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BODNER v. BANQUE PARIBAS
August 31, 2000
FERNANDE BODNER, ET AL., ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED, PLAINTIFFS,
BANQUE PARIBAS, ET AL., DEFENDANTS. ANNE MARIE BENISTI, ET AL., ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED, PLAINTIFFS, V. BANQUE PARIBAS, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Johnson, District Judge.
Presently before the Court are defendants' motions to dismiss
this action on various grounds including standing, international
comity, Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil
Procedure, and other jurisdictional and substantive grounds. For
the reasons stated below, defendants' motions to dismiss are
denied in their entirety.
The Bodner*fn1 and Benisti plaintiffs bring this action
for damages, an accounting, and to recover cash, records, art,
jewelry, bank deposits, instruments, securities, other business,
personal, and real property, and other assets allegedly
wrongfully taken and withheld from them and their families
(hereafter, the "looted assets") by persons or entities including
Defendant Banks during the German occupation in France, and by
the Vichy government. Plaintiffs seek recovery of the looted
assets, full disclosure, accounting, disgorgement, restitution,
compensatory, and punitive damages for the unlawful seizure and
retention of the assets and the unjust enrichment of defendants
over the past 50 years.
Before this Court are two related class actions, Bodner, et
al. v. Banque Paribas, et al, No. 97 Civ. 7433, and Benisti, et
al. v. Banque Paribas, et al., No. 98 Civ. 7851. The cases are
substantially identical, except Bodner was filed on behalf of
United States citizens and the Benisti plaintiffs are aliens
who assert their claims under the Alien Tort Claims Act.
Defendants' motions to dismiss apply to both cases and this
Memorandum and Order shall resolve the pending issues in each
The putative plaintiff class consists of all persons who
themselves or whose family members were the Jewish victims and
survivors of the Nazi Holocaust in France, their heirs and
beneficiaries, and whose assets were deposited in or processed by
or converted by one or more of Defendant banks during or after
the Holocaust and not returned to the present date. Compl. at ¶
76-77. The Bodner plaintiffs are United States citizens, while
the Benisti plaintiffs are aliens who bring claims under the
Alien Tort Claims Act.
Plaintiffs claim defendants aided and abetted and conspired
with the Vichy and Nazi regimes to plunder private property of
plaintiffs, that defendant banks actively participated and
profited from the plunder, and that these actions deprived
plaintiffs of their means to finance their escape. Id. at ¶
The gravamen of plaintiffs' case is that defendants' looting of
Jewish assets, the derivative facilitation of the murder of
Jewish civilians as part of the Nazi regime's genocide program,
and antisemitic discrimination by seizing Jews' property
constituted complicity and conspiracy with the Nazi and Vichy
regimes and aided and abetted the violations of international law
during the war. Id. at ¶ 116. After the war, plaintiffs claim
the defendants unjustly refused to return the looted assets,
enriched themselves with the derivative profits, and concealed
information, value, and derivative profits of the looted assets
from the plaintiffs. Id. at ¶ 117.
According to plaintiffs, actions in furtherance of these goals
included a French Banking Association Circular outlining the plan
to seize plaintiffs' assets; blocking and confiscating
plaintiffs' accounts and safety deposit boxes in advance of any
official compulsion to do so; asking depositors to fill out
detailed geneological questionnaires before allowing them, if
non-Jewish, to withdraw or transfer funds; acting in concert with
the Nazis and Vichy to profit from the expropriated assets;
misrepresenting to plaintiffs and the general public their role
during the Vichy government and their continued retention of
assets; and failing to provide an accounting and restitution to
plaintiffs. Id. at ¶ 118.
In the complaint, plaintiffs make several claims and seek to
recover both monetary and declaratory relief. In Count One of the
complaint, plaintiffs claim defendants' actions violated
international laws including, but not limited to: the Nuremberg
Charter Article 6(b), the Nuremberg Principles, the Hague
Convention of 1907 Article 46, the Genocide Convention Article
III(e), the United Nations Charter, and the Universal Declaration
of Human Rights. Id. at ¶ 119.
In Count Two of the complaint, plaintiffs allege a violation of
the Convention of Establishment, a 1959 treaty between the United
States and France, which dictates the property of nationals of
either contracting party could not be expropriated without a
public purpose and just compensation. Id. at ¶ 123. Plaintiffs
allege the treaty is applicable because the majority of the
plaintiff class emigrated and became citizens of the United
States after World War II. Id. at ¶ 123.
Count Three claims that defendants wrongfully assumed,
retained, and exercised rights of ownership over the looted
assets and that this constitutes conversion. Count Four alleges
unjust enrichment in that defendants' refusal and failure to
return the looted assets improperly deprived plaintiffs of their
property and afforded defendants a substantial windfall from over
fifty years of interest and investment returns. In Count Five,
plaintiffs claim defendants had a special duty, in addition to
their fiduciary responsibilities, to hold and maintain
plaintiffs' assets with the utmost care for the account holders
and their families and successors in interest. Defendants
allegedly breached their fiduciary and special duties to
plaintiffs by seizing the assets and by failing to conduct a full
accounting after the war. Id. at ¶ 135.
The Matteoli Commission*fn2
The French government formed an independent commission
comprised of historians, diplomats, lawyers, and magistrates to
"study the conditions in which goods may have been illicitly
acquired . . . and to publish proposals" regarding redress of
Holocaust-era atrocities in France. Ptf.Mem. at 6 (quoting 1st
Matteoli Comm'n Rep. at 4). The self-termed "study mission"
submitted its first progress report submitted to the French Prime
Minister on December 31, 1997. In that document, the Commission
discussed its mandate, its inability to provide relief or redress
to injured parties under its charter, and its largely
information-gathering role. 1st Report at 3-4, 116. The second
progress report was released in February of 1999. The Commission
published its final report and an English summary on April 17,
2000. Since the completion of its final report, and having
achieved its mandate, the Commission has been dissolved.
While defendants claim the work of the commissions will, in
large part, obviate the issue of redress, plaintiffs question the
degree to which the magnitude of restitution appropriate has been
acknowledged. Specifically, there appears to be an unaccounted,
missing five billion francs upon review and some numbers
contained in the reports appear to raise questions. According to
plaintiffs, the Commission estimates that the amount of assets
blocked initially is more than three times the amount of assets
distributed in restitution, which may account for the missing
five billion francs.
Defendant banks are claiming full compliance and maximum
cooperation with the efforts of the commission; defendants claim
that full restitution will eventually be achieved for the
plaintiff class through the efforts of this commission. However,
the parties disagree about the role of the commission. Plaintiffs
note the Commission was not designed nor intended to deal with
individual claims, but to "treat general characteristics of
spoilation and restitution . . . it is not compatible with
responding to individual requests, not matter how legitimate the
concerns which give rise to them." Ptf.Mem. at 6 (quoting 1st
Matteoli Comm'n Rep. at 4). Defendants counter, claiming the
Matteoli Commission is a part of a comprehensive endeavor on the
part of the French government to flush out the scope of
liability, provide a full accounting, and to make restitution.
The Saint Geours Supervisory Committee
The Matteoli Commission created a third commission charged with
examining individual applications and working to compensate the
victims of spoilation resulting from Holocaust-era anti-Semitic
legislation. Final Report at 15. The Drai Commission was created
as a reconciliation body to attempt to reach an agreement between
the parties. Id. If settlement proved impracticable, the
commission, established September 10, 1999 by prime ministerial
decree, was to investigate, and make recommendations as to how to
achieve individual restitution, likely through the framework of a
government-sponsored institution. Id.
Defendants' Motions to Dismiss
In their motion, defendants claim: (1) plaintiffs lack standing
to pursue these claims; (2) there is no federal question subject
matter jurisdiction over either action, and that there is no
diversity jurisdiction over the Bodner case; (3) the Court
should defer to proceedings in France and decline jurisdiction
under principles of international comity, the Act of State
Doctrine, and the doctrine of forum non conveniens; (4)
plaintiffs have failed to state a claim, under French or New York
law, for the violation of any international law or breach of any
treaty and their claims are time-barred; (5) plaintiffs have
failed to join indispensable parties.
The Bodner case was commenced on December 17, 1997.
Plaintiffs filed the first amended complaint on March 20, 1998.
The Second Amended Complaint was filed in this case on March 1,
1999. The related action, Benisti, was filed on December 23,
1998. The parties filed this motion on November 1, 1999. This
Court heard oral argument on the motion on March 15, 2000.
Defendants claim that plaintiffs lack standing to maintain this
action because they have not pled sufficient facts to demonstrate
the injuries alleged are "fairly traceable" to particular
defendants' conduct and because plaintiffs' state claims
regarding property interests of their deceased families.
Plaintiffs dispute the merit of each of these grounds, claiming
they have standing to sue each defendant, even those with whom
they had no specific transactions, as the Second Amended
Complaint alleges facts sufficient to show a conspiracy which
included even the banks which did not have specific transactions
with the plaintiffs. Plaintiffs also claim the named plaintiffs
have standing to sue in their own capacities, for restitution of
assets that have vested in them.
However, plaintiffs accurately state that they need not show
more than general factual allegations laying out a good faith
basis for how one or more of the defendants injured plaintiffs.
Nor must each plaintiff allege facts against all defendants, nor
each defendant's relationship with a plaintiff be explicitly
identified. Under conspiracy law, where a plaintiff alleges
injury as a result of a conspiracy where there were non-dealing
actors, plaintiff has standing to sue the non-dealing
partner-defendants. Brown v. Cameron-Brown Co., 652 F.2d 375,
378 (4th Cir. 1981). Presidential Life Ins. Co. v. Milken,
946 F. Supp. 267, 280 (S.D.N.Y. 1996). Defendants may be responsible
for a co-conspirator's conduct in furtherance of the alleged
conspiracy even if they have not dealt directly with plaintiffs.
See Continental Cas. Co. v. Diversified Indus., 884 F. Supp. 937,
961 (E.D.Pa. 1995). The `silent partner' banks may be liable
for their acts in furtherance of the conspiracy. Courts have
found that plaintiffs have standing to sue in situations such as
this. See e.g., In Re NASDAQ Market-Makers Antitrust
Litigation, 169 F.R.D. 493, 508 (S.D.N.Y. 1996) (reasoning the
injury to one plaintiff by a particular defendant as a result of
the conspiracy confers standing to represent a class of
plaintiffs injured by any of defendants' co-conspirators, even
where only twenty-three of thirty-three defendants were alleged
to have traded on behalf of plaintiffs); duPont Glore Forgan
Inc. v. American Tel. & Tel., 69 F.R.D. 481, 486 (S.D.N.Y. 1975)
(finding standing exists where plaintiffs dealt with only two of
twenty-three defendant companies).
The Second Circuit has dismissed complaints which plead
conspiracy in vague or conclusory terms and which do not allege
specific instances of misconduct in furtherance of the
conspiracy. See Ostrer v. Aronwald, 567 F.2d 551, 553 (2d Cir.
1977). Likewise, this Court has ruled that the presentation of
conclusory statements regarding the existence of a conspiracy,
without reference to specific facts which might support a
conspiracy, do not adequately support a claim of conspiracy in
the pleadings. Harrison v. New York City Dep't of Corrections,
No. 96 Civ. 1465(SJ), 1997 WL 218211, at *2 (E.D.N.Y. Apr. 21,
1997). Plaintiffs in the instant case, however, have described in
detail the conspiracy alleged to have existed during and after
the Holocaust to deprive Jews of their assets, its continuation
after the end of World War II, and the public laws and social
structures enacted to enable the alleged conspiracy. The Second
Amended Complaint alleges concerted action in violation of
international law, including a tremendous conspiracy, wherein the
entire power structure of the French banking ...