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9TH CIRCUIT TO RECONSIDER ARMENIAN GENOCIDE CASE EN BANC
by Amanda Bronstad
The American Lawyer
http://www.law.com/jsp/article.jsp?id=1202532050520&th_Circuit_to_Reconsi der_Armenian_Genocide_Case_En_Banc&slreturn=1
Nov 11 2011
A federal appeals court has ordered an en banc rehearing of a challenge
to a California statute that has spawned lawsuits against insurance
firms on behalf of victims of the Armenian genocide.
The case, against two German insurers and their parent company,
Munchener Ruckverischerungs Gesellschaft A.G., or Munich Re, will be
reheard in oral arguments during the week of Dec. 12 in San Francisco,
according to a Nov. 7 order by the 9th U.S. Circuit Court of Appeals.
Earlier, a three-judge panel had upheld the statute, reversing its
own initial decision dismissing the case.
"We're delighted that the court has agreed to rehear the decision,"
said Neil Soltman, a partner in the Los Angeles office of Mayer Brown
who represents Munich Re. "We think reversal of the initial decision
was obviously incorrect and we're glad to have the opportunity to
present it to the full en banc court."
Brian Kabateck, a partner at Kabateck Brown Kellner in Los Angeles,
and one of the lead plaintiffs attorneys in the case, said he wasn't
surprised by the decision.
"Obviously, we would have preferred they denied it," he said. "But I
do think in one respect it's important, because this is an important
issue with respect to the Armenian genocide and it's important that
possibly this case reach the Supreme Court to deal with the question
of the recognition of the Armenian genocide."
Between 1915 and 1923, more than 1.5 million Armenians died at
the hands of the Ottoman Empire. The government of modern Turkey,
an important member of the North Atlantic Treaty Organization, has
strenuously denied that any genocide occurred, and the U.S. does not
recognize the episode as genocide.
Kabateck and Mark Geragos have taken the lead in filing cases against
insurance firms and banks on behalf of Armenian descendants of
genocide victims, often obtaining big settlements. In 2004, New York
Life Insurance Co. agreed to pay $20 million, and in 2005 AXA S.A.
agreed to a $17 million settlement.
The latest case was filed in 2003 by Vazken Movsesian, a priest in
the Armenian Apostolic Church, as a class action. Munich Re moved to
dismiss, arguing that the foreign-affairs doctrine pre-empted the
statute, which also violated the due process clause of the United
States Constitution. Munich Re cited failed legislative efforts in
the United States to formally recognize the Armenian genocide.
In 2007, U.S. District Court Judge Christina Snyder in Los Angeles
rejected the company's motion, prompting Munich Re's appeal to the
9th Circuit.
The en banc hearing will be the third go-round for the case before
the appellate court. In 2009, a three-judge panel initially upheld
dismissal for Munich Re in a 2-1 decision, concluding that the
California statute -- Section 354.4 of the California Code of Civil
Procedure, approved in 2000 to extend the statute of limitations for
Armenians to file insurance claims -- was unconstitutional. The court
also found that U.S. foreign policy pre-empted the California law,
citing the U.S. Supreme Court's 2003 decision in American Insurance
Associates v. Garamendi, which concluded that U.S. foreign policy
pre-empted a California law granting insurance relief for Holocaust
victims.
The 9th Circuit used the same reasoning in another case heard at the
same time, striking down a 2002 California law meant to help plaintiffs
recover artwork allegedly looted by the Nazis in Von Saher v. Norton
Simon Museum.
In the Munich Re case, the majority opinion came from Dorothy Nelson
and the late David Thompson, with Harry Pregerson dissenting.
But on Dec. 10, 2010, in a rehearing by the same panel, Nelson reversed
course and sided with Pregerson. In that 2-1 decision, the panel
found that there was no "express federal policy forbidding states
to use the term 'Armenian Genocide'" and that, unlike the Holocaust,
no executive agreements existed to resolve victim claims.
"The panel's holding is both incorrect and a danger to U.S.
interests," wrote Soltman, Munich Re's attorney, in a Jan. 3 petition
to rehear the decision en banc. "The panel consequently misapplied
the law governing an area of national importance and international
sensitivity, allowing California to interfere with the President's
authority to determine foreign policy and threatening vital U.S.
interests," he wrote.
Joining Munich Re was the Republic of Turkey, which filed an amicus
brief.
In their response, filed on Feb. 1, Kabateck and Geragos of the Law
Offices of Geragos & Geragos, said a few "carefully selected remarks"
from government officials did not constitute a foreign policy position
on the Armenian genocide.
The Armenian Bar Association; the Center for the Study of Law &
Genocide at Loyola Law School, Los Angeles; U.S. Rep. Adam Schiff,
D-Calif.; and various human rights organizations filed briefs
supporting the claims.
In several notices filed with the court, Soltman noted the U.S.
Supreme Court's June 27 refusal to hear a petition to overturn the
9th Circuit's ruling in Norton Simon, the case over alleged Nazi
looting of artwork. Also in that case, the U.S. solicitor general
filed a brief to deny review.
Soltman said that decision meant the Munich Re case was ripe for en
banc review.
"The two cases in our view are indistinguishable from one another,
yet after the panel changed its decision, the two decisions didn't
make any sense," he said. "The art case and our case were no longer
consistent with each other, and the whole purpose of the en banc
procedure is to eliminate inconsistencies with the circuit's cases.
This is a perfect example."
Kabateck disagreed that there was a conflict in the circuit.
"They're politically completely different events. Our position is the
United States government has never taken a position on the genocide.
It's not in conflict," he said. "We've got an issue where we're
not running contrary to, not afoul of, a particular policy of the
United States."
by Amanda Bronstad
The American Lawyer
http://www.law.com/jsp/article.jsp?id=1202532050520&th_Circuit_to_Reconsi der_Armenian_Genocide_Case_En_Banc&slreturn=1
Nov 11 2011
A federal appeals court has ordered an en banc rehearing of a challenge
to a California statute that has spawned lawsuits against insurance
firms on behalf of victims of the Armenian genocide.
The case, against two German insurers and their parent company,
Munchener Ruckverischerungs Gesellschaft A.G., or Munich Re, will be
reheard in oral arguments during the week of Dec. 12 in San Francisco,
according to a Nov. 7 order by the 9th U.S. Circuit Court of Appeals.
Earlier, a three-judge panel had upheld the statute, reversing its
own initial decision dismissing the case.
"We're delighted that the court has agreed to rehear the decision,"
said Neil Soltman, a partner in the Los Angeles office of Mayer Brown
who represents Munich Re. "We think reversal of the initial decision
was obviously incorrect and we're glad to have the opportunity to
present it to the full en banc court."
Brian Kabateck, a partner at Kabateck Brown Kellner in Los Angeles,
and one of the lead plaintiffs attorneys in the case, said he wasn't
surprised by the decision.
"Obviously, we would have preferred they denied it," he said. "But I
do think in one respect it's important, because this is an important
issue with respect to the Armenian genocide and it's important that
possibly this case reach the Supreme Court to deal with the question
of the recognition of the Armenian genocide."
Between 1915 and 1923, more than 1.5 million Armenians died at
the hands of the Ottoman Empire. The government of modern Turkey,
an important member of the North Atlantic Treaty Organization, has
strenuously denied that any genocide occurred, and the U.S. does not
recognize the episode as genocide.
Kabateck and Mark Geragos have taken the lead in filing cases against
insurance firms and banks on behalf of Armenian descendants of
genocide victims, often obtaining big settlements. In 2004, New York
Life Insurance Co. agreed to pay $20 million, and in 2005 AXA S.A.
agreed to a $17 million settlement.
The latest case was filed in 2003 by Vazken Movsesian, a priest in
the Armenian Apostolic Church, as a class action. Munich Re moved to
dismiss, arguing that the foreign-affairs doctrine pre-empted the
statute, which also violated the due process clause of the United
States Constitution. Munich Re cited failed legislative efforts in
the United States to formally recognize the Armenian genocide.
In 2007, U.S. District Court Judge Christina Snyder in Los Angeles
rejected the company's motion, prompting Munich Re's appeal to the
9th Circuit.
The en banc hearing will be the third go-round for the case before
the appellate court. In 2009, a three-judge panel initially upheld
dismissal for Munich Re in a 2-1 decision, concluding that the
California statute -- Section 354.4 of the California Code of Civil
Procedure, approved in 2000 to extend the statute of limitations for
Armenians to file insurance claims -- was unconstitutional. The court
also found that U.S. foreign policy pre-empted the California law,
citing the U.S. Supreme Court's 2003 decision in American Insurance
Associates v. Garamendi, which concluded that U.S. foreign policy
pre-empted a California law granting insurance relief for Holocaust
victims.
The 9th Circuit used the same reasoning in another case heard at the
same time, striking down a 2002 California law meant to help plaintiffs
recover artwork allegedly looted by the Nazis in Von Saher v. Norton
Simon Museum.
In the Munich Re case, the majority opinion came from Dorothy Nelson
and the late David Thompson, with Harry Pregerson dissenting.
But on Dec. 10, 2010, in a rehearing by the same panel, Nelson reversed
course and sided with Pregerson. In that 2-1 decision, the panel
found that there was no "express federal policy forbidding states
to use the term 'Armenian Genocide'" and that, unlike the Holocaust,
no executive agreements existed to resolve victim claims.
"The panel's holding is both incorrect and a danger to U.S.
interests," wrote Soltman, Munich Re's attorney, in a Jan. 3 petition
to rehear the decision en banc. "The panel consequently misapplied
the law governing an area of national importance and international
sensitivity, allowing California to interfere with the President's
authority to determine foreign policy and threatening vital U.S.
interests," he wrote.
Joining Munich Re was the Republic of Turkey, which filed an amicus
brief.
In their response, filed on Feb. 1, Kabateck and Geragos of the Law
Offices of Geragos & Geragos, said a few "carefully selected remarks"
from government officials did not constitute a foreign policy position
on the Armenian genocide.
The Armenian Bar Association; the Center for the Study of Law &
Genocide at Loyola Law School, Los Angeles; U.S. Rep. Adam Schiff,
D-Calif.; and various human rights organizations filed briefs
supporting the claims.
In several notices filed with the court, Soltman noted the U.S.
Supreme Court's June 27 refusal to hear a petition to overturn the
9th Circuit's ruling in Norton Simon, the case over alleged Nazi
looting of artwork. Also in that case, the U.S. solicitor general
filed a brief to deny review.
Soltman said that decision meant the Munich Re case was ripe for en
banc review.
"The two cases in our view are indistinguishable from one another,
yet after the panel changed its decision, the two decisions didn't
make any sense," he said. "The art case and our case were no longer
consistent with each other, and the whole purpose of the en banc
procedure is to eliminate inconsistencies with the circuit's cases.
This is a perfect example."
Kabateck disagreed that there was a conflict in the circuit.
"They're politically completely different events. Our position is the
United States government has never taken a position on the genocide.
It's not in conflict," he said. "We've got an issue where we're
not running contrary to, not afoul of, a particular policy of the
United States."