Judge Marra Dismisses Suit Over Holocaust Assets.

In a fascinating dispute over how Jewish property appropriated by the Nazis were administered after the war, Judge Marra has dismissed a suit brought by heirs of a Holocaust victim against an organization specifically established to recover lost Jewish assets.

Judge Marra first lays out the history of this little-known program:

After the conclusion of World War II, five American-based Jewish groups formed a committee to represent Jewish interests in reparations negotiations with the German government. Amended Complaint at ¶ 7. In 1946, the American military authority designated the Jewish Restitution Successor Organization (“JRSO”) as successor to heirless and unclaimed Jewish property. Amended Complaint at ¶ 9. In 1951, the Conference on Jewish Material Claims Against Germany, the Defendant in this case, supplanted the JRSO. In 1952, the Conference incorporated as a non-profit corporation in the State of New York. Amended Complaint at ¶ 11- 12. Also in 1952, the West German federal government admitted responsibility for Nazi crimes against the Jews and agreed to pay reparations to the Jewish people. Amended Complaint at ¶ 14.

Hey, better late than never!

And here's what the plaintiffs claim happened:

Bertha Bach owned a 771 square meter parcel of property in East Berlin. Amended Complaint at ¶¶ 44-45. In 1938, after being threatened by the German government, Bach sold the property to a German citizen. Amended Complaint at ¶ 46-47. On or about December 1992, The Conference filed a claim for the Bach property pursuant to its authority under the VermG.  Amended Complaint at ¶ 48. The Conference was ultimately granted the proceeds of the sale of the Bach property and designated a “legally entitled entity” to file for unclaimed Jewish property.  Amended Complaint at ¶ 50. The decision to grant The Conference the proceeds of the sale was appealed by private German sellers of the property, whose appeal was denied by an administrative court in Berlin on or about August 2004. Amended Complaint at ¶ 51. During or prior to the appeal, The Conference produced a birth certificate of Bertha Bach establishing that she was Jewish. Amended Complaint at ¶ 52.

Through their Amended Complaint, Plaintiffs allege that The Conference: (1) was unjustly enriched by receiving compensation from the German government for the Bach Property (Amended Complaint at ¶¶ 56-61); (2) breached a fiduciary duty owed to Plaintiffs “to protect their interest in the Bach Property and obtain any compensation on their behalf deriving from the Bach Property a result of the activities of the Nazi’s” (Amended Complaint at ¶¶ 62-66); and (3) violated a constructive trust which arose in favor of Plaintiffs (Amended Complaint at ¶¶ 67- 763). The Conference now seeks to dismiss the Amended Complaint pursuant to Federal Rules of Civil Procedure 12(b)(1), 12(b)(3), and 12(b)(6).

Unfortunately for plaintiffs, Judge Marra rules they have no standing:

The Court appreciates that Plaintiffs are not suing under the laws of Germany. Rather, they assert their claim arises out of Defendant’s Articles of Incorporation. However, the sovereign nation of Germany established a system for Jewish people aggrieved by the actions of the Nazi regime to be compensated for their loss of property. Defendant was granted rights under that system and successfully pursued the rights granted to it. Those facts do not impose a corresponding duty on Defendant to act for the benefit of Plaintiffs. Plaintiffs real complaint is with the system established by Germany, not with Defendant which merely acted in accordance with that system. Plaintiffs cannot use Defendant as a scapegoat for their dissatisfaction with the German compensation system. Plaintiffs have failed to set forth any authority that supports the proposition that a non-profit corporation granted rights under a compensation system established by a sovereign nation owes a duty to other potential beneficiaries of that system who failed to pursue their rights in a timely manner. The Court agrees with one New York state court that concluded that The Conference owes “no direct duty to any specific person which would provide standing to sue the organization.” Rottenberg v. Conference on Jewish Material Claims Against Germany, Inc., Index No. 110615/04 (N.Y. Sup. Ct. Feb. 16, 2005)).

Ok, I probably would have left the "scapegoat" part out, but a well-reasoned and interesting opinion.

So the 11th Circuit Does Reverse Summary Judgments Sometimes.

 

We always hear about the abysmal reversal rate before the 11th Circuit, but miracles do happen, even when they involve our highly esteemed Chief Judge:

In a supplemental summary judgment order the district court held as a matter of law that the purchase price of LanBox was $450,000. In its analysis, the district court rejected LanLogistics’s argument that, under the reasoning in Pantry Pride Enterprises., Inc. v. Stop & Shop Cos., Inc., 806 F.2d 1227, 1231 (4th Cir. 1986), the determination of the purchase price of a company in a package purchase requires that the fair market value of the company be considered. We find the reasoning in Pantry Pride persuasive and the district court’s holding in error.
. . . . 

Because the issue of LanBox’s purchase price was disputed and the fair market value of LanBox and the other companies in the package deal should have been considered, summary judgment was improper. By deciding the issue on summary judgment before LanLogistics had an opportunity to present evidence on the fair market value of the companies or possible tax incentives for its purchase price allocation, the district court prematurely decided a disputed issue of material fact. See Holly v. Clairson Indus., L.L.C., 492 F.3d 1247, 1264 (11th Cir. 2007).

In other news, I know a lot of you are fitness enthusiasts and are gearing up for the Corporate Run next week, so here's another interesting charity race for a good cause -- see you there!

Plus tonight begins Holocaust Remembrance Day.

(Wow, those three things do not go together.)

Red Sector A

Certainly one of the better Holocaust survivor rock songs out there (then again, how large is the genre?).

Glenn Garvin Almost Ruins Holocaust Remembrance Day

Leave it to Glenn Garvin to drop a big fat word turd on this most solemn of days by politicizing and performing a hatchet-job on the legitimate debate over the way the Anne Frank diary was popularized and presented to non-Jews in the mid-1950s.

Although Garvin references the 90s, his real beef is and has always been with the "identity politics" of the 60s -- the civil rights movement, women's lib, Stonewall, "Native American rights" (they wuz Indians when I was a kid!! -- F Troop anyone??) etc:

But it was in the 1990s, with the ascendance of identity politics -- in which individuals matter only insofar as they fit comfortably into groups ideologically constructed from ethnicity, gender, sexual orientation and the like -- that the tug of war over Anne's diary began.

Much of the vitriol took the guise of retroactive attacks on the 1950s play and film adaptations of the diary.

Wrong.

Wrong, wrong, wrong.

Anyone with even a casual familiarity with Holocaust survivor narratives knows that American publishing houses in the 1950s wanted nothing to do with stories about "real Jews," as Annie Hall's Grammy used to call them.

That's why Elie Wiesel could not get his original 800-plus page manuscript of Night published in the United States -- too "Jewish," too depressing.

Same with Primo Levi and his remarkable Survival in Auschwitz.

Garvin picks on a Frank Rich column from the mid-90s as if the debate emerged out of thin air. He selects Rich in particular to reinforce his "liberal NYT" wine-sipping narrative that is an essential part of Garvin's world view.

Again, you have to presume Garvin knows the true history of the debate over how to present Anne Frank's diary to a larger non-Jewish audience, but doesn't want his readers to know -- it was a debate that raged from the inception and is a fascinating, 30-year legal struggle that was brilliantly recounted in Lawrence Graver's 1997 account An Obsession with Anne Frank: Meyer Levin and the Diary.

Here is the Amazon review of this book (Rich reviewed it for the NYT), for a feel of the history that Garvin omits from his column:

An Obsession with Anne Frank: Meyer Levin and the Diary, by Lawrence Graver, is a work of disciplined, erudite storytelling about Meyer Levin's messy, passionate obsession with The Diary of Anne Frank. Levin, an American novelist and journalist, was among the figures instrumental in publishing and publicizing The Diary of Anne Frank in the United States. His 1952 review of the Diary in The New York Times raved, "Anne Frank's voice becomes the voice of six million vanished Jewish souls." Thanks in no small part to Levin's work, his proclamation came true: Anne Frank became one of the most famous figures in the world, an icon of the devastation of the Holocaust. Levin, by contrast, descended into a paralyzing and terminal despair when his attempts to become a central guardian of Anne Frank's legacy were rebuffed by Anne's father, Otto Frank. Most dramatically, Levin fought a bitter court battle when he felt he was cheated out of the opportunity to adapt Anne Frank's book for the stage, and was replaced by Frances Goodrich and Albert Hackett, a more famous, more optimistic, and non-Jewish team of playwrights. Graver describes Levin's obsession with detailed attention to the role of popular culture in defining Jewish identity, and the ways that Anne Frank was and is still being politicized by Jews and gentiles around the world. In his characteristically spare, lucid style, Graver writes in the final chapter that "[Levin's] history testifies to the enormous difficulty, if not the impossibility, of finding an authentic way to bear witness to the Holocaust in a society governed by money, popular taste, media hype, democratic optimism, and a susceptibility to easy consolation."

I could go on, but it's too nice a day out -- I mean seriously, Garvin has no clue why they cast former alter boy Gregory Peck as the undercover Jew in 1947's Gentleman's Agreement?

It's true the Anne Frank story has universal elements, and that the Holocaust involved the systematic destruction of ethnic minorities, gays, communists, and others. And, however edited by her father, Anne Frank's diary remains one of the more moving and inspirational pieces of 20th century literature.

But Anne Frank and her family were selected for "deportation to the East" solely because of their Jewish identity, not in spite of it. Even Garvin celebrates how, in this new version, "the sharp edges have been restored to Anne's character."

Yet surely Garvin is aware that back in the 1950s, when this work first appeared, one of the "sharp edges" for American audiences was precisely Anne's Jewish identity.

I plan to watch the new version tonight, but thanks Glenn for bringing your usual nonsense into what should have been a straightforward TV movie review.

"Work Shall Set You Free"

Today is International Holocaust Remembrance Day.

Watch the new Yad Vashem exhibition on Auschwitz here.

Holocaust Remembrance Day

Well, today is Hitler's birthday and tomorrow is Holocaust Remembrance Day.

Hey, facts are facts.

It's certainly true that almost every religious or ethnic group has been the subject of both formal governmental and informal societal persecution at one point or another in world history. Whether we are discussing Catholics in America in the 1850s, Mormons in Illinois in the 1830s, Indians in India, Christians in China, Darfur, Rwanda, the examples are too numerous and we could go on and on.

What is unique in my mind about the Jewish experience from the Diaspora onward is that Jews have more or less always been the subject of persecution, both formal and informal, in most societies across the world and particularly in highly civilized societies.

German society in the 1930s arguably was among the most civilized if not the most civilized in the world, in terms of art, literature, culture, music, industry, science, law and technology. They had the first television network, for example, the most extensive rail and road system in the world, the most advanced rocketry program, again I could go on and on. (Ok, maybe their food wasn't so hot).

Yet their singular mission was the destruction of European Jewry. The Nazis were peculiarly interested in eliminating Jewish children, for it was the children who had the ability -- simply by living -- to defy the ultimate goal of the Third Reich.

Approximately one and a half million Jewish children were killed in the Holocaust. The number of children who survived is estimated in the thousands.

Anyone who grew up Jewish in South Florida grew up with the living remnants of the Holocaust -- proof of the failure of Hitler's mission. You could not walk into a Publix without seeing a survivor with a numbered tattoo. You could not enter a movie theater, go to a restaurant, or walk down Collins Avenue without encountering a survivor.

I regret not taking the time to speak with more of them; instead I just wanted my black and white cookie from Butterflake, and my steak well-done at Curry's. And I wanted services to end on Saturday as quickly as possible.

There are so many amazing stories of survival that have emerged in recent years, ones that expand upon and go beyond the initial stories many of us have heard many times. I am particularly fond of the lyrical and philosophical writings of Primo Levi, the Italian chemist who found himself at the center of the horrors of Auschwitz. His Survival in Auschwitz and The Reawakening are deeply moving and sophisticated works of art. I also recommend Boris Pahor's Pilgrim Among the Shadows, which recounts in poetic terms the Slovene medic's path from concentration camp to concentration camp at the end of the war.

There is no more moving an account that I have ever read than the newly published memoirs of Clara Kramer, Clara's War, which recounts this young Polish girl's 20 month experience hiding in a dug-out bunker with 17 others below a drunk, philandering anti-semitic German national. Unforgettable.

We pray for all who lost a loved one from intolerance, bigotry, fear, and hatred. We remember.