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United States District Court for the Southern District of New York
September 24, 2019, Decided; September 24, 2019, Filed
1:18-cv-08248; 18-CV-11167 (RA)
OPINION & ORDER
RONNIE ABRAMS, United States District Judge:
Plaintiffs Hicham Aboutaam and Lynda and William Beierwaltes bring these related actions for, inter alia, conversion and declaratory judgment as to title against Defendants the Federal Office of Culture of the Swiss Confederation (the "FOC"), the Federal Customs Administration of the Swiss Confederation (the "FCA"), and the Republic and Canton of Geneva. Plaintiffs, who maintain collections of ancient art, allege that Defendants unlawfully ordered their antiquities to remain frozen in a warehouse in Geneva pending the outcome of a criminal investigation into the antiquities' origins. Before the Court are Defendants' motions to dismiss the complaints, principally on the ground that Defendants are immune from suit under the Foreign Sovereign Immunities [*3] Act. For the reasons that follow, Defendants' motions are granted.
Hicham Aboutaam is an international dealer of ancient art who is a citizen and resident of New York. Together with his brother, Ali Aboutaam, he co-founded Phoenix Ancient Art S.A. ("Phoenix"), an art gallery which is located in Geneva, Switzerland. Hicham also manages an affiliated gallery, Electrum, which is located in New York. Lynda and William Beierwaltes are art collectors who are citizens and residents of Colorado. In 2006, they granted Phoenix the exclusive right to sell their antiquities collection, and in 2013, they filed for Chapter 11 bankruptcy and designated Phoenix as the antiquities dealer of their bankruptcy estate. As the Beierwaltes' dealer, Phoenix was able to sell some, but not all, of the Beierwaltes' antiquities. At the time of the events giving rise to this lawsuit, 18 of the Beierwaltes' antiquities remained in Phoenix's possession in Geneva.
On February 28, 2017, approximately 1,200 of Hicham's antiquities, and 18 of the Beierwaltes' antiquities, were seized as part of a larger seizure of approximately 12,000 objects and frozen by Swiss authorities in the Geneva warehouse where they [*4] were stored. The items were seized pursuant to two search and seizure orders, one issued by the Geneva Prosecutor and one issued by the FCA.2 The orders referenced complaints from both the FCA and the FOC, which described the "sudden and suspicious" movement of cultural property and identified various antiquities of suspicious provenance, or chain of title. Specifically, the warrants stated that on December 20, 2016, the FCA intercepted two individuals at the border in possession of a fraudulently imported antique oil lamp. Upon further investigation, the FCA discovered that property was moved out of a Geneva warehouse in the early morning hours of December 21, 2016. Ali Aboutaam's wife, Biliana Aboutaam, was identified on surveillance cameras in connection with the movement of that property. The warrants explained that criminal and customs inquiries were being conducted into potential violations of Swiss law regarding the importation and exportation of cultural property.
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2019 U.S. Dist. LEXIS 163427 *; 2019 WL 4640083
HICHAM ABOUTAAM, Plaintiff, -against- L'OFFICE FEDERALE DE LA CULTURE DE LA CONFEDERATION SUISSE, ET AL., Defendants.LYNDA BEIERWALTES, ET AL., Plaintiffs, -against- L'OFFICE FEDERALE DE LA CULTURE DE LA CONFEDERATION SUISSE, ET AL., Defendants.
Subsequent History: Affirmed by Beierwaltes v. L'Office Federale de la Culture de la Confederation Suisse (Fed. Office of Culture of the Swiss Confederation), 2021 U.S. App. LEXIS 16942 (2d Cir. N.Y., June 8, 2021)
international law, discovery, seizure, seized, Plaintiffs', antiquities, criminal investigation, immune, foreign state, ongoing, expropriation, freeze, cases, instrumentality, courts, sovereign immunity, foreign sovereign, sovereign's, warrants, comity