A new era for Nazi-era art claims: Legislation strips key legal defenses

On March 16, 2026, the US House of Representatives followed the Senate in passing an expanded version of the Holocaust Expropriated Art Recovery Act, S. 1884, 119th Congress, First Session (the "Expanded Act"), which is intended to aid in the recovery of artworks that were lost or stolen during the Nazi era. 

It previously passed the Senate and is headed to the President for signature. The Expanded Act eliminates a number of defenses that have, until now, been used successfully to defend against claims.  The Expanded Act fundamentally alters the legal landscape for both claimants seeking to recover lost artworks and current owners (whether individuals, art dealers, institutions) who have works that may be subject to claims.  It is important for everyone who is or may be affected by the law to consult with counsel and proactively prepare for the impacts of this change in the law.

Background

In 2016, the US government enacted the HEAR Act, which extended the statute of limitations for artworks lost due to persecution during the Nazi-era.  Specifically, the law created a new six-year statute of limitations running from the date that the claimant had actual knowledge of both their claim to the artwork and the artwork's current location.  This new limitations period was longer than the various limitations periods for personal property claims typically imposed and governed by state law in the United States.  The "actual knowledge" standard was also a significant change, because it meant that, in many cases, the limitations period would not have started to run on Nazi-era claims even though the losses took place decades earlier. ^[1]

The Effect of the 2016 Act

Fewer than two dozen lawsuits have relied on the 2016 Act to bring claims of Nazi-era losses that otherwise would have been untimely, some of which were already pending at the time of its enactment.  The 2016 Act has ensured that some claims that would have otherwise been blocked by the statute of limitations could go forward.  But to the extent that the ultimate purpose of the 2016 Act was to see that Nazi-looted artworks were returned to claimants, it has been less successful.  Of the claims that have been brought since the statute was enacted, only one, Reif v. Nagy, has actually resulted in a court order requiring a current owner to turn artworks over to claimants. 175 A.D.3d 107, 106 N.Y.S.3d 5 (2019).

Further, the claims that were denied were not based on their underlying merits.  Courts, instead, have relied on a number of so-called "technical defenses" to reject claims.  The most commonly used defense has been laches, which prevents claimants from recovering property because a delay in bringing a claim has resulted in prejudice to the current holder.  With Nazi-Era claims, Courts have primarily cited loss of evidence (e.g., the loss of documents or death of witnesses) to find prejudice.  Other "technical defenses" relied upon include the Act of State doctrine (which holds that United States courts will generally not review the acts of a foreign sovereign undertaken in its own territory) and the Foreign Sovereign Immunities Act (which generally renders foreign sovereigns immune from suit in the United States).

The Expanded Act

The underlying goal of the Expanded Act is to eliminate "technical defenses" and have claims resolved solely on their merits.  But there is also a broader message.  By implication, the Expanded Act says that the issue of "whether artworks lost due to Nazi-era persecution should be restituted" has been settled in favor of claimants.  The only questions remaining, therefore, are whether an artwork was lost to persecution and whether it was restituted after the War.

The Effect of the Expanded Act

Between December 16, 2016, the date the 2016 Act was enacted, and March 16, 2016, the date the Expanded Act was passed by the House of Representatives, at least eight courts relied on the HEAR Act in their opinions.  Previously litigated cases where a final judgment was rendered will not be revived, but cases brought under the 2016 Act and still pending will receive the new benefits of the Expanded Act.  Of the cases that were litigated to final judgment under the 2016 Act, at least three (two of which were cited in the text of the Expanded Act) could have had different outcomes if the Expanded Act had been in place.

But it is difficult to determine whether those cases would have had different outcomes.  Several were decided on motions to dismiss, where the record had not been fully developed.  Depending on the facts adjudicated, they could have gone either way.  For example, in Zuckerman v. Metropolitan Museum of Art, 928 F.3d 186 (2d Cir. 2019), the claimants alleged a sale under duress; while the Second Circuit Court of Appeals denied the claim based on laches, the District Court's decision did not go so far as to consider laches, focusing instead on the lack of adequate proof of a duress sale. 307 F. Supp. 3d 304 (S.D.N.Y. 2018). So, the claim might well have been dismissed even under the Expanded Act.

The Expanded Act is a seismic shift in the landscape of Nazi-era claims.  Until now, "technical defenses", which are questions of law in which attorneys specialize, have been a crucial part of the defense of virtually every claim of Nazi-era loss in the United States.  And this was true whether the claims were litigated or resolved without litigation.  Both claimants and current owners were equally able to determine that dismissal under a technical defense would be a risk if a claim was brought.  That undoubtedly influenced both litigation strategy and settlement considerations.  

Going forward, the focus will be on the facts.  The strength of the surviving documents and the testimony of expert witnesses will determine outcomes, and questions of history--a discipline in which attorneys or judges are not typically trained—will take precedence.  

Actions Needed

Anyone in possession of or with a claim to valuable artworks that might have traded hands in continental Europe between January 1, 1933 and December 31, 1945 needs to ensure they have documented provenances, or ownership history, for those works.  And it is important for all who may be affected to act quickly.  Works potentially subject to claims often enter the market after a collector's death.  As a result, the existence of potential claims is generally not discovered until works are being evaluated for sale and often not until an upcoming sale has been publicly announced.  

If artworks with significant gaps in provenance during the Nazi-era are identified, current owners should consult with counsel to create a plan for research that needs to be undertaken.  Working with counsel can provide legal protections that may be important if a claim is brought.  Potential claimants, too, need to consult with counsel to understand what rights they may have and how they should proceed.

The Withers Difference

Withers has a team of attorneys with decades of experience with Nazi-era claims and a respected litigation practice that has long been at the forefront of Art Law.  This includes one of the only practicing attorneys in the United States who also has a Ph.D. in Art History.  As a result, Withers is uniquely situated to handle this new stage in Nazi-era claims, where questions of history will predominate.  Our team works with researchers in the US and abroad to help gather provenance information for clients with claims or with works whose ownership history needs further investigation. 

In related news...

Frank Lord was recently quoted in national media articles on the expanded Holocaust Expropriated Art Recovery Act.  Click on the title below to read the full article.

• Congress Passes Holocaust Art Restitution Bill Ahead of 2026 Deadline – Urgent Matter