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April 22, 2003


The opinion of the court was delivered by: Colleen McMAHON, District Judge.


Plaintiffs, thirty members of New York's Chassidic communities, bring this action against defendant La Suisse, a Swiss insurance company, under 42 U.S.C. § 1981 ("Section 1981") as well as several contract-related state law claims. This decision is the fifth in a series of decisions dating back to September of 1999. See Weiss v. La Suisse, 161 F. Supp.2d 305 (S.D.N.Y.2001) ("Weiss IV"); Weiss v. La Suisse, 154 F. Supp.2d 734 (S.D.N.Y.2001); Weiss v. La Suisse, 131 F. Supp.2d 446 (S.D.N.Y.2001) ("Weiss II"); Weiss v. La Suisse, 69 F. Supp.2d 449 (S.D.N.Y. 1999) ("Weiss I"). I now address defendant's motion for summary judgment on plaintiffs' Section 1981 claim.


I. Facts

I have described the facts of this case in my earlier decisions. I here set forth the facts for the purpose of disposing of this motion for summary judgment. The following facts are either undisputed or interpreted most favorably to plaintiffs.

In the early 1980's, defendant La Suisse sold a life insurance policy in Europe that paid benefits upon the insured's marriage. [Joint Pre-trial Order ("JPTO"), Stipulated Facts ¶ 3].*fn1 The policy was known as "Profile 256." Id. The "Profile 256" was a "marriage endowment policy" — it insured children and paid a benefit when, among other things, the child married. Id. at ¶ 4.

In 1989, representatives of La Suisse entered into discussions with representatives of Bituswiss, S.A. ("Bituswiss"), a private corporation with offices in New York, about the possibility of selling marriage endowment policies to Jewish persons in New York.*fn2 First, the chairman of Bituswiss's board, Dr. Beryz Rosenberg, contacted Josef Widmer, a former La Suisse agent, to ask him whether he could help find an insurance company willing to sell marriage endowment policies. Id. at ¶ 7. Next, Widmer contacted Ulrich Riniker, a La Suisse general agent, who then contacted Gerhard Mayer, a La Suisse employee. Riniker asked Mayer if La Suisse would be willing to append its existing marriage rider (referred to as "256") to La Suisse's "Global E" life insurance policy, and offer this new marriage endowment product through Bituswiss. Id. at ¶¶ 7-8. La Suisse agreed to market this new product.

La Suisse began to sell "Global E 256" policies — which I hereinafter refer to as the "Marriage Policies" — through Bituswiss, as well as other brokers, in June of 1989. Id. at ¶ 10. The Marriage Policies provided that La Suisse would pay a policyholder either 100,000 or 50,000 Swiss francs upon the occurrence of the earliest of three events: the insured's twenty-sixth birthday, death, or marriage. Policyholders were entitled to request loans from La Suisse and use the value of their policies as security; the interest rate on and amount of any such loan were to be "fixed by La Suisse." The Marriage Policies also provided that policyholders "may be" entitled, when consistent with policy terms, to receive (a) a yearly dividend, or (b) a prorated refund of the annual premium. Finally, the policies stated that "[y]early premiums are due and are based on various factors, including the age of the insured. A typical premium is between [ ] 6,000 and 8,000" Swiss francs. Id. at ¶ 15.

On June 16, 1989, Bituswiss and a general agent of La Suisse entered into a subagency agreement that gave Bituswiss the exclusive rights to sell the Marriage Policies in New York State. Id. at ¶ 11. On August 10, 1990, Bituswiss and La Suisse entered into a direct broker agreement for the sale of the Marriage Policies. Id. at ¶ 12. Bituswiss marketed the Marriage Policies primarily to the Chassidic community. Id. at ¶ 16.

Overall, La Suisse's authorized agents (including Bituswiss) sold approximately 10,000 Marriage Policies. Of those policies, 7,000 were sold to New York residents. Id. at ¶ 17. Approximately 99% of the policies sold to New York residents were sold to members of the Chassidic communities in Brooklyn, Monsey, and Kiryas Joel.*fn3 Id. at ¶ 19. Plaintiffs in this case are thirty members of those New York Chassidic communities who purchased La Suisse's "Global E 256" policy through Bituswiss.

Beginning in the early 1990's, La Suisse began to treat the "Global E 256" policyholders differently than holders of what plaintiffs refer to as "Global-type policies" — that is, policies with the Global base but without the "256" marriage rider.*fn4 First, La Suisse took steps to restrict plaintiffs' borrowing from La Suisse against the value of their Marriage Policies.*fn5 In 1992, La Suisse started imposing "surcharges" on Marriage Policyholders for policy handling and administration, which they did not impose on other Global policyholders. [Plaintiffs' Opposition 10; Mahon Declaration, Ex. B, at 141; JPTO, Defendant's Contentions ¶ 23(B) ]. Also in 1992, La Suisse started to charge higher interest rates on loans to Marriage Policyholders than it did on loans to other Global policyholders. [Plaintiffs 56.1 Statement ¶ 11; Mahon Declaration, Ex. F, at 60; Mahon Declaration, Ex. B, at 94-96; Defendant's Memorandum of Law 12]. In 1994 and 1995, La Suisse reduced the loanto-value borrowing ratio to 65% when the "industry standard" was 90%. [Plaintiffs' 56.1 Statement ¶ 12, 16, 17, 18, 19; Mahon Decl., Ex. D, at 79; Mahon Decl. Ex. B, at 139-40; JPTO, Defendant's Contentions ¶ 23(C) ].

The first marriage claims under the policies came due in or about 1994. [JPTO, Plaintiffs' Contentions ¶ 12]. La Suisse ceased selling the Marriage Policies in June of 1995. [JPTO, Stipulated Facts ¶ 31]. In 1995 and 1996, as marriage claims continued to come due under the policies, La Suisse began to take further actions toward the Marriage Policyholders (in addition to restricting borrowing against the policies) that differed from its actions toward other Global policies. [JPTO, Plaintiffs' Contentions ¶ 17].

1. Special Rules and Regulations

La Suisse established a "special affairs" team within the life insurance department that promulgated special rules and regulations ("1996 Rules"). [Plaintiffs 56.1 Statement ¶¶ 3-5, 10]. "Considering the volume of pending contracts and the need to rationalize the administration," the 1996 Rules stated, "we are hereby advising you of the compulsory administrative rules, which take effect immediately." [Mahon Declaration, Ex. E]. Pursuant to those rules, La Suisse no longer accepted telephone or fax inquiries regarding the Marriage Policies, required every written inquiry to be limited to one policy, and prohibited inquiries in list form. The 1996 Rules also addressed the late payment of premiums, bulk payments involving multiple premiums for multiple policies, overpayments, and surrender values. Finally, the rules stated: "These rules are compulsory and take immediate effect. We ask to comply with them. The enormous workload for these type policies, compel us to take such measures. Thank you for your understanding." [Mahon Declaration, Ex. E]. The 1996 Rules applied only to the Marriage Policies and not to other Global policies. [Mahon Declaration, Ex. B, at 76].

2. Burdensome Claims Procedure

La Suisse established claims procedures and verification processes for the Marriage Policies that were more burdensome than those for other Global policies. [Plaintiffs 56.1 Statement ¶ 6]. More specifically, La Suisse required Marriage Policyholders to produce the following documents in order to prove their right to benefits upon their marriage: (1) a photocopy of their marriage certificate with an apostille;*fn6 (2) a photocopy of the policyholder's spouse's passport, birth certificate, or any other identification certified by the Swiss Consulate or notarized in the United States; and (3) if the married individuals were not United States citizens, an official document showing that they had residence in the United States (such as an immigration visa, driver's license, social security card, or tax return). [Olson Declaration, Ex. N].*fn7

3. Suspension of Benefit Payments

La Suisse halted payment of benefits on the Marriage Policies from November 1996 until March 1997. No other Global policies had payment of benefits halted. [Plaintiffs' 56.1 Statement ¶ 8; Defendant 56.1 Statement ¶ 23; Plaintiffs' Opposition 11; Mahon Decl., Ex. C, at 33].

4. Refusal to Pay Pro-rata Premium Refunds

La Suisse declined to refund plaintiffs the pro-rata portion of the premium due for the balance of the year after Marriage Policyholders married and claimed benefits under their policies. [Plaintiff 56.1 Statement ¶ 16; Defendant's Motion in Support of Summary Judgment 9]. If a policyholder paid the premium due for the year beginning January 1, 1996, for example, and the policyholder married on July 1, 1996 (six months into the year), La Suisse refused to refund the policyholder half of the premium he paid. La Suisse regularly paid a pro-rata premium refund, however, upon the death of a Global policyholder.

5. Non-Payment of Dividends

In 1995, La Suisse ceased paying a dividend to Marriage Policyholders after it successfully petitioned the Swiss Federal Office of Private Insurance for permission to do so. [Plaintiffs' 56.1 Statement ¶ 15; Defendant's 56.1 Statement ¶ 20].

6. Summary

La Suisse's reasons for taking these actions vis-à-vis the Marriage Policyholders is the paramount — indeed, the only — issue on this motion for summary judgment. Plaintiffs contend that La Suisse acted as it did at least in part because the plaintiffs were Jewish. In other words, plaintiffs argue that "it was ethnic background that proved to be La Suisse's motivating factor. Not economics, just discrimination." [Plaintiffs' Opposition 7].

II. Procedural History

In Weiss I, I dismissed plaintiff's Section 1981 claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure. See 69 F. Supp.2d at 460. I did so because plaintiffs had failed to "specifically allege the events claimed to constitute intentional discrimination as well as circumstances giving rise to a plausible inference of a racially discriminatory intent." Id. ...

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