In re Assicurazioni Generali S.P.A. Holocaust, MDL 1374.

340 F.Supp.2d 494

In re: ASSICURAZIONI GENERALI S.P.A. HOLOCAUST INSURANCE LITIGATION This Disposition Applies to All Actions.

No. MDL 1374.

No. M21-89MBM.

United States District Court, S.D. New York.

October 14, 2004.

Robert A. Swift, Joanne Zack, Kohn, Swift & Graf, P.C., Philadelphia, PA, for Cornell and Smetana Plaintiffs.

Edward D. Fagan, the Law Offices of Edward D. Fagan, Livingston, NJ, for Cornell and Smetana Plaintiffs.

Lawrence Kill, Linda Gerstel, Anderson Kill & Olick, P.C., New York City, for Cornell and Smetana Plaintiffs.

William Marks, the Marks Law Firm, Bernardsville, NJ, for Cornell Plaintiffs.

Carey R. D'Avino, Carey R. D'Avino, P.C., New York City, for Cornell Plaintiffs.

Michael Witti, Witti, Neumann & Partners, 81679 Monchen (Bogenhausen), Germany, for Cornell Plaintiffs.

Nancy Sher Cohen, Reynold L. Siemens, Stephen N. Goldberg, Heller Ehrman White & McAuliffe, LLP, Los Angeles, CA, for Smetana Plaintiffs.

David A. Lash, Bet Tzedek Legal Services, Inc., Los Angeles, CA, for Smetana Plaintiffs.

Elizabeth J. Cabraser, Morris A. Ratner, Caryn Becker, Lieff, Cabraser, Heimann & Bernstein, LLP, New York City, for Schenker Plaintiffs.

Melvyn I. Weiss, Deborah M. Sturman, Milberg Weiss Bershad Hynes & Lerach LLP, New York City, for Schenker Plaintiffs.

Martin Mendelsohn, Washington, DC, for Schenker Plaintiffs.

Michael D. Hausfeld, Paul T. Gallagher, Cohen, Milstein, Hausfeld & Toll, P.L.L.C., Washington, DC, for Schenker Plaintiffs.

Arthur Miller, Cambridge, MA, for Schenker Plaintiffs.

Irwin Levin, Richard Shevitz, Cohen & Malad, P.C., Indianapolis, IN, for Schenker Plaintiffs.

Barry A. Fisher, Fleishman, Fisher, Moest, Los Angeles, CA, for Schenker Plaintiffs.

Burt Neuborne, New York University School of Law, New York City, for Schenker Plaintiffs.

Joseph D. Ament, Michael B. Hyman, Much Schelist Freed Denenberg Ament & Rubenstein, P.C., Chicago, IL, for Schenker Plaintiffs.

Thomas R. Fahl, Niebler & Muren, S.C., Brookfield, WI, for Plaintiff David.

William M. Shernoff, Jeffrey Issac Ehrlich, Michael J. Bidart, Ricardo Echeverria, Douglas M. Carasso, Evangeline F. Garris, Shernoff, Bidart, Darras & Dillon, Claremont, CA, for Brauns, Mandil, Szekeres, Lightner, Sladek, and Haberfeld Plaintiffs, and Plaintiffs Lantos, More, Pioro, Sorter, Ungar, Friedman, and Zada.

Lisa Stern, the Law Office of Lisa Stern, Los Angeles, CA, for Brauns, Mandil, Szekeres, Lightner, Sladek, and Haberfeld Plaintiffs, and Plaintiffs Lantos, More, Pioro, Sorter, Ungar, Friedman, and Zada.

Harvey Levine, Levine, Steinberg, Miller & Huver, San Diego, CA, for Plaintiff Mandil.

Patricia L. Glaser, Christensen, Miller, Fink, Jacobs, Glaser, Weil & Shapiro, LLP, Los Angeles, CA, for Plaintiff Brauns.

Joseph P. Garland, Edward J. Klein, Jay Solomon, Klein & Solomon, LLP, New York City, for Plaintiff Tabaksman.

Mel Urbach, Law Offices of Mel Urbach, Jersey City, NJ, for Plaintiff Tabaksman.

Samuel J. Dubbin, Dubbin & Kravetz, LLP, Coral Gables, FL, for Weiss Plaintiffs.

Herbert L. Fenster, Robert L. Carter, Jr., Christina M. Carroll, McKenna & Cuneo, L.L.P., Washington, DC, for Anderman Plaintiffs.

Joseph F. Butler, McKenna & Cuneo, L.L.P., Los Angeles, CA, for Anderman Plaintiffs.

Franklin B. Velie, Dierdre A. Bergman, Salans Hertzfeld Heilbronn Christy & Viener, New York City, for Defendant Assicurazioni Generali S.p.A.

Peter Simshauser, Lance A. Etcheverry, Skadden, Arps, Slate, Meagher & Flom LLP, Los Angeles, CA, for Defendant Assicurazioni Generali S.p.A.

Marco E. Schnabl, William J. Hine, Skadden, Arps, Slate, Meagher & Flom LLP, New York City, for Defendant Assicurazioni Generali S.p.A.

M. Scott Vayer, Law Offices of M. Scott Vayer, New York City, for Defendant Assicurazioni Generali S.p.A.

OPINION AND ORDER

MUKASEY, District Judge.

Plaintiffs in twenty separate actions have sued Assicurazioni Generali S.p.A. ("Generali"), an Italian insurer that wrote insurance policies in Europe in the years before and during World War II.¹ The gravamen of the actions is that Generali failed to pay benefits following the death of the policy holders or damage to their property during the German campaign of genocide known as the Holocaust. Plaintiffs, assertedly the policy beneficiaries or their surviving family members, have advanced numerous claims seeking damages for Generali's non-payment of benefits, as well as ancillary claims predicated on other alleged misconduct. The claims arise under the statutes and common law of New York, Wisconsin, Florida, and California, as well as customary international law.² A list of the claims is set forth in the Appendix at the end of this opinion.

Generali previously moved to dismiss on grounds of forum non conveniens and contractual forum selection. In connection with that motion, Generali argued, inter alia, that the balance of conveniences required dismissal of the actions in favor of the International Commission on Holocaust Era Insurance Claims ("ICHEIC"), a private commission established by several European insurance companies (including Generali), certain nongovernmental Jewish organizations, the State of Israel, and domestic state insurance regulators, to resolve unpaid Holocaust-era insurance claims. I denied Generali's motion by opinion and order dated September 25, 2002, finding, with respect to the application to dismiss the actions in favor of ICHEIC, that that body is an inadequate alternative forum for litigation of plaintiffs' claims. See In re Assicurazioni Generali S.p.A. Holocaust Insurance Litig., 228 F.Supp.2d 348, 355-58 (S.D.N.Y.2002) (hereinafter, "Generali I"). Familiarity with Generali I is assumed for present purposes.³

With the court's permission, Generali now moves to dismiss or strike, and/or for judgment, on various additional grounds. In light of the Supreme Court's decision in American Insurance Association v. Garamendi, 539 U.S. 396, 123 S.Ct. 2374, 156 L.Ed.2d 376 (2003), it appears that the laws supporting litigation of plaintiffs' benefits claims are preempted by a federal Executive Branch policy favoring voluntary resolution of Holocaust-era insurance claims through ICHEIC. Plaintiffs' ancillary claims, in turn, are not actionable because it appears that they do not allege any cognizable injury other than that caused by Generali's non-payment of benefits, redress for which is committed to ICHEIC. Accordingly, Generali's motion to dismiss is granted with respect to all actions.

I.

A. Facts in Garamendi

At issue in Garamendi was the constitutionality of a California statute, the Holocaust Victim Insurance Relief Act of 1999 ("HVIRA"), which imposed disclosure requirements on all insurers operating in that state that sold insurance policies to persons in Europe between 1920 and 1945. 123 S.Ct. at 2383-84 (citing Cal. Ins.Code Ann. § 13804(a) (West Cum.Supp.2003)). HVIRA required each such insurer to report to the California insurance commissioner how many policies it had issued during the relevant period, the current status of each policy, and the names of the beneficiaries, and directed the insurance commissioner to place the information in a central public registry. Id. (citing Cal. Ins.Code Ann. §§ 13803, 13804(a)). The mandatory penalty for default was suspension of the insurer's license to do business in the State. Id. (citing Cal. Ins.Code Ann. § 13806).

The Garamendi plaintiffs, an insurance industry trade association and several insurance companies, sued to enjoin enforcement of HVIRA, arguing, inter alia, that the statute interfered with the foreign policy of the United States, implemented by the Executive Branch, as expressed principally although not exclusively in certain executive agreements between the President and the leaders of Germany, France, and Austria. Id. at 2386. These agreements were the result of efforts at the national level to achieve a mediated settlement of numerous Holocaust-related lawsuits filed in this country's courts against companies doing business in Germany during the Nazi era. Id. at 2381.

The Court's discussion of the executive agreements focused primarily on the agreement with Germany, the Agreement Concerning the Foundation "Remembrance, Responsibility and the Future" (the "German Foundation Agreement"). Pursuant to that agreement, the German government and German companies undertook to contribute 10 billion deutschmarks to the German Foundation, a fund used to compensate persons "who suffered at the hands of German companies during the National Socialist era." Id. at 2381 (quoting German Foundation Agreement, July 17, 2000, U.S.-F.R.G., 39 Int'l Legal Materials ("I.L.M.") 1298, 1298 (2000)). In exchange, the United States government (the "Government") agreed to file in all cases involving Holocaust-era claims against German companies a statement of interest expressing the view that "it would be in the foreign policy interests of the United States for the Foundation to be the exclusive forum and remedy for the resolution of all asserted claims against German companies arising from their involvement in the National Socialist era and World War II." Id. at 2382 (quoting German Foundation Agreement, 39 I.L.M. at 1303). Although the Government declined to guarantee that its foreign policy interests would "in themselves provide an independent legal basis for dismissal," it agreed to tell courts "that U.S. policy interests favor dismissal on any valid legal ground." Id. (quoting German Foundation Agreement, 39 I.L.M. at 1304). The Government pledged also to use its "best efforts, in a manner it considers appropriate," to persuade state and local governments to respect the German Foundation as the exclusive mechanism for resolving Holocaust-era claims against German companies. Id. (quoting German Foundation Agreement, 39 I.L.M. at 1300, 1303-04).

As to insurance claims specifically, the United States and Germany "agreed that the German Foundation would work with the [ICHEIC],"...