brown, Sotheby’s Just Lost Its Lawsuit Against Greece Over an 8th-Century BC Horse Statue—and the Decision May Have Lasting Implications for the Trade, ArtNet News (Jun. 10, 2020), https://news.artnet.com/art-world/barnet-case-sothebys-1883349. ?
- Complaint, Safani Gallery, Inc. v. The Italian Republic, No. 1:19-cv-10507 (S.D.N.Y. November 11, 2019). ?
About the Author: Lucy Siegel is a Summer 2020 Intern at the Center for Art Law and a rising junior at Bowdoin College in Brunswick, Maine. She is studying art history and government with a concentration in international relations. Lucy can be reached at email@example.com.
Acknowledgments: The Author thanks Leila Amineddoleh of Amineddoleh and Associates LLC, the attorney who represented the Ministry of Culture and Sports of the Hellenic Republic, for speaking with the Center for Art Law about the implications of this case.
Disclaimer: This article is intended for general information only and is not meant to provide legal advice. Readers should not construe or rely on any comment or statement in this article as legal advice. Opinions expressed are those of the author.