Gross v. The German Found. Indus. Initiative
| Decision Date | 15 August 2007 |
| Docket Number | Civ. No. 02-2936(DRD). |
| Citation | 499 F.Supp.2d 606 |
| Parties | Elly GROSS, et. al., Plaintiffs, v. THE GERMAN FOUNDATION INDUSTRIAL INITIATIVE; and Allianz AG; Basf AG; Bayer AG; BMW AG; Commerzbank AG; DaimlerChrysler AG; Degussa-Huls AG; Deutsche Bank AG; Deutz AG; Dresdner Bank AG; Hoechst AG; Rag AG; Robert Bosch GmbH; Siemens AG; Veba AG; ThyssenKrupp AG; and Volkswagen AG, jointly and severally in their respective capacities as principals, founders, and alter egos of the German Foundation Industrial Initiative, Defendants. Barbara Schwartz Lee and Bernard Lee, Plaintiffs, v. Deutsche Bank, AG, and Dresdner Bank, AG, Defendants. |
| Court | U.S. District Court — District of New Jersey |
Allyn Z. Lite, Esq., Lite Depalma Greenberg & Rivas, LLC, Newark, NJ, Burt Neuborne, Esq., Milberg Weiss, Esq., Melvyn I. Weiss, Esq., New York, NY, for Plaintiffs, Elly Gross, et al.
Lisa J. Rodriguez, Esq., Trujillo Rodriguez & Richards, LLC, Haddonfield, NJ, Michael D. Hausfeld, Esq., Agnieszka Frysman, Esq., Hillary Ratway, Esq., George Farah, Esq., Cohen, Milstein, Hausfeld & Toll, P.L.L.C., Washington, D.C., for Plaintiffs, Barbara Schwartz Lee and Bernard Lee.
John J. Gibbons, Esq., Terry Myers, Esq., Thomas R. Valen, Esq., Jeffrey L. Nagel, Esq., Gibbons, P.C., Newark, NJ Defense Liaison Counsel, for Defendants, Degussa AG, ThyssenKrupp AG; Local Counsel for Allianz AG, BASF AG, Bayer AG, Commerzbank AG, Deutsche Bank AG, Deutz AG, Dresdner Bank AG, RAG AG, Robert Bosch GmbH.
Neil McDonnell, Esq., Brian E. McGunigle, Esq., Deirdre Sheridan, Esq., Dorsey & Whitney LLP, New York, NY, for Defendant, Robert Bosch GmbH.
Daniel Gsvoski, Esq., Ian Ceresney, Esq., Herzfeld & Rubin, P.C., New York, NY, for Defendant Volkswagen AG.
Jeffrey L. Chase, Esq., Chase Kurshan Herzfeld & Rubin, LLC, Livingston, NJ, for Defendant Volkswagen AG.
Bud G. Holman, Esq., Paul Doyle, Esq., Kelley Dye & Warren LLP, Parsippany, NJ, for Defendant, Daimler Chrysler AG.
Brant W. Bishop, Esq., Susan Engel, Esq., Oreste P. McClung, Esq., Kirkland & Ellis LLP, Washington, DC, for Defendant, Siemens AG.
Keith G. Von (Hahn, Esq., Wilson, Elser, Moskowitz, Edelman & Dicker LLP, Newark, NJ, for Defendant, Siemens AG.
Thomas M. Mueller, Esq., Mark D. McPherson, Esq., Morrison & Foerster LLP, New York, NY, for Defendant, BASF.
Jeffrey Barist, Esq., Sander Bak, Esq., J. Ryan Miller, Esq., Milbank, Tweed, Hadley & McCloy LLP, New York, NY, for Defendants Deutsche Bank AG and Dresdner Bank AG.
Konrad L. Cailteux, Esq., Weil, Gotshal & Manges LLP, New York, NY, for Defendant Bayerische Motoren Werke AG.
Rosemary J. Bruno, Esq., Klett Rooney Lieber & Schorling, P.C., Newark, NJ, for Defendant, Bayerische Motoren Werke AG.
Roger M. Witten, Esq., Louis R. Cohen, Esq., John A. Trenor, Esq., David W. Bowker, Esq., Wilmer Cutler Pickering Hale and Dorr LLP, New York, NY, for Defendants, Allianz SE, Bayer AG, Commerzbank AG, Deutz AG, and RAG AG.
Eric M. Rubin, Esq., Walter E. Diercks, Esq., Max Riederer von Paar, Esq., Rubin, Winston, Diercks, Harris & Cooke, LLP, Washington, DC, for Amicus Curiae Federal Republic of Germany.
July 17, 2000, was the occasion of one of the most remarkable diplomatic achievements since the end of World War II. The efforts of two extraordinary diplomats, Secretary Stuart E. Eizenstat, representing the United States, and Count Otto Lambsdorff, representing the Federal Republic of Germany, had, after approximately 19 months of negotiations, secured the signing of two documents that would lead to the creation of the Foundation, "Remembrance, Responsibility and Future" (the "Foundation"), to compensate the victims for wrongs against them committed by German companies during the Nazi-era and to provide an exclusive forum in which the victims could assert their claims.
The documents were i) the Joint Statement on Occasion of the Final Plenary Meeting Concluding International Talks on the Preparation of the Foundation, "Remembrance, Responsibility, and the Future" (the "Joint Statement") and ii) Agreement between the Government of the Federal Republic of Germany and the Government of the United States of America concerning the Foundation "Remembrance, Responsibility and the Future" (the "Executive Agreement"). Shortly thereafter, the German Bundestag enacted a Law on the Creation of a Foundation "Remembrance, Responsibility and Future" (the "Foundation Law") that, among other things, established the Foundation as a German sovereign instrumentality and as the "exclusive remedy and forum" for resolution of claims against German companies arising out of the Nazi-era and World War II. Collectively those instruments were called the "Berlin Accords."
These two diplomats had mediated so successfully that the Joint Statement was signed by six eastern European countries, Israel, Germany, the United States, seventeen German companies that had established the German Economy Foundation Initiative ("GEFI" or the "Initiative"), the Conference on Jewish Material Claims Against Germany, Inc., and class-action attorneys representing plaintiffs in some of the then pending United States lawsuits against German companies on account of Nazi-era depredations. The Joint Statement provided, among other significant provisions, that DM 10 billion contributed by the German Government and German companies was to be distributed to former National Socialist slave and forced laborers, for other personal injury, for damages to property and for a Future Fund to fund ongoing projects to prevent religious and ethnic intolerance in Germany.
The Joint Statement provided that the DM 5 billion contribution of the German companies "shall be due and payable to the Foundation and payments from the Foundation shall begin once all lawsuits against German companies arising out of the National Socialist era and World War II pending in U.S. courts ... are finally dismissed with prejudice by the courts." The initial portion of the DM 5 billion German Government contribution was to be made available to the Foundation by October 31, 2000. The remainder of the German Government contribution was to be made available to the Foundation by December 31, 2000. Para. 4(d) of the Joint Statement concluded: "German company funds will continue to be collected on a schedule and in a manner that will ensure that the interest earned thereon before and after their delivery to the Foundation will reach at least 100 million DM."
There was an unexpected delay in obtaining dismissal with prejudice of all the pertinent lawsuits against German companies in the United States courts, and it was not until May 30, 2001, that the Bundestag announced that adequate legal security had been achieved, purporting thereby to trigger the time for the German companies' payment called for by Para. 4(d) of the Joint Statement.
The German Government made its payments in a timely manner. On various occasions after tie May 30, 2001 Bundestag announcement, the German companies paid, according to GEFI (but disputed by Plaintiffs), DM 5.1 billion to the Foundation. The Foundation is fully organized and is carrying out its important humanitarian work compensating victims and is pursuing the functions of the Future Fund.
Notwithstanding this felicitous state of affairs, a dispute has arisen between the Plaintiffs in the two cases pending before the Court, who are victims entitled to compensation from the Foundation, and the German companies that were the members of GEFI. Plaintiffs contend that the German companies have failed to comply with their obligations under Para. 4, and, in particular, to pay to the Foundation the interest specified...
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Gross v. German Foundation Indus. Initiative
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