district court's decision dismissing the amended complaint in this case on a twelve b six motion at the heart of the case this plaintiff's claim set forth in detail in her amended complain and to fund their escape from fascist italy in one nine hundred thirty eight we respectfully submit that under the circumstances it was error for the district court to dismiss the moment you complain without giving point of her day in court to prove her case i submit that the decision below is in firm for at least four reasons first instead of accepting the well pled allegations of the complaint and drawing all inferences in favor of point of the court made findings of fact that are inconsistent with the allegations of the complaint and to every inference against the point of second the district court dismissed the amended complaint because it held that there is a categor to any claim that asserts third party dress in new york simply put there is no such bar to third party dress in new york rather as the cases in other authorities including the restatements of contract and restitution made clear third party dress is actionable in new york so long as the counterparty the transaction has knowledge knowledge of the duress as is alleged in the amended complaint and this court recognized that in its decision and i lay in vs huntington cited the pages thirty eight and thirty nine of our opening brief third the district court improperly caroline characterized the sale of the actor as a run of the mill commercial transaction ignoring the allegations of the complaint that the contract was entered into by german jews on the run seeking to escape fascist italy before it was too late and giving no way to the allegations detailing the concrete and very real threats to the left in safety in life rather the court relied solely on cases where it was alleged only that parties in ordinary commercial transactions were induced to enter into agreements because of personal economic problems or general economic conditions and the court refused to acknowledge or take into account the very different facts of this case where is pleaded the left main savvy act it was a life or death decision as they sold the picture only because  palpable fear that they would face imprisonment or deportation to a concentration camp if they did not escape from fascist italy before the imposition of racists laws that were imminent and that they needed every penny  that parties were the parties were facing but what about the absence of threats specific to extort this particular contract is that not necessary it's not exactly the way to phrase it your honor with all due respect what has to happen is that there has to be a targeted threat that compels action by the victim and that they would not have done that entered into that contract except for that address that's imposed upon them their general conditions are not enough but in this case and as outlined in the complaint in great detail and i would also invite your attention to the brief submitted on behalf of the italian historians which also lays it out in great detail the left means were not only jews they were german jews living in italy they w specifically targeted as we laid out in the complaint and in that of the brief they laid out the foreign jews in particular were targeted they were had to submit to a consensus to a census they were being watched they were being deprived of specific rights they couldn't work and in particular in florence where the weapons reside nazis followed them so to speak from germany the police came they had an agreement with the italian police they were looking at jews when hitler came to florence in may  just a month before the sale of the of the painting they arrested hundreds of foreign jews based on the census and put them in jail so almost to hold them as hostage so that german jews living in florence at the time i can i move you to a question about statute of limitations and the here act certainly to and direct or active way or looted by the nazis in some act or and directed way there is some language at the very beginning that talks about  understand how they here act appliance because if it doesn't work for you then there is a statute of limitations issue arguably yes your honor i'll start with the statute of limitations act we don't need to hear at to survive statue limitations challenge in new york the statute of limitations is based on demand a refusal when a purchaser claims to be purchaser in good faith as the museum does here the course of action does not arise until a demand is made on the possessor in good faith and that demand is refused in this case that was done timely and we entered into a standstill agreement before it would have been expired would have expired indeed i don't think it was ever refused until the case was brought so we believe we are timely  delay it's a long time between one nine hundred fifty two and two thousand and ten it is your honor but the guggenheim case in new york and other cases make clear that the issue of on reasonable delay does not go to demand a refusal rule it goes to the issue of latches and that is a fact intensive inquiry that is not appropriate to be decided on a motion to dismiss indeed the judge did not decide that issue and that would  analysis not just of why the demand was made earlier but the conduct of the defendant as the guggenheim case explains is critical their vigilance the equities all have to be considered what did they not do and as we lay out in our complaint we believe they did not do enough that they were negligent and that any latches defense would be precluded by the unclean hands of the metropolitan they didn't put it in their catalog  plaintiff here started communicating with them even when they had a huge exhibition featuring the actor they still have the wrong provenance in it so we believe that that's a function of latches that we are very timely on the statute of limitations and under demand a refusal in new york which like me to go back to the year and yet they do use the word confiscation your honor and though been looking as you point out at the legislative history of the preamble of the current the bill that was an acted there's no doubt that they are focusing on property lost as a result of persecution not only by the nazis but by their allies as pacifically states that and in terms of what confiscation means these during the holocaust returned and in the definition of confiscation in the terrorism declaration again specifically referred to in the here at it equates equates sales by duress with by the nazis so we believe your honor that looking at the hat the legislative history the terrorism declaration and other and other authorities including the recent rife in a case in new york that there's no doubt assailed by duress was contemplated by the here act and for any reason we were unable to utilize the here act i believe that it is applicable we believe were timely under demand act i'm not saying your honor that only the definition in the terrorism declaration that that's the only reason that they too are equated judge reiko of in the shops case in two thousand and nine which came case it was under under german law but it said if the if the if objects lost by function of the rest came to the united states they would be treated as void not voidable because he equated the under the cases that in at this time the jurisprudence is clear that they arte lost by duress as a result of persecution by the nazis or their allies which would include the fascists in i clearly covered in the form of losses during the holocaust where they're called confiscation or anything else and yes and i'm looking at the provision in the here act when they say that to ensure that the was two thousand and fourteen the ninth circuit court of appeals looked at those at the washington principles and the terrorism declaration and said that that is a function of u s policy that courts should do everything in their power to follow rested all lost property had to be returned that's also the the point of the washington principles which the terrorism declaration followed up on and made it a little stronger so i think when you put all of that together in there more authority cited in our brief there's no doubt that under current jurisprudence a loss of property by duress caused by persecution of the fascist or the nazis clearly falls within the year at as i say if there's any disagreement on that your honor i believe under the new york demand it refused to rule this case is timely and i submit that when all the factors of both the plaintiffs  diligence in the defendant's vigilance are looked at on a fact based increase as the case goes forward that we will prevail on latches as well it's worth noting under the patrol a case of the supreme court that if they hear acted by the claim we have of unclean hands i just ask you to go back to the third party directs issue do you know of any new york state court decisions that have specifically said that third party restatement of restitution why should this that since no new york state there is no new york state case on issue why shouldn't we certify that issue to the new york state court and that certainly is a possibility your honor we think that under the new york state cases which specifically do a do not propose there's no new york state case at any level that precludes third party duress certainly this court and the district court have read the new york cases which i believe new york does it here the restatement and said that third party dress is viable in new york but if you felt there was any question you needed a higher court to say that the other thing is that we believe that even under the cases  by the defendant and the court particularly the interferon case which says you know there wasn't enough economic pressure there for the duress to be held that this is a set of extraordinary facts that in to form said once you're if you have a set of extraordinary facts you have to look at duress differently i don't remember that was a third party dress case but your honor the same thing would apply to third party dress purchasers who are not nazis and that they took some time to think about which which offers they they wanted to make it's an undeniably the case that they sold it for bargain basement prices and then three years later it was selling for more than you know several a few times the amount but isn't there something to the view that you're dealing with purchasers like paul rosenberg and pearls and they were they were not and certainly rosenberg was not a nazi and we don't suggest that they are your honor but we do suggest and we allege in the complaint that they were well aware of what the plate the plight of the left means in italy indeed is the brief submitted by the italian historians it says in great detail with great authority all of the major dealers in europe knew what was going on in italy at the time so they totally fit within the restatement rule that if the counter party has knowledge of the dress of the threat then clearly third party dress is a viable also your honor in that and it it's an issue that troubles me greatly because it flows from what i said first that the court made findings of fact inconsistent with the complaint and your inference is against the point of the fact of the matter is as the court said and the defendants say and it's irksome the left since we're not trying to sell this picture for two years what happened was in one nine hundred thirty six while still in nazi germany while beginning to suffer the plight there someone made an unsolicited offer to them of about the same amount that they alternately sold it for and they rejected it outright they didn't even talk to them and that was why they were nazi germany getting ready to flee there and certainly that didn't indicate that they were looking to sell it as they got to italy thinking they were coming to a safe haven and finding the nazis followed them and that things getting worse by the day of course they started to think about selling it they were going to need every penny they had even though they were able to exchange some property after they got there they got lira for them not hard currency which was going as our brief points out was not going to be helpful to them in escaping they needed every penny they could get they had this painting sitting in switzerland they needed to sell everything and they would never have sold this painting except it had they were under true horrific to rest and in fact would just like to add your honor as we say in our own our brief this was not just economic to arrests this qualifies as vile the rest by violence because this was a threat tantamount to violence is the restatement makes clear and certain of the cases me clear this was a threat that would lead any reasonable person to fear for their safety their life and imprisonment and that qualifies under the law as physical violence and that would render the agreement void and we believe the reman is void ab initio because of what was happening to the left means in florence at the time they sold the painting declaration hadn't even been assigned yet he waited property taken by theft or by duress with theft as far as us cases were concerned and would not treat that is avoidable sale plus the notion of of ratification would have to come in and clearly is religion the complaint when the libyans are on the run having to go temporary to switzerland then to brazil not getting back to it that in fact they left a man has made a number of claims will respect other pieces of art but not with respect to the painting at issue in this case were after the war in germany but they only covered that were taken in germany they were not they would not have covered this particular work which he had left germany before the left means left germany and wasn't taken either by theft or duress well in germany and this would not we could spread this out on the at the trial court but under those regulations which are complicated we submit that this they could not have made a claim for this painting you know i also say your honor that they were victims of the holocaust in fascist repression fleeing all over the world to save their lives and ending up back in the  fifty s in switzerland one of the the things you look at in terms of latches and whatnot you know was even whether the authorities knew they had a claim and you know we're standing here today we understand the following the holocaust but it's unclear what the left means could have known then about their rights having sold it under those kinds of pressures so i do not believe there was any basis of to the defendant suggestion that they could have brought this claim in germany after the war at any rate we're now well beyond anything that could be resolved on a twelve the six nation i don't believe any of this should be resolved i think to admit to the extent that complaint we can't resolve it given the allegations and complains that's your position correct my position first is they're not relevant and then if they were relevant we certainly would have to have a very detailed and intensive fact inquiry on any of those issues we believe the law covers it thank you thank you thank you your honor may it please the court my name is david barker with the wilmer hale firm appearing on behalf of police and the metropolitan museum of art i'd like to start with three basic points one that neither the district court nor the museum treated this as a run of the mill transaction and i'll get into the details of that assertion too that the district court's dismissal for failure to plead to ras was correct and should be affirmed and three but there are four additional independent reasons on which this court can affirm on the pleadings at a twelve to six stage and i'll explain the reason for that so let me return to point one neither the district court nor the museum treated this as a run of the mill transaction when the appellant came to the museum many years ago with questions about the one nine hundred thirty eight transaction involving the painting neither of us knew much about what had happened the reason that the provenance had been stated the way to been stated is that the museum didn't know otherwise what we did in response is what the museum has done for decades in response to nazi era claims and that is to take them seriously with appropriate sensitivity integrity and objectivity and attention to the facts and to the merits the museum prior to any litigation spent years investigating the circumstances of the one nine hundred thirty eight sale and the circumstances of the left mons it conducted that investigation across two continents contacting governments museums galleries dealers and collected absolutely everything it could get its hands on that was relevant it spoke to any individuals with any personal knowledge and shared all of that with the appellant and her counsel prior to litigation holding nothing back nothing back it shared at all and the museum after applying its own guidelines which it helped the american association of museums develop for nazi era claims concluded that that nine hundred thirty eight sale had not been the product of derives i can say having been part of it not as a fact witness but as a as an expression of the museum's state of mind is that if the museum had believed this was a sale under duress it would have given the painting back the district court also did not treat this as a run of the mill transaction the district court accepted the allegations is true and spent roughly half of the opinion some one thousand pages repeating nearly verbatim the horrific allegations in the complaint including the left mon's state of mind it analyzed those allegations with care and sensitivity and then concluded based on the law that the nine hundred thirty eight sale had not been the product of direct arrests concluding that those allegations failed to plead darius as a matter of law on the merits of that claim let's go ahead so you said that if this had been a sale under duress after a full investigation the museum would return the painting so why don't why don't you address the reasons for the so we accepted the allegations as true including the allegation that the left months feared for their liberty and for their lives we also accepted the allegation that the basis of that fear and this is paragraph nine of the amended complaint that the basis for that fear were the circumstances in fascist italy at the time there was no specifically directed threat as your honour's pointed out specific to this transaction the threat was a general threat so we recognize that they were under extreme pressure from the circumstances in italy at the time because that's what's been alleged but we have not accepted the conclusion that that means the thirty eight sale is voidable forward to rest and that what we what we need to do to figure that out is look at new york law and new york law on this point is clear and we've gone back and looked at new york court of appeals cases because that's what needs to guide the court and the new york court of appeals cases that are most relevant are the austin case twenty nine new york second one twenty four at one thirty that's a one nine hundred seventy one court of appeals case where it says a c quote a contract is voidable on the ground of darius when it is established that the party making the claim was forced to agree to it by means of a wrongful threat precluding the exercise of free will we go further and we look at the court of appeals case in eight zero five third avenue company versus m w realty that's at fifty eight new york second for forty seven at four fifty one and that's in one thousand nine hundred three and this is where the requirement of the counter party comes from new york law the theory on which plant this is a quote the theory on which plaintiff seeks recovery permits a complaining party to void a contract and recover damages when it establishes that it was compelled to agree to the contract terms here's the key language because of a wrongful threat by the other party which precluded the exercise of its free will now but essentially three requirements here it wrong full threat by the counter party to that precludes the free will and three leaving no alternatives what about their party their arrests so the third party to rest point i think my friend is mistaken about the law in new york they have cited the aisle i lay on case the i lay on cases of summary order of this court that found no dress restatement and the restatement obviously is not a statement of new york law there is no discussion of new york law and i lay on so is there is there a case in new york state case that directly deals in your view with third party duress or the new york what appeals we have found no new york case that permits third party directs and we have found a new york court of appeals case that requires it to arise from the counterparty new york pattern jury instructions which specifically from a third party dress are they just wrong i think they don't have the support of the new york court of appeals that said i think this court doesn't need to decide this question i think what's clear from new york law is whether the threat arises from a third party or from the counterparty what's clear is that there needs to be a wrongful threat that is directed at the sale for the purpose of compelling consent in this transaction now that's what italy has to say italy does allow third party dress but it's it says very clearly as new york does that it needs to be for the purpose of compelling consent of extorting consent is the language in italy that's the same in new york and so whether it arises as the as the jury instructions say whether it arises from a third party or arises from the counter party the point is a directed threat for perp with purpose to extort consent and focusing on economic duress but why does the rest if if in the that my understanding of the opinion is correct why does the rescue have to just be economic duress or going to be emotional duress it can be physical duress duress is a is a concept that seems to me is more expansive than just purely economic interest yes your honor the district court looked at economic dress because that's the argument and those are the allegations that the appellant made the appellant said not that anyone was forcing this transaction but rather the left mons had a general need to in their words raise as much castors possible for and this is a quote whatever the future would bring its the flight and whatever the future would bring and so the court taking that allegation and taking that argument looked at economic to rest now we've already dealt with the requirement of a wrongful threat there are two more requirements under new york law one is a preclusion of free will and the the last is that leaving no alternatives but to enter into this transaction so let's deal with each of those of free will the allegations here accepting them is true show the opposite of a preclusion of free will now appellant has said the last months did not take years but it's clear from the allegations that they took their time they took at least months the allegations say in paragraphs twenty eight to thirty seven in the amended complaint that they were attempting to sell months before the transaction entered into that they rejected at least one offer shortly before the one they accepted and that they made their own choice to accept the higher offer this was a transaction that took place in paris between private parties with no involvement by nazis or fascists on the open market where they accepted the highest price and the country but in the context of the horrific situation which you yourself acknowledge where you have these jews who were fearing really for their own lives their family lives and were trying to think of ways to amass capital  in the event that they had to flee yet again doesn't really make sense in the real world to say that this was wholly an action wholly a free will  the i think it does your honor the question is not whether the left nuns were under pressure we acknowledge they were and it was horrific pressure the question is whether this transaction can be unwound all these many decades later on the theory that they didn't exercise free will that to the they had price three years later reflect that the price was depressed in one nine hundred thirty eight they sold it for twelve thousand three years later  for i bought it for almost twice as much doesn't that show that the twelve thousand dollars price reflects this durant's they would have gotten much more than that the had there not been this problem they were facing to try to save their lives so  in the years that are relevant here is that the markets were very tumultuous in these years there was one sale that occurred in one nine hundred thirty eight the sale at issue here that's in paris now we we submit that you can call that sale whatever you like but it was negotiated on the open market with dealers at arm's length it was negotiate now it may have been a depressed market but that doesn't mean it wasn't fair market value it just means it was a depressed market the market may have were very dark in europe and in the one nine hundred thirty s i think there was a depression underway and i think there were a lot of political factors including the scourge of the nazis in the fascists and so the art market was four years  unpredictable and to mulch us the the reason that we say that this was a reflection of their free will it's not to discuss the fear that they felt it's to say that they felt that fear and they made a decision to sell this painting and negotiated and took their time and decided what price to accept i think it's very important to recall that they rejected an offer shortly before they accepted this one literally within months of this offer they rejected another offer for the it was for the same amount which was the highest price that they'd been able to get those it tells us that they had enough free will to think that they could turn down an offer and wait and see if they could get a better one and that that is a is a display of free will i think the last thing that the court focused  on the last thing that the court focused on was this requirement of no alternatives and this is where economic to rest is important because the court again looked very closely at the allegations in the amended complain now they appellant has drawn the conclusion which is an element of duress that there were no alternatives what the supreme court says an x ball is this court doesn't need to accept in the district court did not need to accept even a rule twelve b six which is it ball does not need to accept a conclusion based on a restatement of an element of the claim instead the court needs to use its common sense use its experience and look closely at the factual allegations and if you look closely at the factual allegations with respect to alternatives what you'll find is that they did have other assets and the appellant has acknowledged that they had other assets w said is that the painting was the majority of available assets in one nine hundred thirty eight but what the district court seized upon was that for the next decade the left moms were able to afford their living expenses a move to switzerland a move to brazil a move back to switzerland fees bribes fines and deposits for the next decade without ever working again and here's the important fact in hundred forty one alone three years after the sale they made a deposit in a brazilian bank and this is alleged at paragraph forty six and forty seven they made a deposit in a brazilian bank of twenty thousand dollars and paid a levy of forty six hundred dollars that's twice the sales price of the painting three years later and all the district court said is that they had other financial alternatives in this instance so it's three elements and three ways in which the claim fails limitations yes your honor and all statute of limitations and also here and here act yes we submit that the statute of limitations ran no later than one nine hundred fifty five because under new york law it's a three year statute one nine hundred fifty two the museum acquired this painting by gift  was still alive at the time she did not die until one thousand nine hundred fifty six and as appellant has acknowledged postwar claims were being made at the time in other venues the need demanding refusal is not present according to this court in songbird if the possessor deals with the property as its own now clearly the museum here in exhibiting the painting on its walls having accepted a gift  dealt with this painting as its own and did for many decades before any claim was brought we submit that that's plenty including with the unreasonable delay to defeat a demand in refusal argument with respect to  the here act i think your honor has put his finger on the relevant provisions here and i would just add a couple of things one is that the title of that act is the holocaust expropriated art recovery act that title says everything it is about as your honor noted nazi confiscations and looting expropriated art refers to those confiscations and looting and it makes good sense that the us government would give relief especially for those families that didn't survive were the original owners did not survive this is a very different kind of case with no nazis involved no fascists involve no expert creations where the family survived and the original owners brought claims for other things i will quote i do want to correct the record on the claims for other things we don't i don't recall those other things being about art as your honor suggested but the point is not that they had a viable claim in germany they may or may not have the point is that they had the capacity and the ability and the sophistication certainly to repudiate all that takes is an objection to the contract and certainly to bring a claim in the right form and according to their expert professor for gassy they had this claim in italy that they chose apparently not to bring there's no record that they brought it declaration does explicitly refer to artwork sold under duress in the holocaust era so  does the here act how does the here act relate to the terrorism direction that aeration if the declaration does mention the kind of circumstance arguably that the left minds find themselves in here do we just ignore it as a matter of statutory interpretation how do we interpret i think your i think your honor was correct that the not specifically incorporate the terrorism declaration it doesn't say that the terrorism declaration rules apply rather what it does is it cites to the terrorism declaration for an articulation of policy now let me read specifically t part of the here act that refers to the terrorism declaration it's in section three the purposes of the here act the purposes of this act are the following and this is a quote section one to ensure that laws governing claims to nazi confiscated art and other property further united states policy as set forth in the washington conference principles on nazi confiscated art the holocaust victims redress act and the terrorism declaration so what does that say that the laws governing claims to nazi complicated art further this policy and so we look to those rules the declaration for an articulation of policy the policy that's articulated in those three instruments is a policy that with respect to nazi era claims courts are encouraged to resolve these claims on a quote fair and just basis and then i'm ending the quote and paraphrasing with a focus on the facts and the merits well that's exactly what happened here so even even if this were a political and it's not because it refers to nazi confiscated art and again our case is not nazi confiscated art but even if it were political the district court did exactly what u s policy urges and it doesn't require and doesn't require any outcome it doesn't speak to the substantive standards it simply says let's resolve these things in a fair and just way focused on the facts and the merits  that and she did it in our view perfectly here she looked very closely at the allegations accepting them is true she did a rigorous analysis of the choice of law and even did and applied new york law properly to find that there was no pleading of the rest under new york law then she did the alternative analysis and even if it were italian law there'd be no pleading of duress under italian law because the two are effectively the same and there's no outcome determin e difference so we do assert that we have a very strong statute of limitations defense that is not alleviated by the here act because the air act is in political and moreover we have a very strong latches defense the latches defense here is is the straw the stronger we would say of the time by our defense is because it looks at two things has there been an unreasonable delay and has there been prejudice to the possessor as your adversary says we don't usually resolve latches on a mission to dismiss ah that's that's right i think where there are relevant factual issues in dispute here we're accepting everything they've said even if you take the whole the starkest articulation of the story we've accepted it we're not we're not refuting anything relevant to any of these defenses and if you if you look at it that way discovery is not going to add anything we're we've already accepted the truth discovery usually is to prove the truth of what's been alleged and we've just accepted it and asked the court to decide not just on the basis of a failure to plead to ross but also ratification the good faith purchaser doctrine the defense of statue limitations and latches and we would say that those are five independent grounds this court can affirm on any one of those grounds with out the need to explore the facts because they've been accepted as true unless there are any further questions so i just want to make one more point about the here about the direct further to what i said before and i won't repeat it about the nomenclature used today in the iraq and generally if you look at  provisions it states that a civil claim or a cause of action against the defendant to recover any artwork or other property that was lost during the recovery period because of nazi persecution may be commenced not later than six years after the actual discovery by the claimant to that further is what i was trying to explain earlier that last motion is honors the washington principals in terrorism declaration saying that and i'll of course case the court should look at the facts and the merits is irreconcilable