Title: Class Actions and Mass Tort Litigation in a Global Context Prof. Linda S. Mullenix
1Class Actions and Mass Tort Litigation in a
Global ContextProf. Linda S. Mullenix
- Restitutionary Class Actions
2Restitutionary Class Actions
- Questions
- What is a restitutionary class action?
- How do restitutionary class actions differ from
mass tort class actions or human rights class
actions? - Do restitutionary class actions have some
different claim for resolution than mass tort or
human rights class actions? Why?
3Restitutionary Class Actions
- Questions
- Should judicial systems treat restitutionary
claims diffrently than human rights or mass tort
claims? Why, or why not? - What are the practical problems of resolving
restitutionary claims? - Are the Holocaust-era litigation successful
examples of resolution of restitutionary claims? - Whic parts of the litigation were successful, and
which not? - How does one measure the success of such
litigation?
4Restitutionary Class Actions
- Burt Neuborne, Preliminary Reflections on
Aspects of Holocaust Era Litigation in American
Courts, 80 Wash.U.L. Rev. 796 (2002) - In re Holocaust Victim Assets Litigation, 105 F.
Supp.2d 139 (E.D.N.Y. 2000)(J. Korman, approving
settlement class)
5Restitutionary Class Actions
- Questions
- Holocaust litigation was pursued on many
different fronts, in many different cases - What were the different pieces of
Holocaust-related litigation? - Who pursued these cases?
- Who were the parties?
- What were the theories behind these separate
litigations? - What were the problems inherent in each
litigation?
6Restitutionary Class Actions
- Questions
- How did the judicial system handle these
different types of Holocaust litigation? - Were these claims appropriately pursued in the
United States? Was this a form of settlement
blackmail on the various defendants? - Should the bank asset claims have been severed
from the slave labor claims? From the
denial-of-entry claims? - Should these claims have been resolved through
diplomatic means only? What value was added by
judicial mediation?
7Restitutionary Class Actions
- Questions
- Prof. Neuborne was the lead settlement counsel in
the Holocaust bank asset claims litigation. Is
his description or perspective of these related
cases biased in any way by his role as the lead
settlement attorney? - What is Prof. Neubrones three-legged stool
metaphor? Does this provide a different
prospective for resolving group claims? - What criticisms were raised against the class
resolution of the Holocuast claimaints? Which of
these objections have persuasive merit? - Were the results beneficial to the class members?
Are Prof. Neubornes responses to criticisms of
the class settlement persuasive?
8Restitutionary Class Actions
- Questions
- Is the Holocaust litigation and its resolution a
model for the resolution of group claims? In what
way? - Is the resolution of the Holocaust claims
suitable only for a narrow special group of
historical claims, or does this have wider
implications for other events?
9Restitutionary Class Actions
- Burt Neuborne, Preliminary Reflections on
Aspects of Holocaust Era Litigation in American
Courts, 80 Wash.U.L. Rev. 796 (2002)
10Restitutionary Class Actions
- Burt Neuborne, Preliminary Reflections on Aspects
of Holocaust Era Litigation in American Courts,
80 Wash.U.L. Rev. 796 (2002) - Provides excellent description factual background
of series of related Holocaust litigation - Provides in-depth description of personal role as
lead settlement counsel in Holocaust bank assets
litigation - In-depth description of role of judiciary in
resolving various cases - Provides insight into parallel diplomatic and
governmental roles on resolving Holocaust-era
related claims - Excellent footnoted source materials on entire
case record of Holocaust litigation, secondary
source materials and commentary
11Restitutionary Class Actions
- Burt Neuborne, Preliminary Reflections on Aspects
of Holocaust Era Litigation in American Courts,
80 Wash.U.L. Rev. 796 (2002) - Three-legged stool metaphor
- 1. Class action litigation
- 2. Diplomacy
- 3. Aroused public opinion community insistence
on dealing with long-delayed issues arising from
the Holocaust
12Restitutionary Class Actions
- Burt Neuborne, Preliminary Reflections on Aspects
of Holocaust Era Litigation in American Courts,
80 Wash.U.L. Rev. 796 (2002) - Aspects of the Holocaust-era litigation
- 1. Swiss Bank Litigation
- ? bank accounts
- ? looted assets
- ? slave labor
- ? denial of entry/deportation
- 2. Austrian Bank Litigation
- 3. German Foundation (no litigation)
13Restitutionary Class Actions
- Questions
- How did the Swiss bank litigation come about? How
was it insitituted? - What was the jurisdiction of the American court
to hear these claims? - What were the legal theories?
- Who were the parties, the defendants, the
attorneys? - What role did the judge play in managing the
Swiss bank Holocaust claims? Is this a proper
role for a judge?
14Restitutionary Class Actions
- Swiss Bank Litigation in U.S.A. -- Chronology
- 1996 Plaintiffs file overlapping U.S. class
actions - Earlier efforts to use courts to seek relief for
Holocaust victims rejected by U.S. courts (see
fn. 23) no court ruled on merits of claims - Defendants several Swiss banks sued multiple
actions - Banking claims based on alienage jurisdiction
- International law claims based on Alien Tort
Claims Act (see fn. 29 discussion of
jurisdictional bases) - Allegations (two sources)
- Banking claims funds deposited in Swiss banks
before Holocaust not returned to lawful owners - Violations of customary international law
knowing participation in financing slave labor
camps, knowing fencing of property (looting
assets)
15Restitutionary Class Actions
- Swiss Bank Litigation in U.S.A. --Chronology
- 1997 federal judge Korman sets up committee
structure to advance class litigation - April 1997 Defendants file motions to dismiss
- June-July 1997 Plaintiffs respond
- August 1997 oral arguments
- August 1997-July 1998 judge declines to rule,
settlement pressure on parties, Justice Dept.
Eizenstadt conducts settlement negotiations,
settlement offer at 600 million - July 1998 Judge Korman reconvenes settlement
neogotiations - August 1998 1.25 billion settlement in
principle agreed (see fn. 33 description of
negotiation breakthrough)
16Restitutionary Class Actions
- Swiss Bank Litigation in U.S.A.
17Restitutionary Class Actions
- Questions
- How successful was the Swiss bank class
litigation in resolving the claims of the various
class members? - How successful were the other diplomatic and
extra-judicial efforts to resolve Holocausrt era
claims? - What is an appropriate measure of success?
- What does justice mean or require for the class
claimants in these cases? - Prof. Neuborne clearly believes these litigation
efforts were a success. Do you agree?
18Restitutionary Class Actions
- Results Distribution of Funds to Class Members
(from Swiss Bank litigation and German
Foundation) - Slave laborer class (entitlements)
- 1,000,000 claimants still living
- Total combined payment 8,950 (two sources)
- Swiss bank allocation 200m-300m payments to
laborers - surviving claimant 1,450
- German Foundation DM 8.1 billion (approx. 4
billion US) - Surviving clamants 7,500
19Restitutionary Class Actions
- Results Distribution of Funds to Class Members
(from Swiss Bank litigation and German
Foundation) - Actual disbursements (slave laborers)
- 115,000 surviving Jewish laborers identified and
paid claims - 750,000 surviving non-Jewish laborers identified
2.5 billion transferred to organizations of
Hocoaust victims for transfer to forced labor
victims
20Restitutionary Class Actions
- Results Distribution of Funds to Class Members
(from Swiss Bank litigation and German
Foundation) - Owners of bank accounts (allocations)
- Swiss bank settlement 800 million allocated for
return of deposits - As of 2002 50 million distributed
- German Foundation 500 million available for
unreturned German and Austrian bank accounts - Austrian settlement fund
- 1,000 claimants approximately 5,000 each paid
claim - 46,000 accounts identified with links to
Holocaust victims, 12,000 computer matches - 400 claims validated
- First 400 awards averaging 100,000
21Restitutionary Class Actions
- Results Distribution of Funds to Class Members
(from Swiss Bank litigation and German
Foundation) - Bank accounts (problems with claims settling)
- Massive destruction of relevant records
- Badly damaged records
- Claims process time consuming validation process
cumbersome
22Restitutionary Class Actions
- Results Distribution of Funds to Class Members
(from Swiss Bank litigation and German
Foundation) - Refugee class (persons denied entry, expelled,
etc.) - 2,500 payments authorized
- As of 2002, 550 refugee claims validated and paid
- Looted Assets class
- Defined as member of one of five groups
victims/targets of Nazi prosecution - Property knowlingly fenced through Swiss bank
- Special Master determined impossible to
administer class on individual basis (linkage
problems) - Court directed cy pres administration of funds,
on behalf of poorest Holocaust victims throughout
the world - 145 million of looted class assets dircted to
agencies serving poorest Holocaust survivors
throughout world - Ten year plan to assure continuing support
23Restitutionary Class Actions
- Other settlement aspects German Foundation
Future Fund - Initial funding DM 700m (350 million)
- To support toleration efforts in Europe
- Funds support worthy projects linked to values of
toleration remembrance of Holocaust - 2.85 billion distributed to Holocaust victims