United States District Court, Eastern District of New York
December 13, 2001
UKRAINIAN NATIONAL ASSOCIATION OF JEWISH FORMER PRISONERS OF CONCENTRATION CAMPS & GHETTOS, ASSOCIATION OF VICTIMS OF NAZI PERSECUTION (BUNDESVERBAND INFORMATIONA UND BERATUNG F&UUML;R NS-VERFOLGTE), INTERNATIONAL MOVEMENT OF FORMER JUVENILE NAZI PRISONERS, ASSOCIATION OF LIBERATED PRISONERS IN THE CZECH REPUBLIC, UKRAINIAN ORGANIZATION OF ANTI-FASCIST FREEDOM FIGHTERS, POLISH AMERICAN CONGRESS, UKRAINIAN ASSOCIATION OF NAZI VICTIMS AND PRISONERS ON BEHALF OF THEMSELVES AND ALL OTHER SIMILARLY SITUATED PLAINTIFFS,
UNITED STATES DEFENDANT. BURT NEUBORNE, IN HIS CAPACITY AS AN EXPRESS LAWYER-TRUSTEE OF THE GERMAN FOUNDATION, "REMEMBRANCE, RESPONSIBILITY AND THE FUTURE," AND ON BEHALF OF THE THIRD-PARTY BENEFICIARIES OF AGREEMENTS LEADING TO THE ESTABLISHMENT OF THE GERMAN FOUNDATION; ROMAN NEUBERGER, SYLVIA GREENBAUM, AND JOHN BRAND, IN THEIR INDIVIDUAL CAPACITIES AS THIRD-PARTY BENEFICIARIES OF THE AGREEMENTS LEADING TO THE ESTABLISHMENT OF THE GERMAN FOUNDATION, AND AS REPRESENTATIVES OF ALL GERMAN FOUNDATION BENEFICIARIES PLAINTIFFS, V. THE GERMAN FOUNDATION INDUSTRIAL INITIATIVE AND ITS CONSTITUENT MANAGING COMPANIES, CONSISTING OF ALLIANZ AG, BASF AG, BAYER AG, BMW AG, COMMERZBANK AG, DAIMLERCHRYSLER AG, DEUTSCHE BANK AG, DEGUSSA-HUELLS AG, DEUTZ AG, DRESDNER BANK AG, FRIEDR. KRUPP AG, HOESCH KRUPP, HOESCHT AG, RAG AG, ROBERT BOSCH GMBH, SIEMENS AG, VEBA AG, AND VOLKSWAGEN AG; AND BANK AUSTRIA CREDITANSTALT AND HYPO VEREINSBANK AG. DEFENDANTS.
The opinion of the court was delivered by: Weinstein, Senior District Judge.
1. Professor Burt Neuborne has moved to withdraw his complaint
in Neuborne, et al. v. The German Foundation Industrial
Initiative, et al., CV 01-7701. This motion is opposed. (Mem.
in Opp'n to Burt Neuborne's Suppl. Decl.). Since there has been
"no service by the adverse party of an answer," the motion is
granted. See Fed.R.Civ.P. 41(a)(1), 41(a)(2). The Neuborne
complaint is dismissed without prejudice and without costs or
2. The court does not find it necessary to decide if the pending
complaint in Ukrainian National Assoc. of Jewish Former
Prisoners of Concentration Camps & Ghettos et al. v. United
States, CV 01-6933, poses political or conduct of foreign
policy relations issues beyond the jurisdiction of courts under
Article III of the Federal Constitution. See Ukrainian National
Assoc. of Jewish Former Prisoners of Concentration Camps &
Ghettos et al. v. United States, 2001 WL 1328412 (E.D.N.Y. Oct.
19, 2001). For the following prudential reasons the complaint
should be dismissed without prejudice and without costs or
A. The relief sought is an order preventing the United States
from filing a statement of interest urging dismissal of related
cases. This court has no power to prohibit the government from
acting in other litigations. The decision to retain or dismiss
any future case or to resuscitate any prior case resides with
the court in which the case is or was pending, regardless of any
statement of interest that any government submits. The Court of
Appeals in Austrian, German Holocaust Litigation v. United
States District Court for the Southern District of New York,
250 F.3d 156 (2d Cir. 2001), observed that a rule 60(b) motion
to set aside the judgement in a class action that has been
settled is available to plaintiffs. See id. at 165; cf.
Stephenson v. Dow Chem. Co., 273 F.3d 249 (2d Cir. 2001) (some
veterans are not bound by class action settlement in Agent
Orange because they were not adequately represented by class
B. Evidence presented in argument and by exhibits (but not yet
subject to an evidentiary hearing) suggests that:
i) There are serious continuing problems with the
operation of the German
Foundation "Remembrance, Responsibility and the
Future" ("the Foundation"). They include:
a) The German banks which were obligated to
contribute to the Foundation's funds are
administering much of the finances of the
Foundation, in violation of basic conflict of
interest principles, to their own excessive
enrichment and to the reduction of payments to
b) Interest which should have accrued to the
benefit of the Foundation and its beneficiaries
is being diverted and improperly retained.
c) Voluntary contributions to the funds of the
Foundation are being improperly credited to
d) Instead of being transparent as required, the
activities of the Foundation are conducted
without adequate public scrutiny and inquiries
from properly interested persons are not
e) Required contributions were delayed.
f) The claims process has been delayed and
inadequately funded so that rightful claimants
will not be in a position to make timely claims.
g) Inappropriate conduct has cost victims
entitled to compensation potential relief.
ii) These problems are particularly troubling
because so many people, organizations, and
governments are concerned that the Foundation
succeed in compensating as quickly as possible as
many of the eligible surviving victims of the
Nazis and their associates as possible for the
injustices they were forced to endure. Under the
circumstances, full candor, openness and
fiduciary integrity and punctilio is required of
all who are directly and indirectly involved in
this vital historic enterprise.
iii) Partly in response to the instant
proceedings, the German and American governments,
the Foundation, and interested individuals have
addressed or are in the process of addressing the
problems complained of and are expected to
rectify inappropriate conduct, to ensure against
future misconduct, and to speed payment of
victims in appropriate amounts.
3. CV 01-6933 is dismissed without prejudice and without costs
and disbursements. This order does not preclude any party from
taking action pursuant to Rule 60 of the Federal Rules of Civil
Procedure or from pursuing any other appropriate remedy. See
Austrian and German Holocaust Litigation v. United States
District Court for the Southern District of New York,
250 F.3d 156
, 165 (2d Cir. 2001); cf. Stephenson v. Dow Chemical Co.,
273 F.3d 249, 2001 WL 1524389 (2d Cir. Nov. 30, 2001). (power of
members of the class to attack settlement).
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