Barnet v. Ministry of Culture and Sports of the Hellenic Republic

In 1932, Greece (defendant) enacted the Antiquities Act, which stated that antiquities found in Greece were the property of the state. In 2002, Greece enacted an additional patrimony law, which stated that Greece would protect antiquities of Greek origin wherever they were located and that possessors of Greek antiquities must apply to the Greek state for permission to transfer possession to a third party. A dealer bought an ancient Greek bronze horse figurine at public auction in Switzerland in 1967. In 1973, the dealer sold the figurine to the Barnets. The Barnets died, and possession of the figurine passed to the Barnet trust (Barnet) (plaintiff). Barnet sought to auction the figurine at Sotheby’s (plaintiff) in 2018. The Greek government sent a letter demanding that Sotheby’s withdraw the figurine from the auction and confirm that Sotheby’s would return the figurine to Greece. Barnet and Sotheby’s sued Greece in federal district court in New York state, asking the court for a declaration of the figurine’s ownership. Greece filed a motion to dismiss for lack of jurisdiction, asserting that the Foreign Sovereign Immunities Act (FSIA) made Greece immune from suit. The FSIA provided exceptions to sovereign immunity for foreign states engaged in commercial activity. One exception, codified at 28 U.S.C. § 1605(a)(2)[3], stated that a foreign sovereign was not immune from suit if it engaged in a predicate act inside the United States in connection with commercial activity of the sovereign elsewhere that had a direct effect in the United States. Barnet and Sotheby’s argued that this exception applied to Greece’s claim on the figurine. The district court identified Greece’s letter as a predicate act within the United States and concluded that sending such a letter to challenge ownership was something a commercial or private actor would do. The district court ruled that the FSIA exception did apply and that the court had jurisdiction to hear the case. Greece appealed.