Uphill Battle For Survivors On Hill

In 2007 an international commission to get justice for the heirs of Holocaust-era insurance policyholders ended its work. But for Riverdale’s Sello Fisch, the fight — seemingly hopeless — goes on.

This week, the House Judiciary Committee will consider legislation — previously rejected by Congress — to allow Fisch and other heirs to bring lawsuits against the Italian insurance giant Assicurazioni Generali and other Holocaust-era insurance companies in an effort to compel them to pay those policies.
What makes the efforts of Fisch and other survivors so difficult is that lined up against them are the U.S. government and many major American Jewish organizations. In fact, the only Jewish group on their side is the New York Legal Assistance Group, an agency of the UJA-Federation of New York.

“I don’t know what kind of chance the survivors have,” said Laura Davis, a NYLAG attorney. “All I know is that survivors should have a fair deal in this, and they haven’t had one.”

Fisch’s case began in 1928 when his father, Herman, a Polish tailor, took out a $2,000 life insurance policy with Generali. Later that year he moved to Germany, and in 1939 he and his family fled Nazi Germany and survived the war in Shanghai. He died in 1952.

It wasn’t until about 10 years ago that Fisch’s son, Sello, sought to collect on his father’s insurance policy. He applied to the International Commission on Holocaust Era Insurance Claims (ICHEIC), created to help the heirs of Nazi victims collect on unpaid policies, and Generali confirmed that his father took out a policy — even sending him a copy. But it refused payment, saying his name was not in the automated system it created in 1936.

“Generali said he must have cashed in his policy or stopped paying [the premiums],” Fisch said, adding however that Generali agreed to review the ruling when he appealed.

But then ICHEIC stopped dealing with the trust fund Generali set up to review the claim and refused to consider a review.

At NYLAG, which has represented many heirs in their attempts to recover unpaid insurance policies, Davis wrote to the chairman of ICHEIC, Lawrence Eagleburger, to say that since Herman Fisch was living in Germany after 1928, ICHEIC rules exempted him from paying premiums while living under Nazi rule.

“Eagleburger wrote back to say it did not depend on where you later lived but where you bought the policy,” Davis said. “That doesn’t make sense.”

Fisch said that in January Generali suddenly wrote to him — eight years after rejecting his claim — and offered to make an exception in his case and pay him and his sister a little over $9,000. Fisch said they refused the offer, believing the policy is today worth as much as $100,000, and they would like to sue Generali.

But they can’t because the U.S. promised insurance companies they would have closure on this issue if they agreed to the ICHEIC process. The House Judiciary Committee is to hold a hearing this week on legislation that would restore the right of heirs to sue. Similar legislation failed in 2008.

Davis wrote to the committee in support of the legislation, pointing out that it paid only 15 percent of the claims it received and gave 34,000 others humanitarian awards of $1,000.

“What is not generally known is that ICHEIC rules governing the processing of claims permitted the use of so-called ‘negative evidence’ to defeat claims for which applicants had definitive proof,” she wrote, adding that if a policy did not appear in Generali’s records as of 1936, “such ‘negative evidence’ could be used to deny payment.”

Thane Rosenbaum, a professor at Fordham University School of Law and the son of survivors, said he believes the agreement “depriving this class of American citizens [the heirs of survivors] from the right to have a dispute heard in court” is illegal. He argued that “the supremacy clause of the presidency is legitimate,” but that the president’s emissary is not permitted to invoke it “with a wink and a handshake.

“You need to have an actual treaty,” he maintained, adding that he fully supports the proposed legislation.

But the Second Circuit Court of Appeals disagreed earlier this year, ruling that any sub-cabinet official acting in behalf of the president is empowered to enter such agreements. The case has been appealed to the U.S. Supreme Court.

Both Rosenbaum and Davis conceded that they are virtually the lone voices supporting the legislation because the U.S. government is opposed, as are many of the major Jewish organizations: the American Jewish Committee, the Anti-Defamation League, B’nai B’rith International, the World Jewish Congress, the World Jewish Restitution Organization and the Conference on Jewish Material Claims Against Germany.

In a letter to the committee, those groups argued that the proposed legislation “would actually be detrimental to the interests of survivors by undermining existing agreements and mechanisms that benefit them.”

Kenneth Jacobson, the ADL’s deputy national director, pointed out that the ICHEIC process used relaxed standards of evidence in verifying claims and that the courts would “use regular prosecutorial standards. People with no evidence are not going to win anything. … They are creating illusions that people are going to be able to get things that aren’t real.”

Leo Rechter, president of the National Association of Jewish Child Holocaust Survivors, said he doesn’t “know whether they would succeed in court or not, but we should have the right to try. That’s all we’re asking.”

Jacobson pointed out that the “Germans worked on this with the understanding that after it was worked out this issue would be put to bed. The Claims Conference is now negotiating with the Germans to provide help to survivors, work that will be undermined if [Congress] now moves the goal posts.”

But Davis insisted that the “goal post analogy is ridiculous because if survivors are gong to be helped, you move the goal posts — you don’t defend the wrongdoers. … I’m sure the Germans thought there would be closure when they negotiated the German slave labor fund and then ghetto pensions and everything else that later came to the fore. We were moving the goal posts for survivors. Did the Swiss expect the Swiss bank settlement, or were we moving the goal posts?”

Rabbi Andrew Baker, the AJC’s director of international Jewish affairs, said that if passed, this law would “create a new round of false expectations, and I doubt we are talking of a significant number of plaintiffs who would find satisfaction. It would also bring a new round of class action suits against insurance companies with the goal of trying to draw attention to historical problems, embarrassing these companies with the goal of a court settlement.”

Davis insisted, however, that she could think of at least 10 cases in which ICHEI 0C failed survivors.

“In a case we had where there was an arbitration, we used a major New York law firm with a London office to represent our client because ICHEIC’s review office was there,” she said. “Generali failed to show [at the hearing], and we still lost. Usually when a party fails to show, it’s a default. In explaining the decision, they said the policy did not appear in ICHEIC’s records as of 1936. And we had many of those cases.”

Albert B. Lewis, a former commission arbitrator and former New York State insurance superintendent, complained to The Jewish Week in 2007 that without an actual insurance policy in hand either from the company or the claimant, the ICHEIC process required him to place the onus on the claimant even though it was supposed to use “relaxed standards of proof” that would favor claimants.

He even charged that he was pressured into changing two awards because his interpretation of “relaxed standards” differed from that of other arbitrators.

Menachem Rosensaft, vice president of the American Gathering of Jewish Holocaust Survivors and Their Descendants, said the proposed bill “was drafted so as to primarily benefit the class action lawyers who would bring the lawsuits. Assuming such suits were brought, they would inevitably be settled with survivor claimants receiving some money and their lawyers receiving hundreds of thousands if not millions. … It’s unseemly to raise false expectations in the survivor community, where the ultimate beneficiaries are calculated to be the lawyers. This has already happened in other cases.”

Robert Swift, a lawyer in Philadelphia who worked out a class action settlement with Generali in 2006 that resolved all outstanding Holocaust-era insurance claims, said that the proposed legislation is unconstitutional.

“Congress cannot simply override a class action release through legislation,” he said, adding that the U.S. would then be liable to cover any claims Generali subsequently paid.

“If Congress could override them on a selective basis, what is the point of entering into a class action” settlement, Swift asked.

He added that in advance of the settlement, he had access to Generali’s archives and checked 1 percent of the more than 50,000 Holocaust-era claims Generali processed. He said he found that Generali’s handling of the claims “were as close to perfect as any of the Holocaust distributions have been.”

But Davis said she has “spoken with survivors who have been screwed by ICHEIC. I don’t know that Abe Foxman [the ADL’s national director] or [other national leaders] have spoken with survivors who have been treated unfairly by ICHEIC, but to wrap it up now and not give them a chance because you are afraid of moving the goal post is just not right.”

Anna Rubin, director of the New York State Banking Department’s Holocaust Claims Processing Office, said she plans to tell the Judiciary Committee that the legislation is not needed because her office has continued to process Holocaust-era insurance claims since the ICHEIC process ended in 2007. She said it has handled 75 such claims, some of which were already denied by ICHEIC. She said her office reviewed them all and concluded that ICHEIC had properly handled them. Six of the others received offers totaling more than $70,000.00.

“Our non-litigious approach has been successful in the past and continues to be so,” Rubin said, adding that many insurance companies are still processing claims that her office submits despite the completion of the ICHEIC process.

(Her office can be reached at 800-695-3318 or www.claims.state.ny.us.)

Asked how he would sum up the chances of survivors having the opportunity to bring lawsuits to recover Holocaust-era insurance payments, Rosenbaum, the Fordham law professor, said simply: “The moral and equitable issues are vastly in favor of the survivors, but the politics is very much against them.”