The Greek Ministry of Culture and Sports sent a demand letter to Sotheby’s shortly before they were going to auction off a Greek antiquity. Greece claimed in the demand letter that the item (a bronze horse) was Greece’s pursuant to Greek patrimony laws and that there was no record of the item having been lawfully exported. Greece sought repatriation of the item.
Sotheby’s and the executors of the trust that had consigned the item to Sotheby’s then sued in federal court seeking declaratory judgment that the Greek antiquity was properly owned by them and could be consigned and sold by Sotheby’s at auction. The Greek Ministry moved to dismiss for lack of subject matter jurisdiction under the FSIA. The district court found that Greece’s demand letter constituted commercial activity under the FSIA because private parties routinely send demand letters seeking return of their property.
Greece made various arguments on appeal regarding its sovereign immunity under the FSIA.
The amicus that my colleague Laina Lopez and my firm filed – on behalf of Italy, Mexico, Cyprus, the Antiquities Coalition, and the Hellenic College Holy Cross Greek Orthodox School of Theology — argued one point not made in Greece’s opening brief. Amici argued that the demand letter does not constitute commercial activity because a demand letter seeking return of cultural heritage property pursuant to a nation’s patrimony laws is something only a sovereign can send; enforcement of patrimony laws is an exercise of the state’s police power. Amici also raised concerns about the practical effects of the case if the court were to uphold the district court’s decision.
The case is Barnet Recovable Trust, and Sotheby’s Inc., Plaintiff-Appellees v. Ministry of Culture and Sports of the Hellenic Republic, Defendant-Appellant, U.S. Court of Appeals for the 2d Circuit, Civ. 19-2171-cv. If you are interested in a copy, please contact Lex Haris (firstname.lastname@example.org).