As you review the complaint that was just served on your client, you realize that your possible defenses include both lack of personal jurisdiction and forum non conveniens. You wonder. Does the court first have to decide that it has personal jurisdiction before it is competent to consider the forum non conveniens issue? A recent decision by the New York Court of Appeals held that the court may address the forum non conveniens issue before the personal jurisdiction issue. In doing so, it followed a decision of the U.S. Supreme Court to like effect about 15 years earlier. See Sinochem Intl. Co. v. Malaysia Intl. Shipping, 549 U.S. 422 (2007) (Sinochem).

'Estate of Margaret Kainer'

Background. In the 1930s, the Nazi regime stole an Edgar Degas painting entitled Danseuses from Margaret Kainer, a resident of Germany, which painting is the subject of the lawsuit, Estate of Margaret Kainer, et al. v. UBS AG, 2021 N.Y. Slip. Op. 07056 (Dec. 16, 2021). Plaintiffs are Kainer's estate and 11 putative heirs who allege that Kainer's estate passed to them under the relevant intestacy law. Defendant Norbert Stiftung (the Foundation) is a foundation allegedly provided for in the 1927 will of Kainer's father, to be established in the event that she died without children or grandchildren. Plaintiffs assert that, after Kainer's death, the predecessor of defendants UBS AG and UBS Global Asset Management (Americas) created the Foundation as a Swiss public entity under UBS's direction and control, and improperly obtained all of Kainer's assets.

It is alleged that, in 2000, the Foundation, acting in its capacity as heir, registered Danseuses as stolen in lost and looted art databases. In 2009, defendant Christie's contacted the Foundation, seeking to facilitate a private sale of the painting by a Japanese gallery. The Foundation entered into a Restitution Settlement Agreement with the gallery in which it renounced its rights to the painting in exchange for 30% of the proceeds from the private sale, receiving approximately $1.8 million. A few days later, Christie's offered the painting at public auction in New York where it sold for $10.7 million. Plaintiffs commenced a suit against in the New York Supreme Court, alleging conversion, unjust enrichment, and conspiracy, based on the sale of Danseuses.