A court order levying a $50,000 daily fine against the Russian government for refusing to return thousands of Jewish religious texts made international headlines in January. But what’s happened since then remains a secret, except that the Russian Feder­ation’s tab has grown to more than $3.5 million.
Agudas Chasidei Chabad of the United States sued Russia for the return of the Schneerson Collection — some 12,000 books and manuscripts seized in Russia during the early 20th century, along with 25,000 pages of handwritten texts that the Soviet Red Army seized as war loot from the Nazis. U.S. District Chief Judge Royce Lamberth in 2010 told Russia to return the collection, and when that didn’t happen, he ordered civil contempt sanctions — over the objection of the U.S. Justice Depart­ment.
Chabad’s lead attorneys, Nathan Lewin and Alyza Lewin of Washington’s Lewin & Lewin and Bingham McCutch­en partner Seth Gerber, declined to discuss anything that’s happened since the sanctions order, and the public docket isn’t illuminating. When the lawyers last met with the judge in mid-March, the hearing was closed to the public at the plaintiff’s request.
After about 20 minutes behind closed doors with the Chabad’s lawyers — Russia hasn’t participated since 2009 — Lamberth’s only public statement was to set a hearing for April 18. He declined to discuss why he agreed to a sealed hearing in his chambers.
Russian embassy spokesman Yevgeniy Khorishko said officials have not met with the plaintiffs or representatives of the U.S. government since the January 16 sanctions order. The Russian government doesn’t plan to re-enter the case, Khorishko said, but maintains that Lamberth got it wrong.
"According to the Russian law, the Schneerson Collection is the part of the country’s national heritage and cannot be alienated. We do not consider Chabad as the rightful owner of the collection," Khorishko said in a email last week.
Chasidei Chabad would face an uphill battle if it wanted to enforce the sanctions, said Crowell & Moring partner Stuart Newberger in Washington. The federal Foreign Sovereign Immunities Act gave Lamberth authority to order the sanctions, he said, but the law is unsettled about the court’s enforcement power.
In his January order, Lamberth stressed that he was only imposing the sanctions, not taking steps to enforce them. In a recent case involving contempt sanctions against the Democratic Republic of Congo, the U.S. Court of Appeals for the D.C. Circuit affirmed a district judge’s authority to order the sanctions, but warned in its March 2011 opinion that any attempt to enforce them "could prove problematic."
Newberger, who practices in international disputes, said that , even if the plaintiffs could start looking for ways to collect on the fine, Congress purposefully set up high barriers for attaching assets in cases against foreign governments that don’t involve allegations of state-sponsored terrorism. "At a certain point, it’s not just a litigation issue, it becomes a diplomatic issue," he said. "It can get very complicated very quickly." Lamberth’s order was likely "bad for diplomacy," he added.
Russian officials halted art loans to the United States in early 2011, citing concerns that Chasidei Chabad would seize those items. The Chabad’s lawyers repeatedly insisted that they would not do so.
Nicholas O’Donnell, a litigation partner at Sullivan & Worcester in Boston, said the case left him pessimistic about the Foreign Sovereign Immunities Act’s effectiveness as a tool to reclaim property overseas.
Judges across the country have pushed to resolve this type of dispute through diplomacy, O’Donnell said. The Chasidei Chabad dispute, he said, is a test of the options plaintiffs have when diplomacy fails. U.S. officials tried to negotiate for the Schneerson Collection’s return starting during the early 1990s, with no success, according to court records.
"If the trend has been, ‘Maybe we should move this to the diplomatic [realm],’ this case tests that principle in a way that may be found wanting," O’Donnell said.
Contact Zoe Tillman at email@example.com.