Jewish organizations, others must stop interfering with Holocaust survivors’ rights


[This column is a response to a piece by Menachem Rosensaft:
Crafting a Holocaust insurance solution that works
]

The JTA recently published an op-ed by Menachem Rosensaft which gratuitously offers an “alternative” to the legislation that Holocaust survivors and children and grandchildren of survivors are seeking in Congress.  The bills Rosensaft patronizingly calls “well-intentioned” are necessary to restore our rights to go to U.S. courts to recover insurance policies sold by Allianz, Generali, AXA, and other global insurers to our parents and grandparents which the companies dishonored after the Holocaust.  We don’t know who Mr. Rosensaft claims to represent in making this suggestion, but it most certainly is not speaking for Holocaust survivors or the families of Holocaust victims.  We can speak and act for ourselves, and we demand the right to do so.  This is something that over 100 members of Congress, on a bi-partisan basis, who are co-sponsoring HR 890 and S. 466, understand. 

Let’s remember what this problem is all about.  Insurance policies—private contracts that our parents and grandparents paid for with the sweat of their brows.  Contracts that the companies charged and accepted money in exchange for the promise to pay our parents and grandparents if something happened, and needless to say our families did lose everything.  “The companies profited from our families’ misery, and no one, certainly not the World Jewish Congress or the Claims Conference, or any other of the groups now fighting us, lifted a finger to demand that the insurers make good on these legal contracts, until states like Florida, California, and New York took action in 1997-1998.” In the current legislation, survivors are demanding the same rights as every other American citizen to recover our family legacies.  Who is Rosensaft to say we should be second class citizens with regard to our ability to collect on these private insurance policies?

Other than the companies’ disgraceful conduct after the war, Rosensaft’s history is almost entirely inaccurate.  It was not until the California, Florida, and New York Legislatures passed laws to hold the companies accountable, that the insurance companies came up with the idea to create a “voluntary” commission to publish names and pay claims.  Everyone understood that this “international commission,” called ICHEIC, was indeed voluntary unless a claimant accepted an offer for a policy.  The insurers understood this, and so did the “Jewish groups” who participated.  And, contrary to what Rosensaft’s his op-ed states, there was no authorized representatives of Holocaust survivors on ICHEIC. 

When Rosensaft states that insurers “were given assurances backed by both the Clinton and Bush administrations that their participation in ICHEIC would insulate them from civil suits in U.S. courts,” he simply wrong.  It is well-established in the public record that the U.S. government never promised the companies immunity from litigation for participating in ICHEIC. 

Every agreement the government entered is explicit on this point, i.e. that the agreements and underlying U.S. policy do not mandate dismissals of lawsuits against insurers.  And, the court papers filed by the Clinton Administration after the U.S.-German executive agreement reiterated that the Agreement “does not preclude individuals from filing suit on their insurance policies in court” and does not “mandate that individual policyholders or beneficiaries bring their claims in ICHEIC;” and that the U.S. “has not undertaken a duty to achieve legal peace for German companies against state litigation.” When several members of Congress asked the Clinton DOJ about the effect of the agreements, the Department stated: “the [position of] the United States . . . does not suggest that private claimants who wish to pursue suits against German companies are foreclosed from doing so.” 

Even Stuart Eizenstat, who is supporting the insurers today—now that he is an officer of the Claims Conference—admitted in his 2003 book, that:  “The Germans and their lawyers knew full well from months of explanations that we would not take a formal legal position barring U.S. citizens from their own courts.” 

In July 2010, the Justice Department produced documents to me under the Freedom of Information Act which admitted that the U.S. government never promised any insurer that their participation in ICHEIC insulate them from litigation.  When Cong. Adam Schiff and the attorney for the Holocaust Survivors Foundation USA (Sam Dubbin) cited these papers in a Congressional hearing, DOJ wrote me another letter and demanded the documents be returned!  Needless to say, I refused.  We are outraged that the government would try to cover up the truth this way – and that people like Rosensaft continue to perpetrate the lie.

On the subject of “relaxed standards,” Rosensaft is also wrong.  There is no evidence that ICHEIC companies made offers of payment in the absence of documentary proof of a policy.  For example, Generali was allowed – without proof – to deny claims on policies it admittedly sold by saying the policies were paid or lapsed before 1936.  Outrageously, ICHEIC placed the burden on survivors to disprove Generali’s argument – an impossible task for survivors when the companies have the records.  New York Legal Assistance Group President Yisroel Schulman and others condemned this grossly unfair practice. 

After ICHEIC closed in 2007, former New York State Insurance Superintendent Albert Lewis, who served as an ICHEIC appellate arbitrator, disclosed that he and other arbitrators were pressured by the ICHEIC hierarchy to rule against survivors even when they had credible claims, if the survivors could not produce documentary proof the policy was in force.  This was reported in the New York Jewish Week.  ICHEIC placed the burden on survivors to rebut Generali’s argument. This is a heavier burden than a survivor would face in court.

Rosensaft wants to give the companies credit for accepting claims made by people who didn’t know a policy number or the name of the issuing company. But he neglects to mention that insurers were already obligated by several state laws to publish the names and enable survivors and heirs to obtain this information to ascertain whether they might have a claim before ICHEIC was created.  In reality, ICHEIC allowed the companies to produce less information than the California, New York, and Florida state laws, sharply reducing the number of claims and recoveries. 

When ICHEIC closed, economist Sidney Zabludoff, who conducted the market study for ICHEIC, reported that the body only paid 3% of the amount owed by the insurance companies to Jewish families from before the Holocaust.  It paid $250 million on 14,000 policies.  Although ICHEIC also paid out $34 million in $1000 checks to 34,000 applicants, these “humanitarian” payments were considered patronizing rejections by survivors.  It is just wrong for Rosensaft to say that 48,000 survivors or family members were paid on their policies through ICHEIC.

What is most outrageous is that Rosensaft continues to justify a system that would deny Holocaust survivors our fundamental legal rights to go to U.S. courts to recover our contracts, a system that has allowed thousands of Holocaust survivors to die waiting for justice.  In 2008, after the House Foreign Affairs Committee unanimously passed Tom Lantos’s insurance legislation and Mr. Lantos fell ill and passed away.  The insurers then convinced Barney Frank to gut the bill by promising that the New York State Holocaust Claims Processing Office (HCPO) would “continue to” pay claims under ICHEIC’s “liberal” rules.  The results:  in the subsequent 4-plus years, the New York office succeeded in helping recover a grand total of 6 policies, worth only $70,000.  Rosensaft’s statement that the office has handled all claims “appropriately” is contradicted by the award-winning investigative report by Steward Ain in the New York Jewish Week. 

We can also do without Rosensaft’s patronizing reference to lawyers. I was one of the named plaintiffs in the Hungarian Gold Train case.  When the U.S. government published the story about the way the U.S. Army took much of the Hungarians’ property from the Gold Train and used it for themselves, I said:  “That is my family’s gold on that train.”  Other Hungarian survivors, including here in South Florida, agreed.  But nothing happened. The government didn’t follow up, and neither did the Claims Conference, the World Jewish Congress, Anti Defamation League, or anyone else.  That is why we contacted our lawyer to see what could be done, and it was the three law firms that invested hundreds of thousands of dollars of their own money, and 5 years of their work, working closely with us survivors throughout the case, that brought about that settlement. When the Judge approved the agreement, she thanked the survivors and the lawyers, and also praised the law firms for accepting less than half their normal rates to bring about a “miraculous” result. 

The Hungarian Gold Train settlement provided over $22 million for thousands of Hungarian survivors all over the world who are in need.  It produced desperately needed assistance that the government and the Jewish community were not providing.  The Claims Conference didn’t care at all about the Gold Train or our property until the lawyers were successful in court and announced progress in settlement talks.  Then, it wanted to take all the credit, but the Judge wouldn’t stand for that. Every dollar in the settlement was earmarked according to what the survivors wanted, and has to be accounted for.

When Rosensaft cites abuses by other lawyers in class action cases, that is fine but irrelevant.  Anyone who has read the legislation, or followed the testimony, would know that the legislation is not designed for class actions.  It is set up to allow individual survivors and heirs to go to court to bring an individual claim based on the information about their family policies that the companies would have to produce, under the new law and under court-ordered discovery. This is the American way.  It is the same remedy that is available for insurance consumers throughout the U.S. – unless that consumer happens to be a Holocaust survivor. 

Why shouldn’t Holocaust survivors have the same rights as every other American?  If it is to protect us from “false hope,” Rosensaft can spare us his paternalistic nonsense and mind his own business.  We survived Auschwitz, Birkenau, Buchenwald, death marches and killing fields.  We can make up our own minds.  HR 890 and S. 466 are supported by the overwhelming majority of survivors and members of the second generation.  The only survivors who oppose it are from the Claims Conference, which was part of ICHEIC and collected many millions of dollars from ICHEIC.  And the Claims Conference, like its organizational twin the World Jewish Congress, has consistently opposed all legislation allowing survivors to control our individual rights.  Why didn’t the JTA disclose that Rosensaft is a member of the WJC and the AG and the CC, who were participants on ICHEIC, and have been opposing legislation to allow survivors to sue the insurers from day one? 

Prominent New York attorney Ed Labaton wrote the following to the American Jewish Committee in condemning their opposition to the legislation:  “The insurance policies at issue were sold to individuals, paid for by men and women who tried to protect their families.  Our legal system provides remedies to those injured by predatory practices of insurance companies and others who exploit their financial power to cheat consumers.  Holocaust survivors, and the legal heirs of other victims, should have the sole right to decide for themselves how to reclaim their family legacies.  Does AJC really believe the trauma of the Holocaust gives self-appointed NGOs the right to step in and deny the actual victims their full rights as American citizens to control these legacies? 

To that, I would add:  Does Menachem Rosensaft believe he has such a right? We survivors don’t think so.


David Mermelstein is an Auschwitz survivor, who was born in Kivjazd Czechoslovakia, later annexed by Hungary. He lives in Miami, Florida, and is the Vice President of the Holocaust Survivors Foundation USA.

Opinion: Crafting a Holocaust insurance solution that works


[Read a response to this column: Jewish organizations, others
must stop interfering with Holocaust survivors’ rights
]

There is a solution to get us beyond the seemingly endless stalemates and complications that continue to characterize the ongoing debate over Holocaust-era insurance claims. And I do not believe it can be found in the well-intentioned bill before the U.S. Congress.

This different approach will put money more quickly into the community of the survivors and their families, minimize huge financial rewards for certain lawyers, and help bring closure to this extremely painful process.

I propose that the relevant insurance companies agree to the appointment—at their expense—of an independent monitor who could determine whether all potentially valid but as yet unresolved Holocaust-era claims are being honestly processed under the relaxed standards of the International Commission on Holocaust Era Insurance Claims, or ICHEIC.

Some history of how we arrived at this point is in order.

For more than 50 years after the end of World War II, many German and other European insurance companies refused to honor life insurance policies that they or their predecessors had sold to Jews who eventually perished in the Holocaust. In 1998, the National Association of Insurance Commissioners joined with a number of such insurance companies and representatives of Jewish and survivors organizations to create ICHEIC. Its mandate was “to identify, settle, and pay individual Holocaust era insurance claims at no cost to claimants.”

ICHEIC applied relaxed standards that allowed individuals to file claims without documentation such as a policy number or even the name of the company they believed to have issued a policy. The insurance companies were given assurances backed by both the Clinton and Bush administrations that their participation in ICHEIC would insulate them from civil suits in U.S. courts.

According to its website, ICHEIC distributed $306 million “to more than 48,000 Holocaust survivors, their heirs, and the families of those who did not survive.”

The process was not without problems. There are survivors who argue, with some justification, that their claims were not properly considered, although the number of such remaining open claims is in sharp dispute. As a result, Congress is now considering a bill that would enable these survivors to resolve their grievances in U.S. federal court.

But the proposed legislation is unlikely to accomplish its intended laudable purpose. The aggrieved survivors generally do not know which insurance company may have issued a policy to a family member and/or do not have other specific information regarding such a policy. If lawyers are telling them they can prevail without any proof of their claims in a litigation that must satisfy the exacting standards of the Federal Rules of Evidence, such advice, to put it mildly, is unduly optimistic.

Also, the principal beneficiaries of past Holocaust-era litigations have indisputably been the plaintiffs’ lawyers. For example, in 2001 lawyers pocketed more than $59 million in legal fees from the multibillion-dollar slave and forced labor settlement with German corporations. The surviving slave laborers themselves – mostly Jews and Sinti-Roma – received about $7,500 each; forced laborers – primarily Eastern Europeans forced to work in Nazi war factories – received approximately $2,500 apiece. One especially egregious lawyer profiteered from the slave labor and Swiss banks settlements to the tune of more than $7.4 million.

In 2005, a federal judge in Florida awarded three law firms an aggregate $3.85 million in fees and expenses out of the $25.5 million “Gold Train” settlement of a litigation for the looting by U.S. Army personnel of property belonging to Hungarian Jews. Thirty-four named plaintiffs received “incentive” payments of $2,000 or $5,000 apiece, with the bulk of the settlement going for social services for needy Hungarian Holocaust survivors.

You see the pattern. While survivors receive, at most, a few thousand dollars each, their lawyers walk away with millions.

Lawyers promoting the new Holocaust insurance bill in Congress most probably have already collected names of potential plaintiffs and plan to bring suit on their collective behalf in the hope of being awarded hundreds of thousands, if not millions of dollars, in yet another settlement.

The proposed bill also risks raising unrealistic expectations. After ICHEIC was formally dissolved in March 2007, the German insurance companies agreed to continue processing Holocaust-era claims under ICHEIC’s relaxed standards. Yet the German Insurance Association reports only 219 inquiries regarding such claims in the past five years. That’s led to the identification of only 102 policies, 60 of which had previously been disposed of.

It seems doubtful that thousands or even hundreds of additional policies will now be suddenly discovered. Hence my suggestion that the relevant insurance companies be asked to agree to an independent monitor, a person who would determine whether all potentially valid but as yet unresolved Holocaust-era claims are being honestly processed under the relaxed ICHEIC standards.

The monitor, who should have the confidence of Congress and the survivor community, should be authorized to examine claims that ICHEIC supposedly disposed of in violation of its own rules. The monitor should report to Congress periodically on the status of all open or disputed claims. If the insurance companies reject such a compromise, or if the monitor were to find one or more of these companies to be recalcitrant, congressional action could then loom as a final remedy.

There is precedent for such oversight. Ambassador J.D. Bindenagel, the U.S. State Department’s special envoy for Holocaust issues in the Clinton and Bush administrations, recently pointed out to the Senate Judiciary Committee that the New York Holocaust Claims Processing Office is mandated to report on the insurance companies’ processing of survivor claims and has done so. To date, it appears that all such claims have been handled appropriately.

We need a new path. Our collective challenge must be to at least try to provide, in the words of Sen. Charles Schumer (D-N.Y.), an actual and viable “approximation of justice” for Holocaust survivors and their families. This proposal may be able to accomplish just that.

Menachem Z. Rosensaft, general counsel of the World Jewish Congress and vice president of the American Gathering of Jewish Holocaust Survivors and Their Descendants, teaches about the law of genocide and World War II war crimes trials at the law schools of Columbia, Cornell and Syracuse universities.

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