In re: Holocaust Victim Assets Litigation

• Decision Date: 01 August 1999
• Docket Number: Docket No. 00-7045
• Citation: 225 F.3d 191
• Parties: (2nd Cir. 2000) IN RE HOLOCAUST VICTIM ASSETS LITIGATION, GIZELLA WEISSHAUS, on behalf of herself and all persons similarly situated, Plaintiffs-Appellees, POLISH AMERICAN DEFENSE COMMITTEE, INC. et al., on behalf of themselves and all persons similarly situated, Appellants, v. SWISS BANKERS ASSOCIATION et al., Defendants
• Court: U.S. Court of Appeals — Second Circuit

Page 191

225 F.3d 191 (2nd Cir. 2000)

IN RE HOLOCAUST VICTIM ASSETS LITIGATION,

GIZELLA WEISSHAUS, on behalf of herself and all persons similarly situated, Plaintiffs-Appellees, POLISH AMERICAN DEFENSE COMMITTEE, INC. et al., on behalf of themselves and all persons similarly situated, Appellants, v. SWISS BANKERS ASSOCIATION et al., Defendants.

Docket No. 00-7045

August Term, 1999

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

Argued: August 9, 2000

Decided: September 21, 2000

Appeal from an order of the United States District Court for the Eastern District of New York (Edward R. Korman, Judge) denying a motion to intervene in a consolidated class action lawsuit. The proposed intervenors object to the Court's certification of a settlement class narrower than the class described in the original complaints and seek to redefine the settlement class to include themselves and those they purport to represent.

Affirmed.

[Copyrighted Material Omitted] Constantine P. Kokkoris, New York, NY, for Appellants.

Burt Neuborne, New York, NY, for Plaintiffs-Appellees.

Richard H. Kosinski, New Britain, CT, for Amicus Curiae Federation of Polish Americans, Inc.

Before: CABRANES and POOLER, Circuit Judges.^*

JOSE A. CABRANES, Circuit Judge:

The Polish American Defense Committee ("PADC") and six named individuals appeal from a December 7, 1999 order of the United States District Court for the Eastern District of New York (Edward R. Korman, Judge) that denied their motion to intervene in a consolidated class action lawsuit seeking redress for wrongs arising out of defendants' participation and complicity in crimes committed against plaintiffs by the Nazi regime.¹ The proposed intervenors object to the certification of a narrower settlement class than the one described in the original complaints. They wish to intervene in the lawsuit in order to redefine the settlement class to include persons targeted for persecution by the Nazis on the basis of Polish nationality (in the words of appellants' brief, "ethnic Poles") and their heirs. We affirm the order of the District Court.

I.

In re Holocaust Victim Assets Litigation is the overarching caption for four consolidated class action lawsuits filed on behalf of various worldwide classes of victims of Nazi crimes and their heirs against a group of Swiss banks. These lawsuits seek redress for the defendants' "knowing participation and complicity in crimes against humanity, crimes against peace, and war crimes" committed against plaintiffs and their relatives by the Nazi regime. Plaintiffs allege that the Swiss banks unjustly enriched themselves at the expense of these victims by: (1) failing to account for funds deposited in the years preceding the period of Nazi persecution by individuals who feared they would become the targets of this persecution and who then failed to survive the death camps; (2) serving as a vehicle for the disposal of Nazi plunder looted from victims; and (3) financing the construction of Nazi slave labor camps and providing a safe haven for profits obtained through the use of slave labor.

In April 1997, the District Court established an Executive Committee of plaintiffs' counsel, which in turn established an informal ad hoc committee, consisting of leaders of interested Jewish organizations, to provide advice on the litigation to plaintiffs. Plaintiffs requested that Rabbi Israel Singer of the World Jewish Restitution Organization ("WJRO") serve on the parties' Negotiation Committee once settlement discussions commenced, and the WJRO intervened as a plaintiff on consent of the parties. Plaintiffs also obtained the advice of the government of Israel and officials of the United States Department of State, and monitored the work of the International Committee of Eminent Persons ("ICEP"), a joint project of the WJRO and the Swiss banking community conducting an audit of Swiss banks under the chairmanship of Paul A. Volcker, a former head of the Federal Reserve System, to determine the extent of accounts owned by victims of the Nazis.

During 1997-1998, extensive settlement negotiations began, stalled, and resumed. As part of this process, plaintiffs prepared an economic analysis estimating the percentage of assets belonging to European Jews that were transferred into Swiss banks during the relevant period. Shortly after plaintiffs' presentation of this analysis to the District Court, the parties agreed to a settlement amount of $1.25 billion. An "Agreement in Principle" dictated into the record on August 12, 1998 stated that the parties had reached a settlement "on behalf of the worldwide classes delineated in the complaints" that would provide "complete and total releases" for defendants for claims arising out of the era of Nazi persecution and its aftermath.

By January 26, 1999, the parties had reduced the proposed settlement agreement (the "Settlement") to writing. It defines "Victims or Targets of Nazi Persecution" as those persons "persecuted or targeted for persecution by the Nazi Regime because they were or were believed to be Jewish, Romani, Jehovah's Witness, homosexual, or physically or mentally disabled or handicapped." This definition reflects the parties' agreement that the Settlement should benefit persons targeted for persecution "on grounds of race, religion, or personal status." The Settlement divides the plaintiff class into five subclasses, four of which are limited to "Victims or Targets of Nazi Persecution." A fifth subclass, "Slave Labor Class II," covers any individual, including ethnic Poles, who performed slave labor for an entity "headquartered, organized, or based in Switzerland."

On February 28, 1999, PADC chairman Teodor Polak submitted a letter to the District Court objecting to the exclusion of ethnic Poles from the definition of "Victims or Targets of Nazi Persecution." Of this definition, Mr. Polak wrote: "After Jewish, it should say, 'Polish.'" Mr. Polak's letter supplied a brief account of Polish persecution by the Nazis and requested information on how to proceed in order to ensure that Polish victims were not omitted from the Settlement.

On March 30, 1999, the District Court provisionally certified the class proposed by the parties and preliminarily approved the Settlement. During the summer of 1999, plaintiffs implemented a worldwide notice program describing the Settlement and the classes, and providing potential class members with an opportunity to opt out, pursuant to Rule 23(c)(2) of the Federal Rules of Civil Procedure.² The Court set October 22, 1999 as the last day to file formal objections to the Settlement.

On that final day, PADC, the Polish American Congress, and six named individuals filed a motion to intervene in the lawsuit, along with formal objections to the Settlement classes. They asserted that "ethnic Poles were among the classes of plaintiffs on whose behalf the consolidated cases were filed" but that this group had "been excluded from the definition of the class for purposes of the proposed Settlement of the cases." After a hearing on November 22, 1999, the District Court denied their motion in a one-sentence written order entered on December 7, 1999.

This appeal, by PADC and the six individuals, followed.

II.

We begin by addressing the question of standing. See Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 93-95 (1998) (prohibiting the exercise of "hypothetical jurisdiction" over parties without standing). Appellees challenge both PADC's and individual appellants' standing to intervene in this lawsuit. PADC argues that it has organizational standing to challenge the Settlement on behalf of excluded ethnic Poles as a non-profit organization "whose purpose it is to represent the interests of ethnic Poles and their heirs."³ In its briefs, PADC does not explicitly address the standing of individual appellants, but the documents in support of the motion to intervene include a sample complaint describing the parties, including individual appellants, and their allegations against the Swiss banks.⁴

We have recently observed that, "[a]t an irreducible constitutional minimum, Article III standing requires (1) that the plaintiff have suffered an injury in fact...; (2) that there be a causal connection between the injury and the conduct complained of...; and (3) that it be likely that the injury complained of would be redressed by a favorable decision." St. Pierre v. Dyer, 208 F.3d 394, 401 (2d Cir. 2000) (internal quotation marks omitted). The "triad of injury in fact, causation, and redressability comprises the core of Article III's case or controversy requirement." Steel Co., 523 U.S. at 103-04 (citations omitted).

We look to appellants' sample complaint, submitted in support of their motion to intervene, as the source for our inquiry concerning the standing of individual appellants. See Schulz v. Williams, 44 F.3d 48, 53 n.4 (2d Cir. 1994) (noting that where a challenge to standing comes late in litigation, resulting in absence of documents specifically aimed at establishing elements of standing, court may look to all materials in the record). The sample complaint specifically alleges that the Nazis stole or forcibly took the assets of appellants and/or their ancestors, and/or profited from their coerced labor⁵ and/or that of their ancestors, and deposited the proceeds of these illegal actions in Swiss banks. Appellants therefore allege the same injuries as existing plaintiffs, assert the same causal connection to defendants, and seek the same redress. In our view, appellants have alleged "specific, concrete facts demonstrating that the challenged [actions] harm[ed them], and that [they] personally would benefit in a tangible way from the court's intervention." Warth v. Seldin, 422 U.S. 490, 508 (1975). These allegations are sufficient to establish individual appellants' standing.

With respect to PADC's standing, we look for instruction to the Supreme Court, which has held...