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Simon v. Republic of Hungary

United States District Court, D. Columbia.

May 9, 2014

ROSALIE SIMON, et al., Individually, for themselves and for all others similarly situated, Plaintiffs,
v.
REPUBLIC OF HUNGARY, et al., Defendants

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For ROSALIE SIMON, HELEN HERMAN, CHARLOTTE WEISS, HELENA WEKSBERG, ROSE MILLER, TZVI ZELIKOVITCH, MAGDA KOPOLOVICH BAR-OR, ZEHAVA (OLGA) FRIEDMAN, YITZHAK PRESSBURGER, ALEXANDER SPEISER, ZE'EV TIBI RAM, VERA DEUTSCH DANOS, ELLA FEUERSTEIN SCHLANGER, Individually, for themselves and for all others similarly situated, MOSHE PERELMAN, Plaintiffs: Charles Samuel Fax, RIFKIN, LIVINGSTON, LEVITAN, & SILVER, Bethesda, MD; David H. Weinstein, PRO HAC VICE, WEINSTEIN KITCHENOFF & ASHER LLC, Philadelphia, PA; Lawrence Marc Zell, PRO HAC VICE, ZELL & CO., Jerusalem, Israel; Paul G. Gaston, LAW OFFICES OF PAUL G. GASTON, Washington, DC.

For REPUBLIC OF HUNGARY, MAGYAR ALLAMVASUTAK ZRT., (MAV ZRT.), Defendants: Holly Elizabeth Loiseau, LEAD ATTORNEY, WEIL, GOTSHAL & MANGES, L.L.P., Washington, DC; Brian Keith Gibson, Konrad Lee Cailteux, PRO HAC VICE, WEIL, GOTSHAL & MANGES, LLP, New York, NY.

For RAIL CARGO HUNGARIA ZRT., Successor-in-interest to MAV CARGO ARUFUVAROZASI ZRT. a division of MAV Zrt., formerly known as MAV CARGO ZRT., Defendant: Marianne R. Casserly, LEAD ATTORNEY, ALSTON & BIRD, LLP, Washington, DC; Alan Kanzer, Amber Christina Wessels, PRO HAC VICE, ALSTON & BIRD L.L.P., New York, NY.

For UNITED STATES OF AMERICA, Interested Party: Nathan Michael Swinton, LEAD ATTORNEY, U.S. DEPARTMENT OF JUSTICE, Civil Division, Washington, DC.

For REPUBLIC OF AUSTRIA, Amicus: Thomas G. Corcoran , Jr., LEAD ATTORNEY, BERLINER, CORCORAN & ROWE, L.L.P., Washington, DC.

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MEMORANDUM OPINION

BERYL A. HOWELL, United States District Judge.

In the dark chapter of history that is World War II, Winston Churchill called the shipment of hundreds of thousands of Hungarian Jews to the Nazi death camps in Poland and Germany " probably the greatest and most horrible crime ever committed in the history of the world." First Am. Compl. (" FAC" ) ¶ 4, ECF No. 21. The fourteen named plaintiffs in this proposed class action, Rosalie Simon, Helen Herman, Charlotte Weiss, Helena Weksberg, Rose Miller, Tzvi Zelikovitch, Magda Kopolovich Bar-Or, Zehava (Olga) Friedman, Yitzhak Pressburger, Alexander Speiser, Ze-ev Tibi Ram, Vera Deutsch Danos, Ella Feuerstein Schlanger, and Moshe Perel (collectively, " the plaintiffs" ), survived this vicious aspect of the greater Holocaust. FAC ¶ ¶ 5-81. The plaintiffs no longer reside in Hungary. See FAC ¶ ¶ 5-9, 14, 26, 27, 38, 40, 48, 64, 72, 80. Four of the named plaintiffs, Simon, Weiss, Miller, and Schlanger, are now U.S. nationals; two plaintiffs, Herman and Weksberg, are nationals of Canada; one plaintiff, Danos, is a national of Australia; and the remaining seven plaintiffs are nationals of Israel. Id. They seek recompense for alleged atrocities committed against and property allegedly stolen from them during the Holocaust by the three defendants, the Republic of Hungary (" Hungary" ) and the state-owned Magyar Á llamvasutak Zrt. (" MÁ V" ), which is the Hungarian national railway (collectively, " the Hungary Defendants" ); and Rail Cargo Hungaria Zrt. (" RCH" ), which is a freight rail company that is the successor-in-interest to MÁ V Cargo Á rufuvarozá si Zrt., f/k/a MÁ V Cargo Zrt., a former division of MÁ V. Pending before the Court are two Motions to Dismiss filed by the Hungary Defendants, ECF No. 22, and Defendant RCH, ECF No. 70.[1] For the reasons explained below, though the plaintiffs may indeed be deserving of greater restitution than any amounts they have been provided, the defendants' motions are granted.

I. BACKGROUND

The plaintiffs observe that " [n]owhere was the Holocaust," which involved the

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systematic murder of more than six million people, " executed with such speed and ferocity as it was in Hungary, where in 1944 over a half a million souls were dispatched to their deaths within a period of less than three months." FAC ¶ 1. The gratuitous nature of this slaughter is apparent in the fact that " [m]ost, but not all, of the Hungarian atrocities occurred near the end of the war in 1944, when the Nazis and Hungary, knowing they had lost, raced to complete their eradication of the Jews before the Axis surrendered." Id. ¶ 3. It was only through the complicity and efficiency of Defendants MÁ V and RCH's predecessor, the cargo unit of MÁ V, that Hungary's Jewish population was " transport[ed] by train to the killing fields and death camps of Nazi Germany-occupied Poland and the Ukraine, where the Jews were tortured and the vast majority died" in such a short period of time. Id. " In less than two months, over 430,000 Hungarian Jews were deported, mostly to Auschwitz, in 147 trains." Id. ¶ 108; see also FAC ¶ 121 (" During the German occupation, over 500,000 Hungarian Jews died from maltreatment or were murdered. The overwhelming majority of these were among the close to 440,000 Jews who were deported to Auschwitz between May 15 and July 8, 1944." ); id. Exs. A-B (data related to Hungarian Jewish ghettoes during World War II and deportation trains). Indeed, all but two of the named plaintiffs in this matter were transported, with the concurrent expropriation of their property, in the spring of 1944. See id. ¶ ¶ 11-81. These plaintiffs, unlike hundreds of thousands of others, including the plaintiffs' friends and family, survived the Hungarian atrocities. See id. ¶ ¶ 11-81.

The defendants recognize that " the wrongs inflicted upon Plaintiffs and millions of others were wrongful -- they clearly were," and note that " [n]othing said in the defense of this lawsuit can, or should, diminish the world's condemnation of Nazi wrongdoing during World War II." Hungary Defs.' Mem. Supp. Mot. Dismiss (" Hungary Defs.' Mem." ) at 1 and n.1, ECF No. 22-1. The FAC describes in vivid detail the horrific experiences endured by the plaintiffs. See FAC ¶ ¶ 11-81. While the depredations suffered by the plaintiffs are undisputed and the insufficiency of any direct restitution to them similarly patent, resolution of the instant motions rests on an examination of the Foreign Sovereign Immunities Act (" FSIA" ) and the Alien Tort Statute (" ATS" ), the combination of which statutes bars the plaintiffs' suit. As background, the Court first describes the historical events affecting the plaintiffs and underpinning this lawsuit before turning to the characteristics of the defendants critical to assessing their amenability to suit in the United States. Next, the Court reviews the efforts of the United States and other sovereign nations, including Defendant Hungary, to provide compensation to the victims of the Hungarian Holocaust and the progress of this litigation.

A. The Plaintiffs

Twelve of the named plaintiffs allege that they were transported in 1944 by Defendants MÁ V and/or RCH from their homes in Hungary to labor or death camps in various countries as part of the Nazi-led assault on the Jewish people. See FAC ¶ ¶ 11, 22-24, 31, 43, 50-51, 66-68, 72-74, 80, 100. Plaintiff Zelikovitch was transported in 1941 by MÁ V or RCH and again in 1944. Id. ¶ ¶ 15, 19. All but two of the plaintiffs were, at some point, sent to the Nazi concentration camp at Auschwitz on Defendants MÁ V and/or RCH's trains. Id. ¶ 100.

Thirteen plaintiffs allege that their possessions and those of their families " were taken from them by MÁ V and/or [RCH] as

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they boarded the trains for embarkation." Id. The plaintiffs complain that defendants MÁ V and/or RCH " sold, liquidated or otherwise converted" the plaintiffs' property and " commingled those funds with other revenues." Id. Eleven of the plaintiffs also allege that Hungarian government officials participated or colluded in the confiscation of their property when they arrived at MÁ V train stations or during their transport by MÁ V officials. Id. ¶ ¶ 12, 16, 23, 30, 43, 65-66, 80. Specifically, the plaintiffs assert that during the ghettoization of the Hungarian Jews, Hungarian officials inventoried the property left behind in Jewish homes, which " was then expropriated by Defendant Hungary and converted to cash through sales and other means[]" and that " [t]he proceeds were transferred to the Hungarian government treasury and co-mingled with other Hungarian government revenues." Id. ¶ 99. Additionally, the plaintiffs allege, " [a]ll expenses associated with ghettoization were taxed on the Jews, including the Plaintiffs herein." Id. ¶ 98.

The fourteenth plaintiff, Pressburger, was not transported by Defendant Hungary or Defendant MÁ V or RCH, but alleges that his family's property " was likewise stolen by MÁ V and/or [RCH], never to be returned[]" in the spring of 1944, when his father's agricultural cargo was confiscated by a MÁ V stationmaster upon delivery to a train station for shipment. Id. ¶ ¶ 39, 100.

In addition to confiscating the personal possessions of those who were transported by the defendants, the plaintiffs complain that the defendants " collaborat[ed] in murder and willful and grotesque violations of international law[]" by delivering Hungarian Jews in inhumane conditions to hostile authorities in " Nazi Germany-occupied Poland and the Ukraine." Id. ¶ ¶ 3-4.

The plaintiffs' Amended Complaint outlines the World War II experiences of each of the named plaintiffs, and the Court will briefly recount below the chilling details of the defendants' roles in persecuting these individuals, their families and communities because they were Jewish.

Plaintiffs Simon, Weiss, Miller, Herman, and Weksberg (collectively, under their maiden names, " the Lebovics sisters" ) " were raised in Tarackoz in Hungarian-annexed Ruthenia." Id. ¶ 10. Simon, Weiss, and Miller currently live in the United States, while Herman and Weksberg live in Canada. Id. at ¶ ¶ 5-9. In the spring of 1944, the Lebovics sisters, along with their brother and parents, were deported via Defendant " MÁ V's trains to the ghetto in Mateszalka, and then to Auschwitz." Id. ¶ 11. Some of their possessions were confiscated by Hungarian government officials in Teresva, and some were confiscated by Defendants MÁ V and/or RCH as they boarded the train for Auschwitz. Id. ¶ 12. The plaintiffs allege that the Lebovics sisters' property, after being confiscated by the Hungary Defendants and/or Defendant RCH, was liquidated " to pay Defendants MÁ V and/or [RCH] for the cost of transporting the family from their home in Teresva and later from the ghetto in Mateszalka to Auschwitz." Id. ¶ 13.

Plaintiff Zelikovitch is a citizen of Israel, but was born " in Uglya in Carpatorus, part of Hungarian-annexed Ruthenia," in 1928. Id. ¶ 14. In the summer of 1941, " the entire Jewish population of Uglya, including . . . [Zelikovitch] and his family, were deported by" Defendant MÁ V or RCH across the border to Ukraine, which was under Nazi control. Id. ¶ 15. Before arriving in the Ukraine, Zelikovitch's family's possessions " were confiscated by officials of the Hungarian government" and MÁ V or RCH personnel at train stations

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in Tecevo and Jatzin. Id. ¶ 16. Zelikovitch eventually escaped and returned to Hungary to find that his family's home and property had been confiscated. Id. ¶ 18. Zelikovitch was recaptured by Hungarian police in 1944 and handed over to MÁ V or RCH. Id. ¶ 19. His remaining possessions were confiscated and he was transported to Auschwitz by trains " owned and operated by MÁ V or [RCH]." Id. ¶ ¶ 19.

Plaintiff Bar-Or, a citizen of Israel, was born in Hungarian-annexed Ruthania in 1928. Id. ¶ 21. In the spring of 1944, Hungarian police evicted Bar-Or and her family from their home. Id. ¶ 22. Her parents " bribed a Hungarian policeman to allow the family to keep a large wooden package containing the family's valuables, including jewelry, gold and silver items, diamonds, bedding, clothing, Judaica and other items," then valued at more than $1,000. Id. ¶ ¶ 22-23. While being transported to the Mateszalka Ghetto in Hungary, this package was " confiscated en route by Defendants MÁ V and/or [RCH] in collusion with Hungarian government officials." Id. ¶ 23. The family was later transported by Defendant MÁ V or RCH to Auschwitz. Id. ¶ 24. Bar-Or and her sister, upon liberation, learned that their family's home and property had been confiscated. Id. ¶ 26.

Plaintiff Friedman, a citizen of Israel, was born in Satoraljaujhely, Hungary in 1932. Id. ¶ 27. Following the German occupation of Hungary, Friedman's family was informed they would have to move to the ghetto. Id. ¶ 29. They transferred title to their home to a non-Jewish couple, but hid many of the family's valuables in one room in the home to which the Friedman family retained title. Id. ¶ 29. Upon removal from their home, however, Hungarian police confiscated many of the valuables the family tried to carry with them. Id. ¶ 30. In June of 1944, the Friedman family was " forcibly taken from [the ghetto] by Hungarian police and herded on foot into the MÁ V train station in Satoraljaujhely." Id. ¶ 31. The family was transported to Auschwitz by defendant MÁ V or RCH. Id. ¶ 33. Friedman and her sister were later force-marched as part of the " infamous Death March" to camps at Ravensbruck and Bergen Belsen before being liberated in April 1945. Id. ¶ ¶ 35-36.

Plaintiff Pressburger, a citizen of Israel, was born in Prague in 1933 and later immigrated with his family to Budapest, Hungary, where his father worked as an agricultural products trader. Id. ¶ 38. In 1944, Pressburger's father was delivering " five wagons of dried prunes . . . [when] the MÁ V station-master and his staff-members confiscated all of [his] goods at the Ujvidek railway station[.]" Id. ¶ 39. The loss " impoverished the family," of which Pressburger is the sole remaining member. Id.

Plaintiff Speiser, a citizen of Israel, was born in Ersekujvar, Czechoslovakia [2] in 1928. Id. ¶ 40. In May of 1944, Speiser and his family were forced to move into the Ghetto in Ereskujvar, and later to a brick factory where they were " fenced in like animals for approximately three weeks and continuously guarded by the Hungarian police." Id. ¶ 42. On June 14, 1944, they were transported to Auschwitz by Defendant MÁ V. Id. ¶ 43. As they were forced onto the train, they were surrounded by Hungarian police and their possessions were confiscated by MÁ V or RCH personnel, including " a two carat blue-white diamond ring that [Speiser's] father

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purchased for his mother." Id. ¶ ¶ 41, 43. The family was pet in a railway car with " eighty or ninety" other Jews, where they traveled for three days " during which time the doors to the cattle car remained sealed. There were no toilet facilities, and conditions were bestial." Id. ¶ ¶ 44-45

Plaintiff Ram, a citizen of Israel, was born in Munká cs, Hungary in 1930. Id. ¶ 48. In mid-April of 1944, Ram and his family were taken to a brick factory " which served as a collection point for deportation of the Jews by train" where " several Hungarian police and MÁ V employees" were waiting. Id. ¶ ¶ 50-51. MÁ V employees told the family to " leave their suitcases" and Ram " watched as a MÁ V official took a pair of shoes from his father's suitcase as well as his mother's suitcase, which contained all of the valuable jewelry that she was not wearing." Id. ¶ 54. The family was then transported to Auschwitz in a cattle car. Id. ¶ 55. The plaintiffs state that " conditions in the cattle car were wretched. There was no water and . . . it seemed as if there was no air. One bucket served as the bathroom. . . . Several people died during the train trip due to the conditions in the cattle cars." Id. ¶ 56.

Plaintiff Danos, a citizen of Australia, was born in Verpelet, Hungary in 1926. Id. ¶ 64. Danos' father was a " wealthy wine merchant" whose business was confiscated by Defendant Hungary in 1943. Id. ¶ 65. In May 1944, the Hungarian police evicted the family from their house, seized " all of their jewelry and valuables[,]" and marched them to the ghetto. Id. ¶ 66. After a week of living in the ghetto, Danos and her family were forced to board a MÁ V or RCH train " destined for Auschwitz," at which time MÁ V officials forced them to abandon their personal belongings, " includ[ing] clothes and valuables." Id. ¶ 68. The train trip took several days with approximately seventy people in each cattle car. Id. ¶ 69. After being liberated in May 1945, Danos returned to Hungary before emigrating with her surviving family to Australia. Id. ¶ 71.

Plaintiff Schlanger, a citizen of the United States, was born " to a Hungarian family resident in Benedike, Czechoslovakia" in 1930, where her parents " had a large estate of several thousand acres where they grew tobacco and owned a distillery." Id. ¶ 72. In April 1944, when the Hungarian police removed Schlanger and her family to a brick factory, they brought with them " clothing, bed clothes, personal items and some jewelry[.]" Id. ¶ 73. When they were later forced to board a MÁ V or RCH train, railway personnel took their " personal items and jewelry from them," including " an engagement ring, a diamond, a seal coat and valuable watches." Id. ¶ 74.

Plaintiff Perel, a citizen of Israel, was born in Ersekujvar, Hungary [3] in 1927. Id. ¶ 80. In 1944, Perel and his family were forced from their home into a ghetto and were later transported to concentration camps via Defendant MÁ V trains. Id. " The transport was orchestrated by MÁ V and the Hungarian Police, who took [Perel's] watch and the family's valuables and luggage upon embarkation." Id.

The plaintiffs allege that, following these events, none of the plaintiffs were compensated for their losses, except for Plaintiff Schlanger, who received payment, totaling $5,000, from the Hungarian government. Id. ¶ 79.[4] The plaintiffs seek damages on

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their own behalf and on behalf of all Hungarian Holocaust survivors as well as immediate family members of Hungarian Holocaust victims. Id. ¶ ¶ 143-44.

B. The Defendants

Defendant Hungary is a " sovereign nation" subject to the Foreign Sovereign Immunities Act (" FSIA" ), 28 U.S.C. § § 1602 et seq. FAC ¶ 82. The plaintiffs' claims are based on the activities of Hungarian officials during World War II when the country was allied with Nazi Germany. See id. Defendant MÁ V has " operated continuously" as the Hungarian National Railway since 1868, id. ¶ 84, and for the purposes of the FSIA, Defendant MÁ V " is an agency or instrumentality of the Republic of Hungary[,]" id. ¶ 85. MÁ V's trains and rail lines were used to transport hundreds of thousands of Hungarian Jews from their homes to Nazi concentration camps in Poland and the Ukraine. See id. ¶ 84. Defendant RCH is the successor-in-interest to MÁ V Cargo Á rufuvarozá si Zrt., f/k/a MÁ V Cargo Zrt., a Division of Defendant MÁ V. Id. ¶ 86. Defendant RCH was, during World War II, the " freight hauling unit or division of MÁ V" and worked with the Hungary Defendants to " confiscat[e] the possessions of Hungarian Jews and transport[] them to their intended deaths at Auschwitz and other German concentration and extermination camps." Id. Defendant RCH is now a private company owned by Rail Cargo Austria, " the freight forwarding subsidiary of the Austrian public railway company[.]" Decl. of Liesel J. Schopler, Rifkin, Livingston, Levitan & Silver, LLC (Nov. 12, 2012) (" Schopler Decl." ) ¶ 2(e), ECF No. 73-1 (quoting Defendant RCH's website). Thus, Defendant Hungary and Defendant MÁ V are sovereigns for the purposes of the FSIA, FAC ¶ ¶ 82, 85, while Defendant RCH is a private corporation with a principal place of business in Budapest, Hungary, id. ¶ 86.

C. Post-War Efforts To Compensate Hungarian Holocaust Victims

At the end of World War II, " Jewish communal leaders submitted to [Hungarian] party leaders and to the government their demands in support of the deportees and for a swift and generous restitution and indemnification program." FAC ¶ 126 (quoting Randolph L. Braham, 2 The Politics of Genocide: The Holocaust in Hungary (" Politics " ) at 1307 (1994)). The Hungarian government was not unsympathetic and " did implement an array of legislative enactments and remedial statutes." Id. ¶ 127 (citing Politics at 1308). These statutes fell short on implementation, however, and the plaintiffs complain that " the Jews saw no tangible results with respect to restitution and indemnification." Id.

In 1947, the allied powers, including the United States, the Soviet Union, and the United Kingdom (the " Allied Nations" ), signed a peace treaty formally ending the war with Defendant Hungary. See id. ; Treaty of Peace with Hungary (the " 1947 Treaty" ), Feb. 10, 1947, 61 Stat. 2065. In this treaty, Defendant Hungary agreed to " restore[]" and, if restoration were impossible, to pay " fair compensation," to people " under Hungarian jurisdiction" whose property was confiscated during the war " on account of the racial origin or religion of such persons." Id. art. 27(1). Any " unclaimed" expropriated property would be transferred to refugee aid organizations six months after the 1947 Treaty came into force. See id. art. 27(2). The 1947 Treaty provided a three-tiered procedure for resolution of disputes " concerning the interpretation or execution of the [1947] Treaty," excluding several limited exceptions that are inapplicable here, starting with " direct diplomatic negotiations," then referral to the " Heads of the Diplomatic Missions in Budapest of the Soviet Union, the United

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Kingdom, and the United States," id. art. 40(1) (referencing art. 39(1) to define " Heads of Mission" ), and finally, additional dispute resolution procedures if the three Heads of Mission were unable to agree on a resolution, id. The plaintiffs do not state whether they ever attempted to invoke relief under the 1947 Treaty's dispute provisions outlined in Article 40. See generally FAC.

Following the ratification of the 1947 Treaty, the Communist Party took control in Hungary and showed little interest in upholding the 1947 Treaty's requirements vis a vis Holocaust survivors. See FAC ¶ 130. The plaintiffs note that a " Jewish Restoration Fund" was established " [i]n the 1950s," apparently as required by the 1947 Treaty's Article 27(2), but " the funds were rarely used for their intended purpose and they were frequently raided by the Communists for financing their own political projects." Id. ¶ 131.

In 1973, the United States and Defendant Hungary entered into an Executive Agreement " Regarding the Settlement of Claims" to settle all claims " of nationals and the Government of the United States for . . . property, rights and interests affected by Hungarian measures of nationalization, compulsory liquidation, expropriation, or other taking on or before the date of [the] agreement," including " obligations of the Hungarian People's Republic under Articles 26 and 27 of the" 1947 Treaty. Agreement Regarding the Settlement of Claims (" 1973 Agreement" ), U.S.-Hung. arts. 1-2, March 6, 1973, 24 U.S.T. 522; see Decl. of Meghan A. McCaffrey, Weil, Gotshal & Manges LLP (" McCaffrey Decl." ) Ex. 2 (text of 1973 Agreement), ECF No. 22-5. Under the terms of the 1973 Agreement, the Hungarian Government paid the United States government $18,900,000 as " full and final settlement and in discharge of all claims" held by United States nationals and the United States government. Id. art. 1. None of the named plaintiffs, including the four plaintiffs, who are currently United States nationals, claim to have sought or received compensation as a result of the 1973 Agreement. See generally FAC.

Beginning in 1992, shortly after the fall of the Iron Curtain, " the Hungarian Parliament adopted a law providing compensation for material losses incurred between May 1, 1939 and June 8, 1949." Id. ¶ 132. That law was followed shortly thereafter by another statute, " providing compensation for those who, for political reasons, were illegally deprived of their lives or liberty between March 11, 1939 and October 23, 1989." Id. Although the FAC does not specify under which law she received compensation, the plaintiffs note that Plaintiff Schlanger " received compensation from Hungary, in the amount of $5,000, for the loss of her father ($2,000), her mother ($2,000) and her brother ($1,000)[,]" and " has never been compensated . . . for the loss of the family's personal property[.]" Id. ¶ 79. The plaintiffs astutely observe that these remedies, provided for by Hungarian law, " were paltry and wholly inadequate." Id. ¶ 132.

D. Procedural History

Sixty-five years after the end of World War II, the named plaintiffs filed the instant action, seeking relief from the defendants for their alleged losses suffered during the Holocaust. See Compl., ECF No. 1. Soon after the case was filed, upon the plaintiffs' motion, the Court appointed the plaintiffs' counsel as interim class counsel pursuant to Federal Rule of Civil Procedure Rule 23(g)(3). See Order Granting Plaintiffs' Motion for Appointment of Interim

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Class Counsel, ECF No. 9.[5] After all three defendants had appeared and filed motions to dismiss, the United States filed a Notice of Statement of Interest, pursuant to 28 U.S.C. § 517,[6] to " express the United States' foreign policy interests implicated by claims brought" against Defendant RCH, which is now an Austrian company. See Statement of Interest of the United States of America (" U.S. SOI" ) at 1, ECF No. 42.[7] While taking " no

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position on the merits of the underlying legal claims or arguments advanced by plaintiffs or by defendants," the United States, " because of [its] strong support for international agreements with Austria involving Holocaust claims against Austrian companies -- agreements that have provided nearly one billion dollars to Nazi victims[]" recommended " dismissal of the claims against RCH on any valid legal ground(s)." Id. at 1. The United States noted that its policy regarding " claims for restitution or compensation by Holocaust survivors and other victims of the Nazi era has consistently been motivated by the twin concerns of justice and urgency[]" and that the United States has thus " advocated that concerned parties, foreign governments, and non-governmental organizations act to resolve matters of Holocaust-era restitution and compensation through dialogue, negotiation, and cooperation" rather than extensive litigation. Id. at 2.

With respect to Austria, the country in which Defendant RCH's parent company is domiciled, the United States explained that, " [s]ince 1945, the United States has sought to work with Austria to address the consequences of the Nazi era and World War II through political and governmental acts, beginning with the first compensation and restitution laws in post-war Austria that were passed during the Allied occupation[]" and continuing with joint efforts to develop funds to compensate victims of the Holocaust. Id. at 14.

The United States cites, as " [o]ne example of the successful implementation" of its policy, the 2001 Austrian General Settlement Fund (" GSF" ), which was " created to provide a potential remedy for victims with Nazi-era claims against Austria and/or Austrian companies not covered" by an earlier Austrian fund, the " Reconciliation, Peace and Cooperation" fund (" Reconciliation Fund" ). Id. at 2-3, 6.[8]

Although the United States emphasizes that the GSF " is not a government-to-government claims settlement agreement," and did not " extinguish[] the claims of its nationals or anyone else[,]" Eizenstat Decl. ¶ 15, " it is nonetheless aimed at achieving legal closure for Austrian companies and the Republic of Austria with respect to claims arising out of World War II and the Nazi era." U.S. SOI at 12 (emphasis added); see also Ex. 1 (Decl. of William J. Burns, U.S. Under Secretary of State for Political Affairs) ¶ 3, ECF No. 42-1 (" The United States' efforts to facilitate these cooperative compensation arrangements is part of a larger policy to ensure the greatest compensation for the greatest number of Holocaust victims and their heirs, in their lifetimes, as well as to support a broad 'legal peace' for countries and companies subject to ongoing claims." ); Eizenstat Decl. ¶ 31 (" [A]s a result of the inclusion in the GSF not only of Austrian companies that existed during the Nazi era, but also of the ...


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