Opinion
Case No. CV 96-4849 (ERK)(MDG), (Consolidated with CV 96-5161 and CV 97-461)
October 2, 2003
SPECIAL MASTER'S INTERIM REPORT ON DISTRIBUTION AND RECOMMENDATION FOR ALLOCATION OF EXCESS AND POSSIBLE UNCLAIMED RESIDUAL FUNDS
I. Introduction and Recommendations A. Summary of Proposal
This Interim Report is submitted to provide the Court and class members with current information concerning the status of distributions from the $1.25 billion Settlement Fund and other relevant developments relating to implementation of the Plan of Allocation and Distribution of Settlement Proceeds ("Distribution Plan"). At the Court's request, this report also offers a recommendation for allocation of excess funds currently available, as well as a request for proposals concerning the ultimate disposition of any residual unclaimed funds that might remain from the initial distributions to members of the five Settlement Classes — Deposited Assets, Slave Labor I, Slave Labor II, Refugees and Looted Assets.
As a result of Congress's decision to exempt the Settlement Fund from federal income taxation, and as a result of interest income having accrued to the Settlement Fund since its creation, the fund has increased in value, in August, 2002, the Court "requested that Special Master Gribetz review the available financial and distribution information to determine whether there [were] sufficient excess funds to provide for supplemental distributions to class members."
See August 19, 2002 Letter of Judah Gribetz to Hon. Edward R. Korman; see also Order dated September 25, 2002.
On September 25, 2002, the Court, after considering the financial and distribution information submitted by the Special Master, approved the Special Master's determination that excess funds existed, and approved his proposal to distribute any such excess funds in accordance with allocation principles that had been approved by the Court, and affirmed by the United States Court of Appeals for the Second Circuit, in connection with the adoption of the Distribution Plan. See In re Holocaust Victim Assets Litig., Case No. CV 96-4849 (ERK) (MDG) 2000 WL 33241660 (E.D.N.Y. Nov. 22, 2000), aff'd., In re Holocaust Victim Assets Litig., 14 Fed. Appx. 132 (2d Cir. July 26, 2001).
Accordingly, by order of September 25, 2002, the Court accepted the Special Master's recommendation that awards to members of the Slave Labor I, Refugee and Looted Assets Class each be increased by 45%, adhering to the relative allocations set forth in the existing Distribution Plan. In addition, the Court accepted the Special Master's recommendation that Ml payment of awards to members of the Deposited Assets Class be accelerated. The Court agreed with the Special Master that alteration, if any, of payments to members of Slave Labor Class II must await the resolution of litigation concerning the precise membership of that class. Finally, the Court determined that any excess funds allocated pursuant to the cy pres administration of the Looted Assets Class should be distributed in accordance with the criteria that had been adopted by the Court and affirmed by the Second Circuit to govern the initial Looted Assets Class cy pres distribution.
For the Deposited Assets Class, the Court's September 25, 2002 order increased the amount of the first of two installment payments to class members, and also provided for payments in full to those aged 75 and over. Following further analysis of claims data, the Court required all Deposited Assets payments to be made in full. See Order dated February 28, 2003.
As more fully discussed below, in its decision accepting the Special Master's proposed plan of allocation and distribution, the Court recognized that it was necessary to administer the Looted Assets Class under cy pres principles because the massive size of the class, together with the extremely difficult issues of proof that would be posed in determining which Holocaust-era property looted by the Nazis was transacted through Switzerland or a Swiss entity, made it impracticable to administer the class on an individualized basis. The Court determined that the most appropriate cy pres use of settlement assets allocated to the Looted Assets Class is the provision of food, medicine, shelter and other necessities of life to the most needy Nazi victims wherever they may reside. In allocating the excess funds to the Looted Assets Class for the benefit of needy Nazi victims, the Special Master and the Court are guided by what they deem to be the best available evidence concerning the geographical dispersal and economic status of Nazi victims. As this Interim Report makes clear, the Special Master and the Court welcome additional information concerning the whereabouts and economic status of needy victims of Nazi persecution.
In August, 2003, the Court once again requested the Special Master to consider whether excess funds exist that would permit a second supplemental distribution to class members, without unduly jeopardizing the rights of any person under the Distribution Plan. Based upon examination of the most recent distribution statistics and projections, as well as investment data concerning the Settlement Fund, it appears that a second supplemental distribution of excess funds now can be made. At this time, the Special Master estimates that $60 million is available for immediate distribution for the benefit of needy victims or targets of Nazi persecution without impairing the rights of potential members of the five plaintiff classes. As with the "excess funds" distribution of September, 2002, the immediate disbursement of this additional amount will not diminish the sums that prudence requires be reserved for future distributions to class members in accordance with the Distribution Plan.
The excess funds are attributable to interest income accruing on the Settlement Fund "as well as the defendant banks' transfer to the fund of approximately $5.2 million, pursuant to Judge Block's determination on April 11, 2003 that the banks owed compound interest on the original Escrow Fund." See September 11, 2003 Letter of Judah Gribetz to Hon. Edward R. Korman. See also In re Holocaust Victim Assets Litig., 256 F. Supp.2d 150 (E.D.N.Y. 2003). Counsel for the defendant banks advised the Court that the actual transfer had been made on August 11, 2003. See August 13, 2003 Letter of Christopher P. Simkins to Hon. Frederic Block.
Unlike the first distribution of excess funds in 2002, however, the Special Master recommends that the current excess distribution of $60 million should be allocated wholly to the Looted Assets Class. The distribution should be made in accordance with the cy pres principles that have successfully governed the administration of the initial $100 million allocation and distribution to the Looted Assets Class in 2001, and the first supplemental allocation and distribution of $45 million in 2002. Thus, the $60 million in excess funds should immediately be allocated proportionately among the same "Victim or Target" groups and the same geographic regions enunciated in the Distribution Plan, and administered on the Court's behalf by the same three agencies: the American Jewish Joint Distribution Committee ("JDC"); the Conference on Jewish Material Claims Against Germany ("Claims Conference"); and the International Organization for Migration ("IOM"). As with the prior allocations, funds received on behalf of the Looted Assets Class should be used only to augment, and not replace, existing funds the organizations already receive from other sources. Allocation of this amount and in this manner is a matter within the discretion of the District Court after the plan of allocation has been approved. In re "Agent Orange" Product Liability Litig., 818 F.2d 179, 184 (2d Cir. 1987). These distribution principles and administrative agencies are, of course, described at length in the Distribution Plan and have been approved by the District Court and the Second Circuit.
The cy pres funds are to be committed but not necessarily distributed in a single year. Rather, the funds have been and continue to be disbursed under a multi-year plan to provide sustainable levels of targeted essential social services. Given that the Looted Assets Class distributions commenced on July 1, 2001 for a 10-year period, it is recommended that this additional funding be made available for the remaining period of 7'/2 years, commencing January 1, 2004.
See Distribution Plan, Vol. I, at 136-37 (in connection with each program funding proposal to be submitted by the JDC and/or the Claims Conference, "[t]he Court will consider whether the proposed funding is intended to augment the program by expanding the services provided or by lengthening the period for which services are provided, rather than substituting for existing program funding"). See also id., at 26 (under the Distribution Plan, the funds allocated for needy Jewish Nazi victims "should be designated for the augmentation" of JDC and Claims Conference humanitarian assistance programs); Id., at 141 ("In particular, the Court should consider whether the programs recommended for funding by the IOM . . . are to be augmented by expansion of services, or by lengthening the period for which services are provided, rather than substituting for existing funding").
In addition to seeking the Special Master's views on allocation of excess funds, in August, 2003, the Court also requested the Special Master to consider whether residual funds from those amounts initially allocated to members of the five plaintiff classes might remain unclaimed at the close of the administration period. If so, the Court asked for recommendations concerning the ultimate distribution of such residual funds.
At the current time, the Special Master is unable to estimate with confidence whether residual unclaimed funds will in fact exist at the close of the claims process. As the Court is aware, any such residual unclaimed funds would be derived primarily from the up to $800 million allocated to the Deposited Assets Class. As described below, a variety of information technology improvements in Zurich and New York are under way, most importantly improved computer software for use by the Claims Resolution Tribunal ("CRT"), which processes Deposited Assets Class claims on behalf of the Court under the supervision of Special Masters Paul A. Volcker and Michael Bradfield. Further, an experimental program is under negotiation with the defendant banks which would match certain bank account claims against the Total Accounts Database that includes all 4.1 million accounts open during the relevant period for which records survive — not merely the 36,000 accounts listed on the database made available to the CRT. These processes are expected to yield reliable final estimates on the Deposited Assets Class distribution process within the foreseeable future.
No records exist for the approximately 2.8 million of the approximately 6.9 million accounts open in Swiss banks during the relevant period (1933-1945). It is therefore impossible to determine how many of the missing accounts belonged to Holocaust victims. See In re Holocaust Victim Assets Litig., 105 F. Supp.2d at 155 (the missing records and accounts are "`an unfillable gap . . . that can now never be known or analyzed for their relationship to victims or Nazi persecution'"), quoting Independent Committee of Eminent Persons (ICEP) Report on Dormant Accounts of Victims of Nazi Persecution in Swiss Banks (Berne: Staempfli Publishers Ltd. 1999) (also known as the "Volckery Report"), Annex 4 ¶ 5.
As more fully discussed below, contrary to the recommendation of the Volcker Committee, Swiss banking authorities did not authorize creation of a central archive for the Total Accounts Database ("TAD"), which contains information on the still-existing records for 4.1 million accounts open during the relevant period. Instead, under amendments to the Settlement Agreement, the CRT's potential access to TAD accounts is to be determined on a case-by-case basis. For purposes of the claims process, claims officials to date have had access only to the much smaller Accounts History Database ("AHD") containing information on 36,000 accounts deemed by the Volcker Committee to have the highest likelihood of Holocaust victim ownership. The AHD, however, is believed to contain only a portion of the Holocaust victim accounts for which Swiss bank records still exist. In addition, the utility of the AHD is further limited by the fact that only 21,000 of the 36,000 accounts were permitted to be published by Swiss banking officials. See In re Holocaust Victim Assets Litig., 105 F. Supp.2d at 155-56.
It is impossible at this time to predict with certainty whether the availability of improved information resources will result in a significant increase in the ability of the CRT to identify Holocaust-era bank accounts for return to their owners, or even whether current efforts to supplement the information available to CRT officials will succeed. It appears prudent, then, to recognize that despite the best efforts of the Volcker Committee (which investigated Holocaust-era Swiss bank accounts) and the CRT (which administers the claims process), many Holocaust-era bank accounts will remain unclaimed, thereby establishing a pool of residual unclaimed funds. Given this likely possibility, it seems appropriate to begin the process of developing guidelines governing the ultimate distribution of any such funds even if the amounts are not yet known.
The Special Master recommends that as with the excess funds, residual unclaimed funds, if any, should likewise be re-allocated to the Looted Assets Class for distribution to needy Nazi victims in accordance with the cy pres principles governing the administration of that class. However, since such a distribution would involve residual unclaimed funds, the disposition of which has not yet been the subject of discussion by class members, the Special Master recommends that the Court solicit proposals from a broad array of interested persons and organizations as to how best to identify and to benefit the neediest survivors. Once an adequate opportunity has been provided for the submission of proposals, the proposals should be the subject of public discussion and, at the Court's discretion, public hearing.
By the end of the proposed filing and comment period in connection with such proposals, the Special Master believes that a reasonably firm Deposited Assets Class distribution assessment should be available, rendering it possible to estimate the amount, if any, of unclaimed residual funds for cy pres distribution. At that point, at the Court's request, the Special Master can make a final allocation recommendation after considering the information and suggestions submitted by the interested members of the community. The final determination as to the distribution of any residual unclaimed funds, as always, will be made by the Court.
B. Special Master's Procedural Obligations: (1) Assuring That Survivors Are Heard; (2) Adhering to the Rule of Law
In offering a recommendation for the disbursement of any excess or residual unclaimed funds, the Special Master remains mindful of an ongoing responsibility to serve as a "neutral third party" and thereby "obviate the concern that hypothetical conflicts among class members relating to allocation and distribution would require separate representation, and thus call into question the adequacy of representation." In re Holocaust Victim Assets Litig., 105 F. Supp.2d at 149-50. The Special Master has continued to be available to meet informally with interested persons. Moreover, in performing his functions, the Special Master continues to be assisted by Court-appointed Lead Settlement Counsel who is pledged to aid all class members in placing their concerns before the Special Master and the Court.
Another of the Special Master's core obligations has been to ensure that the distribution of the Settlement Fund among the five classes comports with the rule of law. As Lead Settlement Counsel Burt Neuborne observed at the November 20, 2000 hearing on the Distribution Plan:
None of us, not the Judge, not the [S]pecial [M] aster, not the lawyers, not the victims are free to do with this money exactly what we wish. This is not a humanitarian fund, the $1.25 billion, that we can allocate any way we want. It isn't a charity that could be allocated in accordance with the principles of abstract justice. It's the settlement of a lawsuit.
And therefore, in order to allocate the proceeds of the settlement of the lawsuit, the [S]pecial [M]aster was obliged to consider one very, very important criteria and it's a criteria that doesn't necessarily correspond to abstract justice or to morality. The [S]pecial [M] aster was obliged to consider the relative legal strength of the claims of the five plaintiff classes, the relative strength of [the] deposited assets class, the relative strength of the slave labor one class and the slave labor two class, the relative strength of the looted assets class, and the relative strength of the refugee class.
The allocation that he suggests is not intended as a reflection of the relative suffering of those classes. It is not intended as a reflection of . . . even the relative losses of those classes. What it is intended to do is to reflect the relative strength of the legal and factual [underpinnings] of each of those classes so that the allocation that we will make of those funds will be consistent with law. Because after all, this is the final step in a lawsuit, not a process of abstract justice.C. Legal Priority to Deposited Assets Claims
Transcript of Hearing on Special Master's Proposed Plan of Allocation and Distribution of Settlement Proceeds, Eastern District of New York, November 20, 2000, at 8-9.
In accordance with the Special Master's responsibilities, the Distribution Plan and the claims process, like the Settlement Agreement itself, have placed "priority upon returning to their rightful owners `the sums that Swiss banks have been holding for them for more than half a century,'" a priority this Court determined to be "appropriate" in its November 22, 2000 decision adopting the Distribution Plan in its entirety. The United States Court of Appeals for the Second Circuit similarly recognized the preeminence of the Deposited Assets claims in its July 26, 2001 decision upholding the November 22, 2000 order, confirming that the allocation to that class of up to $800 million was proper because the
In re Holocaust Victim Assets Litig., 2000 WL 33241660, at * 3.See also Distribution Plan, Vol. I, at 10-12 ("The allocation and distribution of the Settlement Fund must reflect the unique historical background against which this lawsuit arose and upon which it was settled: the allegation that Swiss banks failed to return thousands of bank accounts that had been opened primarily by Jewish victims of the Nazis who attempted to shield some of their financial assets from the Third Reich. . . . The parties to the Settlement Agreement . . . accorded the `Deposited Assets Class' priority among the five settlement classes. Under the terms of the Settlement Agreement, repayments to bank depositors are to be deducted first from the Settlement Fund. The remainder of the Settlement Fund is to be distributed among the other four settlement classes"), citing, e.g., Settlement Agreement, Sections 5.2, 5.3; Amendment No. 2 to the Settlement Agreement, August 9, 2000, pp. 3-7; Memorandum to the File, August 9, 2000, ¶ D.
existence and estimated value of the claimed deposit accounts was established by extensive forensic accounting. . . . [T]hese claims are based on well-established legal principles, have the ability of being proved with concrete documentation, and are readily valuated in terms of tune and inflation. . . . [B]y contrast, the claims of the other four classes are based on novel and untested legal theories of liability, would have been very difficult to prove at trial, and will be very difficult to accurately valuate. Any allocation of a settlement of this magnitude and comprising such different types of claims must be based, at least in part, on the comparative strengths and weaknesses of the asserted legal claims.
In re Holocaust Victim Assets Litig., 14 Fed.Appx. at 135.
More recently, in its November 4, 2002 decision on certain plaintiffs' attorneys' fees, this Court explicitly stated that the Deposited Assets Class claims were and remain the core of this lawsuit:
The heart of this case and the only cause of action capable of surviving a motion to dismiss turned on the failure of Swiss banks to honor their contractual and fiduciary duties to their depositors. In re Holocaust Victim Assets Litigation, 14 Fed. Appx. 132, 135 (2d Cir. July 26, 2001). The other claims against the Swiss banks, while not without a moral basis, were not sustainable, Id.. . . .
In re Holocaust Victim Assets Litig., Case No. CV 96-4849 (ERK) (MDG) 2002 WL 31526754 (E.D.N.Y. Nov. 4, 2002), at * 7.
The Court of Appeals, as well as this Court, has made it abundantly clear, then, that however morally compelling the looted assets, slave labor and refugee claims may be, they are significantly weaker legally than the bank account claims at the "heart of this case," Id. D. Possible Residual Funds: Request for Proposals As of the date of this interim report, approximately $485 million has been distributed or allocated to class members, as described in greater detail below. Almost $203.5 million has been distributed to members of the two slave labor classes; approximately $131.5 million has been returned to members of the deposited assets class; nearly $4.6 million has been distributed to members of the refugee class; and $145 million has been distributed or committed for the relief of needy Nazi victims under the cy pres principles governing administration of the looted assets class.
While each of the five classes has been allocated and has in fact received substantial funds from the $1.25 billion settlement, neither the slave labor, refugee nor looted assets classes has a powerful claim to any excess or residual unclaimed funds from this legal proceeding because, unlike the deposited assets class, their legal claims to the settlement funds are tenuous. It is equally true that the losses sustained by each of the five plaintiff classes are incalculable. The entire $1.25 billion Settlement Fund — much less the far smaller excess or potential residual unclaimed funds — was never "sufficient to satisfy the claimed losses of every class member," see In re "Agent Orange" Product Liability Litig., 818 F.2d at 158.
Under these circumstances, where available funds are limited and the legal merits of the underlying claims uncertain, it is "equitable to limit payment to those with the most severe injuries" and to "give as much help as possible to individuals who, in general, are most in need of assistance." Agent Orange, 818 F.2d at 158. Accordingly, as previously stated, the Special Master recommends that the $60 million in excess funds currently available for immediate distribution, as well as any residual unclaimed funds, should be distributed to those Jewish, Roma, Jehovah's Witness, homosexual and disabled Nazi victims who are "most in need of assistance," Id. The Special Master recommends that disbursement of such excess or residual unclaimed funds should be made through programs dedicated to the provision of food, shelter, medicine and comparable services to needy elderly Nazi victims throughout the world in rough proportion to their need.
The organizations that have administered the cy pres multi-year programs now serving the Looted Assets Class — the JDC, Claims Conference and IOM — have performed with great efficiency and expertise. As noted above and more fully described at Section III(B)(5) below, under the Court's ongoing supervision and guidance, the three agencies already have reached approximately 100,000 individuals around the globe, in major cities and remote villages, providing these needy Nazi victims with a variety of critical services. Under the Distribution Plan, these programs are to continue for several more years.
As more fully described below, the Distribution Plan provided for a ten-year funding period for programs serving needy Jewish members of the Looted Assets Class; funding commenced in July 2001 following the resolution of appeals impacting the settlement. To enable the IOM to maintain maximum flexibility in establishing what has proven to be a new and novel service network, the Distribution Plan recommended multi-year funding for programs serving needy Roma, Jehovah's Witness, homosexual and disabled survivors.
In addition to the agencies now serving the Court, there may be other worthy programs and providers capable of assisting large numbers of needy Nazi victims in an efficient and cost-effective manner. Accordingly, it is recommended that by December 31, 2003, any person or organization, including those currently operating under the auspices of the Court, wishing to deliver services to needy Nazi victims utilizing residual unclaimed funds file with the Court a detailed plan describing the nature of any proposed aid program, the size, location and nature of the benefited population, and a proposed budget describing administrative costs and the cost of service delivery. The funds for such programs would be derived primarily from any unclaimed amounts that might remain from the up to $800 million allocated to the Deposited Assets Class, of which approximately $668.5 million remains as of the date of this report. This amount could range from several million dollars, to several hundred million dollars. Each proposal should specify at least the following information:
The Distribution Plan observed that in the event of an unclaimed residual fund following initial distributions, "a second round of payments can then be made. During such a `Stage 2' of payments (if any) there can be additional distributions to surviving Nazi victims, and perhaps also to needy spouses and children of deceased Nazi victims. At that time, it also may be possible to allocate a portion of the remaining Settlement Fund to some of the proposed cultural, memorial or educational projects that have been submitted to the Special Master. To that end, the Special Master recommends that the Court review institutional proposals once an evaluation of the bank account claims, as well as the claims submitted by members of the other four classes, is completed." In re Holocaust Victim Assets Litig., 2000 WL 33241660, at *3-4, citing Distribution Plan, Vol. I, at 19-20. In accordance with these suggestions, and depending upon the amount of the residual, if any, the Court may wish to consider a modest distribution to communal, remembrance and/or educational programs. See Distribution Plan, Vol. I, Annex A (summarizing approximately 60 organizational proposals, posted atwww.swissbankclaims.com). Any such funding recommendation, however, should be deferred until more information is available concerning the total amount of the possible unclaimed residual.
1. Number and location of Nazi victims for the proposed "Victim or Target" group to be served (e.g., Jewish, Roma, Jehovah's Witness, homosexual and/or disabled), including (a) estimates of victims in Israel, the Former Soviet Union, Europe (including nation-by-nation), the United States (including state-by-state); Australia; South America and elsewhere; and (b) source materials upon which the data is based, including any expert opinion(s) relied upon;
2. Number and location of needy Nazi victims among the proposed "Victim or Target" group to be served, in accordance with the criteria set forth in item 3 below, including (a) estimates of victims in Israel, the Former Soviet Union, Europe (including nation-by-nation), the United States (including state-by-state); Australia; South America and elsewhere; and (b) source materials upon which the data is based, including any expert opinion(s) relied upon;
3. Assessment of survivor needs, including (a) analysis of specific requirements (e.g., medication, food, nursing care), taking into account different social safety nets available by geographic location and availability of other sources of assistance; (b) survivor longevity estimates by geographic location; and (c) absolute and relative poverty levels by geographic location, specifying, among other data, national statistics, United Nations and comparable non-governmental organization information;
4. Recommendation for distribution, specifying types of assistance, estimated number of recipients, length of program(s), and estimated costs (using percentages rather than specific dollar amounts where necessary);
5. Recommended distribution agency or agencies, including (a) description of prior experience with humanitarian aid distribution in general and programs serving Nazi victims in particular; (b) estimated administrative expenses (using percentages where necessary); and (c) where available, attach latest financial and/or other programmatic reports for recommended agency; and
6. Names, addresses and affiliations of all persons and organizations associated with or endorsing the proposal.
It is suggested that all such proposals should be filed with the Court by December 31, 2003 , and that the Court authorize the proposals to be posted on the Internet site for this litigation, www.swissbankclaims.com, and made available for public scrutiny and comment. All comments on the proposals should be filed with the Court by February 15, 2004 , and likewise posted on the Internet. The Special Master will file a report on March 15, 2004, updating information concerning distributions and, if the Court so requests, assessing the filed proposals and offering final allocation recommendations. By that time, significant additional data should be available concerning the implementation of the Deposited Assets Class claims process and the estimated total amount of the residual unclaimed funds that may be available for distribution.
Once a final recommendation has been made by the Special Master, the Court may wish to hold a public hearing on any issues raised by the proposals prior to reaching a final determination.
II. Summary of Distribution Plan and Post-Plan Developments
A. Overview of Distribution Plan
To place the recommendations described above into appropriate context, it is useful to summarize the Distribution Plan, and to highlight some of the developments that have followed its adoption.
The Special Master's Proposed Plan of Allocation and Distribution of Settlement Proceeds was filed on September 11, 2000 and, following a public hearing, was adopted by the Court in its entirety on November 22, 2000. The approximately 900-page Distribution Plan sets forth the recommendations, and respective rationales, for allocation of the Settlement Fund among the five classes and five "Victim or Target" groups designated in the Settlement Agreement. To briefly recap the key elements of the Settlement Agreement and Distribution Plan:
In re Holocaust Victim Assets Litig., 2000 WL 33241660.
• The Settlement Agreement designated five categories of "Victims or Targets of Nazi Persecution" eligible for compensation: Jewish, Roma, Jehovah's Witnesses, disabled and homosexual persons persecuted or targeted for persecution by the Nazi regime. The definition of "Victim or Target of Nazi Persecution" includes "any individual, corporation, partnership, sole proprietorship, unincorporated association, community, congregation, group, organization, or other entity" persecuted or targeted by the Nazis. (Settlement Agreement, Section 1). The Settlement Agreement also created five classes of claimants eligible under the $1.25 billion settlement: the Deposited Assets Class; the Refugee Class; Slave Labor Class I; Slave Labor Class II; and the Looted Assets Class.
• For the Deposited Assets Class, the Distribution Plan allocated up to $800 million to repay the claims of those who owned bank accounts and other assets deposited in Swiss financial institutions. The allocation was based upon the priority accorded to these claims under the Settlement Agreement and general legal principles, as well as the results of the Volcker Committee's three-year investigation of Holocaust-era Swiss bank accounts. The Volcker Committee identified at least 36,000 accounts "probably" or "possibly" belonging to Nazi victims or their heirs. Calculating known and estimated account values, the 36,000 accounts — now compiled in an "Accounts History Database" ("AHD") — were estimated to be worth a total of approximately $800 million in then-current dollars. The Distribution Plan provided for Deposited Assets claims to be administered on behalf of the Court by the CRT in Zurich, which already had been processing claims against Swiss bank accounts prior to the finalization of the settlement. Pursuant to the Court's order of December 8, 2000, Paul A. Volcker and Michael Bradfield, who had served as counsel to the Volcker Committee, were appointed as Special Masters of the CRT. Under the Distribution Plan and subsequently-adopted Rules of the Claims Resolution Process, bank accounts were to be adjusted for interest and fees and repaid in full using the known value of the account, or, if actual value was unavailable, using the estimated value based upon the type of account (such as savings account, demand deposit and so forth).
• For Slave Labor Class I, applicable to those who may have performed slave labor for German and other companies which transacted their profits through Swiss entities, the Distribution Plan originally provided for payments of $1,000 each (now $1,450) to surviving slave laborers, or to their heirs if the former slave laborer died on or after February 16, 1999. The Plan determined that payment to all surviving slave laborers was warranted because historical research demonstrated that virtually all major slave labor-using entities had banking and other financial relationships with Switzerland. In the interest of efficiency and minimization of survivor confusion, the Plan provided for the same administrative agencies and processing mechanisms as utilized by the German Foundation "Remembrance, Responsibility and the Future" ("German Foundation"), a $5.2 billion foundation created on July 17, 2000, partly in response to class action litigation in the United States arising from the claims of uncompensated Jewish and non-Jewish victims who performed slave labor for German industrial and governmental enterprises during the Nazi era. Following the lead of the German Foundation, which already had designated the Claims Conference and the IOM to process the claims of, respectively, Jewish and non-Jewish former slave laborers, the Court adopted the Special Master's recommendation and appointed the Claims Conference and IOM to perform the same functions on behalf of Slave Labor Class I.
• The Refugee Class, applicable to those denied entry into or expelled from Switzerland, or admitted into Switzerland but abused or mistreated, follows a similar distribution mechanism. The Claims Conference processes the claims of Jewish claimants and the IOM processes the claims of Roma, Jehovah's Witness, homosexual and disabled claimants. Surviving refugees (or the heirs of refugees who died on or after February 16, 1999) originally were to receive $2,500 if they were denied entry into or expelled from Switzerland, while those admitted but mistreated were to receive $500. Those payments have been increased, respectively, to $3,625 and $725.
• Under the Settlement Agreement, Slave Labor Class II, applicable to those who performed slave labor for Swiss entities, is the one class that is not limited to the five "Victim or Target" groups but rather is open to all Nazi victims. The Distribution Plan provided for payments of $1,000 to former slave laborers or the heirs of those who died on or after February 16, 1999. All claims are processed by the IOM. Until recently, litigation continued over whether slave labor-using entities acquired by Swiss companies subsequent to World War II qualify for releases as Swiss entities.
• For the Looted Assets Class, applicable to those whose assets were looted by the Nazis and disposed of or transacted through Switzerland or Swiss entities, the Distribution Plan provides that the neediest class members (all of whom are presumed to have been victims of Nazi looting, the proceeds of which may have been transacted through Switzerland) are to benefit from humanitarian aid programs providing food, medicine, shelter and similar assistance. As noted above, the Court adopted the Special Master's recommendation that the size of the Looted Assets Class, coupled with the impossibility of determining whether specific property was transacted through a Swiss entity, rendered individualized administration of the class impracticable. The Plan initially allocated $100 million (now $145 million) over a ten-year period to augment — not replace — already-existing assistance programs implemented, managed and/or monitored by the JDC and Claims Conference, as well as to fund programs to be implemented and monitored by the IOM.
• On behalf of all class members, the Distribution Plan provided for the creation of a $10 million Victim List Foundation to memorialize all Victims or Targets of Nazi Persecution, those who survived and those who perished.
• In a separate negotiation, and distinct from the Distribution Plan, plaintiffs and defendants established a modest claims resolution process for certain Holocaust-era Insurance Claims involving two named Swiss insurers, to be administered by the CRT. The payment of the insurance claims process is partially funded from the Settlement Fund, and partially funded by the participating insurance companies.B. Post-Approval Procedural Developments
The Volcker Committee is also known as the Independent Committee of Eminent Persons ("ICEP") and is named for its chairman, Paul A. Volcker.
As more fully described below, the account data has been more recently examined and the latest estimates actually exceed the Volcker Committee's original conclusions. In fact, the value of the 21,000 accounts (of the 36,000 in the AHD) "probably" belonging to Holocaust victims is estimated by the CRT to be approximately $1,125,990,014 at the July, 2003 value (using the then-multiplier of 12 and exchange rate of 1.35 Swiss francs to the dollar; the multiplier since has been increased to 12.5 See Order dated August 25, 2003). The value of the 15,000 "possible" Holocaust victim accounts is estimated by the CRT to be approximately $507,505,582. Accordingly, the value of all 36,000 "probable" and "possible" accounts in the "AHD" is approximately $1,633,495,597. Therefore, if all 36,000 "probable" and "possible" victim accounts were awarded, the value of the Deposited Assets payments alone would be well over the $1.25 billion Settlement Fund. It is impossible to estimate the total value of "TAD" accounts that may belong to Holocaust victims.
Distribution Plan, Vol. I, pp. 142-159; Vol. II, Annex H ("Slave Labor Class I"). As noted in the Distribution Plan, the Swiss financial institution may not necessarily have been aware that its banking client made use of slave labor. Id.
Because of the litigation concerning Slave Labor Class II and uncertainty as to the ultimate size of the class, payments have remained at $1,000 as established under the Distribution Plan. See infra.
See Distribution Plan, Vol. I, at 21-27, 110-117; Vol. II, Annex G ("The Looted Assets Class").
As noted above, the Court adopted the Distribution Plan in its entirety on November 22, 2000, and immediately undertook steps to begin implementation of the Plan's recommendations, although with the exception of the Deposited Assets Class, no funds could be distributed until the appeals from the Court's order adopting the plan — as well as one appeal from the Court's order approving the Settlement Agreement itself — had been resolved. As of the date the proposed plan was filed, approximately 564,000 individuals from around the world had expressed interest in participating in the Settlement by filing "Initial Questionnaires." After the Court adopted the Special Master's recommendations, a total of six appeals were filed from the Court's order approving the Distribution Plan (in addition to the one appeal against the approval of the Settlement Agreement). All but two of the appeals were withdrawn, and only one of the two remaining appellants, for whom counsel was appointed by the Second Circuit, filed briefs on the merits and argued his appeal before the Second Circuit on July 19, 2001. The appeal challenged the appointment of the Claims Conference to assist with administration of the distribution process, questioned the allocation of approximately two-thirds of the settlement fund to the Deposited Assets Class, and challenged the decision to utilize cy pres principles to administer the Looted Assets Class.
"On September 7, 2000, an appeal was filed from the Court's Final Order and Judgment approving the Settlement Agreement (as amended by the August 9, 2000 "Amendment No. 2 to the Settlement Agreement"). Under the Settlement Agreement and Amendment No. 2, with the exception of the Deposited Assets Class, distributions from the Settlement Fund were not permitted until the "Settlement Date" had been reached; i.e., until all appeals from the Final Order and Judgment had been determined. The additional appeals filed against the Distribution Plan also militated against commencing payments until all legal questions potentially impacting the Settlement Fund and its distribution were resolved.
See Distribution Plan, Vol. I, Exhibit 3 ("Geographic Distribution of Initial Questionnaires by Claimant Country"). To date, approximately 600,000 Initial Questionnaires have been filed.
On or about May 30, 2001, the Settlement Agreement became final upon the withdrawal of the single appeal challenging its fairness. On July 26, 2001, the Second Circuit upheld the Distribution Plan, In addition to acknowledging the unique nature of the Deposited Assets claims and the propriety of reserving up to $809 million for that class, the Court of Appeals also recognized that the "Claims Conference was chosen because of its lengthy experience with similar programs and because it had already been chosen to process" German Foundation claims, and the "efficacy of having one organization process the claims of individuals entitled to recover from both programs cannot be gainsaid."
In re Holocaust Victim Assets Litig., 14 Fed. Appx. at 135.
To implement the Distribution Plan, the Court, among other things, issued orders that appointed Special Masters Volcker and Bradfield to supervise the Deposited Assets Class distribution process and the CRT; extended the appointment of Special Master Gribetz to assist with the Deposited Assets Class process and oversee distributions to the two Slave Labor, Refugee and Looted Assets Classes, and also appointed Shari Reig as Deputy Special Master; authorized hearings on and approved the proposed CRT rules, and supervised the February 5, 2001 publication of a list of 21,000 Swiss bank accounts determined by the Volcker Committee "probably" to belong to Holocaust victims; announced the commencement, and oversaw the implementation, of the claims processes for the respective classes; extended the claims filing deadlines partly to conform to those of the German Foundation; adjusted the payment mechanisms following assessment of preliminary claims data to provide for one-time payments in full to Deposited Assets recipients as well as to former slave laborers and refugees, rather than the originally anticipated two installment payments; authorized payments to class members on a "rolling" basis in a series of implementation orders beginning in July, 2001 and continuing to date; authorized distributions from the Settlement Fund to certain of the class representatives "whose efforts materially aided the plaintiff class"; and approved appellate processes for the Deposited Assets, Slave Labor I, and Refugee Classes.
Sample recent payment recommendations and approval orders are annexed hereto as Exhibit 1.
See Order dated December 4, 2002; see also n. 32 infra.
Significantly, as previously described, the Court also increased allocations to many class members. By Order dated September 25, 2002, the Court increased by 45% the payments under Slave Labor Class I, the Refugee Class and the Looted Assets Class, and also authorized an acceleration in the amounts paid to members of the Deposited Assets Class.
As has been noted, the Court's September 25, 2002 order also increased the amount of the first of two installment payments to Deposited Assets Class members, and provided for payments in Ml to those aged 75 and over. Subsequently, by order dated February 28, 2003, the Court required all Deposited Assets payments to be made in full.
In another important development, the Swiss Fund for Needy Victims of the Holocaust/Shoa (also known as the "Swiss Humanitarian Fund"), a separate Swiss program unconnected with this case and created in early 1997 to make payments to Nazi victims, announced in 2002 that it had completed its distributions. The Swiss Humanitarian Fund was established by a February 26, 1997 Executive Ordinance of the Swiss Federal Council "in connection with the public debate on the role of Switzerland in the Second World War." The "financial endowment consisted of a total 273 million Swiss francs donation [approximately $176 million] on the part of the three major Swiss banks at the time (today the Credit Suisse and the UBS), the Swiss National Bank, and the private industrial sector." The Fund stressed that it intended to provide "humanitarian" assistance rather than "compensation" to survivors. It identified several victim groups as beneficiaries, among them Jewish, Roma, Jehovah's Witness, homosexual and disabled Nazi victims, as well as other groups such as "political victims" and the "Righteous among the Nations" (Christian rescuers) living in Eastern Europe. (In the latter case, applications were put forward by the World Jewish Restitution Organization, charged with overseeing distributions to Jewish survivors.) 88% of the fund was allocated to Jewish victims and 12% to all other victim groups.
See Final Report, Swiss Fund for Needy Victims of the Holocaust/Shoa (Berne 2002) ("Swiss Humanitarian Fund Final Report"), at 18.
Id.
Id. at 30.
Id. at 47-48, 34.
In its 2002 Final Report, the fund announced that "[f]ive years after its creation, the Swiss Fund has distributed the entirety of its endowment — a total of 295 million Swiss francs including interest — to roughly 312,000 needy Holocaust survivors worldwide." The Special Master has been assisted by the experience of the Swiss Humanitarian Fund in formulating the Distribution Plan and assisting the Court in its implementation.
Id. at 12.
III. Status of Distributions
A. Total Distributions to Date
The following payments have been made under the Distribution Plan thus far:
• Deposited Assets Class: $131,456,066 returned to bank account owners or their heirs in connection with 1,751 accounts found by the CRT to belong to victims of the Holocaust;
• Slave Labor Class I: $203,487,200 paid to 140,336 surviving slave laborers;
• Slave Labor Class II: $15,000 paid to 15 surviving slave laborers;
• Refugee Class: $4,579,825 paid to 1,930 surviving refugees; and
• Looted Assets Class: $145 million distributed to or reserved for future disbursement by multi-year programs serving needy Nazi victims, all of whom are presumed to have been looted by the Nazis.
See September 30, 2003 Letter of Michael Bradfield to Hon. Edward R. Korman (submitting for the Court's approval the "thirty-sixth set of Certified Awards of the Claims Resolution Tribunal") ("September 30, 2003 Letter on CRT Awards"), at 1. The Court also exercised its discretion to award payments to seven class members "whose efforts materially aided the plaintiff-class." See Order dated December 4, 2002. These individuals "suffered Holocaust-related losses" and it was their "courage in serving as . . . named plaintiffs that made possible the class's recovery by calling attention to the issues herein," and the "destruction of [their] bank records rendered it impossible for [them] to participate in the ordinary deposited assets recovery process." See Order dated March 4, 2003. A total of $575,000 in payments were authorized to the seven class members. See Orders dated September 18, 2002, December 4, 2002 and March 4, 2003. All but one of the payments were funded by certain counsel who decided to allocate portions of their fees to certain class members whose personal efforts were particularly noteworthy in achieving the settlement.
See n. 20 supra.
Thus, in the little more than two years since judicial approval of the settlement and plan of allocation and distribution became final on July 26, 2001, when the Court of Appeals upheld the Distribution Plan, $485,113,091 has been awarded through direct payments or humanitarian assistance to nearly a quarter of a million class members, the vast majority of whom are surviving victims of Nazi persecution; the other recipients are the heirs of owners of Swiss bank accounts. Specific distribution information concerning each of the five classes is more fully described below.
B. Distributions to Specific Classes 1. Deposited Assets Class
It bears repeating here that in its November 4, 2002 opinion relating to certain plaintiffs' attorney's fees, the Court took the opportunity to reflect and comment upon the merits of the legal claims at issue in the litigation:
The heart of this case and the only cause of action capable of surviving a motion to dismiss turned on the failure of Swiss banks to honor their contractual and fiduciary duties to their depositors. In re Holocaust Victim Assets Litigation, 14 Fed. Appx. 132, 135 (2d Cir. July 26, 2001). The other claims against the Swiss banks, while not without a moral basis, were not sustainable, Id.. . .
In re Holocaust Victim Assets Litig., 2002 WL 31526754, at * 7.
The administration of the Deposited Assets Class has been both rewarding and frustrating because of the singularly unique nature of the bank account claims. The historical significance of the bank accounts, their centrality to the lawsuit, and the priority placed upon these claims under the Settlement Agreement, mandates, as Professor Neuborne has stated, that the "principal obligation with respect to the deposited assets class is to do everything we can to see that every person who put money in Swiss bank[s] gets their money back and gets back 100 cents on the dollar, and we will do all we can to see that that happens." Unfortunately, the effort to return these assets to their rightful owners has been impacted by the passage of so many decades and the inevitable death or dispersal of family members who could claim Holocaust victim accounts; the absence of data after more than sixty years; the complexity of the existing documents; and ongoing restrictions limiting access to many of the bank documents that still exist.
Statement of Lead Settlement Counsel Professor Burt Neuborne, Transcript of Hearing on Distribution Plan, November 20, 2000, at 12.
a. Deposited Assets Distribution Overview As of September 30, 2003, almost $131.5 million in connection with 1,751 Holocaust-era Swiss bank accounts had been distributed to the Deposited Assets Class. Under "CRT-II," which administers the Deposited Assets Class claims process on behalf of the Court, 1,544 accounts totaling close to $119.8 million has been returned thus far to Nazi victims or their heirs. A total of 977 "CRT-II" awards have been made to date, and the average value of each award has been approximately $122,600. Another $11.7 million in connection with 207 other accounts was distributed by "CRT-I," the predecessor to the current organization, in connection with Swiss bank accounts that were published by the Swiss Bankers Association (the "SBA") prior to the completion of the Volcker investigation.
See September 30, 2003 Letter on CRT Awards, at 1.
Id.
Id. The Claims Resolution Tribunal was established in 1997, when the ICEP (Volcker Committee) investigation was under way, "to arbitrate claims arising from the 1997 publication of 5,570 foreign accounts in Swiss banks." Volcker Report, ¶ 77. Under the Settlement Agreement, amounts paid to claimants "as a result of determinations made by the ICEP or the Claims Resolution Tribunal shall reduce the Settlement Amount" or are to be refunded to the banks from the Settlement Fund. See Settlement Agreement, ¶ 5.2.
In his June 30, 2003 Report on the Claims Resolution Process, Special Master Bradfield analyzed the fate of the 1,097 individuals who owned the 1,383 accounts that had been awarded as of June 30, 2003 (some owning more than one account). `As Special Master Bradfield's June 30, 2003 Report on the CRT concludes, "more Account Owners died in concentration camps, ghettos or slave labor camps than those who had any other fate."
• Died in concentration camp, ghetto or slave labor 318 camp: • Fled country of residence: 309 • Died of natural causes before end of War: 90 • Fate unknown: 84 • Survived concentration camp, ghetto or slave labor 79 camp: • Otherwise survived Holocaust: 77 • Otherwise killed by Nazis: 49 • Hid from Nazi authorities during the War: 35 • Imprisoned in concentration camp, ghetto or slave 28 labor camp, then fled: • Committed suicide in anticipation of incarceration by 19 Nazi authorities: • Imprisoned in concentration camp, ghetto or slave 4 labor camp, then hid: • Died in combat: 4 • Other (owner was Jewish organization): 1 Total: 1097
Special Master Michael Bradfield, Report on the Claims Resolution Process as of June 30, 2003 ("June 30, 2003 Report on CRT") (annexed hereto as Exhibit 2).
June 30, 2003 Report on CRT, at 6.
As of June 30, 2003, Special Master Bradfield reported that a total of 999 claimants had received CRT awards, and that "27 are themselves the Account Owner and 579 are direct descendants of the Account Owner. The 579 direct descendants include 354 children, 204 grandchildren and 21 great-grandchildren." Over one-third of these individuals reside in the United States (399). Another 146 claimants reside in Israel. Other countries of residence include France (82 claimants); the United Kingdom (52); Canada (47); Australia (41); Germany (35); Switzerland (29); Hungary (25); Austria (20); the Czech Republic (17); the Netherlands (14); Argentina (13); Belgium, Italy and Romania (9 each); Brazil and Uruguay (6 each); Chile and Mexico (5 each); Bulgaria and Croatia (4 each); Russia (3); Slovakia, Slovenia, Spain and Sweden (2 each); and Andorra, Bosnia and Herzogina, Greece, Ireland, Jamaica, Luxembourg, Norway, Peru, Poland, Portugal and Yugoslavia (1 each).
Id. at 8.
In many ways, therefore, given the odds against the success of the enterprise, the results of the bank account distribution process have been impressive. The CRT has been able to identify owners of unpaid Holocaust-era accounts, and to return nearly $131.5 million thus far to the accounts' owners or their heirs, notwithstanding the unprecedented complexity of the Deposited Assets claims process as demonstrated by just the following facts:
• nearly 33,000 individuals filed timely claims to over 36,000 accounts, including the 21,000 that were published;
• claims were filed in five languages from individuals residing in more than 40 countries; and
• multiple claimants from different nations often seek recovery for the same account — some claims were filed by more than one relative, others were filed by claimants for unrelated bank account owners who happened to share the same name — requiring assessment of often complex family relationships and heirship issues dating back decades.b. Impact of Lack of Data Upon CRT-II Distribution Process
More than sixty years after the fact, then, many thousands of often elderly and sometimes still-traumatized claimants from around the world have chosen to participate in a claims program that thus far has been able to return to them nearly $131.5 million in property. Nevertheless, the claims process has progressed more slowly than any of the parties concerned — the Court, the Special Masters, the claims processing officials, and certainly the claimants — would have preferred.
One inevitable difficulty arises simply from the timing of this settlement, so many decades after the Holocaust. Account owners or their heirs understandably may not have sufficient information to claim an account at all, or to provide data confirming their ownership.
Another significant complication is that the claims process must weigh countervailing evidentiary concerns: on the one hand, extensive bank documentation still continues to exist; on the other hand, one-third of all Holocaust-era Swiss accounts no longer have corresponding records, and access restrictions still are in place even for those accounts for which bank records do remain. As one historian observed at a recent United States Holocaust Memorial Museum symposium on Holocaust-era asset confiscation, it is difficult enough to effectuate restitution when newly emerging research and newly accessible archives continue to reveal "the myriad and complex processes by which Jews were deprived of then: assets." It is that much more difficult when the data is unavailable or access to it is restricted, as often has been the case here.
See Gerald D. Feldman, "Confiscation of Jewish Assets, and the Holocaust," Confiscation of Jewish Property in Europe. 1933-1945: New Sources and Perspectives, Symposium Proceedings, Center for Advanced Holocaust Studies, United States Holocaust Memorial Museum (2003) ("USHMM Symposium Proceedings"), at 2-4 ("The papers at this conference . . . show that it is now possible to investigate questions that previously were impossible to research or analyze" because of the unavailability, until recently, of archival resources in many parts of the world. In addition, "[o]ne of the most interesting aspects of this conference is the exploitation of materials that have long been available but that have not been used until now. . . . [The studies] show the myriad and complex processes by which Jews were deprived of their assets. This complexity helps to explain why Wiedergutmachung, the untranslatable term for reparation, restitution, and atonement, has proven so difficult"). See also Peter Hayes, "Summary and Conclusions," USHMM Symposium Proceedings, at 146 ("Ten years ago almost no one talked about the material aspects of the Holocaust; now few accounts fail to refer to greed").
In its opinion approving the settlement, the Court anticipated these difficulties. Thus, the Court recognized that the destruction of approximately one-third of all Swiss Holocaust-era bank documentation would leave an indelible mark on the claims process:
There were approximately 6,858,116 accounts that were opened in Swiss banks between 1933-45. Of these, no records existed for approximately 2,757,950 accounts, "an unfillable gap . . . that can now never be known or analyzed for their relationship to victims of Nazi persecution."
In re Holocaust Victim Assets Litig., 105 F. Supp.2d at 155, quoting Volcker Report, Annex 4, ¶ 5.
As to those bank records that continue to exist, the Court described the conditions that had been placed by Swiss banking authorities upon the data, and the impact these restrictions would have upon the claims process:
On March 30, 2000, after an inordinately long and unexplained delay of four months following the publication of the Volcker Report, the Swiss Federal Banking Commission ("SFBC") authorized publication of relevant information relating to approximately 26,000 accounts [subsequently adjusted to 21,000] referred to in the Volcker Report that were identified as having a "probable" link to Holocaust victims (citation omitted). No authorization was given by the SFBC for the publication of information relating to the approximately 28,000 [now 15,000] accounts identified in the Volcker Report as "possibly" related to Holocaust victims. Moreover, unlike earlier SFBC rulings concerning publication of information relevant to Holocaust-related accounts, the SFBC merely "authorized" publication of much of the relevant information, but did not mandate complete publication. Perhaps even more disturbing was the failure of the SFBC to mandate the creation of a central database of 4.1 million accounts that were [open or] opened in Switzerland between 1933-45. In sum, the SFBC, by its action, has made it much more difficult to carry out the mandate of the Volcker Committee that "victims who have been long denied justice by circumstances beyond their control — often poor and now aged — deserve every reasonable assistance in establishing a claim."
In re Holocaust Victim Assets Litig., 105 F. Supp.2d at 155-56, quoting Volcker Report, ¶ 70. By contrast, in December 1996, a few months after the Volcker Committee investigation first began and well before the results were made public, the Chairman of the SBA, Dr. Georg Krayer, testified before a United States Congressional committee that Swiss banking authorities would cooperate fully with the Volcker investigation and would "abide by its results." Dr. Krayer testified that "the SBA, its members and the Swiss bank supervisors are committed to providing their full support and cooperation to the [Volcker] audit and abiding by its results"; that "the auditors will have full access to all relevant information"; and that "because of this access, the audit findings will represent the best attainable results and therefore must be accepted as conclusive by all responsible parties." The Disposition of Assets Deposited in Swiss Banks by Missing Nazi Victims: Hearing Before the House Committee on Banking and Financial Services., 104th Cong., 2d Sess. (December 11, 1996), at 69, cited in Distribution Plan, Vol. I, at 53.
Thus, as the Court predicted, one significant factor interfering with the expeditious resolution of Deposited Assets Class claims is that contrary to the recommendation of the Volcker Committee, claims officials have not yet been provided with access to the Total Accounts Database ("TAD") which contains information on 4.1 million accounts open during the Holocaust era.
As the Court noted, two months after completing his investigation, in February, 2000, Paul Volcker recommended to Congress that the "SFBC should promptly authorize consolidation of the existing but scattered auditor workpapers and databases (established during the ICEP investigation) relating to 4.1 million accounts open in the 1933-1945 period, and assembly of them into a central archive that can be used in a claims resolution process." Notwithstanding this recommendation, no central archive was created for the Total Accounts Database. Instead, under the Settlement Agreement and its amendments, claims officials to date have been provided access only to the much smaller Accounts History Database ("AHD") containing information on 36,000 accounts determined by the Volcker Committee to have the highest likelihood of Holocaust-victim ownership.
Restitution of Holocaust Assets: Hearing Before the House Comm. on Banking and Fin. Servs., 106th Cong (Feb. 9, 2000) (prepared statement of Paul A. Volcker); see also Distribution Plan, Vol. I, at 58-59.
Unfortunately, these 36,000 accounts do not contain any of the 2 million accounts with Swiss addresses, or that were open in cantonal or other bank savings accounts during the relevant period. It is believed that many victims of Nazi oppression opened bank accounts in Switzerland during the Holocaust-era using Swiss addresses in an effort to avoid detection by Nazi authorities. Accordingly, under the provisions of the Settlement Agreement and the CRT Rules permitting the CRT to request access to the TAD if there is a "reasoned and satisfactory basis" to believe that the account owner used a Swiss address, CRT Special Master Bradfield, with the assistance of Lead Settlement Counsel, has been seeking the cooperation of the two defendant banks in enabling the CRT to research claims against the TAD on a case-by-case basis. Under the amended Settlement Agreement and the CRT Rules, the CRT has been notifying and will continue to notify the defendant banks of the claims for which it believes a "reasoned and satisfactory basis" exists for accessing and studying accounts in the "TAD"; in the event of disagreement, the defendant banks may challenge the CRT's determination before the Court. While it is premature to determine the results of this process, the negotiated amendments to the Settlement Agreement concerning access to "TAD" have resulted in a claims resolution mechanism that is at best complex and time-consuming.
See September 23, 2003 Letter of Hurt Neuborne to defendant banks' counsel Roger Witten (filed with the Court).
The Court took note of the defendant banks' agreement to cooperate — as well as the lack of cooperation evidenced by the SFBC and the private and cantonal Swiss banks — in considering whether to approve the amended Settlement Agreement as fair:
"The defendant banks' cooperation . . . will be geared towards assisting in the matching of claims to accounts that claims personnel have a reasoned and satisfactory basis for concluding may be listed under a Swiss address (including accounts opened in the names of intermediaries) against existing bank databases containing 2.1 million accounts opened during the relevant period" [i.e., that portion of the TAD attributable to the two defendant banks as opposed to the cantonal and private Swiss banks]. In re Holocaust Victim Assets Litig., 105 F. Supp.2d at 156. "In addition, the defendant banks have represented that `they will consider in a spirit of cooperation requests for further assistance in any particular cases where there is a reasonably strong likelihood that further assistance would provide probative information and where the costs of such further assistance do not outweigh the potential benefits.' Memorandum to File of Burt Neuborne, Esq. and Roger Witten, Esq. (undated) ¶ B(3). Nevertheless, the failure of the SFBC to mandate compliance with the recommendations of the Volcker Committee, coupled with the unwillingness of the private or cantonal banks to voluntarily cooperate in permitting publication of information relating to some or all of their accounts that may be included within the [36,000] accounts referred to in the Volcker Report, have created substantial impediments to administration. . . . Nor will the private and cantonal banks permit voluntary access to their records to match possible Swiss address accounts. . . . The unwillingness of the SFBC to mandate compliance with the recommendations of the Volcker Committee is inexplicable, and the failure of the private and cantonal banks to voluntarily comply is inconsistent with the spirit of the Settlement Agreement, which recites that `Settling Plaintiffs and Settling Defendants commit to support and urge the conclusion of the mandates of the Volcker Committee.' It also amounts to nothing less than a replay of the conduct that created the problems addressed in this case." 105 F. Supp.2d, at 156-7.
See Memorandum to the File, August 9, 2000, ¶ B(3).
Another difficulty is that notwithstanding the lack of full access to the 4.1 million "TAD" accounts, even for the 36,000 accounts in the "AHD" that have been made available for the claims process, bank records sometimes are incomplete and at times illegible. The "AHD" accounts also are subject to certain access and review restrictions negotiated in an effort to reconcile still-existing Swiss concerns about bank secrecy with the fact that many of the relevant documents now are more than half a century old and do not appear appropriately subject to privacy considerations.
The CRT's access to Swiss bank account records even in the AHD is subject to the "Data Librarian Rules." The Rules are derived in part from Section 3.3 of Amendment No. 2 to the Settlement Agreement, which mandates that the "centralized database [of bank and auditor records] shall be used, subject to the directives of the Swiss Federal Banking Commission, for the matching and research of claims. . . ." (emphasis added). The "Data Librarian" is an individual who "shall be selected from independent accounting firms resident in Switzerland. This firm shall be independent but shall be retained and mandated by the Special Masters, and shall report to them and to the SFBC." CRT Rules, App. A (annexed hereto, with other excerpts from the CRT Rules, as Exhibit 3).
As set forth in the CRT Rules, the "Data Librarian" is "responsible for a Data Library consisting of the Account History Database, the Account Dossiers, and the Total Accounts Database," and "would make this information available to the CRT for the purpose of (a) resolving admissible claims in an effective and efficient manner that is consistent with the requirements of due process and (b) assuring compliance with Swiss laws on data privacy and confidentiality, and the rules on data confidentiality established by the SFBC in its decisions of March 30, 2000 and, for this purpose, the SFBC will serve in a supervisory role with respect to the arrangements in this Appendix A" (emphasis added). When the CRT analyzes accounts and "admissible" claims and determines that there may be matches between names listed in the claim form and one or more names contained in the Swiss bank and ICEP auditor documents that comprise the AHD, then, among other things, "a list of Accounts deemed relevant by the CRT [is to be] sent by the computer programs to both the Data Librarian and to the CRT." Additionally, "the Data Librarian, after redacting any information in the Account Dossier concerning persons unrelated to the Account, [is to] make a copy of the Account or Accounts Dossiers for each Account in the list and give the copies to the CRT."
Thus, Swiss banking authorities continue to be involved in the claims resolution process.
Finally, as the Court discussed in assessing whether to approve the Settlement Agreement as fair, a further difficulty is that Swiss banking officials have failed to publish the names of 15,000 accounts identified by the Volcker investigation as possibly belonging to Holocaust victims. Thus, not all potential claimants have been able to come forward, and not all accounts in the 36,000 "AHD" have been claimed.
Full access to the available data is of crucial importance to resolving the very substantial sums that remain at stake for class members. Well before the start of the claims process, the Court observed that according to the Volcker Report, "the value of deposited assets held by the Swiss banks could exceed the $1.25 billion settlement amount." In fact, the nearly $131.5 million returned to depositors so far, while a significant amount, still represents only a fraction of the total value of the 36,000 "probable" and "possible" victim accounts in the AHD alone. The CRT has determined that in current values, using the July, 2003 multiplier of 12 and exchange rate of 1.35 Swiss Francs to the dollar, the 21,000 accounts that were published on February 5, 2001 — the accounts determined "probably" to have belonged to Holocaust victims — are worth approximately $1.126 billion. The "possible" (and unpublished) victim accounts are valued at approximately $507.5 million. The value of all 36,000 "probable" and "possible" Holocaust victim accounts therefore is approximately $1.634 billion, or over $400 million more than the $1.25 billion Settlement Fund.
105 F. Supp.2d at 153. The Court explained that "[t]his portion of the Volcker Report estimated the present value of certain categories of accounts, in Swiss francs, which it derived from mean and median values of known accounts. In concluding that the total value of accounts appears to exceed $1.25 billion, I have converted the Volcker Committee's figures (derived from the mean value of known accounts) to U.S. dollars using the currency exchange rate in effect at the close of trading last week. While the total estimated value of accounts derived from the median value of known accounts, as opposed to the mean value, is less than $1.25 billion, both the mean and median figures may significantly understate the account values for reasons that need not be detailed here." Id., at 153, n. 2, citing Volcker Report, Annex 4 ¶¶ 41-42 and n. 23.
Other accounts belonging to Nazi victims remain in the still-inaccessible "TAD"; the total value of these victim accounts is unknown.
The total adjusted values were determined by using either known account values where the data still exists, or average values for similar accounts based upon the type of account for accounts with unknown values or values less than the average value (e.g., demand deposit, custody, safe deposit and so forth). See CRT Rules, Article 29 — "Value Presumptions for Accounts with Unknown or Low Values" (where value of account is unavailable from bank records or is lower than presumptive value, the presumptive value of the account shall be determined as follows: Custody Account, SFr. 13,000; Demand Deposit Account, SFr. 2,140; Savings/Passbook Account, SFr. 830; Safe Deposit Box, SFr. 1,240; Other Types of Accounts, SFr. 2,200; Unknown Account Type, SFr. 3,950). The Volcker Report defines a custody account as an "account held by a custodian for an institution or an individual. The bank holds the customer's property in safekeeping, as provided by a written agreement, and collects dividends"; the definition "excludes safe deposit boxes." Volcker Report, App. V (Glossary). The Volcker Report defines a demand deposit account, also known as a "current account," as an "account providing instant access to funds" and often "a checking account with a fluctuating balance for liquidity, not investment, and typically providing minimal or no interest on balances held." Id. A passbook is defined as a "book issued by a bank in the name of the saver or depositor or issued as a bearer passbook in which the bank enters customer deposits and withdrawals." Id. Savings accounts are defined as "accounts that were labeled as `savings accounts' in the Relevant Period as well as passbook accounts (including those passbooks deposited at a bank) provided such accounts contain no other assets." Id., App. Q (Guidelines for the ICEP Audit Firms for Completion of the Forensic Accounting Investigation), ¶ 43.
If any element of the distribution process has been troubling — a concern no doubt shared by the class members, the Court, the CRT Special Masters and Lead Settlement Counsel — it is that accounts currently worth over $1.6 billion have been located in Swiss banks that have been determined probably or possibly to belong to Nazi victims or their heirs, yet a significant portion of these accounts either have not been claimed, or the CRT has been unable to determine their ownership due to the unavailability of information. Because of the $800 million "cap" on the Deposited Assets Class, if all owners and heirs actually came forward, there would be insufficient funds to repay all of the bank claims, let alone the claims filed by members of the other four classes. c. Final Report of the "Bergier Commission"; Adoption of Bergier Conclusions to Expedite Deposited Assets Claims Process
Although the lack of foil access to existing documentation and the unavailability of other data has interfered with the claims process, the CRT has been able to expedite other elements of claims review by incorporating presumptions drawn from the conclusions of Switzerland's commission of experts — the "Bergier Commission" ("ICE") — authorized to conduct a "historical and legal investigation into the fate of assets which reached Switzerland as a result of the National-Socialist Regime." On the date of the release of the Final Bergier Report, the Swiss Federal Council issued a "declaration" that acknowledged, among other things, that "together with other studies, those of the ICE establish clear cases of negligence after the war with regard to the restitution of property. The Federal Council expresses its sincere regrets to all those people who suffered the consequences of this. It hopes the measures which have been taken in the last few years will contribute to rectify these errors and cases of negligence."
As more fully described in the Distribution Plan, the Bergier Commission (also known as the "ICE") was created pursuant to Swiss Federal Council Decree of December 13, 1996. The "general objective" of the investigation was to "obtain the historical truth" and to examine and report on "the role of Switzerland, particularly that of the Swiss financial center, as well as on the manner in which Switzerland dealt with this period of its history." The Commission was obligated, "[a]fter a period of five years at the latest," to "summarize the results in a final report to the attention of the Federal Council." See Swiss Federal Council Decree, 19 December 1996, "Historical and Legal Investigation into the Fate of Assets which Reached Switzerland as a Result of the National-Socialist Regime: Appointment of the Independent Commission of Experts," available at www.uek.ch.
"Independent Commission of Experts Switzerland — Second World War" (Zurich: Pendo Verlag GmbH 2002); hereinafter, the "Final Bergier Report."
"Declaration of the Federal Council on the Occasion of the Publication of the Final Report of the Independent Commission of Experts: `Switzerland — Second World War'", March 22, 2002, available at www.uek.ch. The Declaration also observed: "The Commission reminds us that Switzerland, in particular its political leaders, did not always respond to the humanitarian needs of the time. This is principally true of Swiss policy with regard to refugees. The fact that Switzerland offered shelter to more persecuted people than it turned away does not mitigate its responsibility towards those who were discriminated against as a result of the J stamp, nor towards those whom it turned away and abandoned to unspeakable suffering, deportation and death." Id. See also "Refugee Class" summary. Section III(B)(3) infra: Elizabeth Olson. "Commission Concludes that Swiss Policies Aided the Nazis," The New York Times, March 23, 2002, at A4 ("An independent historians' commission, wrapping up five years of research into Switzerland's wartime past, concluded today that the country's neutrality was twisted to justify policies that helped the Nazis, including turning away Jews fleeing the Holocaust. . . . The historians also criticized the banks' failure to return Jewish assets after 1945, but said it resulted from poor judgment and a desire to safeguard Swiss banking secrecy rather than pure profiteering").
The Commission, which studied a variety of topics that are the subject of this lawsuit, announced its final conclusions on March 22, 2002, well after the parties had entered into the Settlement Agreement, the Court had issued its final approval of the settlement, the Court of Appeals had upheld the approval, and the claims processes were substantially under way.
With respect to Swiss banking practices in particular, Final Bergier Report made a number of highly significant determinations, many of which were incorporated into the Deposited Assets claims process by way of the Court-approved CRT Rules. The Final Bergier Report determined, among other things, that
• Swiss banks did not attempt to interfere with transfers that account owners were forced to make under duress. Rather, according to the Final Bergier Report:
"The Swiss banks complied with the instructions of their German customers signed at times under duress, and transferred securities to the German banks indicated. Between 1933 and 1939 Credit Suisse, for example, transferred securities valued at around 8 million francs to Deutsche bank, while the Zurich office of the Swiss Bank Corporation transferred securities totaling over 6 million in francs in value in accordance with the 1936 Law on Compulsory Deposits ( Depotzwangsgesetz). Furthermore, the Swiss Bank Corporation sold shares quoted in Switzerland for a total market value of 8 million francs on behalf of German customers who probably had to transfer these proceeds too to banks designated by the Reichsbank. A considerable number of such transfers took place in 1936, but transactions of this sort also continued during the war." • The Final Bergier Report criticized the banks' post-War approach to the issue of dormant accounts and unclaimed assets:
"The banks were able to use the amounts remaining in the [dormant] accounts and to earn income from them. They showed little interest in actively seeking accounts of Nazi victims, justifying their inaction with the confidentiality desired by their customers. What the victims of National Socialism and their heirs thought to be the advantages of the Swiss banking system turned out to be disadvantageous for them. During the Third Reich, the principle of discretion — which characterized the Swiss banking system and which, together with the tradition of stability and security, had been exploited as a competitive advantage over foreign competitors — had made Switzerland particularly attractive as a financial centre for those persecuted by the Nazi regime. Later, the question of the whereabouts of assets of Nazi victims became a highly topical issue, but the banks — invoking this tradition — did little to resolve the problem. The unwillingness of the Swiss financial institutions in the immediate post-war period to find the legal owners of unclaimed assets or to support rightful claimants in their search, constitutes the main point of criticism of the banks' behaviour, behaviour already tainted by certain dubious decisions and questionable attitudes in the period between January 1933 and May 1945."
• The Final Bergier Report concluded that sporadic efforts were made throughout the post-War period to survey dormant accounts. Although account holders or their heirs attempted to contact the banks for data, they were provided incomplete or "misleading" answers:
"Some banks gave a factually correct but misleading answer, namely that there was no longer any contact between the bank and the person in question. Others in addition referred to the statutory duty to keep files for ten years and stated that they were unable to provide information on the assets being sought — although relevant documents are still available in the archives today. Although in some cases the banks did inform claimants that the assets had been paid out, they neglected to provide key details, i.e., who gave the instruction and who received the payment."
• The Final Bergier Report observed that in response to the Swiss government's 1947 decree requiring reporting of unclaimed assets, rather than locate victims' accounts, "it was the aim of many banks to find as few unclaimed assets as possible":
"Basically, . . . it was the aim of many banks to find as few unclaimed assets as possible. Some banks found it quite in order to give false information. [UBS], for example, reported that it had found no assets at all belonging to victims of mass extermination. However, it can be proved even now that in the course of freezing and reporting German assets in Switzerland in 1945, it had come across customers whom it knew to have been deported by the Nazis and who would therefore also have fallen into the category of assets sought in 1947."
• The Final Bergier Report discussed how the banks' reluctance to locate heirless assets continued into the 1950s, when the "big banks co-ordinated their response to heirs":
"In May 1954, the legal representatives of the big banks co-ordinated their response to heirs so that the banks would have at their disposal a concerted mechanism for deflecting any kind of enquiry. They agreed not to provide further information on transactions dating back more than ten years under any circumstances, and to refer to the statutory obligation to keep files for only ten years, even if their records would have allowed them to provide the information."
• The Final Bergier Report noted that the banks relied upon search fees and the reduction of account balances to deflect claimant inquiries:
"Throughout the post-war period the banks relied on a combination of discreetly playing down the problem and erecting barriers to investigation: time and again they would bring banking secrecy into play in order to legitimise their reluctance to provide information while at the same time charging high search fees for conducting investigations. Examples show that claimants had to pay 25 francs in the 1950s and as much as 250 francs in the 1960s. Twenty years later a search could cost as much as 750 francs. Because dormant accounts often contained small amounts, these fees frequently exceeded the value of the assets being sought and, together with the routinely charged administrative or other costs, reduced them substantially so that 50% of balances outstanding up to 1999 amounted to less than 100 francs, and as many as 70% of the accounts contained less than 1,000 francs. Due to the deduction of such fees, unclaimed accounts, deposits and safe-deposit boxes could also disappear in the space of a few decades. The assets found by the ICEP [Volcker Committee] in 1999, whose owners had not come forward by the time the ICE [Bergier Commission] and the ICEP began their investigations, therefore constitutes only part of the total. When presenting its findings, the ICEP stated that no information was available on 2,758,000 of the total of 6,858,100 holdings (usually bank accounts) that existed between 1933 and 1945. This means that no assets were listed for more than ten years, either because the balances had been paid out (on the instructions of the customers) or because they had been cancelled by the bank without any instructions from the customer as a result of the erosion of their value. It was the small unclaimed balances that most often disappeared. This usually happened because of a combination of non-payment of interest and the accumulation of bank charges over a prolonged period. If the account had shrunk to a minimal amount, it was cashed in. After ten years the records could also be destroyed. At the Zurich Cantonal Bank (Zürcher Kantonalbank), documents show how, before and during the war, accounts on which no information had been received from customers for a decade were cancelled and cashed in to pay bank charges. . . ."
Final Bergier Report, at 275. The Final Bergier Report discussed a specific example arising from the Nazi conquest of Poland, concluding that the bank's cooperation with Nazi authorities was "typical":
"As early as 20 November 1939, the Polish bank Lodzer Industrieller GmbH asked Credit Suisse to transfer assets deposited with it to an account at the German Reichsbank in Berlin. The bank saw a fundamental problem in this procedure and asked its legal affairs department to examine the matter. The latter recommended not complying with the request since the customer's signature had most likely been obtained under duress by the occupying authorities. A further reason for refusing the request was that it had come from Berlin and contained incorrect information about the amount deposited with Credit Suisse. The legal affairs department also pointed out that for Poland, German foreign exchange regulations represented a war measure taken by an occupying force and that Switzerland had not yet recognised the new political situation. Managing Director Peter Vieli subsequently discussed the issue with Rudolf Speich, his counterpart at the Swiss Bank Corporation. The latter contacted the Reichsbank, which agreed that in view of the unclear constitutional situation in Poland, Swiss banks were not obliged to comply with requests from German administrators ( Reichskommissare). Nevertheless, according to a file note `the directors of the Reichsbank and Dr. Speich were of the opinion that duly signed requests from customers for their assets held in Switzerland to be transferred to an account with the Reichsbank must be executed since absolutely no justification could be found for not doing so.' Although there were legal and moral objections to transferring the funds, the consideration that they `still had important interests in Germany, and should avoid friction and unpleasantness whenever possible' prevailed at CS [Credit Suisse]. They complied with the request and opted for the principle of carrying out legally signed orders even when they were not received directly from customers, but via the Reichsbank in Berlin. Their comportment in Poland was in this respect typical of how the banks dealt with the assets of Nazi victims: as a rule, they complied with transfer orders from foreign customers without properly checking whether the signatures they bore had been obtained under duress by the Nazi authorities and whether the orders were in fact in the customer's interest. On the other hand, the Swiss banks also took measures which were sometimes to the advantage of those subject to persecution. For instance, they instituted special security measures for assets that were not declared to the German foreign exchange authority, accepted deposits with special powers of attorney in case German troops invaded Switzerland, and sponsored applications to the Swiss authorities for residence permits lodged by those being persecuted by the Nazi regime."Id. at 276-277.
Id., at 277.
Id., at 443.
Id., at 445.
Id., at 446.
* * * *
"As recently as the 1980s, [UBS] issued the following instructions on closing accounts (which subsequently, however, were not carried out): `The closure is to be effected by charging as many fees, expenses, etc. for different services to the accounts as to wipe out any balances they contain. The fees and expenses to be charged are to be credited to the internal account `SV inheritances'.'"
• The Final Bergier Report concluded that in contrast to the banks' response to Holocaust victim inquiries, the banks reacted quite differently in connection with Cold War-era compensation agreements Switzerland entered into with Poland and Hungary:
"With the start of the Cold War and the sealing of the borders between the power blocs, the last recorded home address of many presumed Holocaust victims now lay behind the so-called Iron Curtain. . . . [I]n the case of banks with a large clientele in Eastern European countries, unwillingness and inability now entered into a perfect symbiosis. . . . An international agreement required the banks to proceed to expropriation, which created a prerequisite for transferring assets whose owners no longer had any contact with the bank to the political authorities in their former country of residence. Surprisingly, it was now apparently possible to conduct an internal investigation so that a list of dormant accounts relating to these countries could be drawn up. Subsequently, a political deal was concluded, the primary aim of which was to favour Swiss interests in the wake of nationalisation of assets in Poland and Hungary. The agreement with Poland was concluded in 1949 and came into force in 17 May 1950. It dealt with assets `of Polish nationals who had been domiciled in Poland on 1 September 1939, had given no signs of life since 9 May 1945 and concerning whom the bank had no evidence to suppose that they had survived the war or, if not, had left heirs.'. . . . In 1950, the Swiss Bankers Association discovered dormant Polish accounts worth 598,000 francs in Switzerland. In the 1960s, however, the banks and insurance companies transferred only the small sum of 15,498 francs (of which only 849 francs came from the insurance companies). In 1975, the somewhat more substantial sum of 463,955 francs was paid as a result of the Registration Decree, which had prompted the Polish government to file more wide-ranging claims. A similar agreement was concluded with Hungary in 1950. Of the total amount of 460,500 francs estimated in 1965 to be held in dormant accounts belonging to persons resident in Hungary, the sum of 325,000 francs was finally transferred to the Hungarian government in 1976. The agreement got no or only very little publicity. It was therefore virtually impossible even for heirs living abroad to assert their claims. Neither private property rights nor banking secrecy had been a barrier to the release of these assets."
Id., at 446-47. The Volcker Committee analyzed whether Swiss law on the treatment of dormant accounts varied from the laws of other nations. See Volcker Report, Annex 9 ("Swiss Law on the Treatment of Dormant Accounts: A Comparison to European and U.S. Law"). The Volcker Committee concluded that "Switzerland, unlike other countries such as France and the United States, does not have [an escheat] statute that requires the handing over of dormant accounts to the State." Id. at ¶ 63.
Final Bergier Report, at 450-51.
As noted above, several of the Bergier Commission's final determinations — the conclusions of neutral experts appointed by the Swiss government — have been incorporated into the Court-approved CRT Rules to help expedite claims processing by establishing presumptions in favor of claimants in the absence of bank documentation. These presumptions are warranted both by the historical facts as well as United States law, which provides for an "adverse inference" against a party who fails to provide documentation expected to be in that party's possession.
The "adverse inference" incorporated into the CRT's rules does not affect the defendant banks' liability, which is fixed by the Settlement Agreement at $1.25 billion. It operates to assist claims officials in determining ownership to particular accounts.
Thus, in one of the most significant Rules, the CRT, "[i]n the absence of evidence to the contrary, presumes that neither the Account Owners, the Beneficial Owners, nor their heirs received the proceeds of a claimed Account" where the Volcker investigation determined that the account was "closed unknown by whom" and where "there is no indication in the bank records" that the rightful owners received the proceeds of the account. As set forth in the Court-approved CRT Rules, the rationale for this presumption is as follows:
See CRT Rules, Article 28 — "Presumptions Relating to Claims to Certain Closed Accounts," Section "j" (annexed hereto as part of Exhibit 3).
As described in the Bergier Final Report and the ICEP Report, the Swiss banks destroyed or failed to maintain account transactional records relating to Holocaust-era accounts. There is evidence that this destruction continued after 1996, when Swiss law prohibited destruction of bank records. Bergier Final Report at 40 (stating "[i]n the case of Union Bank of Switzerland . . ., however, documents were being disposed of even after the Federal Decree [of 13 December 1996]"). The wholesale destruction of relevant bank records occurred at a time when the Swiss banks knew that claims were being made against them and would continue to be made for monies deposited by victims of Nazi persecution who died in the Holocaust and that were (i) improperly paid to the Nazis, see Albers v. Credit Suisse, 188 Misc. 229, 67 N.Y.S.2d 239 (N.Y. City Ct. 1946); Bergier Final Report at 443, (ii) that were improperly paid to the Communist controlled governments of Poland and Hungary, see Bergier Final Report at 450-51, and possibly Romania as well, see Peter Hug and Marc Perrenoud, Assets in Switzerland of Victims of Nazism and the Compensation Agreements with East Bloc Countries (1997), and (iii) that were retained by Swiss Banks for their own use and profit. See Bergier Final Report at 446-49. The discussion on `unclaimed cash' persisted throughout the post-war period due to claims for restitution by survivors and heirs of the murdered victims, or restitution organizations acting on their behalf." Id. at 444. Nevertheless, the Swiss Banks continued to destroy records on a massive scale and to obstruct those making claims. ICEP Report, Annex 4 ¶ 5; In re Holocaust Victim Asset Litig., 105 F. Supp.2d 139, 155-56 (E.D.N.Y. 2000). Indeed, "[i]n May 1954, the legal representatives of the big banks co-ordinated their response to heirs [of account holders] so that the banks would have at their disposal a concerted mechanism for deflecting any kind of enquiry." Bergier Final Report at 446. Similarly, "the banks and their Association lobbied against legislation that would have required publication of the names of so called `heirless assets accounts,' legislation that if enacted and implemented, would have obviated the ICEP investigation and the controversy of the last 30 years." ICEP Report at 15. Indeed, in order to thwart such legislation, the Swiss Bankers Association encouraged Swiss banks to underreport the number of accounts in a 1956 survey. "`A meager result from the survey,'" it said, "`will doubtless contribute to the resolution of this matter [the proposed legislation] in our favor.'" ICEP Report at 90 (quoting a letter from the Swiss Bankers Association to its board members dated June 7, 1956). "To summarize, it is apparent that the claims of surviving Holocaust victims were usually rejected under the pretext of bank secrecy . . .", Bergier Final Report at 455, or outright deception about the existence of information, while wholesale destruction of bank records continued for over a half century. Under these circumstances, utilizing the fundamental evidentiary principles of United States law that would have applied to Deposited Assets claims had the class action lawsuits been litigated through trial, the CRT draws an adverse inference against the banks where documentary evidence was destroyed or is not provided to assist the claims administrators. See In re Holocaust Victim Asset Litig., 105 F. Supp.2d 139, 152 (E.D.N.Y. 2000); Reilly v. Natwest Markets Group. Inc., 181 F.3d 253, 266-68 (2d Cir. 1999); Kronisch v. United States, 150 F.3d 112, 126-28 (2d Cir. 1998).
CRT Rules, Article 280), n. 5.
Additionally, in light of the claims and statistics analyzed thus far by the CRT, and the determination in the Final Bergier Report that German foreign exchange controls began as early as 1931, with registration measures in place as early as June, 1933 and explicit confiscation provisions enacted by November, 1936, the CRT also has adopted the following presumption:
[W]here accounts of German owners were closed on or after January 30, 1933, the date of Hitler's accession as Chancellor, absent evidence to the contrary such as bank records, the CRT will presume that the account owners and their heirs did not receive the benefit of their assets.
Appendix C, approved by order dated April 25, 2003, annexed hereto as part of Exhibit 3.
Many claimants have benefited from these presumptions, which enable the CRT to determine that a claim is plausible even in the absence of a fully documented banking and historical record for the particular account owner. In accordance with the "adverse inference" presumption under United States law, the burden of proof in effect shifts from the claimant, who should not be held responsible for the absence of bank documents, to the bank. d. Sample CRT-II Awards
See, e.g., In re Holocaust Victim Asset Litig., 105 F. Supp.2d at 152; Reilly, 181 F.3d at 266-68; Kronisch, 150 F.3d at 126-28.
It is particularly frustrating to contemplate the possibility that not all victim bank records and other documents are available, and not all victim accounts will be returned to their owners, when the stories that have been revealed in connection with the accounts already repaid are so compelling. The cases — all of which are publicly available on the CRT's website, www.crt-ii.org, and several of which were highlighted in a November 13, 2002 New York Times article as well as in Special Master Bradfield's periodic reports on the CRT — speak volumes about the fundamental merits of the Deposited Assets claims.
See William Glaberson, "Settling Accounts, But Not Minds: Holocaust Survivors Relive Past in Case Against Swiss Banks," The New York Times, November 13, 2002, page B1 (hereinafter, "Glaberson"). A copy of this article is annexed hereto as Exhibit 4.
Expanding upon the conclusions of the Final Bergier Report, the awards confirm that Swiss bank account owners and their heirs were unable to retrieve their assets after World War II. The awards, which rely heavily upon the still-existing account records located and studied by the Volcker Committee investigators, demonstrate that accounts were turned over to the Nazis (and the responsible Swiss bank in at least one instance deducted a fee for completing the transfer); accounts were closed "unknown to whom" following the owner's incarceration in a concentration camp, with the proceeds apparently transferred by Swiss banks to the Nazis; accounts were closed out and taken into bank profits; and other accounts remain open and dormant even today. In some instances, as the Final Bergier Report concluded, heirs of the account owners were misinformed about their relatives' bank records.
Final Bergier Report, at 443.
Special Master Bradfield's June 30, 2003 Report on the CRT analyzed the disposition of the 1,383 accounts that had been awarded to that date. The analysis evidences many of the circumstances described above and in the Final Bergier Report:
The report assesses CRT statistics as of June 30, 2003, and provides a comprehensive analysis of the 1,383 accounts awarded by "CRT-II" as of that date (as distinguished from the 207 accounts awarded by "CRT-I," which operated under rules pre-dating the Settlement Agreement, as noted above). As described previously, as of September 30, 2003, a total of 1,751 accounts, including 1,544 awarded by CRT-II, had been returned to the owners or heirs. See September 30, 2003 Letter on CRT Awards, at 1.
• Accounts presumed closed: 518 • Closed unknown to whom during the period 1937-1945: 327 • Accounts still open and dormant: 125 • Closed unknown to whom after 1945: 93 • Closed unknown when: 73 • Accounts transferred to a Nazi controlled bank: 71 • German accounts closed unknown to whom before 1937: 57 • Accounts paid to Bank as fees or profit: 57 • Accounts suspended/collectivized and later closed: 41 • Unknown disposition (including accounts identified in 11 Austrian State Archives census forms): • Other (including account transferred to a Swiss 5 Government fund pursuant to the 1962 Federal Decree concerning Holocaust-era accounts; account transferred to Swiss Federal Accounting Department on July 24, 1973; and transfer of account on March 3, 1994 into a collective account containing assets of customers presumably deceased): • Paid to Hungarian Government: 2 • Paid to Polish Government: 2 • Paid to Unclaimed Assets Fund: 1
Total: 1383
The actual CRT awards best place these statistics into broader context, demonstrating the impact of Nazi policies on the Swiss bank account owners and their heirs. Some examples of these awards are as follows:
Accounts Closed Unknown by Whom
• In re Accounts of Otto and Maria Fuchs
Account Owner Otto Fuchs, the Claimant's father, was a Jewish patent attorney. Maria Fuchs, his sister and the Claimant's aunt, was a concert singer. Otto Fuchs, who had lived at 4 Cernovicka Street in Brunn-Komarov, Czechoslovakia, was arrested by the Nazis and deported to a concentration camp. Mr. Fuchs survived the War and died in Brunn in 1957. Claimant's aunt, Maria Fuchs, was unmarried and had no children. Maria Fuchs fled from Berlin to Brunn, where she was captured by the Nazis, deported to a concentration camp in Poland, and perished in 1942, according to Swiss bank records (see below).
The bank records show that Otto Fuchs held an account at a Swiss bank ("Bank I") that was closed, unknown to whom, in 1941. Maria Fuchs held seven accounts at a second Swiss bank ("Bank II"); the accounts were held at several different branches of the bank including the Zurich, Basel and Lausanne branches. According to bank documents located by the Volcker investigators, all seven of the accounts were frozen under the 1945 Swiss Freeze of German assets, several years after owner Maria Fuchs had been deported to Poland and killed in a concentration camp. The documents located for the first of the seven Swiss accounts owned by Maria Fuchs show that the account was a safe that was "forced open on 21 March 1946, and was found to contain 1,000.00 Swiss Francs in an envelope marked ` for Dr. Ing. Otto Fuchs, Brunn 17, Cernowitzerstr. 4,' as well as two separate sealed bags containing gold coins valued at 20,000 Swiss Francs and 5,000.00 Swiss Francs." The last known date of existence of the account is October 18, 1952; the Volcker auditors presumed the account was closed. The documents located for another of the seven accounts owned by Maria Fuchs indicate that the account was a custody account which, as of June 20, 1946, had a balance of 39,125 Swiss Francs. A bank document shows that on May 13, 1946, the account was frozen under the 1945 Swiss Freeze of German assets. The account was released from the freeze on January 12, 1951. "The account was reported by the Zurich branch . . ., and on 13 January 1951, the Bank inserted a comment on the record stating that the Account Owner died in 1942 and that either the Bank could not locate the Account Owner's heirs or that the Bank was restricted from contacting the Account Owner's heirs. It is not clear whether the account was closed by the Bank at some stage or remained open and dormant." The other five Swiss bank accounts owned by Maria Fuchs likewise were frozen on various dates in 1945 and 1946; as of February 16, 1945, four of these accounts had balances of, respectively, 486,941 Swiss Francs, 15,973 Swiss Francs, 11,281 Swiss Francs, and 10,193 Swiss Francs. The value of the other account was unknown. The total amount awarded for all eight accounts (including the Otto Fuchs account), adjusted for interest and fees, was $4,808,943.24.
See Fuchs award, at www.crt-ii.org (posting all CRT awards).
Id.
See id; see also Special Master Bradfield's Second Periodic Report on the CRT-II Process, January 2003 ("Second CRT-II Report"), at 5; Glaberson, at B8 (discussing Fuchs case).
• In re Account of Edith Oppenheim
Account Owner Edith Oppenheim, claimant's grandmother, was born on March 5, 1894 in Hohensalza (Inowroclaw), Poland, was Jewish, married and had two children. Mrs. Oppenheim came from a family of successful bankers and was herself a financial advisor and stockbroker for the bank Büder Ginsberg in Berlin. Her husband, who also came from a successful banking family, died in Berlin in 1928. From 1930 until approximately 1942, Mrs. Oppenheim lived in Berlin. She went into hiding for some time, but was captured by the Nazis on August 25, 1943. On July 12, 1944, she was deported to Auschwitz, where she perished. Among the documents Mrs. Oppenheim's granddaughter provided to the CRT was a copy of a transport list showing her grandmother's deportation.
The Swiss bank's records indicate that Mrs. Oppenheim owned two custody accounts. The Bank records do not indicate when the accounts were closed, to whom they were paid, or the value of the accounts. Given that Mrs. Oppenheim died in Auschwitz in 1944 and the absence of Bank records indicating the disposition of the closed accounts, the CRT concluded, based upon the presumptions set forth in the CRT Rules, that the account proceeds were not paid to Mrs. Oppenheim or to her heirs. Since the actual account values are unknown, the CRT calculated the award amount using the average value of SFr. 13,000 for a custody account. The amount of the award was $238,167.94.
• In re Accounts of Bertha Kaufmann, Hedwig Landesmann. and Hermine Hirsch
The Claimant is the Account Owners' son, nephew and grandson, respectively. Bertha Kaufmann and Hedwig Landesmann were sisters and the daughters of Hermine Hirsch. All three Account Owners were Jewish and lived in Vienna. Claimant's parents sent him from Vienna to England on a Kindertransport in December 1938; his sister followed in January 1939. The Claimant's father was imprisoned in Dachau and fled to England in May 1939. The Claimant's mother, aunt and uncle, and grandmother fled to Cambridge, England on approximately August 15, 1939. In 1940, the Claimant's mother and her immediate family immigrated to the United States, leaving her sister and mother in Cambridge, England. Claimant's aunt died in England in 1945.
The bank records show that the Account Owners held four accounts at the Swiss bank in question. Among these records is a "list of custody accounts of clients [of the bank] domiciled in Austria that were closed in 1938, arid a publication regarding Austrian laws that restricted foreign currency transactions." An account opening card for one account contains a notation that the account was closed on August 22, 1938, and the list of custody accounts closed in 1938 "indicates that the assets totaling 4,500.00 Swiss Francs in that account were transferred . . . to an undisclosed bank . . . pursuant to the Austrian legislation restricting foreign currency transactions." Another account contains similar bank records, in addition to the hank records located during the Volcker investigation, the Austrian State Archives contain census forms describing the assets of the three Account Owners, including statements showing that two of the three women had assets held at the Swiss bank. Three of the accounts were closed on August 22, 1938 (the same date shown in the bank records), January 21, 1939, and November 23, 1939, respectively. The fourth account was closed on November 23, 1939. There was no evidence in the bank records that any of the Account Owners received the proceeds from their bank accounts. Two of the accounts had known balances; the other two had unknown balances and thus were calculated using average values. The amount of the award was approximately $206,709.73.
June 30, 2003 CRT Report, at 13-14.
See www.crt-ii.org (Kaufmann case).
Id.
Id. The Kaufmann case also is discussed in the Glaberson article at B1.
• In re Account of David Israel Frischer
The Claimant is the Account Owner's only daughter. The Account Owner and his wife, Therese Frischer, who were both Jewish, lived in Vienna where he owned a company called David Frischer Papiergrosshandlung. According to the claimant, her father went to Zurich in 1936 to deposit assets in a Swiss Bank. Mr. Frischer died in January 1940. Claimant's mother was deported to Theresienstadt and later to Auschwitz, where she perished in April 1945.
Prior to filing with the CRT, claimant sought the assistance of the New York State Banking Department's Holocaust Claims Processing Office ("HCPO"). After the CRT-II claims process was established, the HCPO referred the claim to the CRT and continued to work with the CRT as well as the claimant in connection with this and other claims. There were no bank records for Mr. Frischer's account(s) located during the Volcker investigation. However, his census records were located in the Austrian State Archives. The census file included a letter from Mr. Frischer dated July 18, 1938 supplementing the original census filing. The letter (which was summarized but not quoted in the CRT award) stated as follows:
Furthermore, I supplement Point IVE my declaration by the listing of my deposit at the [Swiss Bank] in the amount of Sfr. 2,945.50 at the exchange rate of RM 1,682.75 and request to excuse the oversight due to my being an old and forgetful man who did not have any intention to withhold this asset, which is already evident from the fact that I timely registered this deposit with the main office of the [German] Reichsbank and offered it for purchase.
The total amount awarded was approximately $23,564.00.
See www.claims.state.ny.us/hist.htm ("To provide institutional assistance to individuals seeking to recover Holocaust-looted assets, Governor Pataki created the Holocaust Claims Processing Office of the New York State Banking Department on June 25, 1997. The mission of the Office is threefold: 1. Recover assets deposited in European banks. 2. Recover monies never paid in connection with insurance policies issued by European insurers. 3. Recover lost or looted art."). The HCPO, under the leadership of its director, Catherine Lillie, has been assisting Holocaust victims and their heirs from all over the country for the last several years and has provided its expertise to the Court, the Special Masters and the CRT.
See www.crt-ii.org; see also Glaberson, at B8.
Accounts Currently Open and Dormant
• In re Account of Leo Davidsohn
The Account Owner, who was Jewish and a widower, lived in Berlin and had no children of his own. The Claimant, Leo Davidsohn's grand-nephew, stated in his claim form that his mother had had a close relationship with the Account Owner, who generously supported the Claimant's family in the 1930s. Leo Davidsohn was deported from Berlin to Theresienstadt on July 14, 1942 and was murdered there on August 12, 1942.
The records located during the Volcker investigation show that Mr. Davidsohn owned an account of unknown type at a Swiss bank, which was still open as of January 31, 1946, more than three years after the owner's death in Auschwitz. As of that date, the account had a balance of 20,000 Swiss Francs. The Claimant received assistance from a Claims Resolution Tribunal staff attorney in identifying the correct address of his great uncle's residence. The Claimant had identified Leo Davidsohn's address as Kurfürstendamm 185, Berlin, Germany whereas the bank record indicated that the Account Owner lived at Wielandstrasse 23 in Berlin. The CRT staff attorney conducted research and discovered that Kurfürstendamm intersects Wielandstrasse at Wielandstrasse 23 and Kurfurstendamm 185, thus proving that the Claimant had in fact provided the correct address for his great-uncle. The total amount awarded was approximately $160,240.00.
Id.
• In re Account of Leon Kroll
The Account Owner, Leon Kroll, was Jewish, married, and had one daughter. The family lived in Lodz, Poland, where Mr. Kroll worked in the family textile business. In the early 1940s, Mr. Kroll, with his wife and daughter, were deported to a German concentration camp. Later, Mr. Kroll was sent back to the Lodz ghetto, and on an unknown date, he was deported from the ghetto and did not return. The only survivors of Mr. Kroll's family were his two brothers — the claimants to the account — and two other siblings who died of natural causes. The claimants themselves had been deported to several different ghettos and concentration camps, including the Lodz ghetto, Auschwitz, Buchenwald and Dachau.
The Swiss bank's records indicate that Mr. Kroll held an account of unknown type. As of June 30, 1937, the balance of the account was SFr. 179.00. The Bank's records indicate that the account was transferred to a suspense account and still remains open and dormant. Because the amount in the account was less than SFr. 3,950.00, the average value of an account of "unknown type" as determined under the CRT Rules, the award was calculated using the SFr. 3,950.00 average value, and then (as with all awards) adjusted for interest and fees in accordance with the CRT Rules. Thus, the amount awarded was $36,183.21.
See Volcker Report, App. V (Glossary), defining "suspense account" as an "omnibus account into which individual accounts are placed for collective management, usually for the purpose of reducing administrative costs. In Swiss banks in the Relevant Period [January 1, 1933 to December 31, 1945] and after, suspense accounts were generally not assessed fees or other charges but did not earn interest."
June 30, 2003 CRT Report, at 11.
Failure to Provide Heirs with Information
• In re Account of Lina Froehlich
Claimant identified the Account Owner as his paternal grandmother, and stated that his grandparents lived in Mainz, Germany, where his grandfather worked as a merchant and owned a store. His grandfather was persecuted once the Nazis came to power and died in 1942. His grandmother, Lina Froehlich, was deported in 1942 to a concentration camp near Lublin, where she perished.
The Swiss bank records located during the Volcker investigation in connection with this account include a May 14, 1948 letter to the Bank from the Account Owner's son (Claimant's father), Hermann Froehlich, requesting information about accounts in the names of his mother, father and sister. Hermann Froehlich's letter explained that his mother had been deported to a concentration camp, where she had disappeared and presumably had been killed. Mr. Froehlich enclosed a copy of his father's death certificate and stated that he was about to obtain an official copy of his mother's death certificate. The Bank responded that it only provided information to heirs after they had officially proven themselves to be the account owner's legitimate heir. Furthermore, the CRT determined that the Bank misinformed Mr. Froehlich, advising him that the persons he had named in his letter had no connection to the Bank and possessed no assets at the Bank. The bank records indicate, however, that Lina Froehlich had had an account of unknown type that was closed on December 31, 1933, and the ICEP auditors concluded that the account had been paid to Nazi authorities. The amount of the award was $31,812.09.
• In re Account of Adolf Dénes and Elisabeth Dénes-Deutsch
The Account Owners lived in Oradea, Romania, where Adolf Dones was a banker and manager of the English-Hungarian Bank. In June 1944, Adolf Denes, his wife Elisabeth, and their daughter Eva were deported to Auschwitz and killed. Claimant's late husband Josef Deutsch, brother of Elisabeth Denes, sought recovery of the account after the Holocaust and, according to the claimant, provided evidence to Swiss banks concerning the owners' assets. Claimant informed the CRT that the Swiss banks denied her husband access to the accounts).
Records of the Denes account were located during the Volcker investigation and include printouts from the Bank's database, account cards, a registration form listing dormant accounts, extracts from a suspense account ledger and documentation "prepared in connection with the Swiss Federal Decree of 1962 concerning assets of missing foreigners or stateless persons persecuted on the basis of race, religion or politics." The bank records show that the Account Owners were Adolf and Elisabeth Denes of Oradea, Romania, who used the fictive name "W. Aden" and the password "Silos." The account was transferred to a suspense account in 1965 and was closed to fees in 1966; according to the bank records, the last contact with the owners was before the end of World War II. The bank records also contain further information regarding Josef Deutsch's attempt to retrieve his relatives' assets, and indicate that Mr. Deutsch had submitted a claim to the assets but that the Swiss Justice Department had instructed him to withhold any evidence or documentation of the accounts until he was expressly asked to hand in any such paperwork. The bank records indicate that Mr. Deutsch never was instructed to hand in his documentation, and that the account instead was closed to bank fees. The amount of the award was $17,589.04.
Second CRT-II Report, at 6.
See www.crt-ii.org (Dénes case).
Second CRT-II Report, at 6.
• In re Account of Dr. Julius Homburger
The Claimant, who initially filed her claim with the HCPO, is the daughter of Account Owner Dr. Julius Homburger. Dr. Homburger was born in Karlsuhe, Germany on October 26, 1894, and was married in Leipzig, Germany on June 22, 1926. Dr. Homburger, who was Jewish, was a physician in Frankfurt, and his wife was a nurse. The family fled Germany through Switzerland in 1935 and immigrated to Palestine, where Dr. Homburger died in Haifa on June 28, 1950.
According to the Claimant, after World War II, she attempted to locate accounts belonging to her parents, but was unable to find such accounts. She contacted the Swiss Bankers Association about the accounts in 1989 and again in 1996, and also inquired with the Swiss Consulate in Montreal in 1989. In addition, in 1987, Claimant's mother tried to contact the Swiss bank at which records ultimately were located several years later during the Volcker investigation. However, in 1987, the Bank responded that records were kept for only ten years and then shredded, and that an investigation therefore would be fruitless. The Bank further explained that in order to search all of its branches, it required death certificates, letters testamentary or letters of administration, and a check for 2,000.00 Swiss Francs. The Claimant advised the HCPO and the CRT that she had provided the Bank with a notarized power of attorney from her mother, as well as evidence that her father had died some 40 years previously, but the Bank had responded with letters restating its ten-year document retention policy and emphasizing that the Claimant had not proven her right to inquire about her parents' accounts.
Records located during the Volcker investigation indicate that Dr. Homburger had in fact owned an account at the Bank of unknown type, and that the account had been opened on September 19, 1935 and closed on March 19, 1936, after the family already had fled Germany through Switzerland and to Palestine. The CRT concluded that the account proceeds had not been paid to Dr. Homburger or his heirs given that the Bank had withheld information about the Account Owner in response to his wife's inquiries, and given the absence of evidence in the bank records that the Account Owner or his heirs closed the account and received the proceeds. The amount of the award was $34,347.83.Accounts Transferred to Nazi Bank:
June 30, 2003 CRT Report, at 14-15.
• In re Account of Richard Emrich
The Claimant is the Account Owner's granddaughter. The Account Owner was Jewish and was born and lived in Pforzheim, Germany in 1878. He owned a jewelry manufacturing company. The Claimant stated that the Account Owner left Germany to start a branch of the business in the United Kingdom. By 1939, the Nazis had seized the Account Owner's company and most of the family had fled Germany. The Account Owner's brother and his family were killed in Auschwitz. The Account Owner remained in the United Kingdom until his death in 1947. The Claimant stated that her grandfather had had an account at a Swiss bank and that her mother had contacted the bank several times, but was unsuccessful in gaining any information.
The bank records located during the Volcker investigation reveal that Mr. Emrich had held an account of an unknown type with a balance of 208.50 Swiss Francs on December 2, 1942. The bank records also contain excerpts of a transcript that reveal that Richard Emrich's account was one of the accounts reported to the Nazi government by August Dörflinger, an employee of a Swiss bank. The CRT concluded that the bank records indicated that the account was paid to the Nazis. Thus, using the average value for an account of an unknown type, 3,950.00 Swiss Francs, the amount of the award was $36,183.21.
• In re Accounts of Paul Kolisch. Estella Kolisch, and Gertrude Eveline Shapiro
The claimant is the husband of one Account Owner and the son-in-law of the other two Owners. Account Owner Paul Kolisch, who was Jewish, lived in Vienna where he published several newspapers, including Der Montag mit dem Sport-Montag and Der Illustrierte Wochenpost. After his newspaper publishing business was Aryanized and his home confiscated, Mr. Kolisch was sent to Dachau, where he was tortured, and then to Buchenwald, where he was killed in December 1939.
The bank records located during the Volcker investigation indicate that Mr. Kolisch had owned accounts at at least two Swiss banks. The records for Bank I include a customer card and an internal memo dated December 13, 1949 indicating that the account owner, Mr. Kolish, had used an address in Arosa, Switzerland. The bank memo also states that the Account Owner had died in Buchenwald. According to the bank records, Mr. Kolisch had opened a demand deposit account on January 31, 1939, and, on April 14, 1939, had opened a safe deposit box at the bank's branch in Arosa. The accounts were closed on May 6, 1939. The amount in the accounts on the date of their closure is unknown. As to Bank II, the bank records include an account opening card as well as a letter from the bank dated March 17, 1938, "describing how it would soon complete a list of over 1000 custody accounts belonging to Austrian citizens, pursuant to the Foreign Assets Law for Austria as of 23 March 1938." In addition, the claimant provided the CRT with May 1938 correspondence between Stella Kolisch and Bank II regarding transfer of accounts from the bank to the Mercurbank in Vienna for the use of the newspaper publishing company's provisional administrators. The accounts were in fact paid to the Nazis; they were transferred to the Mercurbank on June 16, 1938. The amount in the custody account on the date of transfer was 56,200 Swiss Francs, while the demand deposit account held 1,798 Swiss Francs. The total amount of the award, using actual values for the two accounts at Bank II and presumptive values for the two accounts at Bank I, was $497,659.46.
August Dörflinger disclosed information to the Nazis regarding Swiss accounts held by German account owners. With the help of bank authorities, he was arrested. At the time of his arrest, funds from twenty of the seventy-four accounts he reported had been transferred to Germany. In September 1943, a Swiss military court sentenced Dörflinger to life imprisonment for economic and military espionage activities, including for disclosing details of the seventy-four bank accounts and passing on military secrets. See Final Bergier Report, at 261, 278; Volcker Report, at 86.
See www.crt-ii.org (Emrich case).
See id.
Second CRT-II Report, at 3-4.
• In re Accounts of Dr. Robert Blum
The Claimant is the grandchild of the Account Owner. The Account Owner, Dr. Blum, who was a Jewish attorney in Germany, was forced to shut down his law practice in Frankenthal and was interned in Dachau several times, the last time for three weeks in November 1938. in 1939, the Account Owner fled Germany to Sao Paolo, Brazil, where he died in 1941.
Swiss bank records located during the Volcker investigation include a power of attorney form, which Robert Blum signed while he was interned in Dachau, which gave Dr. Slum's wife the power to make bank declarations and dispose of their assets. ICEP investigators determined that Dr. Blum owned two bank accounts, each of which was paid to the Nazis. Using presumptive values, the total amount awarded was $122,756,76.
Second CRT-II Report, at 4.
• In re Account of Walter Herzog
Account Owner Walter Herzog, the Claimant's father-in-law, was a German Jew who owned a silk tie company in Krefeld, Wilms Herzog. Mr. Herzog was deported to the Riga ghetto in Latvia on December 10, 1941 and was held there until 1943. He was then deported to Buchenwald, where he perished in 1945. After the War, Mr. Herzog's family members inquired after his Swiss bank accounts, and were informed in a March 25, 1997 letter from the Swiss Banking Ombudsman that the inquiry "`was passed to every bank in Switzerland' but that no dormant accounts were found."
Records were located during the Volcker investigation showing that Mr. Herzog had owned a custody account at a Swiss bank. The bank records refer explicitly to a Nazi confiscation provision, the November 19, 1936 (seventh Ordinance Regarding Implementation of the Foreign Exchange Control Law. The records also contain a letter dated November 25, 1936 from Deutsche Bank Disconto-Gesellschaft in Konstanz informing the Swiss bank that all custody accounts containing foreign securities noted on the German Stock Exchange must be transferred to a Devisenbank in Germany. Deutsche Bank offered its services in this regard. In addition, correspondence between the Swiss bank's primary branch and its Zurich branch describes the preparation of lists of account owners subject to the new law. In one letter, the Bank's general director agreed to suggestions proposed by the Zurich branch to charge a transfer fee, in addition to a customary surcharge of .5% to 1% of the total value of the securities transferred to the German Devisenbank. The bank records indicate that Mr. Herzog's account, then valued at 20,000 Swiss Francs, was paid by the Swiss bank to the Nazi-controlled Deutsche Bank in Berlin on January 28, 1937. The amount of the award was $ 162,162.16.
See www.crt-ii.org (Herzog case).
The Herzog case is described in Appendix C of the CRT Rules (p. 9).
• In re Accounts of Dr. Heinrich Fink
Dr. Heinrich Fink, uncle of the Claimant, was born in approximately 1914 in Upper Silesia, Germany. Dr. Fink's family lived in Breslau, Germany, before World War II. Dr. Fink was murdered in Auschwitz. The claimant originally sought the assistance of the HCPO, and the claim subsequently was transferred to the CRT.
The Swiss bank records located during the Volcker investigation refer explicitly to the November 19, 1936 Seventh Ordinance Regarding Implementation of the Foreign Exchange Control Law and indicate that Dr. Fink's account was one of 291 customer custody accounts, together totaling 6,266,760 Swiss Francs, transferred by Swiss banks to various banks throughout Germany during the period November, 1936 through January, 1937. The records further indicate that on December 14, 1936, in accordance with the Nazi legislation, the Swiss bank holding Dr. Fink's account transferred securities in the amount of 5,000 Swiss Francs from the Fink account to the Dresdner Bank in Berlin, and the account was then closed. Dr. Fink also owned a second account of unknown type; this account was closed unknown to whom on December 10, 1936. The amount of the award was $77,826.09.e. Continuing Efforts to Expedite Claims Processing and Access Bank Information
The Fink case is described in Appendix C of the CRT Rules (p. 10).
Because the value of the accounts is so high and the claims are so central to the lawsuit and settlement, the CRT continues to seek to improve and expedite the Deposited Assets Class claims resolution process. In addition to adopting the historical and legal "presumptions" described above, the CRT has:
• undertaken a variety of modifications to its database and computer operations with the expectation that these revisions may help to locate additional "matches" between the 32,000 claims received and the 36,000 "probable" and "possible" accounts in the AHD;
• investigated archival records, especially those of the Austrian State Archives in connection with the April, 1938 "census" of Jewish assets ordered after the Anschluss, to assist claimants in establishing that their claims are plausible, particularly where bank records are unavailable or incomplete;
• analyzed portions of the approximately 600,000 Initial Questionnaires returned in this action to determine which, if any, may be reviewed by the CRT as Deposited Assets Class claim forms; and
• instituted procedures, based upon the knowledge obtained to date from the claims process, for analyzing claim forms for which no bank data or other documentation has been made available but which nevertheless may present plausible claims. It is anticipated that the CRT shortly will begin to issue awards for such plausible but undocumented claims.
The Court, in an Order signed on My 30, 2001, ordered that those Initial Questionnaires which can be processed as claim forms be treated as timely claims.
Furthermore, CRT Special Masters Volcker and bradfield and Lead Settlement Counsel Neuborne continue to pursue access to the Total Accounts Database ("TAD") — the 4.1 million Holocaust-era accounts located during the Volcker investigation but not yet made available to the CRT, as more fully described above. The CRT Special Masters and Lead Settlement Counsel are seeking the cooperation of the defendant banks in conducting an experimental analysis of the TAD to determine whether and to what extent the 32,000 claim forms may match to accounts other than to those in the "AHD" — the 36,000 deemed by the Volcker Committee as "probably" or "possibly" belonging to Holocaust victims.
Assuming the TAD test can be conducted, and following completion of the database transition, which is ongoing, it is expected that the CRT will have sufficient data concerning the likely claims remaining to be paid against the 36,000 "probable" and "possible" accounts, and the estimated number of claims that may be awarded from the TAD, to permit a reliable estimate of the total amount to be awarded from the $800 million reserved for the Deposited Assets Class, of which $668.5 million now remains. Because the "TAD test" depends upon the cooperation of the Swiss banks and banking authorities, and the database project also is still under way, it is difficult to predict when that estimate can be made. However, it is hoped that by March 15, 2004, the TAD test and database project will be substantially completed and that an accurate assessment can be made of the projected total amount of the residual unclaimed funds that may be available for distribution.
2. Slave Labor Class I a. Applications and Payments to Date
The distribution process for Slave Labor Class I has been a great success. In little more than two years, $203,487,200 has been approved for distribution to 140,336 surviving slave laborers throughout the world. In a remarkable achievement, $201,660,200 has been processed through the Claims Conference on behalf of the Court to 139,076 Jewish survivors. The remaining payments of $1,827,000 have been made through the IOM to 1,260 non-Jewish class members, primarily to Roma survivors. Each claimant has received a payment of $1,450 (increased from $1,000 under the Court's September 25, 2002 order supplementing Slave Labor Class I payments by 45%).
See Exhibit 5 hereto, consisting of charts showing the distribution of Slave Labor Class I recipients by country and, for the United States, by state and city, as of September 16, 2003 (Claims Conference) and September 25, 2003 (IOM). Another 2,368 claims have been approved for payment more recently. See "Report and Recommendations of the Conference on Jewish Material Claims Against Germany, Inc. for the Thirteenth Group of Slave Labor Class I Claims in In re Holocaust Victim Assets Litigation (Swiss Banks). September 23, 2003, approved by order dated September 23, 2003 (annexed hereto as part of Exhibit 1).
Approximately 270,000 applications were submitted to the Claims Conference by Jewish claimants. Most of these applications have been reviewed and the claimants have been or shortly will be notified of the final recommendation. As of September 25, 2003, approximately 26,000 applications remained pending for review (excluding duplicates). Therefore, 90% of the claims submitted to the Claims Conference have been resolved, with 10% currently outstanding. The IOM also continues to make progress in analyzing the claims submitted by Roma, Jehovah's Witness, disabled and homosexual individuals. Both the Claims Conference and the IOM prioritized applications from survivors, and are now in the process of analyzing claims submitted by eligible heirs (i.e., relatives of slave laborers who died on or after February 16, 1999). In fact, more than half of the remaining claims under review by the Claims Conference are those of heirs. Appellate processes also are now in place.
See September 25, 2003 Letter of Greg Schneider, Claims Conference Chief Operating Officer, to Judah Gribetz and Shari Reig ("September 25, 2003 Claims Conference Letter"), annexed hereto as part of Exhibit 5.
Documents and court orders relating to the appellate processes for Slave Labor Class I and the Refugee Class are annexed hereto as 8.
As contemplated by the Distribution Plan, the claims process for Slave Labor Class I adheres closely to the procedures adopted by the German Foundation, maximizing administrative efficiencies and conserving Settlement Fund expenses. Under both the Swiss Banks Settlement and German Foundation programs, the application process was designed to rely heavily upon information concerning Holocaust survivors already available from prior restitution programs, such as the Article 2 Fund and Central and Eastern European Fund ("CEEF") administered by the Claims Conference on behalf of the German government. Thus, approximately 40,000 individuals receiving Article 2 and CEEF pensions from Germany essentially were "pre-approved" for payment under Slave Labor Class I: these survivors receive pensions from Germany because of their confinement to camps or ghettos and, under the rules of the German Foundation and Slave Labor Class I, are presumed to have performed slave labor.
See Distribution Plan, Annex E ("Holocaust Compensation").
As previously noted, the assumptions underlying this presumption are set forth in detail in the Distribution Plan. See Vol. I, pp. 142-159; Vol. II, Annex H ("Slave Labor Class I").
Other potential members of Slave Labor Class I were those who receive pensions directly from Germany via the BEG Holocaust compensation statute enacted in 1953, or indirectly via the Israeli Finance Ministry. These individuals presented a somewhat more complicated situation because their pensions are processed by Germany and Israel, not the Claims Conference, and the relevant information therefore was. not within the Claims Conference's computer database. Manual searches of archives were required to process the claim forms, especially in the scattered and decentralized " laender" (state) archives located throughout Germany.
See also September 25, 2003 Claims Conference Letter.
Additionally, thousands of other claimants were ineligible for, or had not previously applied for, other Holocaust-related compensation. Their claims have been the most difficult to process because the German Foundation requires documentary or other evidence, in effect mandating exhaustive archival research around the world. Nevertheless, despite these obstacles, tens of thousands of claims have been approved based upon documents discovered in archives. Currently, Claims Conference staff members are conducting research at Yad Vashem and the United States Holocaust Memorial Museum and are reviewing documentation from over sixty archives worldwide. As a result of this research alone, the Claims Conference has verified the claims of over 30,000 Holocaust survivors.
Id.
The German Foundation's archival documentation requirement also has impacted the lOM's processing of claims under Slave Labor Class I, because the largely Roma applicants often have not been previously eligible for compensation, and Holocaust-era records (and even current data) may not be available for this scattered and still-persecuted community. Approximately 28,000 individuals have applied to the IOM for slave labor compensation under the Swiss Banks Settlement, and approximately 80% of these applications were submitted by Roma. The IOM has coordinated closely with the Special Master and the Court to devise alternate methods of proving that a claim is plausible other than by individualized documentary proof, such as through academic research (including consultation with experts at renowned institutions such as Yad Vashem and the United States Holocaust Memorial Museum), claimant and witness interviews and other measures.
For example, in collaboration with scholars from the United States Holocaust Memorial Museum, Charles University in Prague and elsewhere, the IOM identified and described the conditions of several little-known sites of Roma enslavement, such as the Lety u Pisku concentration camp in southern Bohemia, the Hodonin u Kunstatu concentration camp in Moravia, the Dubnica nad Vahom and Krupina camps in Slovakia, and the Plavec work camp in north-central Slovakia. The IOM continues to work with the Court and the German Foundation to seek similar alternatives to individualized claimant documentation.
See, e.g., IOM's "Group V — Slave Labour Class I: Background Historical Summary," filed with the Court June 6, 2003 (annexed hereto as part of Exhibit 6). The Court adopted the lOM's recommendations and authorized payment of, among others, several hundred surviving Roma slave laborers from the former Czech Republic and Slovakia. See Order dated May 27, 2003. See also Paul A. Shapiro, Director for Advanced Holocaust Studies, and Radu loanid, Director of Archival Programs, United States Holocaust Memorial Museum, "Statement on Roma Claims from Romania," August 11, 2003 ("USHMM Statement on Roma Claims") (annexed hereto as part of Exhibit 6) (upon analysis of claims submitted to the IOM from Roma living in Romania during the Holocaust era, and based upon historical information, the scholars conclude, among other things, that the IOM "claimant pool is reasonable and consistent with the historical record"; that "forced labor by Roma in Transnistria was the general rule and was systematically enforced"; and that "[w]hile the list of recognized camp locations in Transnistria that is being assembled by the German Foundation is accurate in the sense that the locations listed were camp and detention sites, the list is far from complete. As stated above, many Roma were moved ( repartizati) for labor purposes to several locations. They may remember a district, town, locality, village, or simply a collective farm (often misspelled) name. The distinction among these, `recognizing' some and `not recognizing' others, would be erroneous, since the Roma deported to Transnistria were held at numerous sites throughout the entire area and moved from site to site and between specific locations as the perpetrators required. Recognition of all of the locations in the highly concentrated areas where the Roma were kept, exploited and killed will reflect the historical reality of this region during the war and will ensure that legitimate claims that may fail to mention a specific location on the current [Foundation] list are not excluded from the settlement").
The Claims Conference and IOM also process claims for and distribute fluids to those survivors who may be ineligible under the German Foundation criteria but nevertheless meet the definition of "slave laborer" under the Swiss Banks Settlement Agreement. Thus, for example, forced labor performed by a prisoner of war is not compensable under the Foundation legislation, but constitutes "slave labor" under the Settlement Agreement assuming that the claimant is or was believed to have been a "Victim or Target of Nazi Persecution." Similarly, forced labor performed by certain battalions and in certain camps not yet recognized under the German Foundation rules is nevertheless compensable under the "Slave Labor Class I" definition and the Court's more liberal eligibility criteria. See, e.g., USHMM Statement on Roma Claims; September 25, 2003 Claims Conference Letter.
In addition to administering the claims process for those individuals who, under the German Foundation rules, were required to apply directly to the Claims Conference or IOM, both organizations also process Slave Labor Class I claims for individuals who under German Foundation rules were obligated to file their applications with other administrative agencies. Specifically, former slave laborers living in Central and Eastern Europe were required to apply to the German Foundation for compensation through one of five "partner organizations" rather than the Claims Conference or IOM. Similarly, under the German Foundation legislation, the Austrian Reconciliation Foundation, not the German Foundation, is responsible for payment of certain slave labor claims depending upon the claimant's place of incarceration. However, under the Distribution Plan, the Claims Conference and IOM are charged with processing all of these claims on the Court's behalf.
See Distribution Plan, Vol. I, at 155-56.
* * *
As would be expected from a program of this nature, each of the over 140,000 individuals compensated thus far has survived an unimaginable experience. Some examples are as follows:
• Claimant was born in the city of Lodz, Poland on November 26, 1927 to a Jewish Orthodox family. After September 1939 the 12-year-old was forcibly resettled in the city's slum area called Baluty (location of the Lodz Ghetto). Claimant worked in a metal factory and a nail factory, 12 to 14 hours a day, 7 days a week. When the Ghetto was liquidated, claimant was transported to Birkenau-Auschwitz with his mother and older brother. Selections separated them. In Auschwitz he was put to work laying bricks and in a cleaning detachment. At the evacuation of Auschwitz, claimant was transferred first to Sachsenhausen (Germany), then to the work camp of Lieberose, where he cleared woods and laid tracks for narrow-gage trains. Transported to Mauthausen (Austria) in January 1945, claimant survived the "White Night" during which inmates, drenched in freezing water, were made to march naked until they collapsed and died, because the Nazis had ran out of space to house them. Claimant was liberated at Gunskirchen in May 1945. His archival records were found at the German Federal Indemnification (BEG) archives of the Landesentschädigungsamt-Munchen. (Claims Conf. No. 5-5201)
• Claimant was born in Adelain, Hungary on March 1, 1897. In April 1942, along with thousands of Jewish males old enough to be drafted into the army, claimant had to join a forced labor battalion. Claimant's unit served on the Eastern front and in Galicia (present day Ukraine). The claimant spent two and a half years building roads, clearing minefields and digging antitank ditches, until he escaped, went into hiding and was liberated in Hungary. Using information available in his Article 2 Fund compensation file, including caseworker interviews, the Claims Conference confirmed his eligibility for slave labor compensation. The claimant is 106 years old and lives with his wife, also a survivor (see below). (Claims Conf. No. 11-3724)
• Claimant was born in Satu Mare, (Transylvania, Romania) on March 20, 1918. In the spring of 1944, Satu Mare (by then a part of Hungary) was occupied by the Nazi forces and the claimant was interned in the city's ghetto. In May 1944, claimant was deported by cattle car to Auschwitz, and shortly afterwards to Neuengamme. The claimant was liberated in a sub-camp of the Neuengamme complex in May 1945. Her persecution history was verified by documents, originally from Yad Vashem, in her Article 2 Fund file. The Claimant lives with her 106 year-old husband, also a survivor (see above). (Claims Conf. No. 11-3725)
• Claimant was born in Budapest, Hungary on December 3, 1917. In 1942, the fascist government of Hungary drafted all Jewish males over the age of 18 into forced labor battalions. The claimant spent two years working in Hungary in conditions resembling those of a concentration camp. He was released from forced military service in April 1944, only to be imprisoned in the Leva ghetto awaiting deportation. The claimant was sent to the copper mines in Bor, Yugoslavia, infamous among labor camps for embodying the Nazi policy of "extermination through labor," with conditions so brutal that the SS measured the useful lifespan of Bor laborers in weeks. The claimant was liberated in March 1945. The claimant's application to the Article 2 Fund contained a copy of his liberation certificate from Bor, which was used to validate his slave labor claim. (Claims Conf. No. 12-2962)
• Claimant was born in Vienna, Austria on October 4, 1926. Five days after his sixteenth birthday, he was arrested by the Geheime Staatspolizei Wien (Vienna Gestapo) and deported to the Ghetto at Theresienstadt, where he remained for two years. The Claims Conference located a photocopy of the original Gestapo files on transports from Vienna to the East, including Theresienstadt, and claimant's original Dachau entry register. According to the records of the International Tracing Service of the Red Cross, the Claimant was sent to Auschwitz on October 1, 1944 by the transport labeled "Em," identified as a "worker." Ten days later, claimant (Prisoner Number 115545) was transferred westward again, to Austrian territory and Dachau's sub-camp "Kaufering" ( Kommando Kaufering). (Claims Conf. No. 8-262)
• Claimant was born in Koln, Germany, on April 8, 1928. In October 1940 he was deported to Camp Gurs in France, where he was forced to clean latrines, remove human excrement and assist in digging graves and in burying the dead. In April 1941, he was sent to the camp of Les Milles, where he remained for the next seven months. Although the claimant was ineligible to receive the Article 2 Fund pension under the current German government eligibility guidelines that require internment for a minimum of 18 months, the Claims Conference was able to use his Article 2 Fund file, supported by further BEG research, to substantiate his slave labor claim. Claimant died shortly afterwards. His widow wrote to the Claims Conference to say that her husband had died feeling vindicated at last, his suffering as a young man recognized and acknowledged. (Claims Conf. No. 8-7033)
• Claimant was born in Boryslaw, Poland (present-day Ukraine) on March 27, 1930. She was confined with her family to the Boryslaw Ghetto from June, 1941 until its liquidation. The young girl was interned in a forced labor camp (ZAL, Zwangsarbeitlager) near Boryslaw until January 1944, when she managed to escape, living first in hiding in the woods, then with a Christian family until August 1944. The archives at Yad Vashem and the German BEG files at the Bezirksregierung Düsseldorf contain data verifying her experiences. (Claims Conf. No. 7-11430)
• Claimant was born in Baia, Romania on January 1, 1918. The claimant could provide no information about her persecution in her application form, as she is completely incapacitated, unable to speak or to move as a result of a stroke. Nevertheless, her German BEG records were located, substantiating that she performed slave labor in Mogilev (Belarus). (Claims Conf. No. 12-4712)
• Claimant was born in Amsterdam, Holland on May 24, 1929. In March 1943, claimant and her family were deported to Theresienstadt. The claimant was forced to clean latrines, maintain food kettles, and split mica. She was liberated in May 1945. The Claims Conference found confirmation of claimant's internment in Theresienstadt through its research effort matching survivors' names against ghetto and camp lists at the United States Holocaust Memorial Museum. (Claims Conf. No. 11-926)
• Claimant was born on July 16, 1929 in Beregszas, Hungary (present day Ukraine). She remembers enduring the "selection" upon arrival in Auschwitz eight days before Shavuot in 1944. At the whim of Dr. Mengele, claimant's father was sent to the men's line; her mother and five siblings were sent directly to the gas chambers. The claimant was selected for a labor crew. The Claims Conference researchers at Yad Vashem located records confirming her internment in the Beregowo ghetto, Auschwitz, Ravensbruck and Malchow. (Claims Conf. No. 10-5266)
• Claimant was born in Dvinsk, Latvia on December 25, 1909. From September 1941 through May 1944, he was interned in the Vilna ghetto (Lithuania). Claimant was transferred to Kovno and later, with a small group of ghetto laborers who survived the liquidation of the ghetto, he was deported to Dachau, and finally was liberated in May 1945. Claims Conference researchers matched claimant's name to the list of Dachau prisoners currently in the collection of the United States Holocaust Memorial Museum. (Claims Conf. No. 10-5097)
• Claimant was born in Lodz, Poland on February 20, 1924. Interned in the Ghetto until 1943, he was deported to Buchenwald. Through the archives at Yad Vashem, the Claims Conference was able to verify claimant's persecution in the Lodz Ghetto. (Claims Conf. No. 11-3231)
• Claimant was born in Hungary on May 2, 1915. On December 23, 1944, claimant was deported to Ravensbruck KZ. One month later, on January 25, 1945, she was sent to Mauselwitz work camp, a sub-camp of Buchenwald, where she worked every night, from 6:00 p.m. to 6:00 a.m., in a factory that produced small and medium size ammunition. Allowed only a half-hour rest, claimant was beaten by an SS guard for putting her head down on a workbench in exhaustion. On April 18, 1945 as the American Army approached, the Germans evacuated the camp. The Claimant was able to escape, hiding in a nearby forest where she was found by a farmer and his family and driven by cart to Graslitz, already liberated. Claimant's application was approved based on information from her Article 2 Fund file. (Claims Conf. No. 1-2882)
• Claimant is a Romani who was born on June 16, 1923 and who currently lives in the Czech Republic. She performed slave labor at Lety u Pisku, Auschwitz, Ravensbruck, and Flossenburg. On August 12, 1942 she was captured and taken, pregnant, to Lety u Pisku. She escaped from Lety in December 1942 and gave birth to a daughter in Prostejov. in March, 1943, the Nazis recaptured her and sent her to Auschwitz. There, her baby was killed and she received typhus and other injections from Dr. Mengele. In addition, she worked at a Munich factory while at Flossenberg. The claimant was forced to go on a Death March, but escaped. After the War, she gave birth to a mentally handicapped child as a result of the experiments performed on her. (IOM No. 3102550)
• Claimant is a Romani who was born on March 12, 1931 and who currently lives in the Czech Republic. The claimant performed slave labor at Dubnica Nad Vahom from November 1944 through April 1945. The claimant wrote in her personal statement that the Germans came to her family's home at 6 AM. and took the claimant and her entire family away in wagons to Humenne. There, they waited two days in a building for railcars to be made available. At night, the Germans took young women away for the evening. The Germans infected the claimant's sister-in-law with a sexual disease and then shot her at the camp. On the way to the camp, the Nazis stabbed one of the claimant's sisters with a bayonet. At the camp Dubnica Nad Vahom, her father and oldest brother were separated from the rest of the family. The claimant and some of her siblings dug pits and dug out and cleaned potatoes under the coercion of the Nazis. (IOM No. 3103127)
• Claimant is a Romani who was born on September 15, 1920 and who currently lives in the Czech Republic. The claimant performed slave labor at Pardubice and Terezin from December 1944 through May 1945. In July 1942, the claimant was sent to Schwainic to fix rail cars. However, he refused to work for the Germans and escaped after eight months. He stayed in hiding with friends until December 1943 when he was caught by the Czech police and taken to Hradec Kralove. From there he was transferred to Pardubice, where he remained until February 1944. The claimant was released and was supposed to return to work at Schwainic but again went into hiding. He was arrested again in December 1944, at which point he was taken by the Gestapo to Hradec Kralove, and from there to Terezin. After liberation, the claimant returned home where he did not regain his health until 1947. (IOM No. 3105893)b. Slave Labor Class I Projections:
As noted previously, the Claims Conference is completing its analysis of the final 10% of the approximately 270,000 claims it has received, and is concluding its archival research. Those claimants for whom documentary evidence is unavailable, as required by the German Foundation, are being contacted and requested to provide supplemental information such as a narrative of their experiences. The IOM likewise continues to seek archival and historical materials to assist claimants for whom documentary evidence is not available. Claimants will be advised within the next several months of the final status of their applications.
Based upon its experience with prior compensation programs, the Claims Conference estimates that approximately 10% of claimants may appeal from denials of their claims. The IOM estimates that approximately 5% of its applicants will appeal from denials of their claims. As noted above, appellate panels are in place under both programs.
To date, eligible heirs (for slave laborers who died after February 15, 1999) have not received payments under Slave Labor Class I because a decision was made initially to devote all available resources to the applications of survivors. Payments to eligible heirs will adhere as closely as possible to the methods employed by the German Foundation, including the "chain of inheritance" designated under the Foundation legislation.
The Claims Conference estimates that approximately 30,000 additional claims may be compensable, including those payable to eligible heirs. The IOM estimates that another 12,500 claims may be compensable. Thus, approximately $61.7 million in additional payments may be distributed on behalf of another 42,500 slave laborers under Slave Labor Class I, for a final estimated total of approximately $265.2 million to approximately 182,800 surviving slave laborers and the heirs of those who died after February 15, 1999. 3. Refugee Class a. Applications and Payments to Date To date, the total of all payments to the Refugee Class is $4,579,825, and 1,930 survivors have been compensated. Thus far, 1,865 Jewish survivors have received a total of $4,349,275 in Refugee Class payments. Of these, 931 were denied entry or expelled (each receiving $3,625, increased from $2,500 under the Court's September 25, 2002 Order supplementing payments by 45%); 842 were admitted but mistreated (each receiving $725, increased from $500); and 82 suffered both injuries (each receiving $4,350, increased from $3,000). The IOM has recommended 65 applications for payment to date (62 for expulsion, two for admission and mistreatment, and one for both injuries), for a total of $230,550.
Based upon historical compensation data and an analysis of the Initial Questionnaires, the Distribution Plan estimated that "approximately 200,000 Jewish, Roma, Jehovah's Witness, disabled and homosexual former slave laborers" would be eligible for compensation under Slave Labor Class I. Distribution Plan, Vol. I, at 29-30, 149.
See Exhibit 7 hereto, consisting of charts showing the distribution of Refugee Class recipients by country and, for the United States, by state and city, as of September 16, 2003 (Claims Conference) and September 25, 2003 (IOM). Another 120 claims have been approved for payment more recently. See "Report and Recommendations of the Conference on Jewish Material Claims Against Germany, Inc. for the Seventeenth Group of Refugee Class Claims in In re Holocaust Victim Assets Litigation (Swiss Banks). September 25, 2003, approved by order dated September 26, 2003 (annexed hereto as part of Exhibit 1).
The Distribution Plan did not originally provide for payment for both injuries, nor did the application form. However, following consultations among the Special Master, the Claims Conference and IOM, and based upon the information provided by claimants in their applications, correspondence and follow-up telephone calls, the Court has approved Refugee Class payments for the separate injuries of expulsion and mistreatment where warranted by the facts regardless of the category under which the claimant originally applied.
The Refugee Class has benefited substantially from the data made available to the Court by the Swiss Federal Archives, which provided, among other materials, lists of several thousand individuals denied entry into or expelled from Switzerland, as well as a list of approximately 50,000 individuals admitted into the country as refugees. The lists have been of particular utility to the Claims Conference: to date, over one-half of the claimants recommended for payment appear on one (and in certain instances both) of the Swiss Federal Archives lists. The others have plausibly demonstrated that their experiences were comparable and that they meet the criteria for compensation.
Like the Deposited Assets Class, the Refugee Class claims process also has taken into account the conclusions of the Bergier Commission in its March, 2002 final report. In addition to reaffirming the conclusions earlier reached in its interim report on refugees, the Final Bergier Report further observed that Swiss refugee policy was marred by a certain anti-Semitism that existed for many years prior to World War II:
See Distribution Plan, Vol. I, at 167-72; Vol. II, Annex J ("The Refugee Class").
"The aim to protect the country from `over-Jewification' (` Verjudung') had been growing in Switzerland since the First World War. This stance influenced naturalisation, which became increasingly restrictive. From 1916 onwards, files of candidates for naturalisation bore handwritten comments attesting the intention of making it difficult for Jews to gain Swiss citizenship. In 1919, the Federal Administration used a stamp in the form of the Star of David. Swiss civil servants used this system of stamping documents from 1936 onwards, and thus well before the introduction of the notorious stigmatisation [the J-stamp on German passports] in 1938."
Final Bergier Report, at 71-72.
The Final Bergier Report also reaffirmed the earlier conclusions of the Interim Report on Refugees concerning Swiss policies toward Roma refugees:
"In practice, it was not only the various schemata that decided whether or not a particular refugee received asylum, but also social perceptions that overlaid the explicit regulations and were taken for granted to such an extent that they did not need to be expressed and are therefore rarely found in source materials. Nevertheless, they determined the practice of asylum policy as well as the fate of refugees. One such category was `Gypsies.' A high-ranking customs official who remarked in 1936 that `beggars, vagabonds, Gypsies, etc.' are `to be expelled immediately at the border', only confirmed routine police practice. A year earlier, the Police for Foreigners had complained to consulates that provided Roma and Sinti with transit visas for Switzerland that `the sight of the dirty passports and the photos of Gypsies pasted inside should' have been sufficient reason to deny permission to enter the country. One can conclude on the basis of such comments that `Gypsies' were considered a category of refugees to be rejected, although no directive explicitly named them as such."
See Independent Commission of Experts Switzerland — Second World War, Switzerland and Refugees in the Nazi Era (Bern: BBL/EDMZ 1999), at 132-133.
This and other information from the Bergier Commission has assisted the Court's two administrative agencies in analyzing refugee claims, particularly for those individuals not appearing on archival lists.
Class members who indicated a possible refugee claim on their Initial Questionnaires were sent refugee program applications either by the Claims Conference or the IOM. As with the other classes, applications also were made available over the Internet and at Holocaust survivor help centers around the world. The Claims Conference received approximately 5,000 applications, while the IOM received approximately 730.
Every Refugee Class claim is analyzed individually by Claims Conference or IOM staff and submitted to the Special Master for consultation and review. Each claim recommended for approval is submitted to the Court with often extensive documentation and/or a detailed narrative, and each claim is summarized in a report filed with the Court and docketed for public review.
Summaries of the Refugee Class awards approved to date (as processed by the Claims Conference) also are available atwww.claimscon.org
As this is the first time Swiss refugees have been eligible for compensation, many claimants have taken this opportunity to record their experiences at length. They have provided copies of Swiss police files documenting their expulsions; they have given detailed accounts of their interrogations at the Swiss border; they have described the separation of family members from one another — some gaining admission, others not; they have described their expulsions from Switzerland while in the middle of their studies (including graduate programs in law and medicine); and they have recounted their confinement to Swiss work camps. Many have received compensation not only as refugees but also as slave laborers under the separate Slave Labor Class I and German Foundation programs, providing graphic evidence of the devastating impact of Swiss refugee policy upon those turned away from Switzerland and forced back into Nazi hands.
Some examples of refugee claims compensated to date are as follows:
Denied entry into Switzerland
Expelled from Switzerland
• The claimants, who are sisters, were born in Austria and attempted to enter Switzerland in July 1938. They were informed in July 1938 that they would be placed on a children's transport to St. Gallen, Switzerland. At the train station in Vienna, the older sister was turned away by Swiss officials who said that she was too old and would not be accepted into the country. It was six weeks past her tenth birthday. The claimant wrote in her personal statement: "I have never forgotten nor have I forgiven the Swiss for not permitting me to go with the transport and treating a 10-year-old child like an enemy of the state." The younger sister, aged 7, was allowed to board the transport and went to Switzerland, but was sent back to Austria three weeks later. The treatment she received at the children's home in Switzerland for the three weeks she was allowed to remain in the country was "coldhearted" and, for many years, she had "nightmares," according to her personal statement. The two sisters and their parents stayed in Vienna and were subsequently deported to the Riga ghetto. The claimants' father perished during the Holocaust. The older sister is now a professor at a New York City university and the author of several books on the Holocaust, including a 1995 work detailing her family's experiences, and describing her unsuccessful attempt to enter Switzerland as a refugee. (Claims Conference, Claim Nos. RC 9432 and RC 9639).
• The claimant was born on April 18, 1922 in Hungary and was denied entry into Switzerland between June and September, 1942 at the French-Swiss border. The claimant resided in France in the early 1940s. The claimant attempted to enter Switzerland on three separate occasions. The claimant left from Besancon and was heading towards Neuchâtel but was intercepted by Swiss guards, who slapped him and threatened him until he returned to France. A few weeks later, he made a second attempt from Montpeliard to Porrentruy. His smuggler betrayed him and handed him over to Swiss authorities. He was held for three days in prison and then expelled back into France. On his third attempt, the claimant traveled from Montpeliard to Bienne. After arriving in Bienne, he was arrested and interrogated in a police office from where he was sent back to the French side of the border. The claimant traveled though occupied France with a false ID but was picked up in Paris in early 1943 and sent to work in the Adlerwerke arms factory in Berlin. He was subsequently detained in several locales until May 1945. (RC 9142)
• The claimant was born on September 8, 1923 in Germany and, with Ms parents, was twice denied entry into Switzerland in the spring of 1939. In 1938, the claimant and his family were forced to move to Nuremberg, Germany. The family intended to immigrate to the United States but was told that it could take years. The claimant's family then decided to flee to Switzerland. They had family with whom they stayed for a few days before they went by train to the Swiss border and continued by foot over the mountains. At the border, they were stopped by Swiss border guards and told to return to the place from which they came. Traveling by train, they returned to Munich and then Nuremberg. Several weeks later, they attempted entry again near Gailingen, Germany and were denied entry by Swiss guards once more. The claimant was subsequently detained in Riga and then Auschwitz, where he was forced to go on a death march. He was liberated on May 3, 1945. In addition to his Refugee Class payment, the claimant also received slave labor payments under Slave Labor Class I and from the German Foundation. (RC 9244)
• The claimant was born on September 16, 1925 in Austria and was denied entry into Switzerland in October 1943 at the Italian-Swiss border. The claimant fled Austria in My, 1939 to Italy, where he was interned from January 1941. In October 1943, the claimant escaped from prison and reached the Swiss border hiding on a truck with two non-Jewish prisoners. At the border, the claimant was detained and verbally assaulted by the Swiss authorities. The claimant was denied entry. He had a German passport stamped with a `J.' The two people with him had German passports without a `J' and were admitted into Switzerland. Claimant returned to Italy and fought with Italian partisans until 1945. In 1945, the claimant immigrated to Palestine where he served in the military and fought in the War of Independence. (RC 9342)
• The claimant was born on June 2, 1923 in Hungary and was denied entry into Switzerland in February 1945 at Basel. In March 1944, the claimant was forced into slave labor in Hungary and on December 6, 1944, was transported to Buchenwald. The claimant was later transferred to the Offenburg railway station, where he had to dig out time bombs, and then transferred to a work site approximately one mile from the Swiss border. On February 15, 1945, the claimant was able to escape after an air raid bombing with the help of an older German guard, and attempted to enter Switzerland at Basel. The German guard tried to convince the Swiss border guard to let the claimant enter Switzerland, but was told that Switzerland already had plenty of Jews. The claimant was denied entry. The German guard took the claimant back to the work site and the claimant was sent back to Offenburg. In March 1945, the claimant was taken on a death march to Dachau where he arrived on April 27, 1945. The claimant additionally received slave labor compensation. (RC 10960)
• The claimant was born on January 5, 1936 and was denied entry into Switzerland in November 1943 at the Italian-Swiss border. The claimant and his family traveled from Italy to the Swiss border with the help of smugglers. After crossing the border, they were stopped by the Swiss Police and held overnight. The next morning, the claimant and his family were deported back to Italy, despite their pleading that a friend from Lugano would take care of them. The Swiss Police refused, saying that the Jews were not being persecuted in Italy. The claimant and his family returned to Italy and stayed in hiding until the end of the war. (RC 1128)
• The claimant was born on August 23, 1936 in France and was denied entry into Switzerland at the French-Swiss border in the spring of 1944. The claimant and her family lived in hiding after the Germans invaded France, and moved to Southern France. The claimant hid on a farm in Dordogne, but was denounced. The claimant was then sent by the underground to Lyon to join a convoy of Jewish children being taken to Switzerland hidden in trucks. Upon reaching the border at Annemasse, the convoy was denied entry into Switzerland by Swiss authorities. After leaving the border, the claimant was arrested by the Gestapo and put in the Le Pax prison in Annemasse until the end of the war. (RC 10436)
• The claimant was born on January 3, 1934 in Germany and was denied permission to remain in Switzerland in 1939. The claimant and his family had entered Switzerland at the German-Swiss border near Basel. They tried to move to Zurich, where the claimant's mother had lived as a child. The family had to register in Zurich and was allowed only a two-week stay and was then forced to return to Germany. The family suffered from Nazi persecution after returning to Germany, losing the family business and property, and where claimant states he was hospitalized and subjected to medical experiments. In November 1939, the family was able to leave for the United States via Italy. (RC 11212)
• The claimant was born on September 15, 1921 in the Netherlands and was denied entry into Switzerland sometime between late February and early March 1943 at the French-Swiss border. The claimant fled the Netherlands with his wife and two friends with the help of a smuggler. The smuggler abandoned them along the way but they still managed to reach Le Locle, Switzerland. They were arrested soon after and taken to a local army office. The following day, they were driven across the French-Swiss border and deposited in the forests near a German border patrol. The group later attempted to cross into Spain, but was arrested. The claimant spent the war in various concentration camps, including Auschwitz. The claimant subsequently testified at Nuremberg in the slave labor trial against I.G. Farben (RC 10754)
• The claimant is a Romani and was born in Germany in 1926. He lived with his family in Herbolzhein, near the Swiss border. On several occasions, the entire family of 16 people tried to enter into Switzerland at Lörrach and Singen. The family was denied entry; they were told mat they were a "tribe" and tribes were not allowed to enter Switzerland. The entire family was transported to Auschwitz where they had to perform such labour as digging graves and burying the dead, as well as construction work. The claimant was later transported to Buchenwald where he worked in a quarry until he was liberated. He and one brother were the only family members who survived. (IOM, Claim No. 3300048)
• The claimants are seven siblings who all were expelled, with their parents, from Switzerland in August 1939. The claimants' father was a rabbi in Berlin who was forced to go into hiding with his family after Kristallnacht. The family fled to Switzerland in January 1939. The claimants' family had been active in the Jewish community in Basel, where the father had been born and raised, and where their grandfather had been a rabbi. Nevertheless, they were granted permission to stay in Switzerland for only a few months, and were forced to leave Switzerland in August 1939. The family succeeded in obtaining visas to England and traveled there through France. (RC 5824, RC 5880, RC 5878, RC 5870, RC 5652, RC 11079, and RC 5810)
• The claimant was born on September 20, 1915 in Poland and was expelled from Switzerland in March 1940. In 1935 or 1936, the claimant had moved to Zurich from Poland to study. After four years, the claimant graduated from his program and requested to remain in Switzerland to avoid persecution. In March 1940, the claimant was told by Swiss Police to leave Switzerland. The claimant traveled to Italy to join his father and from there continued to Palestine. (RC 1428)
• The claimant — now 91 years old, and a professor of medicine at a California university — was born on April 14, 1912 in Germany and was denied an entry permit into Switzerland in Berlin in 1938. In May 1938, the claimant enrolled at the University of Bern in Switzerland to complete her medical studies. After the first semester, the claimant received permission from the university for a brief trip to Berlin to visit her husband and child, with the understanding that she would return to continue work on her dissertation. The claimant applied for reentry and residence at the Swiss Embassy in Berlin in July 1938 and her application was denied on November 18, 1938, a few days after Kristallnacht. In April 1939, the claimant and her family left for Belgium and three months later went to England, in August 1941, they immigrated to the United States. (RC 9998)
• The claimant was born on January 17, 1921 in Germany and was denied entry into Switzerland in August 1939 at the German-Swiss border. Upon his release from Dachau, the claimant was under an ultimatum to leave Germany. The claimant went to the Swiss Consulate in Munich. He requested temporary asylum and a visa to enter Switzerland to travel to England. The claimant showed that he had financial and housing support from his aunts, long-time residents of Zurich. He was refused asylum and a visa to pass through Switzerland. Subsequently, the claimant boarded a train to Belgium and went to England, leaving for the United States in January 1940. (RC 10501)
• The claimant was born on March 6, 1918 in Germany and was denied a visa to Switzerland in Frankfurt, Germany in 1938. In fall 1938, the claimant was arrested by the Gestapo and was transferred to the Buchenwald concentration camp. To obtain his release from the concentration camp, the claimant's parents bought him a passage to Shanghai. The claimant was released with a four-week notice to leave Germany. To avoid going to Shanghai, the claimant went to the Swiss Consulate in Frankfurt and asked for a visa to Switzerland, but was refused. Subsequently, the claimant traveled to Genoa, Italy in December 1938 and from there continued to Shanghai. He later immigrated to England and, in 1940, joined the British Army. (RC 10058)
• The claimant was born on August 7, 1933 in Belgium and entered Switzerland with her family in 1943. The claimant's family members were immediately separated. Her father was sent to a work camp, her mother and brother to Geneva, and the claimant was sent to Interlaken to live with a foster family. After several incidents of bedwetting, the claimant was sent to a home for disturbed and mentally retarded children, where she was denied liquids. There, she states, she was humiliated, isolated and threatened to be sent to an adult asylum. For six months, the claimant had no contact with her parents and did not know where they were. (RC 9417)
• The claimant was born on September 27, 1907 in Poland and entered Switzerland from France with her son. Upon arrival, she was placed in an internment camp where her movement was restricted. While in the camp, the claimant's son became ill, but nevertheless, she was not allowed to leave the camp to seek treatment for him. As a result, her son died. The claimant suffered a nervous breakdown and was hospitalized. (RC 11053)
• The claimant was born on September 11, 1911 in Czechoslovakia and was detained in Switzerland. Her money and belongings were confiscated upon admission, after which she was separated from her husband. The claimant was forced to have two abortions and was punished for meeting her husband without permission. She was also obliged to perform heavy manual labor and suffered from the lack of nutrition. (RC 10757)
• The claimant was born on August 11, 1929 in Austria and, with her parents, was denied entry into Switzerland at the French-Swiss border in August 1942. The claimant's family left Austria for Belgium in 1939 and stayed there until May 1940. They then escaped to Lyon, France. The claimant and her family attempted to enter Switzerland from Annemasse with a group. At the border, they were caught by armed guards and told that they were not allowed to enter. The claimant recalls crying and shouting at the border, which drew the attention of the German border police. The claimant and her parents were arrested by the Germans and transported to Drancy, from which her parents were deported to Auschwitz. With the help of the O.S.E. (Oeuvre de Secours aux Enfants), the claimant escaped and went into hiding in Chambon sur Lignon, France. On December 22, 1944, the claimant was sent with a transport to Switzerland. She was successively transferred to the Henri Dunany Center and then to a children's home in Geneva, then to Tavannes and to Engelberg. The claimant states that, in Geneva, her hair was shaved and she suffered from brutal treatment. (RC 1469)b. Refugee Class Projections
"RC" designates a "Refugee Claim" filed with and processed by the Claims Conference on behalf of the Court.
As with Slave Labor Class I, a decision was made initially to devote all available resources to the applications of surviving refugees. The Claims Conference and IOM both are completing their review of survivor claims and will shortly begin to issue recommendations for claims submitted by heirs of refugees who died on or after February 16, 1999. Both agencies anticipate substantially completing their Refugee Class programs by the end of this year, at which point the Court may expect to receive a certain number of appeals.
The Claims Conference expects that distribution to eligible Holocaust survivors will be substantially completed by the end of 2003 and that the largely administrative process related to the distribution of funds to eligible heirs, as well as the processing of appeals, will be completed in early 2004. The Claims Conference estimates that approximately 10% of those not recommended for payment will appeal (approximately 225 claimants), while the IOM anticipates appeals from approximately 100 claimants. See also Refugee Appellate Process recommendation dated May 14, 2003, approved by Court Order dated May 15, 2003, annexed hereto as part of Exhibit 8.
The Claims Conference estimates that approximately 1,150 additional refugee claims may be eligible for compensation. The majority of these refugees were expelled from Switzerland or denied entry. The IOM estimates that approximately 135 additional claims may be approved. Assuming that each of these 1,285 refugee claims receives the higher payment of $3,625 for expulsion, then another approximately $4.7 million maybe awarded to the Refugee Class. Therefore, approximately 3,215 refugees (including the 1,930 already paid approximately $4.6 million) may receive approximately $9.3 million in total under the Refugee Class process.
4. Slave Labor Class II
Following the Court's approval of the Settlement Agreement and until very recently, there has been an ongoing dispute between the parties concerning the scope of the class and the extent of the releases, because the "membership of Slave Labor Class II, unlike the other classes, is not limited to victims of Nazi persecution who were Jewish, Romani, Jehovah's Witnesses, homosexual, or physically or mentally disabled." In re Holocaust Victim Assets Litig., 105 F. Supp.2d at 162.
As the Court observed in its My 26, 2000 opinion: "When this class was included in the Settlement Agreement, the defendant banks represented that Slave Labor Class II consists of an extremely small number of persons who may have performed slave labor directly for an extremely small number of Swiss companies during World War II. Since then, they have backed off of this representation." Id., The resulting problem was that "the Slave Labor Class II releasees consist almost entirely of affiliates or subsidiaries of Swiss entities that were incorporated in Germany and elsewhere," and class members — "those who were forced to perform slave labor for a Swiss company in Germany or elsewhere" — had "no reason to know at the time that the company was Swiss" and "may not be aware that they are in the class" even with notice of the settlement. The Court accordingly mandated that "those Swiss entities that seek releases from Slave Labor Class II are directed to identify themselves to the Special Master" and that the failure to "self-identify" would "result in the denial of a release," id., at 162.
The Court subsequently issued an order listing those companies that had self-identified, stating that "[claimants who file claims with the IOM and who plausibly demonstrate that they performed slave labor for one or more of the companies on the Slave Labor Class II List are eligible for compensation from the Settlement Fund." In re Holocaust Victim Assets Litig., Case No. CV 96-4849 (ERK) (MDG) 2001 WL 419967, (E.D.N.Y. April 4, 2001) at * 2. However, not all companies that self-identified were included on the List because, as the Court found, "the plain language [of the Settlement Agreement] excludes slave labor-using companies that were acquired by Swiss entities after the war, but which were owned or controlled by German or other non-Swiss entities." Id., at* 3.
On February 15, 2002, the Second Circuit Court of Appeals dismissed as untimely defendants' effort to challenge the "self-identification" requirement, but remanded to the District Court for further proceedings the issue of whether the releases applied to "after-acquired companies."In re Holocaust Victim Assets Litig., 282 F.3d 103 (2d Cir. 2002). Until very recently, the dispute was still pending and, as a result, has impacted the processing of Slave Labor Class II applications because the full extent of the Slave Labor Class II List and the pool of potentially eligible applicants were as yet unknown.
On September 29, 2003, the parties submitted for the Court's review and approval an executed "Stipulation and Order for Amendment of the Slave Labor Class II List of Releasees."
The claims process nevertheless has commenced and has sought to take into account the conclusions of the Bergier Commission, which stated in its Final Report of March 22, 2002:
"It is impossible to say how many forced labourers and prisoners of war were employed in Swiss subsidiary companies. On the one hand, the number of subsidiaries based in Germany is not known, on the other, quantitative information is only useful in respect of certain cut-off dates, since the number of foreigners fluctuated widely in terms of time, business sector and area. As far as the Swiss subsidiaries are concerned, if we base our assumptions on the fact that in July 1944 the four largest companies in Baden (today Baden-Württemberg alone — Aluminium-Walzwerke Singen, Aluminium GmbH in Rheinfelden, Georg Fisher in Singen, and BBC Mannheim — employed far in excess of 4,000 foreign workers, we can probably conclude with a clear conscience that the figure quoted in the media — a total of over 11,000 forced labourers and prisoners of war employed in Swiss subsidiary companies throughout the Reich — is likely to be on the low side."
Final Bergier Report, at 313.
The IOM, solely responsible for processing Slave Labor Class II claims, has received approximately 12,625 applications. The vast majority (over 95%) did not name a company on the Slave Labor II List, and many did not name any company at all, further impacting claims analysis. To date, 15 individuals have been recommended for Slave Labor II compensation, for a total of $15,000; other recommendations for payment are expected to be approved shortly.
See Chart, "Swiss Banks Settlement: Slave Labour Class II — Administered by the International Organization for Migration on Behalf of the United States District Court: Geographic Distribution of Approved Claimants by Country and Award (as of September 25, 2003)," annexed hereto as Exhibit 9.
As with those compensated under Slave Labor Class I, those who survived enslavement by companies owned or operated by, or affiliated with, Swiss entities, suffered immensely. Two such examples are as follows:
• The claimant was born on August 1, 1926 and lived in Mala Wolka, Poland. In the spring of 1944, he and his family were ordered by the Nazis at gunpoint to gather their possessions and join the forced march to Pinsk. From there, they traveled to Warsaw and on to Dachau. The claimant remained at Dachau for two days and was transferred to a work camp in Grenzach. There, the claimant was a forced laborer at the Hoffman La Roche pharmaceutical plant. Every day, he and other forced labourers were escorted from the work camp to the Hoffman La Roche plant. The claimant wrote in his personal statement that his duties included unloading coal from trains, stoking the boilers, cleaning, and digging trenches near the Rhine. While in the work camp, the claimant lived in a converted barn and received only bread and soup as nourishment. After Germany surrendered, one of the directors of Hoffman La Roche told the claimant and his family to seek refugee status in Switzerland. At the Swiss border, guards searched the claimant and took away the documentation showing that the claimant had worked as a forced laborer. The claimant remained in Switzerland to attend technical college and then emigrated to Australia. (IOM No. 3402142)
• The claimant was born on July 1, 1923 in Belarus. In July 1943, he was forcibly deported to Germany to perform forced labour. He was first taken to Wuppertal where he worked as a cleaner. Next, the claimant was sent to Köln to a forced labor camp and worked at a Kabelwerke industrial plant ("Rheinische Draht-und Kabelwerke GmbH"), a subsidiary of ABB. The claimant stated that he worked 16-18 hours a day loading the production output for shipment and did not receive much food. The claimant also stated that due to the long hours and the small food rations, his health suffered and he could not fulfill the work requirements of the camp. In September 1943, he was sent to a transit prison in Vupertal where he was badly beaten. After a month, he was transferred to Buchenwald and remained there until April 1945, at which point he escaped. (IOM No. 3205062)
The IOM estimates that approximately 200 additional individuals may be eligible for Slave Labor Class n payments under the current formulation of the class and claims process (i.e., assuming no changes are instituted as a result of the Slave Labor Class II litigation and its resolution). Individual payments thus far have remained at $1,000 as adopted in the Distribution Plan because there has been insufficient data about the scope of the class to permit the recommendation of a 45% increase, as in the case of Slave Labor Class I, the Refugee Class and the Looted Assets Class. The payment amount may be revisited at a later date.
5. Looted Assets Class a. Overview of Looted Assets Class Cy Pres Remedy
In devising a distribution mechanism for the Looted Assets Class, the Special Master was duty-bound to ensure that payments to class members would be meaningful, and that administrative expenses would not unduly consume the Settlement Fund. As the Distribution Plan observed, under the Settlement Fund's broad definition of the Looted Assets Class, virtually every individual who lived under or fled from Nazi occupation is a class member, since virtually every such person may be presumed to have been looted by the Nazis. As a result, the Special Master concluded that neither a case-by-case adjudication nor a pro rata distribution was acceptable:
The Settlement Agreement defines "Looted Assets" as follows: "Assets actually or allegedly belonging in whole or in part to Victims or Targets of Nazi Persecution that were actually or allegedly stolen, expropriated, Aryanized, confiscated, or that were otherwise wrongfully taken by, at the request of, or under the auspices of, the Nazi Regime." The Settlement Agreement defines "Nazi Regime" as "the National Socialist government of Germany from 1933 through 1945 and its instrumentalities, agents, and allies (including, without limitation, all other Axis countries), all occupied countries, and all other individuals or entities in any way affiliated or associated with, or acting for or on behalf or under the control or influence of, the Nazi Regime, including, without limitation, the Accused Organizations and Individuals in the Nurnberg Trial, 6 F.R.D. 69 (1946)." Settlement Agreement, Section 1.
It is neither justifiable nor appropriate to select which looting victims may be entitled to recompense from this $1.25 billion Settlement Fund based entirely upon the happenstance of where the Nazi Regime chose to direct which loot, which records of the plunder happen to survive, and which items one may hazard a guess may have found their way to or through Switzerland. Every surviving "Victim or Target" was looted — many hundreds of thousands of people excluding heirs. . . .
Were the Special Master to recommend that each claim be assessed individually . . ., the result would be an unwieldy and enormously expensive apparatus to adjudicate hundreds of thousands of claims, for losses which can barely be measured and hardly be documented, and whose connection to Switzerland, or a Swiss entity, if ever it existed, probably no longer can be proven. Further, the administrative expense of such a process would unjustifiably deplete the Settlement Fund. Conversely, were the Special Master to recommend a pro rata distribution, with each of the approximately 424,000 individuals who have indicated that they are Looted Assets Class claimants (to date) receiving an identical distribution on the presumption that their plundered assets are traceable to Switzerland, or Swiss entities, each "award" would total little more than a few dollars. This is obviously untenable.
Distribution Plan, Vol. I, at 114-115.
The Distribution Plan, relying upon Second Circuit precedent, observed that where, as here, a settlement fund cannot "satisfy the claimed losses of every class member," it is "equitable to limit payments to those with the most severe injuries" and to "give as much help as possible to individuals who, in general, are most in need of assistance." Accordingly, the Distribution Plan allocated $100 million to a cy pres remedy for those "most in need of assistance," Id.: humanitarian aid programs serving the neediest Jewish, Roma, Jehovah's Witness, homosexual and disabled survivors around the world. Under the Court's September 25, 2002 Order, that amount was increased by 45% and is now $145 million. Initial distributions to members of the Looted Assets Class commenced promptly upon the withdrawal of the sole appeal against the Settlement Agreement and the resulting release of the Settlement Fund from escrow.
In re "Agent Orange" Product Liability Litig., 818 F.2d at 158, cited in Distribution Plan, Vol. I, at 116; see also Id., Annex B ("Legal Principles Governing Distribution of Class Action Settlements").
See also Statement of Lead Settlement Counsel Professor Burt Neuborne, Transcript of Hearing on Distribution Plan, November 20, 2000, at 10-11 (*'[T]he [S]pecial [M]aster recommends, and I [heartily] concur, that the only fair way to administer the looted assets class is to do so in a cy pres [remedy]. It's a mechanism of the law that says: If you can't do the perfect job, which would be to give each person their money back, you do the next best thing. And so the next best thing, in the opinion of the [S]pecial [M]aster, is to try to identify those victims of looting who have suffered deeply, who have never been compensated, and who are currently in greatest need").
Unlike the other four classes, the Looted Assets Class distribution process does not require a class member to show that his or her claim is "plausible." Rather, to participate in the programs, the class members — limited solely to surviving victims of Nazi persecution — must be in need. The assessment of "need" has been based upon analysis of demographic, mortality and social welfare data from a variety of sources ranging from academic experts to the Swiss Humanitarian Fund to the Settlement Agreement Notice Administrators.
See Distribution Plan, Annex C ("Demographics of `Victim or Target' Groups"); Annex F ("Social Safety Nets"); and Annex K ("Swiss Humanitarian Fund").
All available data indicated then, and still demonstrates now, a striking conclusion: that of the various types of services required by "Victims or Targets of Nazi Persecution," such as medical treatments, prescription drugs, home health care, transportation and the like, the most urgent requirement often is food. The needs are particularly severe in Central and Eastern Europe and the former Soviet Union, where over 220,000 elderly and impoverished Jewish, Roma and Jehovah's Witness Nazi victims recently have benefited from various humanitarian assistance programs. For these Nazi victims, funds from the Swiss Banks Settlement for many people have meant the difference between subsistence and hunger. In other parts of the world, needy Nazi victims receive other aid such as medical assistance and home care. The Distribution Plan provides for several years of humanitarian assistance so that the neediest Nazi victims around the world can live out what may be the remainder of their lives with some small measure of comfort that the programs upon which they have grown dependent will continue to sustain them as they age.
See, e.g., JDC "Report on the First Eighteen Months of Welfare Programs in the Former Soviet Union, June 28, 2001 — December 31, 2002," July 31, 2003 ("July, 2003 JDC Report"), at 13 ("the relief of starvation and hunger is the core life sustaining program that Hesed programs must provide and remains the service needed by the most Nazi victims in the FSU"). See also JDC "Request for Second Period Funding for Welfare Programs in the Former Soviet Union for January 1, 2003 to December 31, 2003," September 18, 2003 ("JDC Second Period Funding Request"), approved and funded by Court order dated September 23, 2003. Excerpts from these documents are annexed hereto as part of Exhibit 10.
Of the Jewish Nazi victims in the former Soviet Union, approximately 135,000 are being served by the JDC's "Hesed" program. See July, 2003 JDC Report, at 4. Of the Jewish Nazi victims living in other Central and Eastern European nations, approximately 34,770 received payments from the Swiss Fund for Needy Victims of the Holocaust/Shoa, which, as described earlier, was established in 1997 to provide humanitarian assistance to needy Nazi victims. See Swiss Humanitarian Fund Final Report, at 30, 88 (Chart: "Number of beneficiaries per region and category of victim" as of December 31, 2001). Approximately 49,000 Roma Nazi victims have been located throughout seventeen Central and Eastern European nations as a result of the notice and claims process procedures undertaken by the IOM in connection with implementing the Swiss Banks Settlement Distribution Plan and the German Foundation programs, and are being assisted by Court-funded humanitarian aid programs. See IOM "Supplemental Proposal in Furtherance of the [lOM's] Pilot Project Proposal 31 August 2001 as Approved by the Court on 24 September 2001," June 10, 2002 ("IOM Supplemental Proposal"), at 2 (approved by Court order dated June 24, 2002); September 12, 2003 Letter of Delbert Field of IOM to Judah Gribetz and Shari Reig, annexed hereto as part of Exhibit 12. In addition, the IOM, working with the Jehovah's Witness Holocaust Era Survivors Fund ("JWHESF"), has located approximately 2,000 needy elderly Jehovah's Witness Nazi victims living in Central and Eastern Europe; these victims also are being served by programs funded by the Court. See IOM "Request for Humanitarian Programme Funding for the Third Quarter of 2003," July 20, 2003, program chart at 3.
Based upon research as to potential service providers with sufficient expertise in distributing Holocaust and other compensation funds, the Distribution Plan appointed three experienced agencies to assist the Court and the Special Master in distributing and administering the $145 million allocated to the Looted Assets Class: the JDC and Claims Conference for Jewish Nazi victims (together allocated $130.5 million to augment existing programs over a ten-year period; each with decades of experience in assisting needy Nazi victims), and the IOM for Roma, Jehovah's Witness, homosexual and disabled Nazi victims (allocated $14.5 million over a multi-year period). In the two years since distributions began, approximately 100,000 needy Nazi victims have benefited from an array of services. b. Status of Distributions
See Distribution Plan, Vol. I, at 136-37 (in connection with each funding proposal to be submitted by the JDC and/or the Claims Conference, "[t]he Court will consider whether the proposed funding is intended to augment the program by expanding the services provided or by lengthening the period for which services are provided, rather than substituting for existing program funding"). See also id., at 26 (under the Distribution Plan, the funds allocated for needy Jewish Nazi victims "should be designated for the augmentation" of JDC and Claims Conference humanitarian assistance programs serving these individuals); Id., at 141 ("In particular, the Court should consider whether the programs recommended for funding by the IOM . . . are to be augmented by expansion of services, or by lengthening the period for which services are provided, rather than substituting for existing funding").
The "Looted Assets Class" funds for non-Jewish "Victims or Targets of Nazi Persecution" were intended to supplement the German Foundation allocation to humanitarian assistance programs serving needy Roma survivors and thereby provide the maximum benefit to the class members. The IOM continues to coordinate its humanitarian aid programs to satisfy the mandates under both the Swiss Banks Settlement Distribution Plan and the German Foundation. To enable the IOM to maintain flexibility in establishing what has proven to be a novel and far-reaching assistance program, the Distribution Plan did not impose a specific time frame but rather anticipated ongoing modification depending upon initial results. As more fully described below, the success of the IOM "Looted Assets Class" program to date suggests that it should be expanded to additional countries and over a more extended period of time. According to the IOM, the Foundation likewise recently has indicated an interest in extending its program through mid-2005. The specific parameters of the program will be established in continuing consultation with the Court and the German Foundation.
As discussed below, the Looted Assets Class allocation to date has assisted approximately 40,000 Jewish Nazi victims in the former Soviet Union alone, and over 50,000 Roma and Jehovah's Witness Nazi victims in Central and Eastern Europe. Thousands of other Jewish Nazi victims in Europe, the United States, Israel and other parts of the world also are being assisted by humanitarian programs funded by the Court.
1. American Jewish Joint Distribution Committee
The JDC administers the bulk of funds on behalf of the Looted Assets Class, as 75% of the allocation to Jewish Nazi victims was designated for programs serving the neediest of victims living in the former Soviet Union, a region in which the JDC has had vast experience. Through the extensive network of "Hesed" centers established by the JDC in 1992, impoverished elderly Nazi victims primarily receive food, consisting of a few food packages a year, a hot meal at a Hesed center, or a "meals-on-wheels" delivery. Needy Nazi victims also have received medical assistance and winter relief as a result of the distributions from the Swiss Banks Settlement.
As summarized by the JDC in its July 31, 2003 report on the initial 18-month period of Looted Assets Class funding (July 1, 2001 through December 31, 2002), the Court's distribution of $10.875 million over the first eighteen months of the program — $7.5 million as provided under the original Plan, as supplemented by the 45% increase ($3.375 million) ordered in September, 2002 — has resulted in significant but nevertheless limited assistance to a small portion of the Nazi victims in the former Soviet Union ("FSU"):
• 40,352 Nazi victims have received food packages over the first 18 months of funding. While this number is not insubstantial, it represents only 30% of the 134,296 Nazi victims whom the Hesed program serves. Therefore, more than two-thirds of Nazi victims in the Hesed program are not receiving any benefit from the food programs funded through the Swiss Banks Settlement.
• Since pensions in the former Soviet Union are so meager — ranging from $60 per month in Russia, to a low of $7 per month in Georgia — and two-thirds of pensions in Russia are spent on food, the food program has provided life-sustaining relief. The packages funded by the Swiss Banks Settlement "contain non-perishable basic staples, including flour, pasta, rice, other grains, beans, sugar, oil and a protein source such as canned fish. Food packages supplement the meager diets of the elderly Nazi victim population. When combined with other items that the elderly can obtain, they will stave off hunger and most effects of malnutrition." The food packages "are provided an average of eight times a year. While some clients get monthly food packages, due to budgetary constraints, others receive them only quarterly and some clients get food packages only before Passover and Rosh Hashanah."
• 5,558 Nazi victims (4% of the total Nazi victims served by the Hesed program over the first 18 months of funding), received food from "meals-on-wheels" or took part in canteen meals at Hesed centers funded by the "Looted Assets Class" allocation. "Due to limited funding meals are provided only once a day, on average of four times per week, and most clients who receive a hot meal are ineligible to receive monthly food packages as well."
• 55% of all "Looted Assets Class" funds from the first allocation made via the JDC was spent on hunger relief programs. "This is a recognition that the relief of starvation and hunger is the core life sustaining program that Hesed programs must provide and remains the service needed by the most Nazi victims in the FSU."
• 4,258 Nazi victims (3.17% of the 134,296 Nazi victims served by the Hesed program for the first 18 months of funding), received home care assistance from the "Looted Assets Class" allocation. This aid ranges from assistance with personal care such as bathing, dressing, managing medications and meal preparation to pumping well water and chopping wood for heating and cooking.
• 3,688 Nazi victims (2.75% of the total Nazi victims served by the Hesed program during the first 18 months of funding) received from Looted Assets Class funds one winter relief package per winter, consisting of items such as fuel, blankets, coats, sweaters and boots. "This is a service unique among the dozens of countries where JDC provides welfare services and shows the extreme conditions and needs in the FSU."
• 19,118 (14.24% of the 134,296 Nazi victims served during the first 18 months of funding) received medical services from the first allocation of "Looted Assets Class" funds. The assistance included medical consultations, prescription medicine, and subsidies.
• 60,359 grants were made to members of the Looted Assets Class from the "SOS Special Needs and Emergency Cases Program," worth approximately $50 each, which funded a range of goods and services such as drugs, hearing aids and glasses, hospitalization costs, adult diapers, bedding, prostheses, emergency food supplies, extra winter relief, roof repairs, purchase of pots and pans, sinks, toilets, stoves and refrigerators, purchase of a milk cow for a client in a rural area, and rent payment to prevent eviction.
Because of the termination of appellate proceedings, distributions were able to commence as of June 28, 2001, halfway through the JDC's regular annual program, which operates on the calendar year. As a result, the initial distribution period was extended over eighteen months to enable the JDC to commence all subsequent distributions in January of each year rather than July, to coincide with the organization's general operations.
By order dated September 23, 2003, the Court transferred an additional $16,312,500 for the funding of JDC programs serving Nazi victims in the former Soviet Union during the calendar year 2003, see n. 123 supra and Exhibit 10, for a total of $27,187,500 distributed to date.
See July, 2003 JDC Report, at 9 (Programmatic Statistical Chart).
Id., at 11, 14.
Id., at 9, 15-16.
Id., at 13.
Id., at 9, 17-18.
Id., at 9, 20.
Id., at 9, 22.
Id., at 9, 25-26.
2. Conference on Jewish Material Claims Against Germany
The Claims Conference has administered individual compensation and humanitarian assistance programs for Nazi victims around the world for more than half a century. No other organization has had greater experience with Nazi victims. In recognition of the agency's extensive knowledge of victim needs and its ability rapidly to distribute resources and monitor their use, the Court selected the Claims Conference to recommend and oversee service providers throughout the world in places other than the former Soviet Union, particularly in Israel, North America and Europe. Each distribution agency must be approved by the Court.
In addition to administering the programs, the Claims Conference is responsible for negotiating a great many of them, including ongoing pension payments that as of September, 2000, were benefiting over 170,000 Nazi victims. See Distribution Plan, Vol. II, Annex H ("Slave Labor Class"), at H 4-6; Annex E ("Holocaust Compensation"), describing, among other things, the various Holocaust compensation programs negotiated by the Claims Conference since its formation in 1951. See also Michael Z. Wise, "Diplomacy: Reparations," The Atlantic Monthly (October 1993), at 32 (the Claims Conference "persists in seeking benefits for tens of thousands of survivors who have still not been indemnified, and at the same time monitors Germany's compliance with existing compensation agreements. For the New York-based [Claims Conference], memory alone is insufficient. The conference has spent the past four decades quietly working behind closed doors, acting as the go-between for the victims of Nazi persecution and officials of the democratic state that rose from the ashes of the Third Reich").
Since Time 28, 2001, when the Court issued its first of three orders approving Claims Conference requests for funding, needy Nazi victims in 23 nations have benefited from $9,014,210 in humanitarian aid. Under the Distribution Plan as supplemented by the Court's September 25, 2002 order, the total allocation to projects serving these and other non-FSU Jewish Nazi victims over the duration of the ten-year program will be $32.6 million.
The Looted Assets Class allocation has reached these Nazi victims via the Claims Conference's "Emergency Assistance Program," which "is designed to help prevent or alleviate crises. Through the provision of short-term financial assistance, the program enables Nazi victims to obtain basic necessities and is designed to provide survivors with essential needs in order to continue to live at home with dignity. The program is implemented by central Jewish social service agencies in communities across the world. Thus, the program benefits Nazi victims not only by providing cash assistance to cope with emergency situations but also by assuring the involvement of social welfare professionals in their lives."
See "Third Claims Conference Looted Assets Class Proposal: Emergency Assistance Programs for Jewish Nazi Victims — Proposal for the Calendar Year 2003," April, 2003 ("2003 Claims Conference Proposal"), at 3, approved and funded by Court order dated April 22, 2003; excerpts are annexed hereto as part of Exhibit 11. See also Claims Conference, "Proposal for the First Six Months of Operations," February 27, 2001, approved by Court order dated April 13, 2001 and funded by Court order dated June 28, 2001 (following release of Settlement Fund from escrow due to withdrawal of appeal against approval of Settlement Agreement); "Second Claims Conference Looted Assets Class Proposal: Emergency Assistance Programs for Jewish Nazi Victims — Proposal for the Calendar Year 2002," submitted July 11, 2002 and approved and funded by Court order dated July 22, 2002.
In each country in which the program has operated, the Claims Conference recommends, for the Court's approval, a Jewish social service agency — often one which has received prior Claims Conference funding and which has "established credentials and reputation" and has been "working with Nazi victims for many years" — to administer the program on a day-to-day basis. The social welfare agency conducts outreach through newsletter advertisements, local media and survivor organizations, and assigns a social work professional to assess each request for assistance. "The assessment includes medical condition, housing situation, mental health status, financial status, current services being received, and availability of family support. . . . Wherever possible, the cash grants are paid directly to the vendor in order to assess the proper use of the funds and to maintain the involvement of the social work professional in dealing with the problem."
2003 Claims Conference Proposal, at 3-4.
The cash grants have been used to provide the following services:
• Home care
• Medical and dental care not funded by governmental programs
• Medical equipment including wheelchairs, beds and hearing aids
• Prescription medicines
• Winter relief
• Food assistance
• Emergency utility and rent payment
• Home equipment and repair
Program eligibility varies in each country and depends upon several factors including the survivor's "economic situation, the availability of government funded benefits, and the specific needs of the community as identified by the advisory committees" of Nazi victims who participate in outreach and oversight in each of the 23 nations currently assisted by Looted Assets Class funds.
Id.
To date, the following agencies, overseen by the Claims Conference, have administered the Emergency Assistance Program on the Court's behalf:
See Chart, "Swiss Banks Settlement: Looted Assets Class Emergency Assistance Program, Administered by the Conference on Jewish Material Claims Against Germany (Claims Conference) on behalf of the United States District Court, Allocations by Institutions and Amount (June 28, 2001 — December 31, 2003)," annexed hereto as part of Exhibit 11.
• Argentina:
Delegacion de Asociaciones Israelitas Argentinas
• Australia:
Jewish Care (Victoria) Inc. (Melbourne); Jewish Care — New South Wales (Sydney)
• Austria:
ESRA
• Belgium:
Service Social Juif
• Bosnia:
La Benevolencija
• Bulgaria:
Organization of Jews in Bulgaria — Shalom
• Croatia:
Jewish Community Zagreb
• Czech Republic:
Terezin Initiative — International Terezin Association
• France:
Fonds Social Juif Unifie (FSJU) (Umbrella group for France)
• Germany:
Zentralwohlfahrtsstelle der Juden in Deutschland e.V.
• Greece:
Central Board of Jewish Communities in Greece
• Hungary:
Hungarian Jewish Social Support Foundation
• Israel:
Foundation for the Benefit of Holocaust Victims in Israel
• Italy:
Unione delle Communita Ebraice Italiene
• Netherlands:
Stichting Joods Maatschappeliijk Werk
• Poland:
Central Jewish Welfare Commission
• Romania:
Federation of Jewish Communities of Romania
• Slovakia:
Central Union of Jewish Religious Communities in the Slovak Republic
• Sweden:
Jewish Community of Stockholm
• United Kingdom:
Association of Jewish Refugees in Great Britain (Umbrella group for the UK)
• United States and Canada: See below
• Yugoslavia:
Federation of Jewish Communities in Serbia Montenegro
In the United States and Canada, Looted Assets Class funds have been distributed by the following organizations:
United States
• Arizona:
Jewish Family Children's Service of Southern Arizona (Tucson)
• California:
Jewish Family and Children's Services of the East Bay (Berkeley); Jewish Family and Children's Service — Long Beach; Jewish Family Service — San Diego; Jewish Family Service of Los Angeles; Jewish Family Service of Silicon Valley (San Jose); Jewish Family and Children's Service — San Francisco; Jewish Family Service of Orange County (Costa Mesa); and Jewish Family Service of Palm Springs Desert area (Palm Springs)
• Colorado:
Jewish Family Service of Colorado (Denver)
• Connecticut:
Jewish Family Services of Greater Hartford (Greater Hartford area — 4 agencies)
• Florida:
Gulf Coast Jewish Family Services (Clearwater); Ferd Gladys Alpert Jewish Family and Children's Service (West Palm Beach); Jewish Community Services of South Florida (North Miami); Jewish Family Service of Broward County Inc. (Plantation); and the Ruth Rales Jewish Family Service of South Palm Beach County (Boca Raton)
• Georgia:
Jewish Family and Career Services (Atlanta)
• Illinois:
Jewish Federation of Metropolitan Chicago
• Massachusetts:
Jewish Family and Children's Service (Greater Boston area — 4 agencies)
• Maryland:
Jewish Federation of Howard County (Columbia); Jewish Family Services — Baltimore; Jewish Social Service Agency — Rockville
• Michigan:
Jewish Family Service for Southeast Michigan (Detroit)
• Minnesota:
Jewish Family and Children's Service — Minneapolis
• New Jersey:
Association of Jewish Family Service Agencies — Elizabeth
• New Mexico:
Jewish Family Services — Albuquerque
• Nevada:
Jewish Family Service Agency of Las Vegas
• New York:
Selfhelp Community Services (New York); Blue Card Inc. (New York); Metropolitan New York Coordinating Council on Jewish Poverty (New York); Guardians of the Sick Alliance (Brooklyn — 5 Bikur Cholim agencies); Pesach Tikva/Door of Hope (Brooklyn); Bikur Cholim of Rockland County (Monsey); Jewish Family Service of Rochester; and Jewish Family Service of Buffalo and Erie County
Blue Card provides funding to small and rural communities nationwide.
• Ohio:
Jewish Family Service Association of Cleveland; Jewish Family Service — Cincinnati; and Jewish Family Services — Columbus
• Oregon:
Jewish Family and Children's Service — Portland
• Pennsylvania:
Jewish Family Service of Philadelphia; Jewish Family Service of Lackawanna County (Scranton); Jewish Family Service of Pittsburgh; and Jewish Family Service of Greater Harrisburg
• Texas:
Jewish Family Service of Greater Dallas; Jewish Family Service of Houston; and Jewish Family and Children's Service Agency — El Paso
• Utah:
Jewish Family Services — Salt Lake City
• Virginia:
Jewish Family Service of Tidewater (Norfolk); Jewish Family Services — Richmond
• Washington:
Jewish Family Service — Seattle
• Wisconsin:
Jewish Family Service — Milwaukee
Canada:
• Toronto:
Jewish Family Child Service; UIA Federations Canada
UIA Federations Canada provides funding to small and rural communities nationwide.
• Montreal:
Cummings Jewish Centre for Seniors
• Vancouver:
Vancouver Holocaust Education Centre/Jewish Social Service Agency
• Calgary, Alberta:
Jewish Family Service Calgary
• Winnipeg:
Jewish Child and Family Service
3. International Organization for Migration
Since receiving its initial allocation of funds following resolution of appeals against the Settlement Agreement and Distribution Plan, the IOM has established an extensive "Humanitarian and Social Programmes" ("HSP") network across Central and Eastern Europe. The HSP network maximizes benefits to needy non-Jewish Nazi members of the Looted Assets Class by combining resources both from the Swiss Banks Settlement and the German Foundation. Under the Distribution Plan, the IOM was charged with distributing over a multi-year period the sum of $10 million through programs serving needy Roma, Jehovah's Witness, homosexual and disabled Nazi victims. The German Foundation similarly allocated to the IOM DM 24 million (approximately $12 million) for programs serving needy Roma Nazi victims. The Court's September 25, 2002 order supplementing certain payments by 45% has increased to $14.5 million the total allocation to lOM-supervised programs, altering the original balance so that the Swiss Banks Settlement is now the majority donor as compared to the German Foundation.
Over the last two years, the IOM has worked closely with the Court and the Special Master, and with large and small organizations and survivor representatives, to create what has become a unique and significant humanitarian assistance program. It is no exaggeration to state that through much persistence, and in the face of considerable uncertainty on the part of many observers about whether the objectives of the Distribution Plan could be achieved or whether the potential recipients even could be located — scattered as they are throughout the most remote corners of Central and Eastern Europe — the Looted Assets Class program so far has reached more than 50,000 needy Nazi victims, especially Roma.
Most of these survivors never had previously received Holocaust-related compensation. These long-overlooked and needy Nazi victims thus far have benefited from nearly $6 million in distributions to date, with a total of $14.5 million allocated over several years. As stated by the IOM in its most recent quarterly funding proposal dated July 20, 2003: "At this time forty-one projects have commenced for Roma and Jehovah's Witness survivor groups with a further sixteen project proposals awaiting review for possible implementation. At this time 33 projects are currently in operation with nine having been completed. To date in excess of [49,000] elderly Roma and Jehovah's Witness survivors have received, or are shortly to receive, humanitarian assistance via HSP projects." Among these projects are the following:
IOM Request for Humanitarian Programme Funding for the Third Quarter of 2003, July 20, 2003, approved and funded by Court order dated May 30, 2003; September 12, 2003 Letter of Delbert Field of IOM to Judah Gribetz and Shari Reig. See also Chart, "IOM Humanitarian and Social Programmes (HSP) — Cumulative Installments Paid to HSP Service Providers, March 2002 — June 2003"; "HSP Presentation at the 13th Meeting of the Kuratorium, Foundation `Remembrance, Responsibility and Future," Federal Ministry of Finance, Berlin, 24 September 2003" (directed toward German Foundation concerns but largely applicable to the Swiss Banks Settlement Looted Assets Class programs as well). These documents collectively are annexed hereto as Exhibit 12.
• Belarus:
Belarussian Gypsy Diaspora, providing food and hygienic packages to 1,450 Roma Nazi victims.
• Czech Republic:
Three programs serving 2,900 Roma Nazi victims: the League for Help to Roma Victims of War; DROM; and PINF (food, medical assistance, home care, clothing, winter relief, social, legal and financial support)
• Hungary:
Five different programs serving almost 16,000 Roma Nazi victims: Hungarian Baptist Aid (two programs); Mediator Foundation; Bagamer; and the Hungarian Sex Education Foundation (food, hygienic items, medical care, home care, winter relief and clothing).
• Poland:
Four programs serving over 1,000 Roma Nazi victims: Union of Polish Gypsies; Polish Red Cross; Roma Ethnic Minority "Solidarity"; and Polish Medical Mission (food, winter relief, hygienic items, medical care, dental care, financial and social support).
• Romania:
Two programs serving 7,400 Roma Nazi victims: the Romanian Orthodox Church; the Ramses Foundation (food, medical assistance, winter relief, clothing and other assistance).
• Russia:
St. Petersburg Memorial, providing medical and legal assistance to 4,050 Roma Nazi victims.
• Ukraine:
Thirteen programs serving over 8,600 Roma Nazi victims: Romani Yag; Terna Chaya (two programs); Rom Som; Roma Transcarpathia (two programs); Ekgipe (two programs); Chiricli; Romano Drom; Kherson City Roma Society; Ternipe Lviv; and Chernigov Romano Drom (food packages, medical assistance, clothing, winter relief, legal assistance such as to avoid eviction, and home care).
• Serbia Montenegro:
Four programs serving 2,500 Roma Nazi victims: Rrominterpress; the Italian Consortium of Solidarity; New Road; and Sait Balic (food, winter assistance, medical care, clothing, legal aid and other relief).
The German Foundation initially made the decision not to fund food packages, whereas the latter assistance always has been considered an important component of the relief provided on behalf of the Swiss Banks Settlement Looted Assets Class. Accordingly, to date, all food packages to needy non-Jewish survivors have been funded solely by the Court. The IOM has advised that as of October 1, 2003, however, the German Foundation has agreed to apply limited Foundation funds to food package projects in areas of extreme need where no viable alternative means of assistance are available.
In addition, the IOM administers humanitarian assistance programs serving needy Jehovah's Witness survivors solely on behalf of the Swiss Banks Settlement; the German Foundation does not fund any portion of these programs. In cooperation with the Jehovah's Witness Holocaust Era Survivors' Fund ("JWHESF"), 2,000 needy Jehovah's Witness Nazi victims throughout Central and Eastern Europe have been provided with comprehensive assistance, including food packages, medical care, winter relief and home care.
A variety of other programs are under consideration for future allocation periods, including new programs as well as expansion of those already existing (the latter expected to reach another 10,000 beneficiaries). Given the unexpected success in locating so many surviving Roma Nazi victims, in the event that residual unclaimed funds remain from the Settlement Fund, it may be advisable to reevaluate the original allocation formula recommended under the Distribution Plan (reserving 10% of the Looted Assets Class allocation for non-Jewish victims).
The allocation percentages adopted under the Distribution Plan were based upon demographic data available as of September, 2000, as well as historical precedent including the 1997 Swiss Humanitarian Fund and the 1945 Five Power Agreement. See Distribution Plan, Vol. I, at 118-119; Vol. II, Annex C ("Demographics of `Victim or Target' Groups"); Annex K ("Swiss Humanitarian Fund").
In addition, the IOM continues to consult with experts and non-governmental organizations as to how best to locate and serve needy disabled and homosexual Nazi victims.
See "Humanitarian and Social Programmes (HSP) Quarterly Report for the Period July — September 2002," October 11, 2002, at 12 ("IOM has been in contact with an interlocutor for homosexual survivors regarding a needs assessment for the provision of HSP [humanitarian] assistance, IOM still awaits a response from this interlocutor, which should include a list of potential beneficiaries, before making additional enquiries in this regard. Since submitting the Supplemental Proposal [of June 10, 2002; approved by Court order dated June 24, 2002], in an effort to reach survivors, IOM has also contacted a further fifty (50) homosexual NGOs, foundations and organizations which work in support of this community throughout Europe. To date the response has been extremely limited. . . . [I]n respect of disabled beneficiaries, IOM has contacted twenty three (23) disabled NGOs, foundations and organizations since the submission of the Supplemental Proposal that work in support of this community throughout Western and Eastern Central Europe in an effort to reach survivors in these categories. The response to date has been equivalent to that in respect of the above outreach in respect of homosexual organizations"). See also "IOM Request for Humanitarian Programme Funding for the Second Quarter of 2003," May 9, 2003, at 2 (". . . IOM has continued to encounter limited success in respect of the identification of homosexual and disabled potential HSP beneficiaries. Further contact with an interlocutor for homosexual survivors is being pursued as well as enquiries in respect of disabled survivors residing in Austria"). The IOM recently has advised the Special Master that it is preparing Slave Labor Class I payment recommendations for approximately 45 disabled Nazi victims from Austria and elsewhere, and will analyze these survivors' needs for possible Looted Assets Class humanitarian assistance.
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Accordingly, approximately 100,000 needy Nazi victims around the world have benefited from the Court's allocation of Looted Assets Class funds to humanitarian aid programs. Many of these victims rely upon the Court's assistance for their most fundamental needs: food, shelter, and medicine.6. Insurance
In a document dated June 26, 2001, the parties entered into an agreement to process insurance claims for policies issued by the Swiss insurers Swiss Re and Swiss Life. No other Swiss insurers will receive releases in connection with this litigation. Thus, class counsel have determined that to the extent additional litigation may be required to provide relief against Swiss insurers, the settlement poses no obstacle to such litigation.
The Court approved the "Claims Process Guidelines for Insurance Claims" by order dated June 28, 2001.
The Final Bergier Report, issued after the insurance settlement on March 22, 2002, analyzed Swiss practices concerning certain insurance policies.
The Bergier Commission questioned the behavior of Swiss insurers following the Kristallnacht rampages of November, 1938, concluding that the companies "helped to cover up events" and thereby assist in concealing Nazi activities:
"The pogroms of 8/9 November 1938 and the damage caused during the general unrest (quite apart from the 91 deaths) posed a significant insurance problem. Who should cover the losses? Most property insurance policies contained exclusion clauses limiting the insurer's liability for damage caused by civil unrest — although it was doubtful whether state-sponsored violence could be classed as `civil unrest.'. . . . [A November 12, 1938 ordinance issued by Hermann Goering] stated that the damage resulting from `the people's indignation at Jewish international agitation' should be paid for by the Jews themselves, and that any payments made by the insurance companies in respect of the losses should go to the Nazi state, not to the Jews. . . . In general, the Swiss companies reacted with remarkable passivity to the Nazi's [sic] flouting of established legal tradition. Whereas a number of foreign companies (e.g., London Phoenix) challenged Goering's ordinances on the basis of the `civil unrest' exclusion clause, no Swiss insurer deviated from the German companies' line, in one case, Helvetia Feuer — which had sold a number of special policies specifically providing for liability in the event of `unrest' — denied that the pograms constituted `unrest.' In this way, the Swiss insurers helped to cover up events which would have cast the completely illegal and unmoral methods of the German state and party organization in November 1938 into sharp relief."
Final Bergier Report, at 288-289. See also id., at 459 (Although "insurance companies — Swiss included — had paid for losses by `Aryan' and foreign policyholders" after Kristallnacht, "claims from Jewish policyholders were paid not to the policyholders themselves, but rather in the form of a lump sum to the Nazi fiscal authorities").
The response to Nazi victims did not improve after the War. The Final Bergier Report describes a June, 1945 meeting among the major Swiss insurers to discuss how to avoid claims from Jewish policyholders seeking compensation on policies confiscated by the Nazis:
"Immediately after the war, on 27 June 1945, representatives of the four Swiss companies which had issued life insurance policies in the Reich discussed in Zurich how they might avoid claims from `Jewish emigrants' for restitution of . . . confiscated policies. A large part of the discussion was characterized by a decidedly aggressive tone. In a subsequent memorandum, one of the companies concerned, Basler Leben, stated: `Jewish insurance holders aimed to compensate their despoliation by the Third Reich by despoliating Switzerland of its national wealth.'
The value of the insurance assets confiscated by the Nazi authorities and paid out to those authorities directly by Swiss insurance companies formed the theoretical ceiling for the claims for reparations in this area. As regards the extent of these assets, we have at our disposal an internal investigation carried out by the companies in November 1944: this revealed 846 policies, worth 4 million reichsmarks (6.8 million francs). The Basler Leben alone held a share of 744 policies with a total value of 3.7 million reichsmarks."
Id. at 460.
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Under the negotiated insurance agreement, the CRT, supervised by Special Masters Volcker and Bradfield, was authorized to process claims in accordance with the terms established between plaintiffs and defendants. The CRT has received a total of 1,526 timely claims to insurance policies. CRT Special Master Bradfield has advised in his June 30, 2003 Report that of these claims, 747 were filed directly by claimants and another 779 were filed via the International Commission on Holocaust Era Insurance Claims ("ICHEIC"), in accordance with the parties' agreement. An additional 809 claims were filed after the December 31, 2001 deadline but prior to December 31, 2002, and were determined by the Court to be eligible for processing.Of the 1,526 timely claims received by the CRT, as of the end of June, 2003, all had been through an initial screening review. Special Master Bradfield's June 30, 2003 report advises that the "initial screening review set aside claims with respect to non-participating countries, non-participating companies, non-victim claims, non-insurance claims, and duplicate claims. Of the 1,526 claims reviewed, 288 were determined to be ineligible for further processing. (The 809 late claims are now going through initial screening review.) Of the 1,238 claims eligible for processing, 1,179 claims have been sent to insurance companies for research and 59 claims remain to be sent to insurance companies." A total of 644 claims were sent to Swiss Re, 245 claims were sent to Swiss Life, and 290 were sent to both insurance companies.
According to the "June 30, 2003 Report on the CRT" and additional information provided by Special Master Bradfield, the CRT has received few positive responses from the insurance companies. Swiss Life reported 9 matches to the CRT and recommended payment with respect to 1 of the matches. Swiss Re reported 28 matches to the CRT. Of these matches, one was recommended for payment, two were categorized by Swiss Re as "Provisional Recommendation for Payment," and 25 were recommended for referral to the German Foundation Initiative. In addition, Swiss Re indicated that another 13 claims that generated no match should be categorized as "Provisional Recommendation for Payment" because the claimant submitted documentation presenting sufficient evidence to justify an award. The CRT is now preparing awards with respect to the four insurance claims recommended for payment from the Settlement Fund, and the German Foundation Initiative is being contacted with respect to the other matches. Additional awards with respect to certain plausible matches reported to the CRT by these Swiss insurance companies also are being prepared by the CRT. 7. Victim List Foundation
Id., at 17.
The Special Master has had continuing discussions with representatives of Yad Vashem, the United States Holocaust Memorial Museum, and other Holocaust scholars. These inquiries have focused upon establishing a foundation that will collect names of all "Victims or Targets," including survivors, whereas past efforts have focused primarily upon obtaining the names of those who were killed. A number of preliminary goals have been identified: (i) obtaining access to important archives; (ii) ensuring broad-based cooperation among the leading institutions; and (iii) overcoming European Union and national privacy laws.
Under the Distribution Plan, $10 million has been allocated to the Victim List Foundation. No funds have been distributed to date, in accordance with the Court's determination that the first payments made from the Settlement Fund are to be made to individual Nazi victims or, in the case of bank account owners, their heirs. Depending upon the amount of the residual that may remain from the Deposited Assets Class, if any, the level of institutional cooperation, and the nature of the data, it may be appropriate to increase by a modest amount the allocation to the Victim List Foundation.
IV. Conclusion
This report is not intended to be exhaustive. A summary such as this cannot do justice to each former slave laborer, refugee or Swiss bank depositor. In particular, the Deposited Assets Class awards, all available on the Internet, tell more than the stories of the claimants; they also reveal much about the banking claims that gave rise to this lawsuit.
As noted previously, Refugee summaries also are available on the Internet at www.claimscon.org.
This report is, however, intended to demonstrate that with the Court's unwavering commitment and continuing guidance, nearly half a billion dollars in compensation has been paid or allocated from the Settlement Fund thus far, and if the Court adopts the recommendations herein concerning allocation of $60 million in excess funds, over half a billion dollars — more than $545 million-will have been distributed or allocated in the little more than two years since the resolution of legal proceedings impacting the settlement. Over a quarter of a million individuals to date have received compensation from the Settlement Fund for their Swiss bank accounts, their slave labor or refugee experiences, or through Looted Assets Class programs providing food, shelter, medical aid, home care and other humanitarian aid. Until every claim is determined, of course, the program cannot be considered a success, but great strides have been made.
These accomplishments could not have been achieved without the ongoing guidance and dedication of the Chief Judge, the Honorable Edward R. Korman. Many other individuals also have provided crucial support to the distribution process. In particular, the Special Master has been assisted immeasurably by Lead Settlement Counsel Burt Neuborne, CRT Special Master Michael Bradfield and his colleague Pamela Sak, Claims Conference Chief Operating Officer Greg Schneider, CRT Deputies Secretary General Mary Carter and Dov Rubinstein, and Bingham McCutchen paralegal Dina Kaufman.
As noted earlier, it is the Deposited Assets Class claims that began the lawsuit, and effectively will end it. But because these claims are at the very heart of this proceeding, and because the claimants have, until recently, been stymied in their efforts to retrieve the property that is rightfully theirs, it is both legally and morally appropriate that the CRT claims process continue and that every effort be made to return these bank accounts to those who entrusted their property to Swiss financial institutions for safekeeping, or to their heirs.
In connection with the relatively recent Holocaust compensation agreements that began with the Swiss Banks settlement and continue today, some commentators have expressed their concern that the lessons of the Holocaust "will be diminished and skewed by the efforts to put money over morality." Abraham H. Foxman, "The Dangers of Holocaust Restitution," The Wall Street Journal, December 4, 1998 at A18. Others have contended that the "Holocaust reparations campaign of the 1990s" foments anti-Semitism. Yossi Klein Halevi, "The Tragedy of the Jewish-European Rift," The Jerusalem Post (online edition), September 11, 2003, available at www.jpost.com (the "Holocaust reparations campaign of the 1990s . . . sull[ied] the Holocaust by equating its memory with financial accounts" and also "enraged a new generation of Europeans, who felt they were being forced to pay for the sins of their parents"); Charles Krauthammer, "The Holocaust Scandal," The Washington Post December 4, 1998, at A29 (Holocaust reparations movement risks "a revival of Shylockian stereotypes" and "dormant anti-Jewish feeling"; this is "unfortunate" because the stereotypes are false and "because this generation of Europeans has grown up more free of antisemitic poison than any in European history").
While there are many who would disagree with those commentators who have questioned the timing and propriety of the more recent Holocaust compensation "campaigns," even critics of restitution are in fundamental agreement that the property claims that are at the heart of this lawsuit demand redress even today, decades after the Holocaust. Thus, while Charles Krauthammer shared Abraham Foxman's reservation that "`an industry [would] be made on the memory of victims'", Krauthammer also cautioned: "Does that mean that nothing should be done? No. Individual victims who had their savings or property or art stolen should be allowed to seek restitution even at this late date." Krauthammer, Id., at A29. Foxman likewise observed: "Certainly, individuals who had bank accounts, insurance policies or works of art that were stolen have a right to pursue their claims." Foxman, id., at A18.
It is also significant that the Holocaust reparation effort instituted in the 1990s has resulted in payments to hundreds of thousands of non-Jewish Nazi victims, many of whom never had previously received compensation.See Section III(B)(5) supra, describing Swiss Banks Settlement "Looted Assets Class" humanitarian programs that to date are assisting nearly 50,000 needy Roma Nazi victims. See also Michael J. Bazyler, Holocaust Justice: The Battle for Restitution in America's Courts (New York and London: New York Univ. 2003), at 296-97 ("Unfortunately, overlooked and underplayed in this debate is the fact that Jews are not the only beneficiaries of the restitution movement. While the Holocaust restitution movement is viewed as a campaign `by Jews for Jews,' the latter part of the formulation is simply inaccurate. Most of the beneficiaries of the restitution money are non-Jewish wartime survivors or their heirs. For example, 80 percent of the recipients of the DM 10 billion German slave labor settlement money are elderly Slavs from eastern Europe forced to work for Nazi Germany"). Bazyler has attributed the German slave labor settlement to the Swiss Banks case, which he has characterized as "the mother of all Holocaust restitution settlements."Id., at 51 (describing as "startling" the "ability of the Swiss campaign to set the stage for the settlement achieved with Germany and its industries, Austria and its industries, French banks, European insurance companies, and also American corporations for their reprehensible wartime activities. . . . The Swiss campaign — judging by how it is already being emulated by other movements seeking redress for historical wrongs — will serve as a model for a long time to come").
At the same time, it is also appropriate to consider the needs, if not the legal claims, of others who have an interest in this settlement. For all of the reasons described above, it is suggested that $60 million in excess funds currently available, and any additional unclaimed residual funds from the up to $800 million allocated to the Deposited Assets Class, of which approximately $668.5 million now remains, be distributed to programs serving the neediest Nazi victims around the world. Accordingly, it is hereby recommended that the $60 million in excess funds be disbursed in accordance with the Looted Assets Class cypres mechanisms adopted under the Distribution Plan. It is further recommended, with respect to any residual unclaimed funds, that any organization that seeks to offer a plan for providing assistance to needy Nazi victims file such proposal with the Court in the format specified at Section I herein. All such proposals should be filed by December 31, 2003 , and posted on the Internet site for this lawsuit,www.swissbankclaims.com. All comments on such proposals should be filed with the Court by February 15, 2004. At the Court's request, the Special Master will file final recommendations for distribution of any residual funds by March 15, 2004 .