[Senate Hearing 110-759]
[From the U.S. Government Publishing Office]


                                                        S. Hrg. 110-759
 
                        HOLOCAUST ERA INSURANCE 
                        RESTITUTION AFTER ICHEIC

=======================================================================

                                HEARING

                               BEFORE THE

              SUBCOMMITTEE ON INTERNATIONAL OPERATIONS AND
               ORGANIZATIONS, DEMOCRACY AND HUMAN RIGHTS

                                 OF THE

                     COMMITTEE ON FOREIGN RELATIONS
                          UNITED STATES SENATE

                       ONE HUNDRED TENTH CONGRESS

                             SECOND SESSION

                               __________

                              MAY 6, 2008

                               __________

       Printed for the use of the Committee on Foreign Relations


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                COMMITTEE ON FOREIGN RELATIONS          

           JOSEPH R. BIDEN, Jr., Delaware, Chairman          
CHRISTOPHER J. DODD, Connecticut     RICHARD G. LUGAR, Indiana
JOHN F. KERRY, Massachusetts         CHUCK HAGEL, Nebraska
RUSSELL D. FEINGOLD, Wisconsin       NORM COLEMAN, Minnesota
BARBARA BOXER, California            BOB CORKER, Tennessee
BILL NELSON, Florida                 GEORGE V. VOINOVICH, Ohio
BARACK OBAMA, Illinois               LISA MURKOWSKI, Alaska
ROBERT MENENDEZ, New Jersey          JIM DeMINT, South Carolina
BENJAMIN L. CARDIN, Maryland         JOHNNY ISAKSON, Georgia
ROBERT P. CASEY, Jr., Pennsylvania   DAVID VITTER, Louisiana
JIM WEBB, Virginia                   JOHN BARRASSO, Wyoming
              Antony J. Blinken, Staff Director          
       Kenneth A. Myers, Jr., Republican Staff Director          

                         ------------          

           SUBCOMMITTEE ON INTERNATIONAL OPERATIONS AND      
            ORGANIZATIONS, DEMOCRACY AND HUMAN RIGHTS      

                BILL NELSON, Florida, Chairman          

RUSSELL D. FEINGOLD, Wisconsin       DAVID VITTER, Louisiana
ROBERT MENENDEZ, New Jersey          GEORGE V. VOINOVICH, Ohio
ROBERT P. CASEY, Jr., Pennsylvania   JIM DeMINT, South Carolina
JIM WEBB, Virginia                   JOHN BARRASSO, Wyoming

                             (ii)          




                            C O N T E N T S

                              ----------                              
                                                                   Page

Cardin, Hon. Benjamin, U.S. Senator From Maryland................     6

Coleman, Hon. Norm, U.S. Senator From Minnesota..................     5

Dubbin, Samuel J., Partner, Dubbin & Kravetz, LLP, Miami, FL.....    62
      Prepared statement.........................................    63

Eagleburger, Hon. Lawrence, Former Secretary of State and Former 
  Chairman, International Commission on Holocaust Era Insurance 
  Claims (ICHEIC), Charlottesville, VA...........................    32
      Prepared statement.........................................    34

Eizenstat, Hon. Stuart E., Partner, Covington & Burling LLP and 
  Former Special Representative of the President and Secretary Of 
  State on Holocaust Issues, Washington, DC......................    43
      Prepared statement.........................................    45

Kent, Roman, Holocaust Survivor and Chairman, American Gathering 
  of Holocaust Survivors and Their Descendants, New York, NY.....     7
      Prepared statement.........................................     9

Menendez, Hon. Robert, U.S. Senator From New Jersey..............    30

Nelson, Hon. Bill, U.S. Senator From Florida.....................     1

Rosenbaum, Thane, John Whelen Distinguished Lecturer in Law, 
  Fordham University School of Law, New York, NY.................    53
      Prepared statement.........................................    56

Rubin, Anna B., Director, New York Holocaust Claims Processing 
  Office, New York State Banking Department, New York, NY........    86
      Prepared statement.........................................    87

Rubin, Jack, Holocaust Survivor and Member of the Advisory 
  Committee, Holocaust Survivors Of West Palm Beach, Boynton 
  Beach, FL......................................................    14
      Prepared statement.........................................    16

                               Appendixes
Appendix I.--Responses to Additional Questions Submitted for the Record 
                      by Members of the Committee

Questions Submitted by Senator Bill Nelson

    Responses From Jack Rubin....................................   107

    Responses From Samuel J. Dubbin..............................   109

    Response From Thane Rosenbaum................................   117

    Responses From Roman Kent....................................   118

    Responses From Hon. Lawrence Eagleburger.....................   123

    Responses From Anna B. Rubin.................................   129

Questions Submitted by Senator David Vitter

    Response From Hon. Lawrence Eagleburger......................   132

                                 (iii)
       Appendix II.--Additional Material Submitted for the Record

Prepared Statement of Hon. David Vitter, U.S. Senator From 
  Louisiana......................................................   135

Material Submitted by Organizations and Individuals in Support of 
  HR 1746

    Members of the Florida Congressional Delegation..............   136

    Sidney Zabludoff.............................................   138

    The Organization of Forced Laborers Under the Nazi 
      Occupation, Tel-Aviv, Israel...............................   141

    Generations of the Shoah International (GSI).................   142

    On Behalf of The David Family, Milwaukee, WI.................   143

Material Submitted by Organizations and Individuals in Opposition 
  to HR 1746

    The Anti-Defamation League, B'nai B'rith, and Others.........   145

    Rabbi Andrew Baker of the American Jewish Committee, 
      Department of International Jewish Affairs.................   146

    Rabbi Abba Cohen of Agudath Israel of America................   147

    Robert A. Swift, Attorney, Kohn, Swift & Graf, P.C...........   148

    Waite, Schneider, Bayless & Chesley Co., L.P.A...............   150

Appendix III.--Material Submitted by Anna B. Rubin, Director, Holocaust 
      Claims Processing Office, New York State Banking Department

Section 1.--New York State Banking Department HPCO Annual Report.   151

Section 2.--Overview of the Interwar Economy and the European 
  Insurance Industry.............................................   179

Section 3.--Correspondence Between NAIC and New York.............   185

Section 4.--Additional Material Submitted by Ms. Rubin...........   187


                        HOLOCAUST ERA INSURANCE 
                        RESTITUTION AFTER ICHEIC

                              ----------                              


                          TUESDAY, MAY 6, 2008

                           U.S. Senate,    
  Subcommittee on International Operations 
                                        and
         Organizations, Democracy and Human Rights,
                            Committee on Foreign Relations,
                                                    Washington, DC.
    The committee met, pursuant to notice, at 2:27 p.m., in 
room SD-419, Dirksen Senate Office Building, Hon. Bill Nelson, 
presiding.
    Present: Senators Bill Nelson, Menendez, Cardin, and 
Coleman.

            OPENING STATEMENT OF HON. BILL NELSON, 
                   U.S. SENATOR FROM FLORIDA

    Senator Bill Nelson. Good afternoon and welcome. The Senate 
Foreign Relations Committee is meeting to consider a difficult 
but extremely important issue, compensating Holocaust survivors 
and their heirs for the value of Holocaust-era United States 
insurance policies that they held before the war, but were lost 
or had stolen from them by various entities, including the Nazi 
regime.
    This afternoon I have just been informed that we will have 
two recorded votes called by the Senate at 2:30. It is my 
intention to go ahead and start the meeting and get as far as 
we can until I have to recess the committee to get over there 
to vote. I will vote on both of those and come back immediately 
and resume the hearing.
    This is the first time a Senate committee has met 
specifically to consider Holocaust-era compensation issues. 
I've been involved with this issue for more than a decade. In 
my former life as Florida's elected insurance commissioner in 
the nineties, I was part of an international effort by 
regulators in the 50 States, as well as Jewish groups, that 
ultimately forced many European insurers to come to the table 
and for the first time begin paying restitution to survivors.
    Florida is a State with a large population of Holocaust 
survivors, one of the largest concentration of Holocaust 
survivors in the world. The three States that have the highest 
degree of concentration of survivors are New York, Florida, and 
California.
    Most are in their eighties or nineties. The youngest are in 
their seventies. They are extremely valuable citizens that we 
honor and, while no amount of financial compensation or 
property restitution can ever make up for the indescribable 
wrong of the Holocaust, we all are committed to doing what we 
can to assist the survivors to obtain meaningful compensation 
due to them for the assets that they lost during the war and 
around the period prior to the war, and to have that 
compensation come to them without delay.
    This hearing is timely for a number of reasons. It comes 
only a few days after the national commemoration of Holocaust 
Remembrance Day, on which people all around the world 
acknowledge the historical atrocity of the Holocaust and say a 
prayer for the 6 million Jews who were murdered by the Nazis 
and their collaborators.
    Second, this hearing gives the Senate the opportunity to 
examine what has been done to compensate victims of the 
Holocaust for the unpaid value of the insurance policies that 
they held before the war. Last spring the International 
Commission on Holocaust Era Insurance Claims, ICHEIC, closed 
its doors after paying out $306 million to more than 48,000 
Holocaust victims and their heirs, principally for life 
insurance policies. Other insurance claim processes in Austria 
and The Netherlands are winding down, and there is a pending 
class settlement involving one of the insurance companies that 
had written a significant portion of life insurance policies 
for Jewish customers before the war, and that's the company 
Generali.
    This disputed settlement involves some 45,000 pending 
claims that await evaluation for payment. Now that ICHEIC has 
closed its doors, the question remains: What is left to be 
done? Are there companies that have participated in ICHEIC that 
haven't done enough to compensate Holocaust survivors who held 
insurance policies? There is disagreement on this point that 
we'll hear more about today.
    Supporters of a bill introduced in the House by 
Representatives Ros-Lehtinen and Wexler include certain 
organizations representing Holocaust survivors. They are 
represented here today by Mr. Rubin, Professor Rosenbaum, and 
Mr. Dubbin, and are calling for legislation that directs all 
companies doing business in the United States that issued 
insurance policies during the Holocaust era to disclose all the 
names of policyholders to the National Archives for 
publication. They also seek a new Federal cause of action that 
will enable them to sue in Federal court for damages and 
attorney's fees for the compensation for their Holocaust-era 
insurance policies.
    Others here today include Ambassador Eagleburger, Secretary 
Eagleburger and Eizenstat, who led the effort to negotiate, 
establish and run ICHEIC, and Mr. Kent, a Holocaust survivor 
who was an ICHEIC commissioner. They, along with several major 
national Jewish organizations, the governments, including 
Germany, Austria, and the European Union, that participated in 
the negotiated resolution for compensation, and some 
plaintiffs' attorneys who have represented Holocaust survivors 
in class action litigation to obtain compensation for 
insurance, all of those groups oppose the legislation proposed 
in the House and support efforts to ensure that insurance 
companies that participated in ICHEIC continue to honor their 
commitment to accept and evaluate under relaxed ICHEIC 
standards insurance claims for survivors and their heirs.
    They will also argue that the legislation will undo 
commitments made by the United States to give countries and 
companies that participated in ICHEIC legal peace for agreeing 
to pay claims under a negotiated resolution and imperil ongoing 
efforts to obtain additional compensation in a host of areas, 
such as pensions or property restitution.
    Now, one entity involved in assisting Holocaust survivors 
and their heirs to process claims, the New York Holocaust 
Claims Processing Office, is represented here today by Mrs. 
Rubin, no relation to Mr. Rubin. The office possesses expertise 
in the area of Holocaust compensation in many areas and 
continues to assist survivors from anywhere in the world. They 
have been examining ways to provide ongoing monitoring and 
assistance to ensure that insurance companies make good on 
their promise to accept claims now and forever under relaxed 
standards. So we will hear from Mrs. Rubin as well.
    Now, are there countries or companies that did not 
participate in the ICHEIC that should be called upon to 
compensate Holocaust survivors for the unpaid value of their 
insurance policies? There's no dispute on that question. 
Millions of Jews lived in Eastern Europe before the war and, 
while many of them lived in rural areas or were too poor to 
afford insurance, there were certainly Jews who purchased 
insurance policies from subsidiaries of Western European 
companies whose assets were taken by the Communist governments 
that came into power or by Eastern European companies that were 
nationalized.
    In both cases, the Eastern European countries did not 
participate in ICHEIC or contribute to any of the insurance 
compensation efforts that have taken place. ICHEIC even paid 
claims on those Eastern European policies from out of the 
humanitarian funds that were contributed by the ICHEIC 
companies and paid $31 million on more than 2,800 claims.
    Unfortunately, some countries have not taken nearly enough 
action to provide restitution for insurance or other property 
taken from Jews and other victims of Nazi persecution. Poland, 
for example, is the sole member of the Organization for 
Security and Cooperation in Europe not to have enacted 
restitution legislation, and this is unacceptable.
    That's why I'm pleased to announce today that, working with 
my colleagues Senator Gordon Smith and Ben Cardin, we've 
drafted and plan to introduce a bipartisan resolution urging 
all countries, especially those in the former Eastern Europe, 
to enact fair and comprehensive private and communal property 
restitution legislation and do so as quickly as possible. Our 
resolution will call for the Secretary of State to engage in 
dialogue to achieve the aims of the resolution as well as the 
convening of an international, intergovernmental conference to 
focus on the remaining steps necessary to secure restitution 
and compensation. We hope the resolution will spur our own and 
other European governments into action and call attention to 
the important unfinished business.
    In addition, I am committed to helping survivors to obtain 
compensation for insurance and other property that they lost 
during the war or had stolen from them by the Nazis.
    Now, before I turn to my colleague, the ranking member, I 
want to ask unanimous consent to make the following documents a 
part of the record: The written statements of all the 
witnesses; the written statement supporting H.R. 1746 from 
Sidney Zabludoff; a letter supporting H.R. 1746 from the 
Organization of Forced Laborers Under the Nazi Occupation; a 
petition supporting H.R. 1746 from the Generations of Shoah 
International; a letter opposing H.R. 1746 jointly signed by 
the Anti-Defamation League, B'Nai B'rith International, the 
Conference on Jewish Material Claims Against Germany, the 
Religious Action Center for Reformed Judaism, and the World 
Jewish Congress; a letter opposing H.R. 1746 from the American 
Jewish Congress; a letter opposing H.R. 1746 from Agudoth 
Israel of America; a letter opposing H.R. 1746 from plaintiffs' 
attorney Robert Swift; and a letter opposing H.R. 1746 from 
plaintiffs' attorney Stanley Chesley.

    [The material referred to is located in the Appendixes to 
this hearing print.]

    Senator Bill Nelson. I really appreciate our witnesses and 
I turn to my colleague Senator Coleman----
    Senator Coleman. Mr. Chairman, I know that we have a vote--
--
    Senator Bill Nelson [continuing]. Without objection.
    Senator Coleman. Thank you, Mr. Chairman.
    I know we had a vote posted about 10 minutes ago, a 15-
minute vote.
    Senator Bill Nelson. Yes.
    Senator Coleman. So I would suggest that I go vote, and I'm 
not sure if we want to put the hearing in recess, your call, 
but then after the votes--there may be two votes--that we then 
come back and I would give my--deliver my statement, and then 
turn to the witnesses.
    Senator Bill Nelson. Certainly. We have how many minutes 
left?
    Mr. Bowman. 7\1/2\.
    Senator Bill Nelson. 7\1/2\. So I had announced before you 
got here, and that's why I started 1 minute early, trying to 
get it in, that maybe they would delay the vote past 2:30. But 
they didn't. They started right on time. So we will recess the 
hearing and we will come back.
    Now, let me remind all of the witnesses, because of this 
interruption, that's going to take a few minutes for us to vote 
and then vote on the second recorded vote in the Senate, and 
because of the length of the agenda, we're going to ask each of 
the witnesses to keep your statement to 5 minutes. There is a 
light box up there that will indicate when 5 minutes is over by 
turning red. But I'm going to ask the Clerk of the committee, 
who will stand at the end of the 5 minutes; he'll come right 
over here, so everybody can make sure that they understand. 
That's the only way we're going to be able to keep on time.
    All of your written statements are entered into the record 
without objection, and we will now recess and resume upon call 
of the chair.
    [Recess.]
    Senator Bill Nelson. If everybody could take their seats. 
In my opening remarks I inadvertently said that there would be 
a letter entered in the record from the American Jewish 
Congress. It's from the American Jewish Committee, as well as a 
letter from the U.S. Department of State.
    Senator Coleman.

                STATEMENT OF HON. NORM COLEMAN, 
                  U.S. SENATOR FROM MINNESOTA

    Senator Coleman. Thank you. Thank you, Mr. Chairman. I'd 
like to begin by thanking you for holding this critically 
important hearing and for your longstanding leadership in 
seeking Holocaust-era insurance restitution to victims and 
their heirs. I'd also like to thank Senator Vitter for 
graciously allowing me to serve as ranking member of this 
hearing.
    Mr. Chairman, just last Thursday I attended the Days of 
Remembrance for Holocaust Victims event at the Capitol Rotunda, 
where I had the high honor of joining Polish-born Holocaust 
survivors Freida Weinberg in lighting a candle in remembrance 
of those who perished in the Holocaust, including those of her 
family.
    Every time I think of the Holocaust and how it represents 
the deaths of a population equivalent to everyone living in my 
State of Minnesota and then some, I am stunned at the evil 
human beings are capable of. So, Mr. Chairman, I come to this 
hearing with a heavy heart and an abiding commitment to seeing 
that victims have received the justice they deserve.
    To me the fundamental question of this hearing is whether 
victims of the Holocaust have been treated right, has justice 
been served? As I've looked at this issue, there can be no 
denying that for many of these victims and their families the 
effort at rendering justice was too long in the making. It was 
only in 1998, and thanks in great part to the efforts of you, 
Mr. Chairman, that action was finally taken to address unpaid 
Holocaust insurance claims with the establishment of the 
International Commission on Holocaust Era Insurance Claims, 
ICHEIC.
    But now, a little over a year since ICHEIC has closed its 
doors, we have been confronted with important and troubling 
questions as to whether victims who have gone through the 
ICHEIC process have received the justice they deserve, 
questions relating, for instance, to the fairness of ICHEIC's 
claims valuations and claims processing. These are not some 
technical bureaucratic issues, but rather issues at the very 
heart of the matter: Did ICHEIC do right by the victims?
    Beyond ICHEIC, it is important for us to note the full 
extent of those victims out there who are waiting for justice 
to be served, that there are others, in particular for those 
victims from Eastern and Central Europe. What is currently 
being done to help these victims with unpaid insurance claims?
    In the name of justice, these questions deserve to be 
answered. With many survivors in the twilight of their lives, 
we have a solemn but urgent obligation to ensure the 
appropriate rendering of justice. Ultimately, if injustice 
indeed remains then we must act to ensure that survivors and 
their families receive the compensation they deserve. They are 
owed nothing less.
    Mr. Chairman, when we talk to Holocaust survivors and the 
relatives of victims the refrain is ``Never again.'' The 
Holocaust happened in part because it was unthinkable. As we 
think about it, we reduce its power to reoccur. What this 
hearing is about is our efforts at ensuring justice for those 
who suffered and to keep the Holocaust in front of our minds to 
be sure we are always working toward ``Never again.''
    I would note, Mr. Chairman, that as you outlined in your 
opening statement there are clear differences in what should be 
the right approach or what has been the approach, to whether 
justice has been done for victims of the Holocaust regarding 
insurance restitution. You read a number of letters both in 
support and opposition. I think this hearing is what 
congressional hearings should be. It's an opportunity to 
provide a forum for us to listen and then respond.
    Just on a personal note, my forebears, they came to this 
country before the Holocaust, before the rise of Hitler. They 
came in the early 1900s, some in the late 1880s. So for those 
of us of the Jewish faith, the experience is either personal, 
your own relatives, or personal if not your relatives, of 
friends and neighbors. It's a very real connection. So on every 
level I appreciate the opportunity that you've provided for 
this forum and this hearing. I think it's important. I think 
we've got to listen and then we have to figure out what's the 
next step.
    Thank you, Mr. Chairman.
    Senator Bill Nelson. Thank you, Senator Coleman.
    Senator Cardin, did you want to make a quick opening 
statement?

              STATEMENT OF HON. BENJAMIN CARDIN, 
                   U.S. SENATOR FROM MARYLAND

    Senator Cardin. Let me just be very brief because I do want 
to hear from our witnesses and the other panel. Thank you for 
holding this hearing, Mr. Chairman. I appreciate it very much. 
Senator Coleman, thank you for your leadership in this area.
    I do think it's important for us to have the right record 
on the issues concerning the insurance restitution issues. It's 
part of a broader problem of property restitution and community 
property and personal property confiscated during the Nazi era 
and continued during the Communist regimes in many countries.
    I want to just acknowledge with thanks the tremendous work 
that was done in an effort to bring to a proper conclusion the 
insurance issues. It was a very complicated and difficult 
issue. I think what we were looking for was an agreement that 
would be fair, acknowledge the injustices that were done, and 
provide relief to those who were entitled to relief in an 
effective manner so that moneys could actually get out. And I 
thank those who worked on this issue and I appreciate this 
opportunity to get a better understanding of that.
    I just want to make one quick comment. Property 
confiscation issues are very emotional. I had a case of a 
family that had their property taken in Romania. When they 
tried to get the property back and got a court judgment, the 
government wouldn't respect the court judgment. It went on and 
on and on. It wasn't until we put a spotlight on that, through 
our Ambassador and through Members of Congress, that we were 
able to get the property returned to its rightful owner.
    I just would like to point out that it's complicated when a 
country has gone through a Nazi regime where properties were 
confiscated and Communists who didn't want to do anything about 
it. Just in the last dozen years there's been the opportunity 
to correct the injustice. Some countries have responded well, 
have enacted good laws. Others have not.
    Although we're looking at insurance issues today, I hope 
that we will look at this with a broader view, Mr. Chairman, to 
make sure that countries that are involved where properties 
were confiscated have effective laws to right the injustices 
that were done.
    Senator Bill Nelson. Now, as the ground rules are, because 
of the delay and the length of the agenda, 5 minutes. You can 
use the 5 minutes however you want. Everybody's written 
testimony and supporting documents are entered into the record. 
At the end of 5 minutes, the clerk will stand up and come right 
up here so you can be sure to see your time.
    We're going to go just in the order as the agenda is 
printed. Mr. Roman Kent.

   STATEMENT OF ROMAN KENT, HOLOCAUST SURVIVOR AND CHAIRMAN, 
      AMERICAN GATHERING OF HOLOCAUST SURVIVORS AND THEIR 
                   DESCENDANTS, NEW YORK, NY

    Mr. Kent. Good afternoon, Senator Nelson, members of the 
Foreign Relations Committee.
    At the outset I want to express my gratitude and that of 
all Holocaust survivors to you for addressing issues of 
Holocaust-era compensation and restitution, an effort for which 
we have little time remaining.
    I am a survivor of Lodz Ghetto, Gross-Rosen, Darnau, 
Flosenburg, and Auschwitz concentration camps. I am chairman of 
the American Gathering of Jewish Holocaust Survivors and an 
officer of the Claims Conference. I participated in the 
negotiations leading to the establishment of ICHEIC and 
subsequently played an active role as a commissioner. For over 
20 years, I have actively participated in Holocaust-related 
compensation negotiations with the German Government which have 
resulted in providing hundreds of millions of dollars annually 
for the benefit of needy Holocaust survivors worldwide.
    I am greatly concerned that this proposed legislation will 
help only a few survivors, but most certainly will be 
detrimental to survivors who are in need of immediate medical 
and financial assistance.
    To address the ineffectiveness of lawsuits, ICHEIC became 
the first and indeed the only organization to offer Holocaust 
victims and their heirs a way to pursue Holocaust-era insurance 
claims at no cost, without regard for any statute of 
limitations, even if the policies could not be produced. 
However, only the five European companies which signed the 
agreement to work with ICHEIC and German insurance companies 
provided funding for ICHEIC.
    Proponents of the bill have presented estimates ranging 
from $3 to $17 billion and even higher up to the stratosphere 
which they claim represent the value today of unpaid Jewish 
insurance policies purchased in prewar Europe. However, the 
Holocaust Claim Processing Office has just produced an analysis 
of the insurance data in prewar Europe. Review of this data 
readily leads to the conclusion that the approximately $600 
million secured by ICHEIC from the companies which participated 
in its process clearly represents the recovery of a significant 
part of the portion of the unpaid Jewish Holocaust-era 
policies.
    In the end, was ICHEIC perfect? No. Even though nothing can 
remedy the wrongs perpetrated during the Holocaust, each new 
compensation or restitution program brings the inflated hope 
for survivors that now, finally, we will get back some of the 
material losses that were taken from us. ICHEIC suffered from 
such exaggerated expectations. Yet, in spite of its 
shortcomings, what ICHEIC accomplished was without precedent. 
ICHEIC provided a forum for identifying and processing 
Holocaust-era claims, even without documentation, even without 
naming the policy-issuing company, where for 60 years, 
practically speaking there had been nowhere to go.
    Second, ICHEIC did not charge survivors, nor was it bound 
by any statute of limitations.
    Third, ICHEIC paid on policies issued by insurance 
companies which no longer exist.
    Fourth, ICHEIC published a list of over 500,000 most likely 
Jewish insurance policyholders.
    Fifth, ICHEIC recovered approximately $600 million from 
participating insurance companies, which was used to pay claims 
and for humanitarian purposes, including the critically needed 
home care, particularly in Florida.
    Finally, insurance companies which worked with ICHEIC will 
continue to accept and process claims.
    I believe that H.R. 1746 will fail to provide an effective 
mechanism to compensate Holocaust victims and that my fellow 
survivors and I will, most likely, not live to see any of its 
results. I worry that the legislation will unjustifiably raise 
survivors' expectations, only--in the end--to profoundly 
disappoint them. The overwhelming majority of policies which 
would be disclosed would not be Jewish-purchased.
    I also want to emphasize that I am very concerned that the 
legislation will greatly damage critical ongoing negotiations, 
especially with Germany, involving hundreds of millions of 
dollars in Holocaust-related compensation which, as you know, 
is desperately needed now, not tomorrow, not next year, but 
now.
    Thus, instead of the proposed legislation, I respectfully 
suggest that congressional action addressing the following 
issues would provide critical assistance to survivors and their 
heirs:
    First, in order to ensure that insurance companies which 
participated in ICHEIC continue to process claims submitted 
after the close of ICHEIC, which they have promised----
    Senator Bill Nelson. Mr. Kent----
    Mr. Kent [continuing]. It would be valuable for Congress to 
help develop a mechanism to monitor the processing of such new 
claims.
    Senator Bill Nelson. Mr. Kent, would you just wrap up now?
    Mr. Kent. Yes; I will wrap it up.
    Second, since most of the remaining unpaid Jewish 
Holocaust-era policies were issued by companies which did not 
participate in ICHEIC, it would be helpful for Congress to 
focus its efforts on developing measures to have such companies 
address the issue of Holocaust-era insurance.
    Finally, reimbursement is also sought from Eastern European 
governments for claims paid by ICHEIC on policies issued by 
insurance companies that were nationalized or had their assets 
nationalized. We would request congressional assistance in the 
effort to recover such funds, as well as in the broader problem 
of having Eastern European countries, for example Poland, 
address and resolve in a meaningful way the restitution of 
property confiscated during World War Two.
    We want to deeply appreciate your assistance and in the 
best, and we hope that you will continue to provide such 
support in the future.
    Thank you. Thank you very much.
    [The prepared statement of Mr. Kent follows:]

  Prepared Statement of Roman Kent, Holocaust Survivor and Chairman, 
 American Gathering of Holocaust Survivors and Their Descendants, New 
                                York, NY

    I am a survivor of Auschwitz, the chairman of the American 
Gathering of Jewish Holocaust Survivors and Their Descendants, and an 
officer of the Conference on Jewish Material Claims Against Germany, 
known as the Claims Conference. I served as a member of the 
Presidential Advisory Commission on Holocaust Assets in the United 
States and participated in the negotiations leading to the 
establishment--and was a commissioner--of the International Commission 
on Holocaust Era Insurance Claims (``ICHEIC'').
    I have been a vigorous advocate for what, in my experience and 
judgment, is best for survivors and I have struggled to find ways for 
survivors, both in the U.S. and abroad, to obtain some measure of 
justice for us. To that end, I have been deeply involved in activities 
which preserve the memory of the Holocaust and help, as much as 
possible, the tens of thousands of survivors desperately in need of 
home care, medical assistance, and other services in the twilight of 
their lives.
    For over 20 years, I have actively participated in Holocaust-
related compensation negotiations with the German Government which have 
resulted in providing hundreds of millions of dollars annually for the 
benefit of Holocaust survivors worldwide. In too many instances, this 
has been the survivors' only available source of assistance of any 
sort.
    For these reasons, I believe that I have a unique perspective from 
which to comment on the issues which are the subject of today's 
hearing. However, before proceeding, I would like to express my 
gratitude to Chairman Nelson, as well as to the other members of this 
subcommittee, for addressing issues of Holocaust-era compensation and 
restitution. The U.S. Congress has played a historic role in this just 
and moral effort--an effort for which we have little time remaining.
    At the outset, I want to highlight several key points:

   First, the insurance companies which participated in ICHEIC 
        have committed to continue to accept and process Holocaust-era 
        insurance claims received after the close of ICHEIC--applying 
        the ICHEIC standards in their decisions--at no cost to 
        claimants. In addition, the Holocaust Claims Processing Office 
        (``HCPO'') of New York State, will assist survivors nationwide 
        filing such claims with insurance companies, at no charge.
   Second, the proposed insurance legislation will raise the 
        expectations of survivors only, in the end, to disappoint them. 
        The costs, time, and effort required to engage in the 
        litigation the proposed legislation authorizes, will be 
        excessive, if not prohibitive. In addition, the mandatory 
        publication by the insurance companies which participated in 
        the ICHEIC process of all policyholder names will, at this 
        point, yield little new information regarding policyholders who 
        were victims of Nazi persecution. Even assuming that stringent 
        European data privacy hurdles could be overcome, the 
        overwhelming majority of the policies disclosed will not be 
        Jewish-purchased, while most of those that are will have been 
        previously published and/or compensated. Thus, the huge 
        expectations that the legislation will generate on the part of 
        survivors will simply not be met--leading to upset, 
        disappointment, and frustration.
   Third, I am concerned that the proposed legislation will, by 
        undermining previous commitments and reopening previous 
        agreements, significantly damage critical, ongoing negotiations 
        with Germany and other governments for the continuation and 
        expansion of hundreds of millions of dollars in crucial funding 
        immediately required for survivors in need in the United States 
        and worldwide. Without question, these negotiations offer the 
        real prospect of substantial benefits for many survivors now, 
        as compared to the doubtful likelihood of insurance recoveries 
        for more than a few survivors and their heirs offered by the 
        enactment of H.R. 1746.
              the context in which icheic was established
    Since the beginning of World War II and continuing for almost the 
next 60 years, few Holocaust survivors were able to recover the 
proceeds of their unpaid Holocaust-era insurance policies. During that 
period, survivors faced enormous obstacles in their efforts to obtain 
payment on such policies, thousands of which remained unpaid, and few 
attorneys stepped forward who were willing to help with their plight.
    Insurance companies certainly were averse to pay or even give a 
fair hearing to such claims. Indeed, there are chilling examples of 
companies insisting that claimants produce death certificates, 
including from Auschwitz, of deceased policyholders. The absence of 
relevant documentation, statutes of limitations, and the prohibitive 
costs and time involved proved insurmountable obstacles to successful 
recovery for virtually all potential claimants. In addition, many 
insurance companies that had sold insurance in prewar Europe no longer 
existed after the war and Communist control of Central and Eastern 
Europe prevented insurance recoveries for survivors in those countries.
    Clearly, there was a vacuum in post-war insurance restitution 
efforts. There was no effective way for survivors to obtain payment for 
their prewar insurance claims. After struggling to survive Nazi 
concentration camps, hardly any survivors had the documentary proof 
necessary to establish the existence of insurance policies, or the 
evidence simply no longer existed as it was destroyed or lost during 
and after the war. Therefore, few survivors or members of their 
families were able to convert the policies they had purchased into the 
compensation they were owed.
    That is precisely why the ICHEIC agreement was reached: To 
establish a process to fill this void and enable claimants to attain a 
measure of justice which, up to that point, had not existed.
    The agreement to establish ICHEIC, known as the Memorandum of 
Understanding, was signed in 1998 by the following parties: The World 
Jewish Restitution Organization and the Claims Conference--both 
included representatives from the American Gathering of Holocaust 
Survivors and the Centre of Organizations of Holocaust Survivors in 
Israel--which are organizations that, for years, have represented and 
worked on behalf of survivor rights; the National Association of 
Insurance Commissioners, which represented the State insurance 
commissioners of all 50 States; six (which later became five) large 
European insurance companies; and the State of Israel. In addition, as 
part of the negotiations with the German Government and industry, which 
ultimately led to the establishment of a DM 10 billion fund, primarily 
for former slave and forced laborers, the German insurance companies 
also became part of the ICHEIC process.
    ICHEIC provided a forum--at not cost to survivors and without 
regard to statutes of limitations--to identify, process, and compensate 
previously unpaid claims based on Jewish Holocaust-era insurance 
policies. ICHEIC, however, did not receive funds covering the entire 
European market. Rather, the five European companies which signed the 
Memorandum of Understanding, along with the German companies which were 
part of the German Foundation agreement (collectively, ``ICHEIC 
companies''), which provided funding for ICHEIC, represented only a 
portion of the vast European insurance market. Insurance companies 
representing the larger part of the market did not participate in the 
ICHEIC process.
    No funding or any other sort of participation, for example, was 
forthcoming from insurance companies which, prior to the war, had been 
located in the former Czechoslovakia, Hungary, Poland, Romania, and the 
former Yugoslavia, among other Central and Eastern European companies. 
These companies, or their assets, were nationalized, went bankrupt, or 
otherwise went out of business. Although such companies issued 
thousands of Jewish Holocaust-era insurance policies, they paid 
nothing, nor have the governments which took over such companies, or 
their successor governments, paid a penny to survivors for their 
insurance claims.
    Nonetheless, ICHEIC took on the obligation to make payments to 
claimants even for such policies, despite the fact that no funds were 
provided by these companies or governments. Information regarding such 
policies was difficult if not impossible to obtain. Yet, ICHEIC, 
through its own research, located available information on the policies 
and evaluated them through a special process created for claimants of 
policies from Eastern European companies that had been liquidated, 
nationalized, or for which there was no known successor. These claims 
were evaluated by ICHEIC staff according to ICHEIC rules and 
guidelines, including ICHEIC valuation standards.
    A continual stream of complications had to be resolved during 
negotiations with the insurance companies which participated in the 
ICHEIC process. One such issue related to the differing data protection 
and privacy laws of each country--Germany, Italy, France, and 
Switzerland--in which these companies are located. In an effort to have 
as many names as possible identified and disclosed of those most likely 
to have had a life insurance policy during the relevant period and who 
were thought likely to have suffered any form of Nazi persecution, each 
country's laws needed to be addressed individually. Publication of 
large numbers of names, where the overwhelming majority of the 
individuals were neither Jewish nor Holocaust victims, was of paramount 
concern to European governments. Yet, in spite of this and many other 
obstacles, ICHEIC was able to publish the names of over 500,000 
Holocaust-era insurance policyholders which were most likely to have 
been victims of Nazi persecution.
    Further, ICHEIC developed and implemented a liberal evidentiary 
approach which no court of law would follow. No court of law, for 
example, would or could rule in favor of an individual making a claim 
based on an insurance policy not presented in court. However, as we 
know, many Holocaust-era insurance policies were destroyed, lost, or 
otherwise cannot be produced. In contrast, ICHEIC agreed to--and did--
pay claimants who did (and could) not produce an insurance policy. This 
is no small matter. Without an insurance policy, how is the identity of 
the policyholder, the face value of the policy, the premiums paid and, 
most importantly, the beneficiary ascertained, so many years later? How 
can a court rule in favor of any claimant when the beneficiary of a 
policy is unknown? ICHEIC decided, as a matter of principle, that the 
family would receive compensation for the policy to address such 
circumstances.
    Moreover, it is rare, in Holocaust-era insurance policy cases, to 
have definitive proof concerning whether a policyholder continued to 
pay premiums. Yet this is important information because if premium 
payments were not made, the beneficiary would receive less than the 
full face value of the policy. ICHEIC addressed this issue as well, 
deciding that all premiums were deemed to have been paid if they had 
been paid as of the start of the war in each country.
    As a result, ICHEIC paid on claims in circumstances where the 
company was not named and the insurance policy was not produced. It 
also paid on policies which were produced, but which had been issued by 
Central and Eastern European companies which had been nationalized or 
whose assets had been nationalized.
    In sum, the ICHEIC process was a response to the ineffectiveness of 
lawsuits and compensation programs in dealing with issues raised by 
Holocaust survivors related to their prewar life insurance policies. It 
became the first--and, indeed, the only--organization ever to offer 
Holocaust victims and their heirs a mechanism to pursue claims against 
insurance companies, at no cost, with no regard for any statute of 
limitations, even if neither the claimant nor the insurance company 
could produce the policy in issue. However, the companies which 
participated in the ICHEIC process did not represent the entire, nor 
even the majority of, the Holocaust-era European insurance market.
           the value of jewish-owned holocaust-era insurance
    The various assertions made these past months, regarding the 
percentage of unpaid Jewish Holocaust-era policies paid through ICHEIC, 
makes at least one thing clear: There is no universal agreement on the 
relevant figures. There have been wide-ranging, sometimes completely 
unrealistic, estimates offered regarding the total value of Jewish 
Holocaust-era insurance policies which remain unpaid, and 
unsubstantiated allegations regarding what portion of that amount was 
paid by companies which participated in ICHEIC (without any 
determination having been made of how much of the relevant market can 
be attributed to policies actually sold by ICHEIC companies).
    Not surprisingly, almost seven decades after the outbreak of World 
War II, such calculations will necessarily vary broadly depending on 
available documentation and on which values and methods--out of a broad 
range of possibilities--are used for the calculations.
    To be able to function and begin processing claims, ICHEIC had to 
resolve a number of such issues regarding what values and methods were 
appropriate to use, in the face of profound differences between the 
Jewish side, on the one hand, and the insurance companies, on the 
other. After lengthy arguments, the parties involved in ICHEIC 
recognized the virtually endless potential for disagreements over such 
determinations and ultimately were able to develop a methodology 
accepted by the parties which, in turn led to the negotiated 
settlements and compromises essential to moving a slow and difficult 
process forward.
    The determination of the present value of unpaid, prewar Jewish 
insurance policies requires, under the ICHEIC valuation system or any 
valuation system, a number of calculations involving many complex 
factors, including the following:

          (i) The total face value of all life insurance policies at 
        the beginning of the Holocaust period, in the local currency at 
        the time;
          (ii) The Jewish share of the total value of all life 
        insurance policies, based on the percentage of the Jewish 
        population in a given country;
          (iii) The propensity for Jewish individuals to purchase 
        insurance in greater numbers and at a higher value than the 
        rest of the population;
          (iv) An adjustment for policies which have been paid; and
          (v) A system of valuation by which unpaid Holocaust-era 
        Jewish policies (which includes heirless claims and others who 
        did not or could not make a claim) are converted into today's 
        value.

    However, there is no single, correct measure for any of these 
factors, while the range of possible values for each factor is vast. No 
consensus exists, for example, regarding how much higher than the 
average the Jewish propensity to purchase insurance was, or how much 
higher than the average the face values of such Jewish policies were.
    Moreover, a number of the currencies which had been used to 
purchase policies before World War II became virtually worthless. 
Companies argued, both in ICHEIC and in court cases, that the policies 
were, therefore, also virtually worthless. ICHEIC, in the end, did not 
accept that argument.
    These represent a few of the many complex determinations that had 
to be made to reach a decision regarding the total value of unpaid 
Jewish Holocaust-era insurance policies. Nonetheless, the final 
conclusions one can reach--as to the amount of the entire relevant 
market and what percentage of that total was paid through the ICHEIC 
process--radically differ depending on which values and methods, out of 
the extensive range of possibilities, are selected for the relevant 
component factors.
   icheic sought to resolve all claims submitted, regardless of the 
                    company identified in the claim
    Although the Memorandum of Understanding called for the resolution 
of claims against Holocaust-era insurance policies issued by the 
companies participating in the ICHEIC process, ICHEIC's efforts went 
well beyond that.
    First, only a small percentage of all the claim forms submitted to 
ICHEIC named a specific company, and few claims included any documents 
linking the policy in issue to the specific company named in the claim. 
Further, some claims that did identify the policy-issuing companies 
turned out to be companies which were not signatories to the Memorandum 
of Understanding, nor German insurance companies. To ensure that these 
claims would be treated properly, ICHEIC entered into agreements with 
other agencies and transferred these claims as appropriate.
    Second, to ensure the broadest possible reach, when ICHEIC received 
anecdotal claims that did not identify a specific insurance company, it 
nonetheless circulated such claims to all member companies that did 
business in the policyholder's country of residence.
    Third, claims brought by survivors or heirs of survivors on 
policies written by Central and Eastern European companies that were 
defunct after the war and have no present-day successor, were not only 
reviewed by ICHEIC but, in many cases, paid through an in-house process 
it developed.
    Finally, although the ICHEIC process has closed, the participating 
insurance companies have made commitments, orally and in writing, to 
accept and process any Holocaust-era claims they continue to receive, 
with no cost to the claimant and in spite of any statute of 
limitations.
                               conclusion
    Was ICHEIC perfect? Clearly not. When dealing with matters relating 
to the Holocaust and the atrocities committed, the most that can be 
achieved is an imperfect justice. Nothing can remedy the wrongs that 
were perpetrated.
    And yet, ICHEIC was successful. What it accomplished was without 
precedent:

   First, ICHEIC filled a void by establishing a mechanism to 
        identify and process Holocaust-era insurance claims, even when 
        claimants typically had no documentation. Prior to the ICHIEC 
        process, there was, practically speaking, nowhere to go to 
        recover the proceeds of unpaid Holocaust-era policies;
   Second, the ICHEIC process was at no cost to survivors, and 
        without regard to statutes of limitations;
   Third, ICHEIC paid claims against insurance companies which 
        no longer existed, whether due to nationalization, bankruptcy, 
        or other reasons;
   Fourth, the insurance companies which participated in the 
        ICHEIC process have continued to accept and process claims--
        again, at no cost to the claimants and regardless of statutes 
        of limitations. Claimants may obtain, at no charge, the 
        assistance of the Holocaust Claims Processing Office in filing 
        such claims;
   Fifth, an archive consisting of over 500,000 most likely 
        Jewish insurance policyholders is now available to survivors, 
        historians, and other researchers; and
   Sixth, in total, over $\1/2\ billion in payments to 
        Holocaust-era insurance policyholders and heirs, as well as to 
        programs benefiting Holocaust survivors has been distributed as 
        a result of ICHEIC. The payments included providing critically 
        needed home care funding for elderly and ailing Holocaust 
        survivors.

    These, by themselves, are an impressive list of achievements, 
particularly considering that survivors had virtually nowhere to go 
with their insurance claims before ICHEIC was established.
    My apprehension regarding H.R. 1746 is that it will not achieve its 
goal of providing an effective avenue to successfully compensate 
Holocaust victims and their heirs for unpaid insurance policies. Thus, 
whatever ICHEIC's shortcomings, they will not, in any meaningful way, 
be remedied by the enactment of the bill.
    The bill mandates that insurance companies, notwithstanding the 
strict, European data privacy laws, disclose the names of all 
policyholders during the entire relevant period, but this 
extraordinarily costly effort will yield little new information 
regarding Jewish policyholders. This is especially the case regarding 
the five insurance companies which signed the Memorandum of 
Understanding and the German companies which were part of the German 
Foundation agreement--they already have disclosed most, if not all, of 
their Jewish-purchased, Holocaust-era insurance policies. Thus, almost 
all policies which would be disclosed will not be those purchased by 
individuals who suffered Nazi persecution; many of the policies may 
have been paid; and many of those not paid, will have been previously 
compensated
    In addition, litigation of such claims will be lengthy, and the 
associated costs, time, and effort required will prove excessive and 
unreasonable, certainly for elderly survivors. My fellow survivors and 
I will, most likely, not be alive to see the results of any of the 
lawsuits the proposed legislation authorizes.
    While a handful of survivors and their heirs, at most, may benefit 
from H.R. 1746, I am also concerned that the bill's enactment will 
unjustifiably generate huge expectations that, in the end, will not be 
met, which will have a profoundly negative impact on survivors.
    Finally, I am extremely concerned that the Holocaust Insurance 
Accountability Act will severely damage the common goal of those 
looking to help survivors. It will jeopardize critical, on-going 
negotiations with governments for the continuation and expansion of 
funding to meet the vast, immediate needs of Holocaust survivors, both 
in the United States and worldwide. For example, German insurance 
companies were included in the ICHEIC process as part of the 
negotiations which ultimately resulted in the formation of the German 
Foundation, a DM 10 billion fund primarily for former slave and forced 
laborers. Those negotiations and the working of the German Foundation 
occurred with the involvement, and under the auspices and approval, of 
the German and U.S. Governments, among others. The proposed legislation 
threatens to undermine such negotiations. Moreover, I also worry that 
the support the U.S. Government provides Holocaust survivors will be 
undermined as the German Government loses faith in the ability of the 
U.S. Government to keep its commitments.
                            recommendations
    Thus, instead of the proposed legislation, I respectfully suggest 
that congressional action addressing the following issues would provide 
critical assistance to survivors and their heirs.
    First, the insurance companies which participated in ICHEIC have 
committed to continue, indeed have been, processing claims they 
received after the close of ICHEIC. In order to ensure that this 
undertaking is properly implemented, it would be valuable for Congress 
to help develop a mechanism to monitor the processing of such new 
insurance claims (which are not otherwise already supervised).
    Second, most of the remaining unpaid, Jewish Holocaust-era policies 
were issued by companies which did not participate in the ICHEIC 
process. Thus, it would be helpful for Congress to focus its effort on 
developing measures to have companies that were not involved in ICHEIC 
address the issue of Holocaust-era insurance. As a related point, 
reimbursement is still being sought from Eastern European governments 
for claims paid by ICHEIC to claimants who held policies issued by 
Eastern European insurance companies that were nationalized or had 
their assets nationalized. We would request congressional assistance in 
the efforts to recover such funds, as well as in the broader problem of 
having Eastern European countries address and resolve, in a meaningful 
way, the restitution of property confiscated during World War II.
    The U.S. Congress has played a major role over the years in efforts 
to secure Holocaust-era compensation and restitution, as well as to 
ensure that the Holocaust is not forgotten. You have the gratitude of 
the survivor community for such support and assistance and we hope that 
you will continue to provide such help in the future.

    Senator Bill Nelson. Thank you, Mr. Kent.
    Mr. Jack Rubin.

 STATEMENT OF JACK RUBIN, HOLOCAUST SURVIVOR AND MEMBER OF THE 
  ADVISORY COMMITTEE, HOLOCAUST SURVIVORS OF WEST PALM BEACH, 
                       BOYNTON BEACH, FL

    Mr. Rubin. Good afternoon. My name is Jack Rubin. I live in 
Boynton Beach, FL. I want to thank our own Senator Bill Nelson 
for holding this important hearing and inviting me as a 
Holocaust survivor to speak my own mind about these issues of 
grave concern. I would like to begin by saying how honored I am 
to be able to address this committee of the insurance Senate.
    I am here on behalf of thousands of Holocaust survivors and 
family members of Holocaust victims, to ask you to pass a 
companion to H.R. 1746, the Holocaust Insurance Accountability 
Act of 2007, without any further delays.
    After surviving the Holocaust, I was fortunate to come to 
America and earn a living and raise a beautiful family in 
Fairfield, CT. I retired in 1995 and in 1998 I moved to Boynton 
Beach. I have been very active in several Florida survivors 
groups, as well as my synagogue and other Jewish organizations 
in Palm Beach County. I also volunteer as a member of the 
Holocaust survivors advisory committee of the Jewish Family and 
Children's Services of Palm Beach County, which serves the 
needy Holocaust survivors in our community. in addition, I am a 
member of the executive committee of the Holocaust Survivors 
Foundation USA, Incorporated, which represents thousands of 
Holocaust survivors from all over the United States.
    I am here today to talk about part of my family history 
that isn't so happy, our brutal treatment at the hands of the 
Nazis and their puppets, the Hungarians. I was born in 1928 in 
Vari, Czechoslovakia, which was annexed by Hungary in 1938. We 
lived in a building where my father's general store was also 
located. There was a sign that said the building and premises 
were insured by ``Generali Moldavia.'' I am certain that my 
father, who was a careful businessman, had all kinds of 
insurance, including life insurance, because he spoke about it 
often. From our conversations, I even remember the name of the 
agent, Mr. Joseph Schwartz.
    We were forced out of our home in April 1944 with only the 
clothes on our back and one suitcase each and taken to the 
Beregsastz Ghetto. There the Nazis forced everyone to turn over 
their jewelry, watches, wedding rings, and hand over everything 
of value. I was given a pail to go around and collect all those 
valuables. We were then deported to Auschwitz and that was the 
last time I saw my parents.
    Mr. Chairman, I was the only son of my parents and I cannot 
tell you the pain I've been living with all my life. They don't 
have a burial plot. I can't go by there and say the Kadish. The 
Kadish is the Hebrew prayer of the deceased. I've been living 
with this all my life.
    After the Holocaust, I had no way to find my papers, such 
as insurance policies. Our home and our business was destroyed. 
After ICHEIC was created, I applied because of the esteemed 
individuals and publicity encouraging applications. I gave them 
all the information I had, including the name on the building 
and the name of Mr. Schwartz, the agent. Four years later I 
received a letter from Generali stating they had no records 
from their subsidiaries and no records of any policies in my 
family. This is absurd because I know we had insurance.
    ICHEIC did not even ask the company to give records of 
Generali Moldavia, a known subsidiary, and did not require 
Generali to produce information about Mr. Schwartz, the agent 
from our town. ICHEIC just took Generali's word and my claim 
was denied.
    ICHEIC added insult to injury. They sent me a $1,000 check 
and called it ``humanitarian payment.'' Really, they called me 
a liar. They tried to give us $1,000 to keep quiet, instead of 
giving what we demanded all along, the right to control our own 
destiny and to learn the truth about the way Generali and the 
companies treated our families.
    If you want to get an angry reaction from survivors or 
their children or their grandchildren, just mention ICHEIC. We 
all know that ICHEIC was controlled by the insurance companies. 
Sure there were Jewish organizations present, but we never 
asked them or anyone else to represent us. We survivors did not 
ask the Claims Conference or Mr. Kent or Mr. Eizenstat or Mr. 
Eagleburger to handle our affairs. We can speak for ourselves, 
but ICHEIC denied us even the obvious level of respect.
    We question the deal that everyone talks about, but 
remember this: Survivors did not agree to any deals and did not 
agree to any legal peace. The fact that some groups took it 
upon themselves to pretend like they had the authority is not 
acceptable to us and never was.
    I am here today to ask you, Mr. Chairman, to fix this by 
passing H.R. 1746 because it will require the companies to open 
their records and to allow us to go to court for the truth.
    I am fighting for this bill to honor my parents, Mr. 
Chairman, and I owe this to my parents. I cannot understand how 
anyone can even think that we should be willing to settle for 
less.
    Senator Bill Nelson. Could you wrap it up.
    Mr. Rubin. This is why I was one of the several survivors 
who appealed the recent class action settlement of the 
litigation of Generali, those who got burned by ICHEIC and will 
not benefit from the settlement. This is why we appealed.
    If Congress does not act soon, our rights might be totally 
swept away by this so-called settlement. Decision could come 
any day. Please move swiftly and make it clear that the U.S. 
Congress does not endorse the denial of the basic rights of the 
survivors.
    I would like to make a point, Mr. Chairman. How about the 
millions of insurance policies that went up in flames in 
Auschwitz, Dachau, and thousands of killing fields? Why should 
the insurance companies be the heirs of their Jewish customers? 
According to Mr. Zabludoff, this is over $17 or $18 billion. 
There are tens of thousands of needy Holocaust survivors in 
this very United States who are suffering without the care they 
need. I see many of them in Palm Beach County and my HSF 
colleagues see this problem all over America. The local Jewish 
Family and Children's Services, where I volunteer, never has 
enough funds to meet the needs of the poor survivors. They 
cannot afford medical expenses, or their medicines, eyeglasses, 
home care, nutrition, walkers, or dental care. They cannot 
afford their rent, utility bills. There are 80,000 survivors of 
the Holocaust in the United States in this condition. Where is 
justice to this?
    There should be a legal peace--there should be no legal 
peace with companies until the Holocaust survivors have moral 
peace. We are far from that today, Mr. Chairman.
    Senator Bill Nelson. And thank you----
    Mr. Rubin. Senator Nelson, Senator Nelson, you were one of 
the first public officials to recognize the problem survivors 
were facing with long-term care and all their health care 
needs. You tried to help back in 1998 and 1999. Our community 
was and it is grateful for the concern you showed for our 
fellow survivors in need. But the truth today is that not 
enough has been done, not by corporations, not by governments 
who injured us and stole from us, and not by the institutions 
that were supposed to be responsible for helping us.
    [The prepared statement of Mr. Rubin follows:]

Prepared Statement of Jack Rubin, Holocaust Survivor and Member of the 
  Advisory Committee, Holocaust Survivors of West Palm Beach, Boynton 
                               Beach, FL

    My name is Jack Rubin, and I live in Boynton Beach, FL. I want to 
thank our own Senator Bill Nelson for holding this important hearing 
and for inviting me, as a Holocaust survivor, to speak my own mind 
about these issues of great concern. I would like to begin by stating 
how honored I am to be able to address this committee of the United 
States Senate. It is very humbling and historic, as I realize that I am 
one of a very small number of Holocaust survivors, which includes Elie 
Wiesel, who has ever had this privilege.
    Last Thursday, May 1, was the 63rd anniversary of the day I was 
liberated. It was also Yom Hashoah, the Day of Remembrance, when Jews 
all over the world say a prayer for the 6 million martyrs, our loved 
ones, and the loved ones of millions, who perished at the murderous 
hands of the Nazis and their collaborators. Today, the fact that I, a 
survivor of that indescribable hell now known as the Holocaust, will 
have my words become a part of the official record of this body is an 
honor and privilege I never imagined.
    I am here, on behalf of thousands of Holocaust survivors and family 
members of Holocaust victims, to ask you to pass a companion to H.R. 
1746, the Holocaust Insurance Accountability Act of 2007, without any 
further delays.
    First, I would like to tell you about my life in the United States, 
and my activities over the years as an integral part of the local and 
national Holocaust survivor community. I was liberated as I said on May 
1, 1945, from hell, by the U.S. Army. I then spent 2 years in a 
Displaced Persons Camp in Germany. In 1947, I was fortunate to come to 
America, and I settled in Connecticut. I learned the trade to become a 
furrier and was fortunate to be able to earn a living as a furrier and 
raise a beautiful family in Fairfield, CT. I worked hard, was able to 
retire in 1995, and in 1998 I moved to Boynton Beach. I have been very 
active in several Florida survivor groups, as well as my synagogue and 
other Jewish organizations in Palm Beach County. Over the years, I, 
like many survivors who have been dedicated to Holocaust education, 
having spoken to thousands of young people in public and private 
schools about the tragedy our people endured in the Holocaust. I also 
volunteer as a member of the Holocaust survivors' advisory committee of 
the Jewish Family and Children's Services of Palm Beach County, which 
serves the needy Holocaust survivors in our community. In addition, I 
am a member of the executive committee of the Holocaust Survivors 
Foundation USA, Inc., which represents thousands of Holocaust survivors 
from all over the United States.
    But I am here today to talk about the part of my family history 
that isn't so happy, our brutal treatment at the hands of the Nazis and 
their Hungarian puppets. I was born in 1928 in Vari, Czechoslovakia, 
which was annexed by Hungary in 1938. We lived in a building where my 
father's general store was also located. There was a sign that said the 
building and premises were insured by ``Generali Moldavia.'' I am 
certain that my father, who was a careful business man, had all kinds 
of insurance, including life insurance, because he spoke about it 
often. From these conversations, I even remember the name of the agent, 
Mr. Joseph Schwartz.
    Like all Jews in our town, we were forced out of our home in April 
1944 with only the clothes on our back and one suitcase each, and taken 
to the Beregsastz Ghetto. There the Nazis forced everyone to turn over 
their jewelry, watches, wedding rings, and hand over everything of 
value. I was given a pail to go around and collect all valuables. We 
were then deported to Auschwitz, and that was the last time I saw my 
parents. I survived Auschwitz and three other camps. Needless to say, 
after the Holocaust, I had no way to find any papers such as insurance 
policies. Our home and business was destroyed.
    After ICHEIC was created, I applied because of the esteemed 
individuals and publicity encouraging applications. They promised to 
open company records and apply ``relaxed standards of proof.'' I filed 
two claims, naming my father Ferencz Rubin and my mother Rosa 
Rosenbaum-Rubin, and their birth years. I mentioned the sign on our 
building for ``Generali Moldavia,'' and the fact that the agent Mr. 
Schwartz was our agent, who also died in the Holocaust. This was all 
the information I had, but under the circumstances it was certainly 
enough to show we had insurance.
    Four years later I received a letter from Generali stating that 
they had no records from their subsidiaries and no records of any 
policies in my family. This is absurd, because I know we had insurance. 
Yet Generali did not produce one piece of paper to justify its 
decision, and ICHEIC did not require the company to produce any proof. 
They did not even ask the company to give records from Generali 
Moldavia, a known subsidiary, and they did not require Generali to 
produce information about Mr. Schwartz, the agent from our town. Don't 
you think Generali, which even then was a global giant, would have kept 
information about its insurance agents, and about its subsidiaries? 
That's what big insurance companies do. But ICHEIC just took Generali's 
word and my claim was denied.
    Then, ICHEIC added insult to injury. They sent me a $1,000 check 
and called it a ``humanitarian payment.'' Really they were calling me a 
liar. They tried to give us $1,000 to keep quiet, instead of giving 
what we demanded all along--the dignity of controlling our own rights, 
and finding out the truth, and getting what my father was promised when 
he trusted Generali with his family's security as his insurance 
company.
    Other Holocaust survivors, who I speak with every day, are also 
beyond disappointed by the way ICHEIC treated us. We are outraged. If 
you want to get an angry reaction from survivors or their children or 
grandchildren, just mention ICHEIC. So many people I know had the same 
humiliating experience. Not only are we disgusted with the way our 
claims were handled, but we cannot believe ICHEIC took money and used 
it for ridiculous programs such as summer camp programs and paying 
college students to keep survivors company. Who made ICHEIC the king of 
our families' legacies?
    Let's face it, ICHEIC was controlled by the insurance companies. 
Sure, there were Jewish organizations present but we never asked for 
them or anyone else to represent us. We, the survivors, did not ask the 
Claims Conference or Mr. Kent, or Mr. Eizenstat, or Mr. Eagleburger, to 
handle our affairs. We can speak for ourselves, but ICHEIC denied us 
even that obvious level of respect. We question the ``deals'' that 
everyone talks about. But remember this--survivors did not agree to any 
deals, and did not agree to any legal peace. The fact that some groups 
took it upon themselves to pretend like they had that authority is not 
acceptable to us and never was.
    ICHEIC was also conducted in secret. Why? To protect the companies, 
that's why. Once again, we survivors were denied access to the truth. 
Stealing our money is bad enough, but concealing the truth from 
Holocaust survivors is a terrible thing. The companies betrayed us and 
up until now, the U.S. justice system has blocked our access to the 
truth. I am here today to ask you to fix this by passing H.R. 1746, 
because it will require the companies to open their records, and allow 
survivors and heirs to go to court for the truth.
    I know ICHEIC was flawed because I know we had insurance but it 
wasn't acknowledged. But I am fighting for this bill to honor my 
parents, because my father bought insurance to provide for us if 
something happened. I owe this to my parents. I can't understand how 
anyone can even think we should be willing to settle for less.
    And there is another thing. What about the millions of insurance 
policies that went up in flames at Auschwitz, Dachau, and thousands of 
killing fields? I was one of the few who survived that hell. What about 
the millions who died? What about their insurance? Why should the 
insurance companies be the heirs of their Jewish customers? The 
survivors and the second generation agree on this point as well--there 
should be no legal peace for the companies until the Holocaust 
survivors have moral peace. We are far from that today, Mr. Chairman.
    This is why I was one of several Holocaust survivors who appealed 
the recent ``class action settlement'' of the litigation against 
Generali. In 2006, the ``class action lawyers'' who were supposed to be 
representing us agreed to a settlement with Generali. Under the 
settlement, Generali's obligations would have been limited to what was 
done by ICHEIC. The benefits from the settlement are very small in my 
opinion, but for those of us who tried ICHEIC and were denied, the 
impact of the settlement is clear. We get nothing. We are finished. 
ICHEIC decisions would be final.
    Since I personally witnessed how ICHEIC did its business in secret, 
and allowed companies like Generali to deny claims without any 
supervision and oversight, and didn't do any independent investigation 
and didn't require the company to produce records to us, I believed 
this settlement would be a terrible disservice to survivors. Those of 
us who were denied in ICHEIC would have no opportunity whatsoever to 
benefit from the settlement. Therefore, I joined several of other 
survivors and objected to the settlement. When the judge approved it 
anyway, we appealed.
    What else could we do? If the class action settlement is approved, 
our rights against Generali will truly be lost forever. I know my 
father had Generali insurance, but ICHEIC said no. ICHEIC said Generali 
behaved properly but I know it isn't so. I believe our appeal is valid 
because we know that ICHEIC did not serve the Holocaust survivors 
properly and the settlement embracing ICHEIC can't be correct. But if 
we lose the appeal, then Generali will be able to perpetrate the lie 
that we did not have insurance with that company. I felt we needed to 
do everything in our legal rights to protect our ability to get the 
truth one way or another.
    So if this Congress does not act quickly to pass H.R. 1746, I am 
afraid that all the survivors' rights against Generali might be lost. I 
am not a lawyer but one sure way to restore our ability to get the 
truth from Generali or the other companies is to change the law 
immediately. If the court of appeals decides the class action appeal 
before Congress acts, I am afraid it will complicate matters. That 
decision could come any day. Please move swiftly and make it clear that 
the U.S. Congress does not endorse the denial of basic rights to 
survivors.
    I want to remind this committee that the legislation would not cost 
companies anything unless we prove our family had insurance. In that 
case, the companies would have to pay us and pay our lawyer, too. If we 
lose, we get nothing and our lawyer would get nothing. This legislation 
would restore our ability to make decisions for ourselves with the 
advice of our own counsel. That is all we are asking for, Mr. Chairman.
    Mr. Sid Zabludoff, an independent economist, has testified several 
times in Congress. He said the amount of money owed by the companies is 
at least $17 billion. That is $17 billion, with a ``b.'' That is a 
conservative estimate of what the companies stole. Yet at the same time 
tens of thousands of needy Holocaust survivors in these very United 
States are suffering without the care they need. I see many of them in 
Palm Beach County, and my HSF colleagues see this problem all over 
America. The local Jewish Family and Children's Services, where I 
volunteer, never has enough funds to meet the needs of the poor 
survivors. They cannot afford their medical expenses, or their 
medicines, eyeglasses, home care, nutrition, walkers, or dental care. 
They cannot afford their rent or utility bills. There are 80,000 
survivors in the U.S. in this condition. Where is the justice in this?
    It is now 2008. The companies succeeded in stonewalling us for 50 
years. Then, in 1998, there was ICHEIC. To most of us, that has meant 
another 10 years of frustration and delay. Let's not get bogged down in 
obsessing over ICHEIC's successes or failures. It is over. Please focus 
on the companies' conduct, and on Holocaust survivors' rights to a full 
accounting of the companies' behavior.
    I attended the House Financial Services Committee meeting and I 
wish every citizen in America could have seen it. Every person at that 
committee, including Chairman Barney Frank, showed such passion and 
respect for the rights of Holocaust survivors and showed that they 
truly understand the meaning of justice. They all ridiculed the 
arguments we are hearing today again from nonrepresentative groups 
pretending to speak and act for Holocaust survivors. The Financial 
Services members insisted on a full accounting for the companies. They 
did not care about judging ICHEIC. They did not care about protecting 
reputations. They all said, simply, that the survivors should have our 
human rights restored by the Congress of the United States. Period. 
That is also how the survivors feel, Mr. Chairman.
                involvement in other restitution matters
    As a Holocaust survivor, I have witnessed firsthand many of the 
restitution proceedings over the past 10 years. This has not been a joy 
for me, but it has been a solemn responsibility. From my standpoint, 
and I know my views are shared by many survivors, most of what has 
transpired has not been good. Only in rare instances have the survivors 
been treated with dignity and respect.
    Because of the Holocaust, all of us were financially injured by 
several businesses and governments. The Nazi terror was so extensive 
that I and most survivors I know were victimized by so many Nazi 
collaborators and other profiteers that we have had a legal, economic, 
and moral stake in several ``Holocaust restitution'' matters. This 
includes German manufacturers using slave labor, Swiss banks profiting 
from dormant accounts and fencing looted assets, and insurance 
companies failing to pay their customers who entrusted them with their 
savings. In my case, since my home was annexed by Hungary during the 
war, I was one of about 60,000 Hungarian survivors now living whose 
property might have been on the Hungarian Gold Train and illegally 
taken by the United States Government after the end of the war.
                     ``hungarian gold train'' case
     The Gold Train case, Rosner v. United States of America, was filed 
in the United States District Court for the Southern District of 
Florida, in Miami. I was one of about 15 survivors who attended every 
hearing in that case before the Honorable Patricia Seitz. We had the 
chance to see and hear for ourselves the kinds of legal and factual 
issues the judge was taking into account. This gave us a concrete 
understanding about how our prospects were faring. Sometimes 
developments were good, and sometimes they weren't so good. But we were 
kept informed and had a great deal of input into the way the case was 
handled by our lawyers.
    After nearly 5 years of litigation, the Gold Train case was settled 
with a cash payment of $25.5 million to be used over a 5-year period 
for social services for Hungarian survivors in need, the creation of an 
archive to collect and document the history of the Gold Train and 
Hungarian Jewry, and the issuance of an apology by the U.S. Government. 
Truthfully, we had all hoped for a larger financial recovery from the 
United States Government after all those years. But having sat through 
the case for almost 5 years, we understood that the judge was doing her 
best to hear us as survivors and the children of prosperous families 
who had no way to prove in the year 2004 what the U.S. Government did 
with our property in the late 1940s.
    Not that we didn't try. Our lawyers and the historians they hired 
spent over a year and a half going through documents in the National 
Archives, the Clinton Presidential Library, and archives in Israel and 
Hungary to prove our connections to the property on the Gold Train. The 
judge ordered the Government to open its records to our lawyers, and 
they found several smoking guns that helped our case a lot. Our lawyers 
took sworn depositions of the Army's historians and the Government's 
experts and obtained damning information about the Government's case. 
Our lawyers persuaded the court to require the Government to submit for 
mediation with a prestigious mediator (current White House Counsel Fred 
Fielding) who could get the parties to the table. And, we the survivors 
and the clients were kept informed all the time.
    Eventually, we decided to settle the case with $25.5 million in 
cash, which would be distributed over a 5-year period to provide vital 
social services to Hungarian survivors in need all over the world. This 
wasn't an easy decision because each survivor believed he or she had a 
right to direct compensation, but the difficulty of proof made it risky 
to go to a trial. But those of us involved believed that to be able to 
get funds to supplement the desperate shortfall in social services for 
Hungarian survivors over a 5-year period, and to have a complete public 
archive of the Gold Train events, and to receive an apology from the 
strong but humble U.S. Government, was worth giving up our individual 
rights.
    It was important that every class member was given a clear, 
complete notice about the settlement and an opportunity to opt out of 
it if his or her own conscience dictated. Our lawyers insisted that 
every survivor be told the truth about the settlement in advance of the 
notice. Everyone was told that they might not receive any money 
themselves. Yet, only 100 Holocaust survivors chose to opt out. I 
firmly believe the overwhelming majority of survivors accepted the 
settlement because they knew the process had been fair, they were told 
what was going on along the way, and they had confidence in their own 
lawyers to do what was right, with our input. In other words, the 
survivors were treated as adults, with dignity and respect for our 
rights and ability to choose for ourselves what kind or legal and moral 
result was acceptable to settle the theft of our families' property and 
legacies.
    I had the chance to address Judge Seitz to speak in favor of the 
settlement. Here is a part of the transcript from that hearing where I 
and my fellow Hungarian survivors spoke in favor of the settlement in 
September 2005:

          I was here in March, Your Honor. As you remember, I gave a 
        very short bitter speech [about how] as a 15 year old I was 
        collecting all the valuables when I was in the ghetto. . . .
          I know whatever the settlement will be given to us, it will 
        give me much satisfaction that we will be able to help the 
        needy Hungarian survivors. . . .
          First, we survivors and our families had the opportunity to 
        seek justice against the United States Government in this court 
        of law under that government's very own laws. And to receive a 
        fair hearing in that process. I have watched Your Honor preside 
        over these hearings and although we didn't always agree with 
        you we know you have been just and fair and tried to apply the 
        law the best way you can.
          Second, the survivors have had the opportunity to participate 
        directly in this litigation. We spoke frequently with the 
        lawyers as the case had its ups and downs. We sat in this 
        courtroom and witnessed justice at work. When it came time to 
        negotiate, we had real input and it was part of the settlement. 
        We spoke with the Department of Justice. We spoke with other 
        survivors. . . .
          The settlement is one that the survivors feel they had a part 
        in creating. All of its elements are important--specifying the 
        dollars and the services, requiring strict reporting and 
        auditing, using a fair distribution formula, receiving an 
        apology. These were all important to us, and the fact that we 
        had the chance to shape the settlement ourselves along with 
        survivors from around the world was important, and unique.
          Third, after reaching a settlement we had the chance to speak 
        directly to this court about what it meant to us. And we had 
        the chance to shake the hand of the Government's lawyers, and 
        thank the United States for rescuing civilization in World War 
        II, and providing many refugees such as ourselves with a home 
        and a chance for a new life. And finally to thank the 
        Government for finally being accountable for the Gold Train.
          Thank you very much Judge Seitz in the name of all the 
        Hungarian Holocaust survivors for your fairness and honesty.

Transcript of September 26, 2005, Rosner Final Fairness Hearing, at 57-
58.

    I was very proud to have been a part of the Gold Train case, 
especially after Judge Seitz announced her decision approving the 
settlement. She told the parties how proud she was to have presided 
over a case in which the plaintiffs and defendants were so well 
informed and able to make prudent judgments about the merits of the 
litigation.

          Here, because of the outstanding work of the lawyers, we have 
        been able to not only resolve the conflict, but to begin a 
        healing process and bring closure. So this is one in which--it 
        is the unusual case in which there is a compromise where I 
        think that the whole of the compromise is better than the sum 
        of the parts that any of us could have hoped for. I am just 
        very proud of everyone in this courtroom and I thank all to 
        have had the opportunity to meet all of you, to work with you, 
        and to be part of this historic moment. God bless you all and 
        God bless the United States.

Transcript of September 26, 2005, Rosner Final Fairness Hearing, at 
147-48.

    Mr. Chairman and members of this committee, please look at the 
difference between what happened in the Gold Train case and what 
happened with our insurance policies. In the Gold Train case, we the 
survivors were represented by advocates of our own choosing. This never 
happened in ICHEIC, because surrogates not of our choosing were the 
ones at the table. We did not ask them to handle our insurance rights.
    In the Gold Train case, our chosen representatives had the 
opportunity, under court supervision, to inspect all of the defendant's 
records. This never happened under ICHEIC. The companies kept all their 
documents and only showed us what they wanted to. ICHEIC had no 
authority to demand production of the kinds of files that would have 
given claimants the ability to see if the companies were lying or not.
    In the Gold Train case, we could observe the decisionmaker at 
work--a United States Federal judge who operated in open court, ``in 
the sunshine'' as we say in Florida. In ICHEIC, everything was secret 
and all survivors ever received were impersonal letters with mechanical 
denials; denials which came from a ``claims process'' we now know 
ICHEIC did nothing to supervise. In fact we now know from Albert Lewis 
that ICHEIC had an internal policy that without any documentation, 
claimants had a ``heavy burden.'' This has been called a ``phantom 
rule'' because it is opposite of the ``relaxed standard of proof'' that 
was promised. You get the picture.
    So my experience in the Gold Train case should be instructive to 
this committee. What survivors want and deserve are fairness, 
transparency, due process, respect, and the ability to make our own 
decisions about our families' financial legacies. If that happens, even 
outcomes that do not meet our most optimistic expectations will be 
acceptable and accepted. It is simply disrespectful for the one group 
of people who suffered the unique crime now known as the Holocaust 
should have any less rights than any other consumer who is defrauded or 
cheated by corporations who exploit one or more catastrophes to deny us 
our rightful funds. This dignity and respect is precisely what ICHEIC 
denied us, and what the U.S. courts up until now have denied us. Please 
don't allow Congress to fall into that same column.
               swiss bank looted assets class allocations
    In the Swiss Bank class action, I was among several dozen survivors 
and survivor groups from throughout the Untied States who objected to 
the district court's allocation of the Looted Assets Class portion of 
the settlement. So far that has been $205 million. Judge Korman ruled 
that 75 percent of the Looted Assets class settlement funds should be 
given to the Former Soviet Union, while only 4 percent of the Looted 
Assets Funds were earmarked to help poor survivors in the United 
States. He concluded the FSU survivors were ``poorer'' and stated that 
the tens of thousands of admittedly indigent and elderly American 
survivors should look to the wealthy Jewish community in the U.S. for 
help.
    We opposed this allocation because the U.S. represents 20 percent 
of the world's survivor population and nearly 30 percent of the world's 
death camp survivors. We appealed the court's decision because we 
believed it was unfair and out of character with the basic notion of 
fair play of the U.S justice system. The Holocaust Survivors Foundation 
USA opposed the allocations because they stripped American survivors of 
their legal rights, providing nothing in return except insult.
    The U.S. survivors do not deny that there are needs in the FSU, but 
we think it is wrong for an American judge to become a philanthropist 
with survivors' money from a legal settlement. Remember, unlike what 
happened in the Hungarian Gold Train case, the court and the lawyers 
did not tell the Holocaust survivors in the Swiss Bank case how the 
money would be distributed at the time of the settlement notice. 
Everyone was in the dark but somehow we were supposed to decide what 
was fair as a settlement with the Swiss banks without this basic 
knowledge. This was outrageous and remains a very sore spot for 
American survivors and our families.
    The district court's allocation of the first $205 million in Looted 
Assets funds was, unfortunately, affirmed by the appellate court.
    Today, there is almost $400 million from the Swiss settlement that 
has been sitting in the bank for over 8 years. It is waiting to be 
distributed under a formula the judge is supposed to reconsider. But 
how many survivors have died suffering without food, medicine, and home 
care while the judge has been sitting on all this money? This has been 
a great tragedy that survivors cannot forget.
    We also cannot understand why the U.S. Congress has not 
investigated this highly unusual set of judicial actions.
                           claims conference
    Also, the Claims Conference is sitting on hundreds of millions of 
dollars. Survivors do not believe there has been an adequate accounting 
of the property obtained from Germany and the uses of those funds. We 
deserve a full accounting, because survivors are suffering. I am sure 
you have seen the news stories year in and year out, including a major 
article in the Associated Press last week, about how survivors 
everywhere are desperate for a more serious accounting by all these 
institutions including the Claims Conference. The needy survivors do 
not deserve to suffer again.
    I hope you will require all institutions to make a complete audit 
of where the survivors' money has gone, because we know it isn't coming 
to those who were looted, or those in need.
    Senator Nelson, you were one of the first public officials to 
recognize the problems survivors were facing with long-term care and 
other health care needs. You tried to help back in 1998 and 1999. Our 
community was and is grateful for the concern you showed for our fellow 
survivors in need. But the truth today is that not enough has been 
done. Not by the corporations and governments who injured us and stole 
from us, and not by the institutions who are supposed to be responsible 
for helping us.
    When I hear Mr. Kent and the Claims Conference and its affiliated 
groups and clients echo the threats of the German Government to 
withhold additional support for Holocaust survivors because of H.R. 
1746, it makes me very angry. How dare these groups come here and try 
to hold our rights hostage to such a threat from Germany. The German 
Government. Should Holocaust survivors be punished for standing up for 
our constitutional rights? God forbid. It is a shame, Mr. Kent, and 
shame on the German Government, and shame on the groups who are 
lobbying you behind the scenes pretending to have the interests of 
survivors at heart. They have no brief to interfere with our rights.
    I have a simple question for Mr. Kent, and the other Claims 
Conference acolytes who are now opposing H.R. 1746. Putting aside the 
gross violation of our constitutional rights, if the reason H.R. 1746 
shouldn't pass is to preserve the Claims Conference's negotiating 
status, what has the CC actually done worth preserving? If 40,000 
survivors in the U.S. live in poverty, and another 40,000 are so poor 
they cannot afford basic food, medicines, health care, home care, and 
the like, what has the CC really accomplished? What about the thousands 
of needy survivors in Israel, Europe, Canada, and South America.
    We are supposed to give up our insurance rights, Mr. Kent, so you 
and your colleagues (most of who belong to organizations that get money 
from the Conference) can continue to beg for a few thousand dollars 
here and a few thousand dollars there from Germany? Meanwhile, tens of 
thousands of Holocaust survivors are suffering without enough food on 
their tables, heat in the winters, or medical care or medicines for 
their injuries? I am on the front lines, Mr. Chairman. I am the one out 
there having to tell needy survivors at the Jewish Family and 
Children's Services that there is not enough funds to pay for their 
medicines or their wheelchairs or their dental work or for someone to 
simply come clean the home of an elderly, frail survivor so they can 
live in dignity.
                              common theme
    There is a common theme in the restitution area. There has been 
secrecy, and the deals have been made by people we did not appoint or 
approve. We have been denied the truth, and that is outrageous. We 
survivors, who are the most affected, were not allowed to participate 
and the results are terrible. We need Congress to give meaning to the 
words ``never again'' that we always hear. We need Congress to take 
action to respect the rights of Holocaust survivors.
    We are lucky in South Florida that nearly all of our 
representatives--led by Ileana Ros-Lehtinen and Robert Wexler, and 
joined by Ron Klein, Tim Mahoney, Debbie Wasserman-Schultz, Alcee 
Hastings, Kendrick Meek, and Lincoln Diaz-Balart, have cosponsored H.R. 
1746. They are willing to stand up to the powerful companies and the 
German Government and the State Department and confront this scandal 
head on. All of the money the companies stole should be paid to the 
survivors or their legal heirs, or if there are no heirs, the money 
should be used to help needy Holocaust survivors. But we need a lot 
more support and we are counting on this committee to move this 
legislation to passage in the Senate.
    One of the things I heard in February in the Financial Services 
Committee is the idea for an extended process where the companies are 
once again trusted to pay claims without any judicial or governmental 
oversight. Mr. Eizenstat even suggested that the State Department be 
charged with reporting the results of this extended new ICHEIC-style 
process. Now we are hearing about a similar plan involving the State of 
New York Claims Processing Office. PLEASE DO NOT FALL FOR THIS TRAP. 
Those who believed the companies would act honorably without the threat 
of legal liability had their chance, and it was called ICHEIC, and it 
is over. Let it stay over. Please, no more commissions, no more 
monitors, no more toothless reporting standards that are never honored 
and never enforced. No more weak substitutes for justice. We want our 
rights back, and nothing more will do in the year 2008.
    I have submitted a few news articles on these subjects, which I 
hope you will allow for the record.
                                 ______
                                 

          [From JTA, the Global News Service of Jewish People]

                      Survivors Still Seek Justice

                            (By Edwin Black)

    New York (JTA).--Reaction to recent revelations of corporate 
complicity, unrevealed insurance company involvement and the great 
number of IBM punchcards among the papers in a secret archive in Bad 
Arolsen, Germany, have reignited a grassroots campaign among Holocaust 
survivors to recover Nazi-era insurance claims against companies such 
as the Italian insurance giant Generali.
    Following a series of revelations that began last year in Jewish 
media, grassroots survivor and second-generation groups in Miami and 
New York have mounted a fierce campaign in Congress to supersede 
international agreements brokered by the State Department to settle 
insurance claims through the International Commission on Holocaust Era 
Insurance Claims (ICHEIC), as well as a variety of adverse Supreme 
Court rulings that have denied survivors the right to sue to recover 
policy claims or disgorge profits from the insurance companies.
    The groups have used revelations about the unreleased Bad Arolsen 
records as a rallying point to prove that their insurance claims have 
been pushed into oblivion. Key congressional leaders agree and have 
promised swift action.
    Thus, two separate issues--the opening of the Bad Arolsen archives 
and the quest to recover unpaid insurance claims--have been joined into 
a single cause among survivor groups and key congressional leaders.
    The latest round of efforts began last fall, when officials of 
survivor groups unsuccessfully demanded that ICHEIC and other 
authorities postpone the final disposition of claims pending further 
research in the International Tracing Service files at Bad Arolsen. The 
groups include such elected bodies as the Miami-based Holocaust 
Survivors Foundation USA and the Queens, NY-based National Association 
of Jewish Child Holocaust Survivors.
    The International Tracing Service, or ITS, was established by the 
Allies after the war to help families trace Holocaust and war victims. 
The Allies forwarded millions of captured documents to the facility in 
Bad Arolsen. The International Red Cross was given custody and control 
of the archives, which provided information on individuals only to 
survivors and their families. A typical family request could take years 
to process.
    In January, Holocaust survivors petitioned Federal Judge George 
Daniels to reject a settlement with Generali because ICHEIC had failed 
to publish the names of all Jews whom the company insured before World 
War II. The petition, which included numerous quotations from the 
Jewish media about Bad Arolsen's insurance documentation, decried the 
alleged rush to judgment.
    Judge Daniels temporarily delayed a decision, but ultimately 
finalized the permanent settlement with a limited extension for claims 
based on discoveries that might emerge from the Bad Arolsen archive.
    Having lost in court--and convinced that established Jewish 
organizations would not aid them--survivor groups lobbied Congress to 
link the campaign to open Bad Arolsen to the separate campaign to 
recover insurance claims and compel disclosure of the names of those 
insured.
    On March 28, U.S. Representative Ileana Ros-Lehtinen (R-FL) 
introduced the Holocaust Insurance Accountability Act of 2007, to 
enthusiastic support on both sides of the aisle.
    The act seeks to supersede international agreements brokered by the 
State Department to settle insurance claims through ICHEIC. The bill 
concludes that ICHEIC, which is due to terminate operations soon, ``did 
not make sufficient effort to investigate'' or compile the names of 
Holocaust-era insureds or the claims due to survivors. The bill adds 
that recent media disclosures about the contents of Bad Arolsen have 
given new justification to such legislation.
    In response, a representative for ICHEIC said the Commission had 
accomplished its mission of identifying and settling unpaid Holocaust-
era life insurance claims by processing more than 90,000 claims and 
distributing more than $306 million to more than 48,000 claimants. More 
than half of the funds distributed via ICHEIC were the result of 
ICHEIC's archival research and matching work, the representative said.
    Still, Ros-Lehtinen's bill would require insurers to disclose 
comprehensive lists of Jewish policyholders from the Nazi era. The 
legislation also would enable Federal lawsuits to recovery money from 
insurers, thus overruling ICHEIC's final word and a variety of Supreme 
Court rulings that have denied survivors' rights to sue or gain access 
to policyholder names.
    The proposed law thus would trump both the executive and judicial 
branches on Holocaust-era insurance.
    The same day that Ros-Lehtinen's bill was introduced, 
Representative Robert Wexler (D-FL), chairman of the House Foreign 
Affairs Committee's Subcommittee on Europe, convened an extraordinary 
hearing on Bad Arolsen. The purpose was to orchestrate congressional 
pressure on the 11 governments--the United States, France, England, 
Belgium, Greece, Luxembourg, Netherlands, Poland, Israel, Italy, and 
Germany--that control the ITS to rush full access to its archives, 
providing the insurance information that has been submerged for 
decades.
    Members of the Foreign Affairs Committee sat stony and grim-faced, 
some holding back tears, as the hearing unfolded about the Bad Arolsen 
archives and their impact on survivors' decades-long effort to recover 
their insurance claims. Survivor David Schaecter of Miami, who admitted 
he was ``emotionally overcome,'' spoke of impoverished survivors in 
South Florida who cannot afford housing or medicine because their 
insurance payouts were first denied by the insurance companies and then 
by ICHEIC.
    ``I am begging this Congress,'' he implored, ``to please believe 
us. We have been wrongly stripped of our pride and property.''
    Leo Rechter of Queens pleaded, ``Open up Bad Arolsen to expose the 
Holocaust profiteers.''
    Representative Albio Sires (D-NJ) held back tears both in the 
hearing room and in the corridor. Wexler promised to fast-track 
legislation and action to open Bad Arolsen.
    ``We will take the next step and then the next step, and then the 
next step,'' Wexler said.
                                 ______
                                 

           For Holocaust Survivors, It's Law Versus Morality

                    (By Adam Liptak--March 14, 2004)

    In 1998, after Swiss banks agreed to pay $1.25 billion for keeping 
the property of victims of the Nazis and for laundering the profits of 
Nazi slave labor, the question arose: How should the money be spent, 
given that only part of that sum could be traced back to individuals 
who had their money stolen?
    On Tuesday, a Federal judge in Brooklyn ruled that the poverty of 
Holocaust survivors in the former Soviet Union required the bulk of the 
available money, saying that current need is more important than 
perfect restitution. In essence, he said survivors who live in richer 
countries should receive less than those in poorer ones.
    But that answer leaves some people, including many Holocaust 
survivors, angry and frustrated. ``The whole point of restitution is to 
compensate people for their actual suffering at the time of the 
crime,'' said Thane Rosenbaum, a law professor at Fordham University 
and the son of Holocaust survivors.
    History rather than charity should supply the guiding principles, 
said Mr. Rosenbaum, the author of a forthcoming book, ``The Morality of 
Justice,'' which argues that the legal system often fails to achieve 
moral results. The Swiss bank settlement, he says in the book, is such 
a case.
    ``From a moral perspective, it's the victims' money,'' Mr. 
Rosenbaum said, adding that it is up to survivors to determine how the 
money should be used.
    Edward R. Korman, the chief judge of the Federal district court in 
Brooklyn, acknowledged the difficulty of the problem. ``A comparison of 
needy survivors is by definition an odious process,'' he wrote in the 
decision issued last week. But morality required him, he said, to send 
some 70 percent of what may amount to $400 million to survivors in the 
former Soviet Union, and only 4 percent to survivors in the United 
States.
    Of the 900,000 or so Jewish survivors of Nazi persecution, 19 
percent to 27 percent live in the former Soviet Union while 14 percent 
to 19 percent live in the United States. Those in the former Soviet 
Union, the judge wrote, live in desperate poverty. The poverty of some 
American survivors is by contrast ``clearly less pressing,'' he said, 
given the public assistance and private charity available to them.
    But Samuel J. Dubbin, a lawyer for the Holocaust Survivors 
Foundation-USA, which says it represents more than 50 organizations and 
20,000 American survivors, objected to the judge's reasoning.
    ``You can't say that a survivor in need here is less worthy than a 
survivor in need in the former Soviet Union,'' he said. ``The reason 
you can't say that is that this is survivor money. Maybe you could say 
that if this was community money, if this were charity.''
    Instead, the foundation asked Judge Korman to base future 
distributions on pro rata allocations to the nations where large 
numbers of survivors live and only then require distribution within 
those nations to the neediest survivors.
    ``There's not enough money to hand out to all the survivors, 
unfortunately,'' said Leo Rechter, a 76-year-old retired banker who was 
born in Vienna and spent the war in hiding. ``The next best solution is 
that all the needy people be taken care of. The percentage of 
survivors' money in each country should be allocated to that country,'' 
said Mr. Rechter, whose father died at Auschwitz, ``and from that money 
the needy people there should be taken care of.''
    Judge Korman rejected that and other alternatives. He wrote that 
trying to adjudicate claims individually would be unwieldy, expensive, 
and in many cases impossible. A simple pro rata distribution, on the 
other hand, would yield ``literally pennies to each of the millions of 
individuals'' victimized by the Nazis, including all survivors and 
their heirs. He called the hybrid solution proposed by Mr. Dubbin and 
the survivors' foundation frivolous and inconsistent with law and 
morality.
    Should other lawsuits for historical wrongs succeed, the problem in 
the Swiss Bank case is likely to recur. Burt Neuborne, who represents 
the plaintiffs in the settlement, has written that some claims should 
by their nature give rise to indirect compensation in the form of 
social programs.
    For instance, he said, if lawsuits seeking damages for American 
slavery ever produce damages, the proper response may be affirmative 
action or providing money to assist for poor blacks.
    And Stuart E. Eizenstat, deputy treasury secretary from 1999 to 
2001 and the author of ``Imperfect Justice: Looted Assets, Slave Labor 
and the Unfinished Business of World War II,'' an account of the 
negotiations leading to the settlement, said such suits have an 
important moral and political aspect that may call for ignoring some 
usual legal remedies.
    ``A purely legal response,'' he said, ``does not work.''
    In this case, all agree that the dispute needs a speedy resolution. 
The average survivor is 77 years old if living in Israel and 84 if 
living elsewhere. Their numbers, according to a report issued in 2000 
by the court-appointed special master in the case, Judah Gribetz, are 
projected to fall by 6 to 8 percent each year through the end of the 
decade and faster afterward.
                                 ______
                                 

 Settlement Approved in Holocaust Victims' Suit Against Italian Insurer

               (By Joseph B. Treaster--Feburary 28, 2007)

    A Federal judge approved a settlement of a class action suit 
yesterday against an Italian insurance company, ending a long-running 
dispute over payments on life insurance policies taken out by Holocaust 
victims.
    The settlement provides less money than Holocaust survivors and 
relatives had hoped to receive from the company, Assicurazioni 
Generali, and it significantly raised the chances that the insurer 
would be able to avoid public scrutiny of its records from the Nazi 
era.
    But Judge George B. Daniels of Federal District Court in Manhattan 
said he was convinced that the deal was the best the survivors and 
their relatives could get.
    ``The settlement is not perfect,'' he told a room of lawyers and a 
handful of survivors and relatives. But he said that for most families 
who had bought coverage from Generali, it ``may be their only real 
opportunity for any monetary recovery.''
    Lawyers representing the survivors had reached an agreement with 
Generali last summer after another Federal judge dismissed their claims 
and they decided the odds of winning an appeal were low.
    Judge Daniels had interrupted an initial hearing on the fairness of 
the settlement on January 31 after Samuel J. Dubbin, a Miami lawyer 
opposing the settlement, appealed for more time to give survivors and 
relatives a chance to look for evidence to support their insurance 
claims in long-sealed Holocaust-era archives in Bad Arolsen, Germany.
    The United States and 10 other countries that control the archives 
have agreed to open them and are meeting in the Netherlands on March 7 
and 8 to discuss speeding up the process.
    At Judge Daniels's urging, Generali and lawyers for survivors and 
relatives amended their agreement to extend the deadline for filing 
claims to take account of evidence found at Bad Arolsen until August 
31, 2008. The judge said yesterday that the extension eliminated his 
major concern. The deadline for all other claims remains March 31.
    Before the settlement Generali had paid about $100 million in 
claims on Holocaust-era policies, mainly through a commission in 
Washington. It agreed to pay $35 million more as a result of the 
settlement. The company said the $135 million covered 5,500 claims.
    Generali said it had received 3,300 more claims as the settlement 
has been pending, and Robert A. Swift, a Philadelphia lawyer for the 
Holocaust survivors, estimated that the company would pay another $10 
million on those and other claims made before the deadlines. Generali 
will pay about $4 million in legal fees.
    Mr. Dubbin has contended that Generali sold policies worth billions 
on which it has never paid claims. But Generali and the lawyers in the 
class action suit take issue with Mr. Dubbin's estimates.
    Mr. Dubbin also argued that Generali had failed to adequately 
publicize the settlement. He and other advocates for the survivors said 
that because Generali has refused to publish a full list of its 
policyholders, tens of thousands of Holocaust survivors and relatives 
have been unaware that they had reason to file a claim--with the 
approval of the settlement they would be foreclosed from ever doing so.
    Generali has published the names of many policyholders, but 
contends that survivors and relatives have other ways of knowing 
whether they are eligible to file claims.
    Mr. Swift, who helped draw up the agreement, used almost the same 
words as Judge Daniels in characterizing the settlement.
    In a statement distributed before the hearing, Generali said it 
viewed the settlement ``as an important step in its longstanding 
commitment to bring fair closure to the Holocaust-era claims process.''
    In the late 1990s, American lawyers filed lawsuits against more 
than 20 European insurance companies, accusing them of refusing to pay 
claims on billions of dollars in policies they had sold to people who 
became victims of the Holocaust.
    The other lawsuits were either dropped or resolved. The settlement 
ends the biggest case against Generali. But a handful of lawyers, 
including Mr. Dubbin, are continuing to appeal the earlier dismissal of 
a group of lawsuits against the insurers. In dismissing the case, Judge 
Michael B. Mukasey cited a Supreme Court ruling that dealing with 
Holocaust claims in United States courts could interfere with the 
President's ability to resolve international disputes.
    In an interview, an aide to Representative Ileana Ros-Lehtinen, a 
Republican of Miami, said the lawmaker was planning to introduce 
legislation that would require Generali and other insurers to publish 
lists of policyholders--a longstanding request of survivors and 
relatives--and would attempt to provide jurisdiction for European 
insurance cases in American courts.
    Generali says its policy is to pay valid claims and has denied 
accounts by Holocaust survivors that its representatives demanded 
copies of policies from people who had lost everything and death 
certificates for policyholders who died in camps.
    In the settlement, the company acknowledges no wrongdoing.
    ``This is a sad day for Holocaust memory and historical justice,'' 
said Thane Rosenbaum, a son of Holocaust survivors and a professor at 
the Fordham University law school. ``The only entity that really 
benefited from this is Generali. They avoided having to pay tens of 
thousands of claims and they avoided opening up their archives and 
historical records to reveal what happened, how and why.''

    Senator Bill Nelson. Mr. Rubin, we need to ask you some 
questions.
    Mr. Rubin. Yes, please.
    Senator Bill Nelson. OK. I'm going--as a courtesy to my 
colleagues, I'm going to defer my questions until the end. So I 
would ask Senator Coleman.
    Senator Coleman. Thank you. Thank you, Mr. Chairman.
    Obviously this is an issue of great emotional impact and 
individuals who have suffered and whose families have suffered 
greatly. Let's see if we can sort some things out.
    Mr. Kent, in your written testimony you talk, and in your 
verbal you kind of reference this, you talked about the damage 
H.R. 1746 would have with ongoing negotiations with the German 
and other governments. Could you give me, on what basis do you 
make that assertion? Have any governments expressly stated that 
ongoing restitution and compensation efforts would be 
jeopardized if H.R. 1746 became law?
    Mr. Kent. Yes, Senator. I can reply to you that, as I said, 
I've been negotiating with the governments, particularly German 
and others, for many years. And they have expressed to me in 
the last few months very clearly--and I emphasize this word, 
``very clearly''--what is the sense for us to negotiate with 
you when afterward we will have to the court and start all over 
again; it would be better for us not to negotiate and let's go 
to the court; it will take years, 5, 10 years. We'll see. But 
we might as well stop.
    Why I am in this is simply because I have seen the need of 
the survivors. Jack is right, there is tremendous poverty among 
survivors, and nobody gives them the help except the so-called 
Claims Conference basically, and the money is through the 
negotiations. So if we stop the negotiation, we will not 
provide the need of survivors.
    Senator Coleman. You raise the issue of going through the 
courts. I'd like to turn perhaps to Mr. Rubin on this, just to 
make the statement that--I believe in your testimony you talked 
about exaggerated expectations or survivors being disappointed, 
say false hope. The ICHEIC process was one which had rules of 
evidence and admission that were different from a court. I 
would turn to Mr. Rubin. Would there be concern that if these 
matters were in Federal court the reality is that it may take a 
very long time for them to be resolved? The standards for the 
admission of evidence are such that it would be very, very 
difficult in cases perhaps such as your own.
    Do you have any concern that H.R. 1746 would raise false 
hopes and would make worse the very serious concern that you've 
laid on the table?
    Mr. Rubin. Not necessarily. At least we have a right to go 
to court, even if it takes 2 years, 3 years, or 5 years. If not 
us, our children or our grandchildren will be able to follow it 
up. They shouldn't get away with it. They stole so much of it 
that there's not enough money in this world they could repay 
what they did to us. But let's not stop now. If we cannot do 
it, our children will do it. I'll make sure of that. I have 
three beautiful children and four grandchildren. They've been 
taught what happened to us. They should follow it up if I'm not 
around.
    Senator Coleman. There's probably not a lot of time and 
there are so many questions here. One of the concerns about 
ICHEIC--I turn to Mr. Kent on this one--has been questions 
about claims valuations. Did you have any concerns--you were a 
commissioner and so you played a role in some of that. Did you 
have any concerns and objections in terms of the calculation of 
claims valuation?
    Mr. Kent. May I just take one moment to reply to Mr. Rubin 
that, yes, every survivor should have the right to go to the 
court, but, like you justly said, Senator Coleman, it will take 
ages. We will not live to it. But in the meantime, the needy 
survivors that need the help now will get no help. This is why 
my heart, my soul, is in this, what I am doing for survivors 
for now, because they need it. They went through hell and they 
deserve better.
    Now, to reply to you, yes, Senator, there was a lot of 
discussion about the valuation and, practically speaking, there 
is not the right way or the wrong way about the valuation. It 
depends what avenue you will take. Therefore, ICHEIC finally 
accepted certain valuations.
    I might tell you only that I have accepted the valuation as 
such to be more proper. Were we 100 percent right? No; because 
there are very different ways to valuate it. But I can only 
tell you one thing, that when I heard the reports by various 
people that only 3 percent was given, this is like saying that 
the insurance commissioners, the insurance company, nobody knew 
anything. And I can assure you that the insurance commissioners 
of the United States, of the United States, are not so foolish 
as to accept valuations that would give only 3 percent value as 
a payoff. They are not so foolish. They are bright, they are 
people with integrity. They would not accept it. This is just 
as a P.S.
    Senator Coleman. I know my time is almost up, Mr. Chairman. 
To both witnesses, I appreciate the passion that you bring and 
the commitment for justice to be done on this issue.
    For you, Mr. Kent, I would like to submit for the record, 
there are some questions about recommendations you've made 
regarding post-ICHEIC processing.
    Senator Bill Nelson. Take the time.
    Senator Coleman. We have a little time here. Just so I can 
kind of step forward: One, how would you characterize--I'm 
concerned about Central and Eastern Europe folks who were not 
involved, who didn't have an opportunity even to go through 
ICHEIC. What should Congress do to bring about agreements with 
the Eastern European countries to ensure survivors there have 
some remedy?
    Mr. Kent. This is a difficult question, but I would say 
that I would definitely be willing, our organization, to work 
with you to submit a more detailed proposal. And I would break 
it, talking from the top of my head, into two categories. There 
are some Eastern European countries that are right now members 
of the European Union. Therefore, the members of the European 
Union, I would be much more stringent that they should apply 
proper restitution law because, after all, this is what the 
western civilization is.
    So I would have like a two-tier approach to the Eastern 
European countries, the ones that are in the European Union and 
the ones that are not. And we will gladly, by your request, 
write to help you to be more specific in what and how to do it.

    [The information referred to above was not available when 
this document was sent to press.]

    Senator Coleman. I look forward to that followup 
conversation.
    Mr. Rubin. May I just ask Mr. Kent one question, please?
    Senator Bill Nelson. Did you have a question?
    Senator Coleman. I've finished my questions.
    Mr. Rubin. May I ask a question? Mr. Kent, which 
organizations do you represent?
    Mr. Kent. I represent American Gathering----
    Mr. Rubin. No; you do not, Mr. Kent. The board voted 
against it, that you no longer are the chairman of the 
Gathering. So please, don't misrepresent to this body.
    Senator Bill Nelson. The witnesses will direct their 
questions through the chair. That is the protocol and that is 
the Senate Rules.
    Mr. Rubin. I'm sorry.
    Mr. Kent. I beg your pardon.
    Senator Bill Nelson. All right. Senator Cardin.
    Senator Cardin. Thank you, Mr. Chairman.
    I want to thank both the witnesses for being here. I know 
this is a very difficult subject. You put a face on the issues. 
Each one of the victims of the Holocaust has a story. Some have 
no survivors to tell those stories. Some will never have 
records ever available to present the unjustified denial of 
their rightful claims. So this is a very difficult matter.
    Mr. Kent, I thank you for your leadership in stepping 
forward and trying to help find a solution.
    Mr. Rubin, I thank you for being here to let us see 
firsthand a face of the victims of the Holocaust. It's been a 
long time, and I am worried that people in this country may 
start to not recognize the atrocities that were done during 
World War II and that many victims have yet to be satisfied. So 
I thank you for that.
    But I think we have a real problem here with the insurance 
issues. I look at the process that was set up as a recognition 
by many countries that a wrong was done and as an effort to 
develop a workable way to remedy that. The process comes from 
the point of view of an acknowledgment and a meaningful 
contribution to the victims in addition to Holocaust education 
and remembrance. I think that's what was set out to accomplish, 
because there was no way that we could now reconstruct a clear 
picture of the claims that were out there. The information that 
was made available at best would be partial, could never be 
complete. So it's a very difficult undertaking.
    I might just by way of example: When I first came to 
Congress, which was 21 years ago, I met with the Japanese-
American community affected by the internment camps during 
World War II. They were wronged by their government and felt 
that there should be a way that they are compensated for what 
was taken away from them, their personal freedom and their 
opportunity for advancement during a period of time where they 
were confined to a camp.
    At that time we looked at how to determine the individual 
values. Now, I know in insurance claims if you have records you 
may be able to establish the specific dollar amount, but that's 
not going to be the typical circumstance here. A collective 
remedy was developed in working with the community and 
Congress. To me the major part of that was an acknowledgment, 
an acknowledgment that a wrong had been done. Second, it was a 
meaningful contribution to try to remedy that. It wasn't 
perfect. It certainly didn't represent the damage that was 
done. None of us would have substituted our place with someone 
who was interned during World War II for the compensation they 
received.
    I'm not sure there is the right answer here, but I think 
judgments were made on moving forward with this process, and 
really good people worked on it who were very sensitive to the 
pain, Mr. Rubin, that you and the victims sustained, to try to 
find a just solution.
    I want to follow on what Senator Coleman said. I have real 
concern as to taking action against governments that have not 
acknowledged this problem. We still have many countries in 
Eastern Europe that have not taken the appropriate steps to 
deal with not only insurance, but property restitution, and 
community property restitution. They have the means to do it 
and they have resisted coming to grips with that part of their 
history. They use various excuses for not doing it. I think 
that's where our focus needs to be, to deal with those 
countries.
    Again, there's one part that I'm going to asking the next 
panel specific questions about and that is how much cooperation 
we got in opening up the records. I agree with the comments 
that have been made on transparency. I hope that we have as 
much information that's available as possible in order to have 
the best historical record of how people were victimized by the 
insurance industry during World War II. Additionally to 
recognize their failure to step forward and accept 
responsibility until they were sort of required to do so by the 
actions of people in our country and the international 
community.
    Thank you, Mr. Chairman.
    Senator Bill Nelson. Thank you, Senator Cardin. You are a 
cosponsor along with Senator Gordon Smith and Senator Coleman 
of a resolution that I'm introducing about those countries that 
have never stepped up to acknowledge their responsibility.
    Senator Menendez.

              STATEMENT OF HON. ROBERT MENENDEZ, 
                  U.S. SENATOR FROM NEW JERSEY

    Senator Menendez. Thank you, Mr. Chairman.
    I want to echo a lot of what my colleague Senator Cardin 
said. I appreciate the passion that you both bring to the issue 
and the sense of purpose.
    I am here today because I have actually heard from 
constituents on both sides of this point of view in New Jersey. 
So I don't come to the issue with a preconceived idea of what 
is right or wrong. I wanted to listen and learn. So I 
appreciate hearing from both of you.
    I do have a question or two in pursuit of being further 
educated in this respect. Mr. Kent, let me ask you, what do you 
see as the principal reasons for European insurance companies 
not releasing the list of policyholders from the prewar period?
    Mr. Kent. This is a complicated issue, but to try to put it 
in perspective let me say to you that every country--that 
includes our country--we have a privacy law. So when we are 
talking about records of maybe 8 million insurance policies 
that were written between 1933 to 1945, they would have to open 
privacy law. Every country--Germany, Italy, Switzerland, 
France--each one have privacy laws. And we have encountered it 
in our negotiations. It was almost an impossible thing to 
conquer.
    Finally, what we have also arranged, No. 1, that we have 
to--the bottom line to it was that we have eventually released 
over 520,000 names that we have acquired from the so-called 
list. One of the reasons we were able to go around some of the 
privacy law was that we have worked through--it cost a lot of 
money, but we worked through Yad Vashem and we have a sounding 
process, that we were able to take the list of the total 
companies and sound which were kind of a Jewish sounding name. 
This is one of the reasons we got around the privacy law. This 
is why it is so complicated.
    If I have the way of saying right now, we were talking here 
a lot of times about justice. I heard the word ``justice'' 
mentioned so many times. Justice cannot be given to me or to 
Jack, because justice would be to get our parents, our cousins, 
our mothers back. There is no way to it.
    So what we are trying to do is to create what was so 
appropriately named in the book that Ambassador Eizenstat 
wrote, ``Imperfect Justice.'' We're trying to create out of 
this chaos, out of the Holocaust, out of this madness, 
something that we can help some people that are still alive.
    Senator Menendez. I appreciate that. Since my time is eaten 
up, I'll take a moment to interrupt you.
    I understand the privacy thing, but I also could view the 
alleged bar of privacy for the purposes of limiting liability 
and damages. So there's a flip side to that that makes me 
concerned.
    Let me ask you this: In your testimony, which I read, you 
talk about your concern that pursuing legislation would 
undermine previous commitments and also the possibility that 
Germany and other governments would continue and expand upon 
the funds that have so far been brought to date. How real are 
those negotiations in terms of what meaningful possibilities do 
they present?
    Second, you also talk about that in fact some of the 
insurance companies that have participated in this process say 
they will continue to honor claims by Holocaust victims and 
their heirs using the relaxed standards of proof recognized by 
ICHEIC. What mechanisms are there to guarantee that process?
    Mr. Kent. This, Senator, is one of the issues which I 
mentioned previously, right now previously in my testimony, 
that it would be important for both of us, for all of us, to 
work together to see that we can somehow create certain means 
which are maybe not yet right now in effect to make sure that 
the continuing process of processing the claims continues.
    Senator Menendez. So that's an aspiration; that's not 
something that's under way?
    Mr. Kent. No; but in the mean time we have from them not 
only verbal, but also written assurances that they are going to 
process these particular claims as long as they get the claims. 
Now, we also discussed this with the New York--with the New 
York insurance commissioners. They are going to provide some of 
the claims and they promise that they will do it.
    I welcome, as far as I am concerned, any other suggestions 
that we can put together that the Congress can also be, and 
call it, and supervise the processing of the claims.
    Senator Menendez. Mr. Chairman, with your indulgence. And 
the question about how real are these negotiations with Germany 
and other countries for expanding upon their commitment to 
date?
    Mr. Kent. Are you talking right now about----
    Senator Menendez. In your testimony you talked about 
Germany. In your testimony on page 3, you talk about the 
ongoing negotiations with Germany and other governments for the 
continuation and expansion of hundreds of millions of dollars 
in crucial funding.
    Mr. Kent. This is very real. It's not only real; this is 
one of the main reasons why I am so much against this 
particular bill, because this bill will not solve the problem 
for now, for the needy survivors. The real negotiation with the 
Germans contains many things. For example, millions of dollars 
for home care. Where do we get money for home care? This is the 
real negotiation with the Germans. We got a few years ago $10, 
$12 million. We got $15 million right now. We're talking about 
$45 to $80 million for home care. This is pending.
    If you ask me my opinion right now, unfortunately I would 
say it might be stopped, because I have received verbal 
statements from ambassadors from Germany that, what's the sense 
of negotiating if we have to go to the court later on? Let us 
wait and go to the court. So we'll take a year, 5 years. Then 
yes, we will wait until it gets through the court.
    We have pending Social Security for thousands of survivors, 
because the Social Security in Germany is so cockeyed that some 
people got it, some people didn't get it. For example, in one 
family one person of the family was in the same camp, got it, 
the other one didn't get it. We are trying to straighten it 
out.
    So we have many. We have article 2 fund, where people are 
getting thousands of dollars, hundreds of thousands of dollars 
when you take totality. We have a lot of negotiations, and 
we're getting it every year. So this is real, it is very real.
    Senator Menendez. Thank you, Mr. Chairman.
    Senator Bill Nelson. We want to thank the two of you. Both 
of you are Holocaust survivors. And we particularly wanted the 
two of you to be the first panel, to hear from the people who 
are affected the most. You've done, both of you, a very 
admirable job. Thank you for lending your passion and your 
expertise to the deliberation of this issue. Thank you very 
much.
    Now I would like to call up the second panel.
    If you could take your seats, we're ready to go.
    As the witnesses are taking their seats, you'll notice that 
we have tried to balance out this issue so that we can hear 
both sides. Secretary Eagleburger and Ambassador Eizenstat will 
present one side. Mr. Rosenbaum and Mr. Dubbin will present 
another side. And then we want to hear from Ms. Rubin, who is 
here for the State of New York claims processing office. So we 
will go in the order in which the agenda has been printed.
    I remind you again, 5 minutes, and the clerk of the 
committee will stand at the end of 5 minutes and if you could 
wrap up at that point.
    Secretary Eagleburger.

  STATEMENT OF HON. LAWRENCE EAGLEBURGER, FORMER SECRETARY OF 
    STATE AND FORMER CHAIRMAN, INTERNATIONAL COMMISSION ON 
  HOLOCAUST ERA INSURANCE CLAIMS (ICHEIC), CHARLOTTESVILLE, VA

    Mr. Eagleburger. Thank you, Mr. Chairman. Thank you for the 
opportunity to appear before you today. I appreciate the 
committee's efforts to examine the issues underlying the 
Holocaust-era insurance claims, including the work of ICHEIC, 
and I certainly remember our earlier cooperation, sir, when you 
were still operating in the vineyards instead of up here at the 
higher level.
    ICHEIC's mission was to identify and compensate previously 
unpaid Holocaust-era insurance policies. Everyone working for 
ICHEIC was committed to achieving our mission and there was 
passion in their work. We were successful in our work, 
resolving more than 90,000 claims and ensuring that over $306 
million was offered to Holocaust survivors and heirs for 
previously unpaid policies.
    Of this amount, more than half went to individuals unable 
to provide policy documentation or identify the company that 
may have issued the policy. The commission also distributed 
nearly $200 million more for humanitarian and social welfare 
purposes, largely to honor the heirless claims.
    Justice was done. Justice has been done.
    The commission included many U.S. insurance regulators, 
representatives from Jewish organizations, insurers, and the 
State of Israel. Credit also goes to the NAIC for their efforts 
to resolve the complex issues of unpaid Holocaust-era insurance 
claims.
    We only came to appreciate the challenge as we worked 
through the undertaking. We were creating a process to address 
claims that were over 70 years old, from more than 30 
countries, in more than 20 languages, involving currencies with 
no relevant value and with little documentation.
    To start, we researched the prewar and wartime insurance 
market and then invested heavily in extensive global outreach, 
utilizing all means available and emphasizing that anyone, 
regardless of the documentation they possessed, should file a 
claim. We established an agreement on relaxed standards of 
proof and created valuation standards that could be calculated 
without the usual policy documentation.
    We also developed an extensive research database and a 
matching system. We instituted a separate but related 
humanitarian claims payment process for unnamed, unmatched 
claims and for claims on Eastern European companies that had 
been liquidated, nationalized, or for which there were no known 
present day successors.
    One of the commission's first priorities was to gain a 
clear understanding of the overall volume and estimated value 
of potential claims. The Pomeroy-Ferras Task Force, utilizing 
outside experts, helped establish the size and the scope of the 
insurance market to determine appropriate settlement amounts.
    ICHEIC's archival research was similarly critical to build 
the information provided by claimants, constructing an ICHEIC 
research database that ultimately could be matched with 
companies' information. As a byproduct of this research, ICHEIC 
published the names of over 519,000 potential Holocaust-era 
policyholders on the Web site. While historically important, 
finding a name on a list published by the commission was 
neither necessary to file a claim nor proof that a previously 
unpaid claim existed.
    We recognized also that our credibility depended on 
adequate oversight. ICHEIC established four key controls: 
First, two-stage independent third party audits; second, an 
executive monitoring group that could conduct real-time 
evaluations of companies; third, an in-house verification 
process to cross-check every decision on every claim that named 
a company; and fourth, an independent appeals process.
    The successful settlement of ICHEIC claims, coupled with 
restitution efforts during the immediate postwar period and the 
ongoing work of existing entities to resolve the remaining 
unpaid insurance policies within their respective 
jurisdictions, addresses a preponderance of the prewar 
insurance market. Assertions that billions remain unpaid do not 
bear scrutiny.
    Moreover, for any claims that may remain outstanding, every 
company that was a member of the commission, as well as the 
German Insurance Association and the Shoah Foundation, reaffirm 
their commitment to continue to review and process claims sent 
to them.
    [The prepared statement of Mr. Eagleburger follows:]

  Prepared Statement of Hon. Lawrence S. Eagleburger and Diane Koken, 
    Former Chairman and Vice Chairman, International Commission on 
      Holocaust Era Insurance Claims (ICHEIC), Charlottesville, VA

    Chairman Nelson, Senator Vitter, members of the subcommittee, we 
appreciate the opportunity to appear before you today, and thank you 
for the work you have done in seeking to examine to the fullest extent 
possible the issues underlying Holocaust-era insurance claims in the 
context of considering legislation on this subject. We also want to 
thank you, Chairman Nelson, for your significant contributions to the 
work of International Commission on Holocaust Era Insurance Claims 
(ICHEIC) as a founding member of the Commission during your term as 
Florida's State Treasurer, Insurance Commissioner and Fire Marshal.
    The International Commission on Holocaust Era Insurance Claims 
(ICHEIC) resolved more than 90,000 claims for Holocaust survivors and 
their heirs. This testimony will provide an understanding of why and 
how the Commission approached its mission--to identify and compensate 
previously unpaid Holocaust-era insurance policies--and how the 
organization was structured around that mission.
    Chairman Nelson, you are uniquely situated to appreciate the 
Commission's challenges and approach. In your role as Florida's 
insurance commissioner, you were central to driving the Commission's 
creation, and organization, and to ensuring both the mission--to 
identify and compensate previously unpaid Holocaust-era insurance 
policies--and also building the concept of humanitarian funds, to be 
able to provide at least in part some form of ``coverage'' for the many 
Holocaust victims who did not survive, or had heirs survive to make 
claims.
    I was selected to chair ICHEIC in the Commission's early days, and 
remained committed to achieving our mission throughout what was a long 
and difficult process. As you know, Diane Koken was a member of the 
Commission throughout her tenure as Pennsylvania Insurance 
Commissioner, from 1997-2007, and remained as vice chair until ICHEIC 
closed. We believe ICHEIC was largely successful in accomplishing its 
mission. We were joined in this effort by many State insurance 
regulators from all parts of the country, major Jewish groups and 
survivors' organizations, the State of Israel, as well as European 
insurance companies and associations. We commend all these participants 
who worked to create a process to identify and ultimately settle valid 
and previously uncompensated Holocaust-era insurance claims at no cost 
to claimants.
                       why success--what achieved
    The Commission concluded its work with over $306 million paid to 
more than 48,000 Holocaust victims or their heirs for previously unpaid 
insurance policies. Of this amount, more than half went to individuals 
with so little information about their potential claim that they were 
unable to identify even the company that may have issued the policy. 
The resolution of these undocumented claims 60 years after the 
devastation of the Holocaust and the Second World War clearly 
illustrates the success of ICHEIC's research efforts. Moreover, the 
successful settlement of these claims through the ICHEIC process, along 
with restitution efforts during the immediate postwar period and the 
present ongoing work of ICHEIC-related entities \1\ to resolve 
remaining unpaid life insurance policies within their respective 
jurisdictions, addresses a preponderance of the prewar insurance 
market.
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    \1\ Examples include the Claims Resolution Tribunal (CRT), which 
was created as a result of the Swiss banks class action settlement and 
the General Settlement Fund (GSF), a result of agreement between the 
United States and Austrian Governments.
---------------------------------------------------------------------------
    In addition to the over $306 million payments made by ICHEIC 
companies or related entities, ICHEIC distributed nearly $200 million 
more for humanitarian purposes. At ICHEIC's concluding meeting, every 
company that was a member of the Commission as well as the 70-odd 
companies of the German Insurance Association through its partnership 
agreement with ICHEIC reaffirmed their commitment to continue to review 
and process claims sent directly to them. Since that time, four of the 
five ICHEIC companies--AXA (which also now controls Winterthur), 
Generali, and Zurich--wrote to Diane Koken directly, in the context of 
her testimony before the House Financial Services Committee in 
February, to reaffirm the commitments they made at the ICHEIC meetings. 
The German Insurance Association and the Dutch Insurance Association 
respectively sent letters to Chairman Frank of the House Financial 
Services Committee, commenting on the legislation, in which they 
referenced their ongoing commitments to process claims.
    Our primary concern throughout our service to ICHEIC has been 
assisting Holocaust survivors, and the families of those who perished, 
seeking to recover the proceeds of unpaid prewar insurance policies.
    We appreciate the care we must take with the expectations of 
survivors and their heirs; we know that the path to closure is a 
difficult one. In the late 1990s, the question of Holocaust-era asset 
restitution reemerged and numerous class action lawsuits were filed, At 
that time, U.S. insurance regulators sought the most effective means to 
address issues raised by survivors and families seeking the proceeds of 
unpaid prewar life insurance policies of those who had been persecuted 
during the war. They recognized that given the understandable challenge 
of documentation, the length of time that had passed, and the effort 
and costs involved, the path of litigation presented significant 
difficulties for this highly sensitive and emotionally charged issue.
    For these reasons we explored routes other than litigation to 
resolve these unpaid claims. By conducting interviews, researching the 
historical background, and organizing informational hearings across the 
country, the NAIC sought to better understand the issues raised by 
individuals like Roman Kent and other survivors. Working through State 
insurance regulators, the NAIC then identified the companies most 
likely affected and worked with these companies to arrive at a means of 
resolving the issues presented.
    We worked to gain an understanding of the defining characteristics 
of prewar life insurance markets in Europe, and the geographic 
limitations and procedural shortfalls of prior compensation programs. 
With this work in mind, ICHEIC was created in August 1998. With ICHEIC, 
we established processes to identify claimants, locate unpaid insurance 
policies, and assist Holocaust survivors and their families, and the 
families of those who did not survive, in resolving claims. Survivors 
and the heirs of any Holocaust victims who may have held policies, most 
of whom could provide no documentation beyond anecdotal information, 
were able to submit claims to insurers and related entities, at no 
cost.
    As part of the ICHEIC process, we examined insurance company files, 
built a database constructed from research in archives across Europe, 
worked to make sure potential claimants worldwide knew how to file 
claims, developed a Web site to provide easy access to information 
about our efforts, established a system to process the more than 90,000 
claims submitted, and established an independent appeals system 
presided over by jurists who, over the life of the process, reviewed 
hundreds of appeals that provided every claim that named a company the 
opportunity for review. The relatively small percentage of reversals on 
original decisions underscored the strength of the initial system of 
checks and balances we had constructed, which included internal ICHEIC 
staff verification of every company decision, and outside independent 
audits of companies' records and decisionmaking practices to make sure 
they complied with ICHEIC rules and guidelines.
    As we offer more detail on each of these steps, we will describe 
how the Commission was structured and why, and the nature and scope of 
the companies and entities with which the Commission had agreements. It 
is important to have an understanding of this groundwork to appreciate 
(1) how much of the Holocaust-era insurance market ICHEIC claims and/or 
ICHEIC-related agreements covered--and thus why the over $306 million 
plus in claims payments plus the nearly $200 million in humanitarian 
fund commitments, essentially on behalf of would-be heirless claimants, 
was a substantial proportion of the estimated market share; and (2) the 
degree to which the combined experience, authority, and 
responsibilities of U.S. insurance regulators; Jewish representatives 
of Holocaust victims and their heirs; and European insurance companies 
and entities together were necessary to forge workable agreements, as 
well as internal operating rules and guidelines.
                         structure and approach
    In the mid-1990s a growing body of public evidence suggested that 
several major insurance companies had sold policies to European Jews in 
the 1920s and 1930s, and that for many of these policies, claims were 
still outstanding. In the summer of 1997, NAIC members reached out to 
the World Jewish Congress and by September of that year, the NAIC held 
its first public hearing and established a Working Group on these 
issues. By May 1998, the Working Group became a more formal task force, 
and consulted with Roman Kent, President of the American Gathering of 
Jewish Holocaust Survivors, and others. We agreed then that dialogue, 
rather than confrontation, should be a cornerstone of the Commission 
because we were seeking a voluntary process. For the Holocaust 
survivors still living there was little time for further litigation or 
debate.
    Major European insurance companies who shared an interest in the 
U.S. market participated in the discussions, ultimately signing a 
Memorandum of Understanding to create the Commission, and indicating 
their willingness to become members. These companies were Allianz, AXA, 
Basler, Generali, Winterthur, and Zurich. All but Basler remained 
ICHEIC Commission members throughout the process; Basler participated 
in processing ICHEIC claims but through its membership in the German 
Insurance Association. The Dutch Association of Insurers joined the 
Commission in May 2000. The Commission included U.S. insurance 
regulators, Moshe Sanbar and Roman Kent representing survivor 
organizations, and the State of Israel. In addition, regulators, Jewish 
organizations, and companies also had alternates and observers who 
actively participated in the process.
Property issue
    Information revealed through the hearings and discussions leading 
up to the formation of the Commission indicated that the issue of 
unpaid claims went beyond life insurance policies and also included 
unpaid property claims. Life insurance policies are generally held for 
longer periods and retain value even after premiums are no longer paid. 
Property insurance policies differ in that they are usually written on 
an annual basis and have no residual value if they are cancelled for 
nonpayment of premiums.
    In general, property insurance covers property damage, not 
expropriation and most policies include an exclusion for acts of war. 
When assessing post-war compensability of such policies, among other 
issues, it is necessary to determine whether the policy was in effect 
at the time the insured event occurred and whether the insured event 
was the direct result of persecution or was caused by an act of war, 
such as an air raid. Although ICHEIC accepted property claims, given 
the issues, claimants needed to provide specific answers to worksheet 
questions in response to property-related claims.
 determining scope/size of market; negotiating agreements and forming 
                          valuation guidelines
    In the fall of 1999, having identified the building blocks of the 
claims process and initiated a global outreach campaign that would 
eventually result in receipt of 120,000 claims forms from 30 different 
countries, the Commission sought macro-level guidance on the overall 
volume and estimated value of potential claims. For this effort, we 
appointed Glenn Pomeroy, then North Dakota Insurance Commissioner and 
former president of the NAIC and Phillippe Ferras (then executive vice 
president of AXA France) as joint chairmen of a task force to report on 
the estimated number and value of insurance policies held by Holocaust 
victims.
    The task force was staffed by outside experts as well as ICHEIC 
members, and included economists Frank Lichtenberg from Columbia 
University Graduate Business School and Helen Junz, a member of the 
Presidential Advisory Commission on Holocaust Assets in the United 
States who assisted the Volcker Committee with a project on estimating 
the size and structure of the wealth of the Jewish population in Nazi-
affected countries before World War II, as well as actuaries with the 
Office of the California State Insurance regulator and AXA-Paris. The 
Pomeroy-Ferras report, available at www.icheic.org, provided data that 
allowed the Commission to assess the scope and size of the European 
pre-Holocaust insurance market relevant to Holocaust victims and their 
heirs.
    The Pomeroy-Ferras report determined how the relative maturity of 
the various European insurance markets might have affected local 
populations' access to insurance. It provided an overall view of what 
total damages might be by trying to determine the Jewish population's 
respective rates of participation in the life insurance market and by 
estimating the average value of life insurance policies, based on the 
scope of the insurance market and the size of the Jewish population in 
each country. While the propensity of the Jewish population to insure 
was found to be two to three times that of the regular population in a 
given country, the propensity to insure differed significantly from 
country to country, which dramatically affects the overall estimates of 
market size.
    By way of example, Poland had a very significant Jewish population 
(3.3 million at that time and by far the highest in Europe) but also 
had a highly agrarian economy and was one of the poorer countries in 
the region. In contrast, Czechoslovakia's Jewish population (396,000), 
while constituting a smaller percentage of the overall population, 
would have been likely to be far more highly insured given the maturity 
of the insurance market. As noted in the Pomeroy-Ferras report, in 1937 
the average policies per capita was 0.074 in Czechoslovakia and 0.0077 
in Poland.\2\ The Pomeroy-Ferras task force discussed as well what 
proportion of policies in each market might be deemed to have remained 
unpaid.
---------------------------------------------------------------------------
    \2\ The primary sources of data used by the Pomeroy-Ferras task 
force were the ``Assekuranz Jahrbuch'' published annually and Neumann's 
``Jarhbuch for Germany.''
---------------------------------------------------------------------------
    The Pomeroy-Ferras report also details some of the challenges that 
participants faced in accurately assessing the value of unpaid 
policies. While the task force reached consensus on the overall size of 
each country's insurance market and estimated the propensity of Jews to 
purchase life insurance, it was far more difficult to determine the 
number, average value, and percentage of unpaid Jewish-owned policies.
    Given these considerations, the Pomeroy-Ferras report generally 
provided a range of figures in different categories for different 
markets. These ranges served to guide the Commission as it entered its 
deliberations on how to assess appropriate settlement amounts company 
by company (and in some cases, with national insurance associations) 
across markets in Europe. In the case of the German market, for 
example, the settlement amount provided in the 2002 agreement between 
ICHEIC, the German Foundation, and the German Insurance Association 
exceeded the companies' estimates of unpaid policies in Germany.
    The various national commissions working to assess their own 
situations have confirmed the reliability of the Pomeroy-Ferras work. 
For example, the Dutch commission's data showed the insured sum of all 
policies surrendered to the Nazi authorities to be within 5 percent of 
the task force's mid-range value for Jewish policyholders. The Belgian 
commission found results very close as well. The French commission, 
when defining the policies that could have belonged to victims of the 
Holocaust, generated a number that fell within the mid-range of the 
task force's number for France. The total overall settlement reached by 
the Commission with all its entities, approximately $550 million, was 
premised on the Pomeroy-Ferras work, and has thus proven the test of 
time, both with respect to the over $306 million paid out in claims, 
and the remaining amount going to humanitarian activities to honor the 
memory of those who were not able to make claims directly.
                                outreach
    From inception, the Commission strived to identify as many people 
with possible unpaid Holocaust-era policies and encourage them to file 
claims, even if they lacked detailed information about their family's 
coverage. To do this effectively, we sought to define a target 
audience. We knew that we had potential claimants throughout the world. 
So we worked closely with the same experts who had conducted outreach 
for the Swiss Bank settlement's Claims Resolution Tribunal (CRT), using 
free and paid media extensively.
    Our outreach initiatives included both a 24-hour ICHEIC call center 
and grassroots efforts through global Jewish communal and survivor 
organizations and representatives of other victims groups. We 
distributed packets to survivor communities and Jewish organizations 
that included press releases, posters, and guidance on how to request 
and complete a claim form. In addition, the Commission worked with U.S. 
insurance regulators, particularly in California \3\, Florida \4\, New 
York \5\ and Washington, who already designated staff to reach out to 
and assist constituents.
---------------------------------------------------------------------------
    \3\ http://www.insurance.ca.gov/0100-consumers/0300-public-
programs/0100-holocaust-insur/index.cfm.
    \4\ http://www.fldfs.com/Holocaust/index.htm.
    \5\As part of this effort, New York State's Holocaust Claims 
Processing Office expanded to include potential insurance claims 
(http://www.claims.state.ny.us).
---------------------------------------------------------------------------
    To supplement the work with survivor and Jewish groups and the 
regulatory community, the Commission launched a global press and media 
campaign to publicize the process. We ran ads in major and parochial 
media markets and capitalized on as much free media as outside 
institutions were willing to provide. We did this not only at launch, 
but also when announcing the last deadline extension, alerting 
potential claimants via all means available, including a live Web cast 
in which I participated in as ICHEIC chair.
    While conducting its outreach, ICHEIC initially publicized a claims 
filing deadline of January 31, 2002. Subsequently, as the Commission's 
archival research efforts generated more information that ICHEIC 
published on its Web site, this claims deadline was extended six times, 
with the final date set as December 31, 2003.\6\ Claim forms requested 
by December 31, 2003, and returned to ICHEIC by March 31, 2004, were 
deemed to have been timely filed.
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    \6\ Deadlines were set at the following dates: January 31, 2002; 
February 15, 2002; September 30, 2002; March 30, 2003 (new names 
published on March 8, 2003); September 30, 2003 (new names published 
April 30, 2003); December 31, 2003 (with claim forms to be received by 
March 31, 2004).
---------------------------------------------------------------------------
    As a result of this outreach, during the 5 years that the 
Commission accepted claims, it received 120,000 claim forms in more 
than 20 languages from more than 30 countries.\7\
---------------------------------------------------------------------------
    \7\ Approximately, 30,000 of the claim forms received by the 
Commission either did not fall under ICHEIC's mandate and were 
therefore forwarded to the appropriate agency, for example, the Sjoa 
Foundation, Buysse Commission, CRT, or did not pertain to life 
insurance policies, i.e., slave labor, forced labor, Swiss bank 
accounts.
---------------------------------------------------------------------------
    ICHEIC's extensive and targeted outreach prior to the filing 
deadline was important given our understanding that many of those who 
filed would do so with little documentation or information about 
policies. In order to generate as many successful matches as possible 
from the information gathered through ICHEIC's research and company 
records it was necessary to impose deadlines on both claimants and 
companies. Results of this matching exercise were conveyed to the 
companies for review and adjudication, allowing companies to complete 
the decisionmaking process by June 30, 2006. The end result was that 
member companies were ultimately able to match 16,243 unnamed claims 
against these records.
     icheic agreements partners organizations and related entities
    The Commission used the Pomeroy-Ferras report to help guide 
discussions on contribution levels for ICHEIC member companies. In 
addition, the Commission negotiated agreements with various entities 
and outside associations, the most significant of which was the 
trilateral agreement between ICHEIC, the German insurance association, 
and the German Foundation. The so called Tri-Partite Agreement 
incorporated the settlement with Allianz and adopted almost identical 
rules and processes to those applied to non-German ICHEIC companies, 
but with procedures such as those to provide for archival research on 
German post-war compensation.
    The Commission reached separate operating agreements with the 
Holocaust Foundation for Individual Insurance Claims in the Netherlands 
(also known as the Sjoa Foundation, which was a member of ICHEIC, 
although its claims were processed separately), the Jewish Community 
Indemnification Commission in Belgium (Buysse Commission), and the 
Austrian General Settlement Fund (GSF) to make sure that claims 
received were processed. Additionally, claims that were the province of 
Swiss companies covered by the Global Settlement Agreement were 
redirected to the Claims Resolution Tribunal (CRT) in Zurich, 
Switzerland. The combined efforts of ICHEIC and these parallel entities 
covered a vast section of the prewar European insurance market.
    As the Commission began receiving claims, it became increasingly 
apparent that the bulk of the claim forms contained very little 
detailed information, that policy documentation was the exception 
rather than the rule, and that many claims did not name a specific 
company, or named a company that ceased to exist before 1945. So we 
worked to establish relaxed standards of proof and create valuation 
standards that could be calculated without the usual policy 
documentation, as well as an extensive research database and matching 
system. Furthermore, we instituted a separate but related humanitarian 
claims payment process for unnamed, unmatched claims, and for Eastern 
European claims on companies that had been liquidated, nationalized, or 
for which there were no known successors. All these elements became 
part of the critical architecture of the Commission. Our lists 
publication decisions grew from it; our need for filing deadlines were 
dictated by it; the audits to which all companies were subjected, 
conducted by outside independent auditors, proved its effectiveness; 
and our ability to carry out our mission depended on it.
                       relaxed standards of proof
    During its existence, the Commission directly or through its member 
companies/partner entities offered payment totaling over $306 million 
to more than 48,000 of the 91,558 who made inquiries. Only a small 
percent of all the claim forms the Commission received named a specific 
company and far fewer contained policy documents. Survivors who had 
attempted to recover the proceeds of insurance policies during the 
immediate postwar period had been frustrated by companies' demands for 
death certificates and proof of entitlement that they could not 
provide. Understanding that expecting such documentation was both 
insensitive and in most cases impossible, the relaxed standards of 
proof adopted by the Commission did not require claimants to submit 
such evidence to make a claim.
    Even before the end of the war, the records maintained by the 
International Tracing Service at Bad Arolsen assisted families in 
documenting the fates of victims of Nazi persecution. These records 
offer basic information regarding persecution, such as the date of 
deportation or when the policyholder perished. While the increased 
public accessibility of the Bad Arolsen archives is important because 
researchers and historians can now access information that was 
available only to survivors and their relatives in the past, it does 
not mean individuals would have opportunities to further enhance their 
claims against European insurers.
    The increased accessibility of the Bad Arolsen archives would not 
generate information that could lead to more eligible Holocaust-era 
insurance claims than identified through the claims and appeals 
processes of ICHEIC, for two reasons: (1) ICHEIC always assumed that a 
person was persecuted unless information was presented that pointed to 
the contrary; (2) ICHEIC offered full valuation in instances where it 
was unclear exactly when a policyholder had died. Moreover, because 
survivors and their relatives, families of those who perished, and 
their representatives already had access to the Bad Arolsen archives, 
in effect the Commission also had full access to this information.
    Under ICHEIC's relaxed standards of proof, the claimant produced 
whatever evidence the claimant had available. Individuals filling out 
claim forms were asked to provide all information available to them, 
including copies of existing documents in their possession that might 
be relevant. In some instances, claimants had actual copies of 
policies, but there was no expectation that such would be the case. The 
relaxed standards of proof allowed claimants to provide nondocumentary 
and unofficial documentary evidence for assessment.
    Companies were similarly required to produce the evidence they had, 
with the objective of helping claimants to establish sufficient 
evidence of a contractual relationship. Once the existence of a policy 
was substantiated, the burden shifted to the company to show the status 
of the contract or to prove the value of the contract had been adjusted 
or the contract had been paid. All parties agreed, however, that the 
relaxed standards of proof were to be interpreted liberally in favor of 
the claimant.
    The relaxed standards of proof adopted by the Commission aimed to 
ensure that every claim, no matter what evidence the claimant could 
produce, would be reviewed to identify whether evidence could be 
located sufficient to substantiate the existence of a contract.
                               valuation
    In order to define the guidelines for assessing present-day value 
of Holocaust-era insurance products, the Commission created a Valuation 
Committee, which examined historical records, the realities of inter-
war economic history and specific cases to establish valuation 
guidelines. Fairly early on the committee reached agreement on the 
components required for any calculation: The insured sum, the duration 
of the policy, and the date of the insured event.
    In addition, it became clear that the final valuation guidelines 
would need to take into account a number of factors. For example, we 
needed to determine whether the insured person had perished or had 
survived the Holocaust, in what currency the underlying policy had been 
written, whether any adjustments had been made in
the insured sum prior to the Holocaust (such as loans or voluntary 
reductions to the sum insured) and how any relevant laws of general 
application in the country of issue affected the terms of the policy.
    Since the majority of claims submitted to ICHEIC contained little 
or no information, the Valuation Committee established rules and 
guidelines that would permit appropriate assumptions in lieu of 
documented policy terms or details regarding the fate of the 
policyholder. Drawing on the findings of the Pomeroy-Ferras report, the 
committee agreed on country-specific average values, and so-called 
``deemed dates'' that provided assumptions regarding confiscation of 
assets and dates of death of policyholders. As a result, ICHEIC's 
Valuation Guidelines contain dates for each country that identify the 
start of persecution and the start of confiscation in that country.
    The Commission sought to make as much information as possible about 
our efforts to resolve these unpaid claims publicly available. 
Therefore, the final valuation guidelines as well as committee 
structures, claims processing statistics, audit reports, quarterly 
reports, a guide to how the process worked, and annual meeting 
presentations, were published on the ICHEIC Web site at www.icheic.org. 
Arrangements have been made for this Web site to be maintained by the 
U.S. Holocaust Museum.
        archival research/building research database (and lists)
    Working closely with European insurance companies, ICHEIC 
established protocols to make sure that information provided by 
claimants was matched to all available and relevant surviving records 
in the companies' possession. Since many claimants had little or no 
information about specific insurance policies, ICHEIC also conducted 
archival research to locate documents that were relevant to Holocaust-
era life insurance claims. ICHEIC commissioned experts to conduct 
research in public archives and repositories in Central and Eastern 
Europe, Israel, and the United States to collect as much relevant 
information as possible. These efforts led to the creation of a 
database that provided a critical tool used by companies and ICHEIC to 
further enhance information provided by claimants and thus chances of 
identifying policies on submitted claims.
    ICHEIC's research spanned 15 countries and included over 80 
archives. Researchers reviewed three types of records. The first, 
representing the bulk of the material reviewed, consisted of Nazi-era 
asset registration and confiscation records. Files pertaining to the 
post-war registration of losses made up the second category. The third 
category was comprised of insurance company records located in public 
and regulatory archives. ICHEIC researchers located almost 78,000 
policy specific records. This research augmented the often limited 
information provided with claims. It is worth noting the significance 
of more than half of the $306 million that was awarded went to 
individuals who were unable to identify a policy or name a company that 
was the source of their claim.
    Concerns were raised at the House Financial Services hearing in 
February that German archival records remain sealed. A misimpression 
was left about the impact on ICHEIC research. Under German data 
protection laws documents are always available to the individuals or 
their heirs or representatives who are the subject of the 
documentation--e.g., postwar compensation, even while records 
containing personal information are not accessible to the general 
public until 50 years after the date of the documents. Moreover, since 
asset declarations predate the war, they are actually fully accessible. 
In addition, in February 2002 the German Parliament passed an amendment 
to the Archives Law, allowing still broader access to personal records 
of victims of Nazi persecution.
    ICHEIC conducted research in German archives and repositories first 
in 2000, and again from late 2002 through April 2003.\8\ Through this 
research many asset declaration files were reviewed and a considerable 
number of polices were identified. Overall research in German archives 
contributed information on 41,540 insurance policies belonging to 
27,886 policyholders.
---------------------------------------------------------------------------
    \8\ As part of ICHEIC's agreement with the German foundation 
``Remembrance, Responsibility and Future.''
---------------------------------------------------------------------------
                                 lists
    The role of the published lists within the overall scope of the 
Commission's work and the relative utility of publishing more names 
going forward have received a great deal of attention, but continues to 
be widely misunderstood. Development of the lists that were published 
was a by-product of the Commission's efforts to match claim form 
information with relevant policy information discovered through 
archival research or in companies' records. Finding one's name on a 
list published by the Commission was never intended either as necessary 
to file a claim or as any proof that a previously unpaid claim existed.
    Since ICHEIC's mission was to find potential claimants, identify 
unpaid Holocaust-era insurance policies, and settle valid insurance 
claims at no cost to claimants, the Commission sought to maximize 
opportunities to identify policies and ``match'' policies with claims, 
even when submitted claims might have contained little accompanying 
documentation. The Commission did so by supplementing the information 
that claimants provided with relevant archival information through 
agreed-upon procedures. This research and matching work identified 
thousands of policies related to claims where the claimant was not able 
to name a company.
    Consistent with the Commission's mission of reaching out to the 
broadest possible universe of interested parties, ICHEIC published on 
its Web site its research and the 519,009 potential Holocaust-era 
policyholder names who were thought likely to have suffered any form of 
racial, religious, or political persecution during the Holocaust. In so 
doing, however, the Web site also carried a clear warning that finding 
a name on the Web site was not evidence of the existence of a 
compensable policy. There were many similar names with spelling 
variations, policies that might have been surrendered or paid out prior 
to the Holocaust, and some policies that had already been the subject 
of previous government compensation programs, rendering them ineligible 
for any further payments under the ICHEIC process. The list remains 
accessible to the public through the Yad Vashem Web site 
(www1.yadvashem.org/pheip).
    The broad obligation to publish potential policyholder names as 
described in the legislation, H.R. 1746, which mandates publication of 
all policyholders during the entire relevant period, would be of 
limited value and create confusion and raise false expectations. The 
number of policies issued during the period (1920-1945) would be 
considerable and in many cases, records, when available, would not be 
in a database but on microfiche, film, and paper. The prewar proportion 
of the persecuted population (as determined by ICHEIC's research) was 
only a fractional part of the prewar insurance market.
    ICHEIC's published lists--as components of ICHEIC's research 
database--result from working closely with archival experts in Germany, 
Israel, the United States, and elsewhere, and drawing on information 
from company policyholder records. During the ICHEIC process, companies 
had to identify which policyholders might potentially fit the 
definition of Holocaust victim.\9\ For companies with many surviving 
records, this presents a considerable challenge, because in most 
instances, insurance companies did not identify policyholders based on 
racial, religious, political, or ideological factors. Nor was it 
possible to filter solely on the basis of ``Jewish''-sounding last 
names: The name Rosenberg, for example, often believed to be a typical 
Jewish name, was also the name of one of the Nazi party's highest-
ranking ideologues. Similarly, Anne Frank shares her last name with the 
notorious governor-general of occupied Poland, Hans Frank, who was 
hanged at Nuremberg.
---------------------------------------------------------------------------
    \9\ ICHEIC took as its definition of Holocaust victim or persecutee 
the German federal indemnification legislation definition, as follows, 
anyone who: ``Was deprived of their life, suffered damage to their 
mental or physical health; was deprived of their economic livelihood; 
suffered loss or deprivation of financial or other assets; suffered any 
other loss or damage to their property; as a result of racial, 
religious, political or ideological persecution by organs of the Third 
Reich or by other Governmental authorities in the territories occupied 
by the Third Reich or its Allies during the period from 1933 to 1945.''
---------------------------------------------------------------------------
    The Commission considered all these factors, and culled out from an 
overall list of policyholder names that are those most likely to have 
been persecuted during the Holocaust. The Commission's list also 
contained many more names of policyholders likely to have been 
previously compensated on their policies because the majority of 
policies issued in Germany had already been subject to prior postwar 
compensation programs.
    H.R. 1746 legislation would cast a far broader net, resulting in 
the publication of millions of policyholder names, to the extent 
companies were legally and practically capable of doing so, and still 
complying with the data protection and privacy regulations in force in 
their jurisdiction. Yet a very small percentage of the published names 
would be relevant to ascertain those who were persecuted during the 
Holocaust.
            claims process--and humanitarian claims payments
    A fundamental component of the claims process was the development 
of a company-country matrix. This matrix illustrated historical 
portfolio transfers including mergers, acquisitions, and other company 
changes across prewar and Holocaust-era Europe. With one axis 
representing the company responsible for life insurance policies during 
the relevant period and the other representing the country of issue, 
the point of interception identified the current day successor 
responsible for specific prewar and Holocaust-era portfolios. The final 
version of the company-country matrix included 340 companies from over 
30 countries. The Company-Country matrix enabled the Commission to 
identify the policies for which each member company was responsible and 
facilitated the timely submission of those claims to the relevant 
company.
    Claims on policies written by Eastern European companies that were 
nationalized or liquidated after the war and had no present day 
successor were reviewed and settled via ICHEIC's in-house process. To 
ensure the broadest possible reach, anecdotal claims that did not 
identify a specific insurance company were circulated to all companies 
that did business in the policyholders' country of residence. Having 
located unpaid policies, ICHEIC's settlement process determined present 
values based on negotiated guidelines that provided historical currency 
conversions. By the conclusion of the Commission's process, 2,874 
claims from Eastern Europe were evaluated and offers of approximately 
$31 million were made using the Commission's humanitarian funds.
    Anecdotal claims which, despite ICHEIC's relaxed standards of proof 
and its research efforts, could not be linked to a specific policy, 
were referred to ICHEIC's humanitarian claims process for review. 
Qualifying claims were paid on a per claimant (rather than a per 
policy) basis. This process, named after section 8A1 of our Memorandum 
of Understanding, was designed specifically for those claims that, 
despite all efforts, had to be reviewed and evaluated based solely on 
the information provided in the claim form. Thus the 8A1 humanitarian 
claims payment process made 31,384 offers of $1,000 per claimant, 
totaling approximately $31.3 million.
             audits; verification; executive monitoring grp
    The Commission adopted a series of oversight structures to make 
sure that decisions on claims were processed correctly and in 
accordance with ICHEIC rules and guidelines. Independent third-party 
audits for the claims review processes of each participating company 
and partner entity were carried out to assess the status of existing 
records, and make sure that records were appropriately searched and 
matched. The rules for these audits were dictated by written agreements 
between ICHEIC and its participating companies and partner entities, 
and were reviewed and ultimately approved by ICHEIC's Audit Mandate 
Support Group, which was staffed by representatives from state 
regulators' offices, and Jewish organizations.\10\
---------------------------------------------------------------------------
    \10\ For example, under the Commission's rules, if a company's 
records were found to be comprehensive for a time period in question, 
as determined by the agreed upon audit process, the company could 
assert that lack of registration of a given policy in its records as 
evidence that such policy did not exist with that particular company.
---------------------------------------------------------------------------
    In response to concerns about the potential for flaws in the 
companies' claims processing, ICHEIC created an Executive Monitoring 
Group, which was staffed by representatives from the U.S. regulators, 
Jewish groups and the claims process manager in ICHEIC's London office. 
This group reviewed in ``real time'' segments of participating 
companies' as well as ICHEIC's own claims processing operations. 
Through this review, the team recommended new measures to establish and 
maintain consistency in claims handling across companies and make sure 
that decisionmaking was in accord with ICHEIC's rules and guidelines, 
provide for reconciliation of databases, and review company internal 
matching systems.
    ICHEIC created an in-house verification team to cross-check every 
company decision. The verification team also conducted a series of 
large scale exercises to review decisions made by member companies. 
Discrepancies were reported back to the companies for reassessment and, 
where appropriate, remedial action. This process included verification 
that names added to files after they were originally submitted were 
properly researched. At the conclusion of ICHEIC's work, the 
verification team also carried out major reconciliation exercises, to 
make sure that all research information in ICHEIC's database conformed 
to and had been matched against companies' policyholder information, 
and that all claims filed had been checked against all companies' 
decisions.
    In conclusion, the claims process was comprehensive in terms of 
participants, those whom it served, and how it addressed historical, 
legal, and operational complexities. Although the work of the 
Commission was unprecedented and filled with unique challenges, as no 
one here today knows better than does Chairman Nelson, we were able 
through amicable and inclusive dialogue to voluntarily adopt a new 
approach toward the resolution of unpaid Holocaust-era insurance claims 
for the benefit of Holocaust survivors and their families and those who 
did not survive.
    In the end, it was about people and about justice. We recognize 
that no Commission can resolve the wrongs done by the Holocaust. We 
firmly believe, however, that our efforts brought some measure of 
justice to the lives of thousands of survivors, their families, and the 
families of those who perished.

    Senator Bill Nelson. OK, if you could wrap up, Mr. 
Secretary.
    Mr. Eagleburger. I have. I did.
    Senator Bill Nelson. Thank you very much.
    Ambassador Eizenstat.

  STATEMENT OF HON. STUART E. EIZENSTAT, PARTNER, COVINGTON & 
BURLING LLP AND FORMER SPECIAL REPRESENTATIVE OF THE PRESIDENT 
   AND SECRETARY OF STATE ON HOLOCAUST ISSUES, WASHINGTON, DC

    Ambassador Eizenstat. Thank you for the hearing, Mr. 
Chairman, and for your role as insurance commissioner in 
getting this process started.
    I've testified 13 times before congressional committees on 
this issue. We were able to settle with a variety of countries 
for $8 billion in compensation, benefiting more than a million 
and a half survivors of the Holocaust and other victims of Nazi 
atrocities or their heirs. Insurance was a part of that 
negotiation.
    Our country has a long history of negotiating lump sum 
settlements on behalf of the claims of nationals through 
executive agreements, dating back to 1799. In many cases such 
agreements have provided that individual claims be submitted, 
as here, to a commission to adjudicate and pay the claims of 
individual claimants. So the ICHEIC process was not in any way 
revolutionary.
    In typical settlement negotiations with foreign countries, 
the U.S. Government is the sole negotiating power on behalf of 
American claimants. But here there was more protection for U.S. 
citizens than that. There were attorneys, some of the premier 
class action attorneys in the country, representing the class 
of survivors. The State of Israel actively participated at the 
instance of the Prime Ministers of Israel. Jewish groups such 
as the Claims Conference and the World Jewish Restitution 
Organization also insisted on favorable terms for Holocaust 
survivors and their families. The interests of survivors and 
their heirs were broadly and vigorously represented through all 
the negotiations.
    It's the policy of the United States Government to resolve 
Holocaust claims through negotiation, not litigation. The 
reason was speed, because of the age of victims and the length 
of time for which justice had been denied; also because of 
foreign policy considerations in working with our European 
allies, including Germany, and the State of Israel.
    It was also the policy of the United States, which I 
enunciated on numerous occasions, that ICHEIC would be the sole 
remedy for resolving insurance claims. This was reiterated in a 
letter I wrote to Secretary Eagleburger at the end of November 
2000. This was motivated by the desire to get as many companies 
as possible to participate in the ICHEIC process so as not to 
be constrained by the limited jurisdictional reach of U.S. 
regulators and U.S. courts over foreign insurers.
    This is critical to understand. The only companies that 
would be subject to jurisdiction of U.S. courts are those that 
do business here. We were trying to get an even broader 
universe of companies engaged in the ICHEIC process, and we 
were able to do that. Ultimately, many European insurers who 
did not conduct business in this country and therefore would 
have been beyond the reach of U.S. courts participated in the 
ICHEIC process. Indeed, as Secretary Eagleburger indicated, 
ICHEIC actually paid policies in full under the same basis for 
those companies that were liquidated, nationalized, and no 
longer in existence. And if you filed a claim even against an 
existing company and you had no proof, you still got a 
humanitarian claim.
    The role also of German insurance companies is critical to 
understand. If legislation like the House legislation were to 
pass, it would upset all the work we did on behalf of victims, 
because we could not have settled for 10 billion deuschmarks 
the slave labor cases with German companies. Insurance was the 
critical element. Allianz and the other German companies said: 
If you don't settle with all German companies, including 
insurers, no payments, period.
    So we had to negotiate with all of them. We ended up, of 
the 10 billion deuschmarks, $5 billion, taking $550 million and 
passing it through to Mr. Eagleburger's ICHEIC commission. And 
I can assure you my negotiations with the gentleman on my right 
were almost as difficult in terms of how much of that we passed 
through as they were with the Germans and the class action 
lawyers.
    Mr. Eagleburger. It's all right.
    Ambassador Eizenstat. ICHEIC was ultimately successful. It 
paid $306 million to 48,000 Holocaust victims and their heirs 
under legal standards that would never have survived in an 
individual court case, highly relaxed standards. They paid $169 
million for humanitarian programs and humanitarian claims as 
well.
    Now, as a consequence, if we pass legislation similar to 
what the House does it would upset all the work we did, all the 
reliance that companies paid money for in Austria, in Germany, 
in Switzerland. They paid money to get legal peace. If they 
hadn't gotten legal peace and an assurance from the executive 
branch of that, they wouldn't have paid these $8 billion that 
we were able to achieve.
    Please don't upset that assurance.
    It would also affect ongoing negotiations that I think the 
United States should be engaging in more vigorously with 
countries like Poland. This is where your resolution comes, Mr. 
Cardin. Poland has done nothing, nothing, nothing, on 
restitution. If we finally get them to do it, how would they do 
it with any confidence if they thought the Congress would come 
back and allow suits at a later date?
    Now, how do we proceed? There is a way to accomplish some 
measure of additional justice. First, the ICHEIC companies have 
assured the world that they will indeed process----
    Senator Bill Nelson. OK, could you wrap up.
    Ambassador Eizenstat [continuing]. Claims according to 
ICHEIC standards. We should hold them to that. And what we 
should do--and I've laid it out in my testimony--is require 
them to submit to the U.S. Government through the State 
Department's Office of Holocaust Issues, which I helped create, 
and to the insurance commissioners and to the New York State 
Office, with copies to the Congress, to show which claims have 
been submitted, how they dealt with those claims under the 
ICHEIC standards.
    We should also ask them to put back on the Web page the 
500,000 names, so if people didn't see them the first time they 
could easily access those. And you should hold continued 
oversight hearings to hold those companies to their pledge that 
they will continue to process these claims according to ICHEIC 
standards.
    [The prepared statement of Ambassador Eizenstat follows:]

    Prepared Statement of Ambassador Stuart E. Eizenstat, Partner, 
   Covington & Burling LLP and Former Special Representative of the 
  President and Secretary of State on Holocaust Issues, Washington, DC

    Mr. Chairman, Ranking Member Lugar, I want to thank you, and the 
members of the committee, for inviting me here today to testify on the 
very important issue of Holocaust-era insurance claims. For many years, 
the Foreign Relations Committee has focused on Holocaust compensation 
and restitution matters. You have provided a strong voice of moral 
leadership on a wide variety of Holocaust-related issues, and I, 
therefore, thank each of you for that leadership. Senator Nelson, your 
leadership as Insurance Commissioner of Florida was indispensable in 
highlighting the importance of addressing Holocaust-era insurance 
policies and providing justice to victims and their families.
    Over the years, I have testified before various committees of the 
Congress 13 times on Holocaust issues, including in my capacity as the 
Special Representative of the President and the Secretary of State for 
Holocaust Issues during the Clinton administration. In that capacity I 
negotiated agreements with the German, Swiss, Austrian, French, and 
other European governments that have resulted in the payment of more 
than $8 billion in compensation to more than 1.5 million Holocaust 
survivors, their heirs, and the heirs of those who did not survive. 
Those agreements, and the subsequent payments to Holocaust victims and 
their families pursuant thereto, were the result of the concentrated 
work of many people, including representatives of 11 agencies of the 
U.S. Government, their counterparts in numerous foreign governments, 
leaders of many Jewish organizations, foreign companies, and a large 
number of skillful lawyers representing the interests of Holocaust 
survivors and heirs.
    There are five things I would like to accomplish through my 
testimony today. First, I will address the emergence of the 
International Commission on Holocaust Era Insurance Claims 
(``ICHEIC''). Second, I hope to enhance the subcommittee's 
understanding of the United States Government's Holocaust compensation 
and restitution efforts during the period I served as the 
administration's leader for these issues--particularly regarding the 
executive agreement between the United States and Germany and the 
resulting German Foundation--and how ICHEIC fit into these broader 
efforts to secure compensation and restitution for Holocaust victims 
and their heirs. Third, I will suggest that the bill currently pending 
in the House, H.R. 1746, the Holocaust Insurance Accountability Act, as 
currently drafted, threatens the integrity of the U.S. Government's 
longstanding policy of resolving Holocaust-era claims through 
negotiation, not litigation. Fourth, I will highlight several 
characteristics of the ICHEIC process and contrast them with what is 
found in a court of law. This contrast indicates to my mind that the 
bill may not add appreciably to the likelihood of additional recovery 
on Holocaust-era insurance policies since the European insurance 
companies are committed to continuing to process future claims using 
ICHEIC's loose and flexible standards, and undercuts the successful 
U.S. Government policy of finding nonlitigious ways to compensate 
Holocaust victims and their families without resort to costly, lengthy, 
and uncertain lawsuits. Finally, I will recommend measures the Congress 
could take which, in my opinion, offer a greater potential to assist 
Holocaust survivors and heirs than does H.R. 1746.
    Since the end of the Second World War, restitution for Nazi crimes 
has been an important policy objective of the United States Government. 
Unfortunately, the ability of the United States Government to seek 
restitution and compensation for many individuals was compromised 
during the cold war. Efforts to seek funds directly from European 
companies were particularly hindered in this regard. Following the end 
of the cold war, however, the United States Government's policy was to 
seek justice and to do so with urgency. We wanted to ensure that 
survivors and their families received justice, but it was equally 
important that they get some measure of justice quickly. The 50-year 
duration of the cold war meant that time was running short.
    The twin goals of justice and urgency gave life to what became the 
fundamental policy of the United States with regard to Holocaust-era 
claims. We made the decision that the interests of survivors would be 
best advanced by seeking compensation and restitution through 
mechanisms based on negotiation and administrative processes, and not 
on litigation or any other adversarial process. The timing issue, of 
course, was not the only reason litigation was an impracticable option, 
although it was an important one. Defenses which defendant companies 
and governments could use in lawsuits including post-war settlements, 
transaction costs including attorneys' fees, statutes of limitation and 
rules of evidence, as well as the burden of proof that would apply to 
survivors' claims in U.S. courts, made it unlikely that litigation 
offered a useful path to obtain restitution and compensation. Indeed, 
several Federal judges dismissed Holocaust-related claims for slave 
labor payments.
                    emergence of the icheic process
    The ICHEIC process emerged initially not from our efforts inside 
the Federal Government, but rather from the impetus provided by the 
insurances regulators of a number of states. The initiators of the 
ICHEIC process were Neil Levin, at that time the New York 
Superintendent of Insurance, and Glen Pomeroy, the vice chairman of the 
National Association of Insurance Commissioners and North Dakota's 
Commissioner of Insurance. You, Senator Nelson, were also a key leader. 
You and the other insurance regulators had seen a growing number of 
claims relating to unpaid Holocaust-era insurance policies. In 
response, you and your colleagues met with Holocaust survivors, who 
told their stories of purchasing insurance policies to provide for 
their families' futures, of deaths of family members during the 
Holocaust, of their own survival, and of their unsuccessful attempts to 
receive payment under their insurance policies.
    In the spring of 1998, the insurance commissioners and Holocaust 
survivor organizations invited the Clinton administration to support an 
international commission to resolve unpaid Holocaust-era claims and 
asked us to use diplomatic efforts to bring the affected European 
governments and companies into the process. We agreed to support this 
effort, which became ICHEIC. We also agreed to become an ICHEIC 
Observer, although the United States was never a member. My able 
deputy, J.D. Bindenagel, served as the Observer and kept me abreast of 
ICHEIC's activities.
    Our support for the ICHEIC process was premised on the Government's 
interest in obtaining as quickly as possible some measure of justice 
for Holocaust victims and their families, including many U.S. citizens. 
The ICHEIC process also offered a way for us to resolve outstanding 
claims in a way that enhanced our diplomatic and economic relations 
with our European allies as well as with the State of Israel.
    At the time, I was at the State Department. I was approached by the 
representatives of European insurance companies that had faced 
criticism and lawsuits in the United States for nonpayment of 
Holocaust-era claims. It was clear to me that while insurance in our 
system is an activity that is regulated by the states, the resolution 
of these 60-year-old claims had to be merged with our forthcoming 
broader negotiations with Germany on Holocaust-era claims, as well as 
with other future negotiations. The merger was essential because our 
negotiations and those of the state insurance regulators were both 
seeking funds from the same universe of companies in Germany, and 
eventually also Austria. Moreover, under the class action settlement 
with the Swiss Banks which I helped facilitate (and which U.S. District 
Judge Edward Korman completed), all Swiss companies, including 
insurance companies, received certain protections from further lawsuits 
relating to Holocaust-era claims. The companies, understandably, did 
not want to pay twice for the same wrongs.
    We also felt that we had to ensure the inclusion of the broadest 
possible number of companies and countries because, as a practical 
matter, the state insurance regulators had influence over only those 
European companies with significant operations in the United States. 
Indeed, the insurance companies that signed the ICHEIC Memorandum of 
Understanding were essentially the only European companies in that 
category, and thus were the only European insurance companies subject 
to U.S. state regulation. They were also, for the most part, the only 
insurance companies that survivors and heirs could sue in U.S. courts. 
Yet we knew that European insurance companies with operations in the 
United States did not constitute the complete universe of companies 
that had issued policies to Holocaust victims. Ultimately, many 
European insurers that did not conduct business in the United States 
and, therefore, would have been beyond the reach of U.S. courts, 
participated in the ICHEIC process.
    So, as I met with the heads of insurance companies or other 
insurance company representatives, I put them in touch with Glen 
Pomeroy and Neil Levin, and at the same time searched for a mechanism 
to link them to our broader efforts on behalf of Holocaust survivors 
and heirs. In August 1998, the Memorandum of Understanding between the 
European insurers, state regulators, and survivor representatives, 
including the State of Israel, was signed with our support, and the 
ICHEIC process was launched.
    The U.S. Government took a number of steps to support the ICHEIC 
process beyond assisting in diplomatic negotiations:

   The State Department organized a seminar in Prague to help 
        spur efforts to create a fact-based history of the very complex 
        issues relating to insurance policy assets seized by the Nazi 
        regime and to help translate into action existing research into 
        these issues so as to settle quickly the insurance claims of 
        Holocaust survivors.
   The U.S. Government publicly supported ICHEIC at a 1998 
        meeting of the National Association of Insurance Commissioners 
        in New York City.
   The State Department organized the so-called ``Washington 
        Conference'' on Holocaust-era assets, which was held in 
        November and December 1998 and at which I voiced the U.S. 
        Government's support for the ICHEIC process and encouraged 
        European insurers to participate in it. The proceedings of the 
        Conference were published and remain available online.

    The participants at the Washington Conference urged the resolution 
of still-pending insurance issues, but they also acknowledged past 
German Government efforts to compensate the victims of Nazi 
persecution. Those efforts began in the early 1950s. West German 
Chancellor Konrad Adenauer expressed, in September 1951, the need for 
Germany to provide Holocaust victims with ``moral and material 
indemnity.'' In October 1951 and in an effort to avoid direct 
negotiations with West Germany (East Germany having refused any 
responsibility), the State of Israel, led by Prime Minister David Ben-
Gurion helped create the Conference on Jewish Material Claims Against 
Germany (the ``Claims Conference'') along with 23 Jewish organizations 
that were Claims Conference members. These actions led to the two 1952 
Luxembourg Agreements with West Germany on one side and the State of 
Israel and the Claims Conference, respectively, on the other. Under 
these and later agreements which together became known as the German 
``Federal Indemnification Laws,'' Germany has paid some 100 billion 
marks (equal to more 60 billion euros or 100 billion in today's 
dollars) to Holocaust survivors and heirs around the world.
    On behalf of the U.S. Government, I strongly encouraged all 
insurance companies that had issued policies during the Holocaust era 
to join ICHEIC and participate fully in the process. That policy was 
reflected in testimony I gave before the House Banking Committee on 
September 14, 1999, in which I stated that ``[w]e continue to believe 
that [ICHEIC] is the best vehicle for resolving Holocaust-era insurance 
claims. . . .'' It was reiterated numerous times, including in my 
letter of November 28, 2000, to former Secretary of State Eagleburger, 
who served as Chairman of ICHEIC, in which I stated that it was the 
foreign policy of the United States that ICHEIC ``should be recognized 
as the exclusive remedy for resolving all insurance claims that relate 
to the Nazi era.'' That policy has never changed.
    I met with the Prime Minister of the Netherlands to encourage him 
to get the Dutch insurance companies to join ICHEIC. Indeed, the State 
Department worked with ICHEIC and representatives of the Dutch 
Government, insurance industry, and survivor organizations to 
incorporate the Dutch companies into ICHEIC. And through executive 
agreements that I negotiated with Austria and Germany, the United 
States Government ultimately brought the entire German and Austrian 
insurance industries into the process as well.
    It is important for the committee to understand that the ICHEIC 
process emerged voluntarily. It was not forced on the insurance 
companies. New York Insurance Superintendent Levin once described the 
theme of the effort to establish ICHEIC as ``voluntary action based on 
a moral foundation.'' Neil Levin tragically died in the September 11 
attack on the World Trade Center, yet all of the participants in 
ICHEIC--including the state insurance regulators, the European 
insurers, and survivor's representatives--have labored on to complete 
the work that he; you, Senator Nelson; and your colleagues inspired.
     u.s. government's broader restitution and compensation efforts
    ICHEIC and the insurance claims it processed were only one part of 
the U.S. Government's broader Holocaust restitution and compensation 
efforts. As noted above, the United States was limited in its ability 
directly to pursue restitution and compensation during the cold war, 
although Germany paid substantial sums beginning in the early 1950s. I 
first became involved in these issues when I was asked, in the mid-
1990s while serving as U.S. Ambassador to the European Union, to 
encourage the newly independent states of Eastern Europe to restore to 
their Jewish communities communal property (including Synagogues, 
cemeteries, and community centers) that had been taken during World War 
II. Soon, however, I became the administration's point person for a 
much broader effort.
    The single largest piece of the broader effort was the executive 
agreement between the United States and Germany as a part of which the 
German insurance companies participated in the ICHEIC process. This 
came about because in the fall of 1998 the German Government and German 
industry turned to me for help in facilitating the resolution of class 
action lawsuits brought against German companies. Germany proposed the 
creation of a foundation to make dignified payments to slave laborers 
and to resolve property and insurance issues. We agreed to work with 
them in that process. After 18 months of very difficult negotiations, 
on July 17, 2000, the United States and the reunified Germany signed an 
executive agreement which committed Germany to operate a foundation 
under the principles to which the parties in the negotiations had 
agreed, and at the same time, committed the United States to take 
certain steps to assist German companies in achieving ``legal peace'' 
in the United States.
    As an initial matter, the United States has a long history of 
negotiating ``lump sum'' or similar settlements of its nationals' 
claims through executive agreements, a practice which dates back to 
1799. Typically, executive agreements settle the claims of individuals 
against a foreign state. In the case of Holocaust claims, individuals 
had claims against foreign corporations as well as against foreign 
states. As the Supreme Court noted in its Garamendi decision, however, 
this ``distinction does not matter.'' It does not affect the United 
States Government's authority to settle claims through executive 
agreement. Additionally, in many situations, such executive agreements 
have provided that individual claims be submitted to a commission, 
which would adjudicate and ultimately pay the claims of individual 
claimants. So the ICHEIC process was not revolutionary in this respect 
either.
    In typical settlement negotiations with foreign countries, the 
United States Government is the sole party negotiating on behalf of, 
and seeking to protect the interests of, individual American claimants. 
In the case of our Holocaust-related negotiations, however, the 
interests of the survivors and heirs were represented by a number of 
different groups, each of which had every reason to seek the best 
settlement possible. First, they were represented by a number of the 
United States' premier class action lawyers. Second, the State of 
Israel actively participated, in the person of Bobby Brown, in all 
negotiations. Third, Jewish groups, such as the Claims Conference and 
the World Jewish Restitution Organization (``WJRO'') insisted on 
favorable terms. The WJRO is an umbrella organization of 10 other 
Jewish groups created in 1992 by the State of Israel and the World 
Jewish Congress to represent the interests of world Jewry in regaining 
Jewish property after the fall of communism.
    As shown, the interests of survivors and heirs were broadly and 
vigorously represented throughout the negotiations, and in the end, all 
parties accepted the Foundation ``Remembrance, Responsibility and the 
Future'' as a worthy result. The U.S. Government has filed Statements 
of Interest recommending that it was in the foreign policy interest of 
the United States that court cases against German companies for wrongs 
committed during the Nazi era be dismissed on any valid legal ground, 
and the U.S. Government remains committed to do so in future cases that 
are covered by the Foundation agreement. The United States, however, 
has not extinguished the claims of its nationals or of anyone else. It 
was and remains the policy of the United States Government that 
Holocaust claims should not be resolved by litigation.
    The most difficult issues in our German negotiations were the scope 
of the beneficiaries to be covered--not just Jewish slave laborers but 
also non-Jewish forced laborers, for example; the total amount to be 
paid in by Germany; the allocation of those funds to the various 
classes of claimants; and the provision of ``legal peace'' for the 
German companies and government.
    The foundation which was created as a result of our negotiations 
was capitalized at 10 billion marks with the German Government 
providing 5 billion marks, and German industry providing another 5 
billion marks, plus 100 million marks in interest. A board of trustees 
provided oversight of the foundation's operations, and the foundation 
was managed by a three-member board of directors. Of the 10 billion 
marks, 8.1 billion was allocated to cover slave and forced labor 
claims, while another 1 billion marks was to cover property claims not 
fully captured by earlier German compensation and restitution programs. 
Of the one billion marks, 550 million marks were allocated to insurance 
claims. The German Foundation also created a Future Fund of 700 million 
marks. (The remaining 200 million marks were for legal and 
administrative costs.)
    The 26 members on the board of trustees included representatives of 
the German Government, the U.S. Government, the State of Israel, German 
companies, and also Jewish organizations and plaintiffs' attorneys. The 
foundation has been subject to legal oversight by the German Government 
and is audited by two of its agencies. If one considers the United 
States-Germany Executive Agreement of July 17, 2000, one will find that 
it provides a framework for the treatment of claims made against German 
insurance companies but leaves the details of implementation to the 
responsible parties.
    The role of the German insurance companies in the negotiation of 
the executive agreement was a critical one. In fact, without their 
participation, there could have been no broader executive agreement 
between Germany and the United States. There were two issues. First, 
was the money. It was impossible for Germany to provide the full 10 
billion marks which we had agreed upon without the participation of the 
German insurance companies. Second, was the issue of legal peace. 
German insurer Allianz, a key member of the German private sector 
negotiating team, and the German companies together, refused to settle 
unless German insurance companies also received ``legal peace.'' This 
was particularly complicated because ICHEIC was also engaged with 
German insurance companies. I was negotiating with the German insurance 
industry, the plaintiffs' attorneys, and the Jewish groups, on the one 
hand, and with Secretary Eagleburger, on the other. My negotiations 
with Secretary Eagleburger, chairman of ICHEIC, were difficult since he 
wanted the moneys allocated from our German settlement to ICHEIC.
    Ultimately, we reached a solution whereby 550 million marks of the 
global 10 billion mark settlement amount would be ``passed through'' to 
ICHEIC. In return, the United States Government agreed to submit a 
Statement of Interest in any appropriate litigation involving any 
German company, including German insurance companies, stating that it 
is in the foreign policy interests of the United States for the court 
to dismiss on any valid legal ground as found by the court cases 
against them in return for the 10 billion mark payment. This was to 
afford the companies the legal peace they desired.
    The United States-Germany Executive Agreement provided that 
insurance claims made against German insurance companies were to be 
processed by the companies and the German Insurance Association on the 
basis of claims-handling procedures that were to be adopted in an 
agreement between the foundation, ICHEIC, and the German Insurance 
Association. The Government of the United States and the Federal 
Republic of Germany were not part of those tripartite negotiations, but 
we made every effort to facilitate and encourage all sides to come 
together and resolve their differences.
    By the time I left government in January 2001, these negotiations 
had not yet been brought to a conclusion. It took until October 2002 to 
conclude the so-called ``Trilateral Agreement'' on claims-handling 
procedures. It took until July 2003 to conclude an agreement with three 
other non-German ICHEIC members (AXA, Winterthur, and Zurich), and it 
took until December 2003 to conclude an agreement with the Austrian 
General Settlement Fund.
    It must be said that ICHEIC got off to a painfully slow and 
expensive start due to the complexity of the issues and the distrust of 
the parties. Eliminating that distrust took years, but in the end, 
ICHEIC was able to achieve its mandate of providing some measure of 
justice for Holocaust survivors and their heirs as quickly as possible. 
ICHEIC ultimately was successful. It paid $306 million to 48,000 
Holocaust victims and their heirs under relaxed legal standards--far 
lower than would satisfy a court. It also paid $169 million for 
humanitarian programs and humanitarian claims. A surplus in the claims 
fund of $27 million for specific social welfare programs for Holocaust 
survivors went from ICHEIC to be administered by the Claims Conference.
    ICHEIC paid claims regardless of whether the company which issued 
the claimant's policy was actively participating in the ICHEIC process. 
This is important, because it meant that individuals who owned policies 
issued by companies that were liquidated, nationalized, or otherwise no 
longer existed, could still submit a claim to ICHEIC and be paid the 
full value of the claim. Approximately $31 million was paid out on such 
so-called ``8a2'' claims. The normal relaxed ICHEIC standards applied 
equally to these claims.
    In the final analysis, ICHEIC successfully compensated individuals 
for their Holocuast-era insurance policies. Much has been said about 
the substantial administrative costs ICHEIC incurred, which amounted to 
approximately 17.4 percent of the funds it paid out. But it is 
important to understand what is included in this 17.4 percent figure. 
It includes all costs incurred by ICHEIC in publicizing its programs; 
in researching all claims at no cost to the claimants; in creating and 
staffing U.S. and European offices to work with local claimants; and in 
maintaining a call center that potential claimants could contact to 
receive more information about and assistance with the ICHEIC process.
 h.r. 1746 jeopardizes u.s. government policy on holocaust restitution 
                            and compensation
    The United States Government's policy on Holocaust restitution and 
compensation matters was and is that claims should be resolved through 
negotiation and cooperation, using administrative processes without 
payment of attorneys' fees, and not through a slow, costly, uncertain 
adversarial process like litigation. The policy is based on a belief 
that it was necessary to work with our European allies and other 
interested parties to secure restitution and compensation as quickly as 
possible. The policy also recognizes that litigation presents what 
would be, in the vast majority of cases, prohibitive barriers to 
recovery--including statutes of limitation, rules of evidence, and 
burdens of proof--and significant transaction costs in the form of high 
attorneys' fees. The policy is based also on consideration of the 
United States' broader foreign policy interests, in particular that we 
work closely with, and not against, our European allies and the State 
of Israel.
    The bill currently pending in the House is squarely at odds with 
this United States Government policy. The bill provides for an 
adversarial, litigation process. It imposes the probability of 
litigation on companies that have cooperated fully with the United 
States Government and in the ICHEIC process and that have paid tens of 
millions of dollars in an effort to satisfy their obligations. It 
further imposes the probability of litigation on companies that have 
been deemed by the United States Government to be entitled to ``legal 
peace,'' thereby undermining the word and credibility of the U.S. 
Government itself.
    I am concerned with two groups of companies that could be subjected 
to litigation under the bill. First, are the German insurance 
companies. These companies participated in the ICHEIC process pursuant 
to the executive agreement between the United States and Germany, an 
executive agreement which enjoyed strong support by key Members of 
Congress. In return for their participation, which was monitored by the 
German government and audited by two of its agencies, the United States 
Government agreed that all German companies including German insurers 
should enjoy legal peace. The bill, as currently drafted, would vitiate 
that commitment by the United States Government and would be an example 
of gross bad faith after payment of 10 billion marks in settlements.
    The second group of companies are those that participated fully in 
the ICHIEC process without the benefit of an executive agreement 
calling for a Statement of Interest in the event of litigation. While 
there was no technical legal peace extended by the U.S. Government with 
respect to these companies, they nonetheless participated in good faith 
in a process that the United States Government had decided was the 
``exclusive remedy'' for resolving all Holocaust-era insurance claims. 
I testified before Congress on this very policy and it was broadly 
supported on a bipartisan basis. There is no justification for now 
subjecting them to some other remedy. This is a conclusion shared by 
the United States Supreme Court, in its Garamendi decision dealing with 
a State of California statute that conflicted with our agreement, and 
now-Attorney General, then-Judge, Michael Mukasey determination in his 
In re Assicurazioni Generali decision dealing precisely with this 
issue.
    The consequences of upsetting United States foreign policy 
interests will likely be wide-ranging. First, the bill essentially and 
fundamentally threatens our existing executive agreements with Germany 
and Austria and would undermine confidence in our executive agreement 
with France. Second, survivors' groups, such as the Claims Conference, 
continually seek to increase payments under our existing arrangements. 
It will impair the ability of those groups to successfully negotiate 
such enlargements in the future if Congress passes the bill. Third, the 
United States Government continues to seek agreements with other 
governments and industries that have not yet dealt fully with Holocaust 
restitution and compensation. Its ability to negotiate likewise would 
be impaired. Countries and companies will be unwilling to negotiate 
with survivors' groups or the United States Government if it appears to 
them--not unreasonably--that the United States is incapable of 
maintaining its end of a bargain.
h.r. 1746 will not increase the likelihood of recovery on holocaust-era 
                            insurance claims
    The ICHEIC process included extremely favorable rules for claims 
processing. Rather than being required to prove his or her claim by a 
``preponderance of the evidence,'' a claimant before ICHEIC was 
required only to prove that his or her claim was ``plausible.'' Even in 
the absence of evidence establishing plausibility, thousands of 
claimants received humanitarian payments which required an even lesser 
showing.
    Participants in the ICHEIC process likewise were not bound by any 
rules of evidence. The insurance companies agreed that ``anything 
goes'' on the evidentiary front.
    Finally, claims were resolved through the ICHEIC process at no cost 
to claimants--unlike costly discovery in lawsuits. This included 
considerable research ICHEIC performed to help claimant's develop their 
claims.
    The U.S. courts would not be so friendly a venue. Litigants would 
be faced with statutes of limitation, jurisdictional arguments, rules 
of evidence, and burdens of proof. They would be faced with 
considerable costs, including attorneys' fees, which might only be 
recovered at the end of the process if he or she wins (and wins on 
appeal). Such as cause of action would likely raise the hopes of 
survivors without offering them a real chance at additional recovery. 
But most importantly, litigation would take time--time that survivors 
on the whole do not have.
                          a better way forward
    I urge the committee to find a better way forward than H.R. 1746. I 
understand fully the desire to create a cause of action and to require 
publication of all Holocaust-era insurance policies as an aid to 
potential claimants. I have already noted my concerns about a new cause 
of action. I also am concerned that the Holocaust Insurance Registry 
proposed in the bill would place European insurers in the untenable 
position of being forced to violate European privacy laws in order to 
comply with U.S. law.
    To avoid this situation but to ensure future processing of claims 
under ICHEIC standards, I believe that the better way forward is, 
first, to ensure that ICHEIC companies continue to process all claims 
submitted to them using ICHEIC's relaxed standards as they have pledged 
to do, and, second, to require that those companies submit periodic 
reports to an appropriate office of the United States Government on 
their claims processing. This reporting should include the number of 
new Holocaust-era claims submitted, the number granted, the reasons for 
any refusal, and the amount offered in compensation. The report could 
be submitted to the State Department's Office of Holocaust Issues, or 
some other appropriate office, and it should also be shared with the 
National Association of Insurance Commissioners and New York State's 
Holocaust Claims Processing Office (``HCPO''), to assist in their 
efforts to aid individuals with Holocaust claims. The HCPO, which will 
assist any individual--not just New Yorkers--in making Holocaust-
related claims, is working in concert with the National Association of 
Insurance Commissioners to provide this continuing service.
    Congress also should hold periodic oversight hearings to assure 
that claims submitted are being handled properly and in conformity with 
ICHEIC standards. These requirements would strengthen U.S. policy of 
resolving Holocaust claims through nonadversarial processes and could 
be complied with without forcing European insurance companies to 
violate any European privacy laws, which otherwise may prevent them 
from participating in a wholesale publication of the names attached to 
all Holocaust-era insurance policies.
    Third, I suggest that is necessary that the list of approximately 
500,000 names published by ICHEIC be made available in perpetuity, 
perhaps on the Web sites of the National Association of Insurance 
Commissioners, the HCPO, and the State Department's Office of Holocaust 
Issues. Additionally, the ICHEIC insurance companies should publish 
newspaper notices in the United States and Europe bringing to the 
attention of the general public the existence of the list, of the 
companies' willingness to process future claims under ICHEIC standards, 
and of the availability of the HCPO in assisting with claims.
    Finally, I would suggest that efforts of the Congress and the rest 
of the U.S. Government should focus on those countries and industries 
that have done nothing yet to compensate victims of the Holocaust.
    Since the ICHEIC claims process was completed in late 2006, each 
insurance company that participated has agreed to continue to process 
claims that could have been submitted to ICHEIC. They have agreed to do 
so using favorable ICHEIC standards of evidence and burden of proof and 
to do so without cost to claimants. In a letter of April 23, 2008, the 
German insurance association (``GDV'') recently has committed in 
writing to continue to process both named and unnamed claims according 
to ICHEIC standards and has expressed its willingness to report to the 
State Department or other appropriate agency on the results of such 
claims. Congress should hold the GDV and other ICHEIC companies to this 
commitment.
                               conclusion
    In conclusion, I would simply like to say that I appreciate and 
share the emotions which motivate the desire on the part of Congress to 
do something to help Holocaust survivors and heirs. However, as one who 
has spent many years working diligently on Holocaust compensation and 
restitution issues, I urge the Congress to err on the side of 
discretion and to consider the potentially catastrophic effect that 
certain measures, like H.R. 1746, would likely have on existing and 
future efforts to secure some measure of justice for victims of the 
Holocaust and would likely do so without giving survivors any 
additional real chance of recovery. At the same time, I would support 
legislating a reporting requirement to ensure that European insurers 
pay claims in the future under ICHEIC standards and do so with 
continuing congressional supervision. I would support republication of 
the ICHEIC list of names and renewed efforts to inform the public of 
the availability of claims processing by the ICHEIC companies and 
assistance by the HCPO. Finally, I would encourage the United States 
Government to focus its resources on obtaining restitution and 
compensation from countries and industries that have done nothing to 
atone for their role in the Holocaust.
                                 ______
                                 
                                       Department of State,
                                       Washington, DC, May 5, 2008.
Hon. Bill Nelson,
U.S. Senate,
Washington, DC.
    Dear Senator Nelson: I am writing to you to transmit Administration 
views on H.R. 1746, the ``Holocaust Insurance Accountability Act of 
2007.'' I understand that you are planning a hearing on May 6 on what 
may become a Senate version of this bill. We continue to oppose this 
bill.
    While we appreciate the intentions behind this proposed 
legislation, we believe it would undermine the policy the United States 
has advanced for the past decade. The bill would, if enacted, directly 
conflict with a number of U.S. bilateral agreements with other 
countries on Holocaust-related compensation and thus create significant 
foreign relations problems for the United States. Moreover, we believe 
that the International Commission on Holocaust Era Insurance Claims 
(ICHEIC) has already achieved many of the objectives of the draft 
legislation.
    The Administration has long sought to ensure that Holocaust 
survivors receive a measure of justice for their suffering and that the 
survivors and heirs of Holocaust victims obtain compensation for 
property stolen during the Holocaust. We continue to do so.
    An enclosure to this letter outlines in more detail our concerns. 
Should you seek more information, I will be happy to discuss this 
matter personally with you.
            Sincerely,
                                              Daniel Fried,
                                   Assistant Secretary of State (P)
    Enclosure.
                                 ______
                                 

                   Administration views on H.R. 1746

    We oppose H.R. 1746, the ``Holocaust Insurance Accountability Act 
of 2007,'' which would support a federal cause of action in certain 
Holocaust-related insurance matters. While we appreciate the intentions 
behind this proposed legislation, we believe it would undermine the 
policy the United States has advanced for the past decade. The bill 
would, if enacted, directly conflict with a number of U.S. bilateral 
agreements with other countries and create significant foreign 
relations problems for the United States. Moreover, we believe that the 
International Commission on Holocaust Era Insurance Claims (ICHEIC) has 
already achieved many of the objectives of the draft legislation.
    The policy of the United States with respect to claims for 
restitution or compensation by Holocaust survivors and other victims of 
the Nazi era is and has been that concerned parties, foreign 
governments, and nongovernmental organizations should act to resolve 
such matters through dialogue, negotiation, and cooperation, not 
through litigation. Examples of the successful implementation of this 
policy include Executive Agreements with Germany and Austria which have 
facilitated the payment of billions of dollars to victims of the Nazi 
era, including those with claims based on unpaid or confiscated 
insurance policies.
    Similarly, the United States has supported ICIIEIC since its 
establishment and has consistently stated its belief that the ICH-EIC 
should be viewed as the exclusive remedy for unresolved insurance 
claims from the Nazi era. ICIIEIC members included organizations 
representing Holocaust survivors, U.S. insurance commissioners, and 
foreign insurance companies, and the Department of State has been an 
observer on ICHEIC's governing body since its inception. Any interested 
party is welcome to review the work of the ICHEIC, via the Commission's 
Web site, www.icheic.org, or by consulting the report conducted by the 
National Association of Insurance Commissioners at www.naic.org.
    ICHEIC's efforts resulted in the payment of approximately $300 
million to some 48,000 claimants--beneficiaries or heirs of 
beneficiaries of policies issued to Nazi victims during the period 1920 
to 1945--the vast majority of whom could never have otherwise received 
anything. It published a list of 500,000 names and provided widespread 
publicity during a four to five year claims period. While some 
claimants had documents regarding policies, the vast majority of them 
did not. Nevertheless, at no cost to the claimants, ICI: LEIC undertook 
the research and found policies in many cases. On such policies, ICHIEC 
paid the full amount plus interest since World War II, usually this 
amounted to $10,000 to $20,000 per documented claim, but occasionally 
it was much more. In addition, some companies, against which there were 
valid claims, had gone out of business. Nevertheless, ICHEIC and the 
participating companies paid the claims.
    In addition to the $300 million paid out for claims, ICHEIC also 
made available $169 million mainly for social welfare projects that 
benefited Holocaust survivors. These funds do not include millions of 
dollars devoted to insurance claims outside of ICHEIC, such the $25 
million earmarked for insurance claims by the Austrian General 
Settlement Fund (created pursuant to a U.S.-Austria agreement), which 
is continuing to pay claims. We estimate that over $500 million dollars 
have reached Holocaust survivors and heirs as payments for insurance 
claims and related projects.
    None of this would have been possible if the foreign governments 
and companies providing these payments believed they would be subject 
to continuing litigation in United States courts over Holocaust-era 
claims. In return for $6 billion in payments to Holocaust victims, 
including to holders of Holocaust-era insurance policies, the United 
States agreed, with respect to German and Austrian companies, that 
continuing litigation would be contrary to its foreign policy interests 
and that those companies should instead have ``legal peace.'' The 
United States has made these interests clear in numerous courts, all of 
which have dismissed litigation that would have undermined these 
important policy goals.
    The proposed legislation would take the opposite course. Its 
primary effect would be to enable and facilitate renewed litigation, 
even where the claims at issue had already been explicitly settled in 
U.S. courts. We believe such litigation would be acrimonious, 
expensive, and ultimately unsuccessful. In addition, it would cause 
significant problems for the foreign relations of the United States, 
especially with respect to countries with which we have bilateral 
agreements and which will see enactment of this legislation as a 
repudiation of such agreements. If such legislation is enacted, we 
expect it will be extremely difficult to achieve cooperation from other 
countries in their taking additional domestic steps on Holocaust 
restitution matters.
    The Administration is well aware that the ICHEIC process was not 
perfect. There can be no ``perfect'' justice when it comes to the 
Holocaust. But, in our judgment, H.R. 1746 would detract from rather 
than advance the cause of bringing some measure of justice to Holocaust 
survivors and other victims of the Nazi era, a cause for which the 
United States has been in the forefront for the past 60 years.

    Senator Bill Nelson. Thank you, Ambassador Eizenstat.
    Mr. Rosenbaum.

    STATEMENT OF THANE ROSENBAUM, JOHN WHELEN DISTINGUISHED 
LECTURER IN LAW, FORDHAM UNIVERSITY SCHOOL OF LAW, NEW YORK, NY

    Mr. Rosenbaum. Senator Nelson, other Senators on the 
committee: Thank you so much for convening today this 
afternoon's hearing.
    My name is Thane Rosenbaum. I'm grateful for being invited. 
I'm a law professor at Fordham Law School, specializing in the 
area of human rights and moral justice. I've written a number 
of books on Holocaust-related themes, both fiction and 
nonfiction, and I've written hundreds of articles for all of 
the major newspapers in the United States and outside of the 
United States dealing with Holocaust-related matters, including 
restitution.
    What I'd like to do is set the moral table, because when 
you're dealing with an atrocity your starting point must always 
be the moral dimension. There are some matters that need to be 
clarified. There's somewhat of a misunderstanding, and let me 
see if I can assist the committee in a way that might be 
helpful.
    First the question of what is restitution. Restitution 
doesn't even occur unless the victims feel restituted. It's the 
first priority. It's the moral dimension of what restitution 
means, that victims need to feel satisfied.
    Senator Cardin earlier said something about acknowledgment 
and I was interested in that, but acknowledgment is not enough. 
Acknowledgment is symbolic and it's significant in its own 
right, but the victims themselves must walk away and feel 
respected and dignified and treated as if there was a just 
resolution. Acknowledgments are not provided for Senators or 
for me; acknowledgments are for the victims. It is they who 
have to feel good.
    The Holocaust survivors by and large throughout all of 
these restitution proceedings, unfortunately, have not felt 
good about what has been done on their behalf, have not felt 
restituted, partly because they've been infantilized. They have 
not been able to participate in the process. They have not been 
able to make decisions for themselves. They have not been able 
to confront the people who have harmed them. They have not been 
able to seek the truth of their family histories. They have not 
been able to achieve any discovery.
    Essentially, what this legislation does is restore to 
survivors their dignity and give them a private right of 
action. Essentially, it liberates the survivor again, and this 
time it's for the purposes of controlling his or her own 
destiny in order to finally participate in the process.
    Another misunderstanding is that there's something extreme 
or Draconian about this legislation, and I don't believe that 
it does. It strikes me that the legislation is a very 
unaggressive, almost passive, bill. It's not a legislation of 
disgorgement. If anything, it's merely legislation of access 
and empowerment. It provides the survivor with a legal remedy 
and a legal forum in which to pursue that remedy.
    The passage of this legislation in both Chambers of 
Congress doesn't result in the exchange of one dollar in 
insurance payments to survivors. All it really does is provide 
the threat of a lawsuit, essentially, by requiring the 
publishing of the names of policyholders and the historical 
justice that's achieved through such disclosure, and through 
access to the courts by requiring insurance companies to settle 
cases on fair and reasonable terms.
    The legislation functions as an implicit reminder to play 
fair, to make things right, to give survivors an opportunity to 
regain their property and honor. Insurance companies have 
nothing to fear unless they have something to hide.
    Under ICHEIC, that's exactly what happened. The insurance 
companies were able to hide. Why? Well, the insurance companies 
were included within ICHEIC. There was no meaningful document 
discovery. There was an absence of truth-seeking in very 
fundamental ways. Lawsuits, the threat of lawsuits, opens up 
the process, not just to survivors. Senator Nelson certainly 
knows that law suits create yet another invitation for State 
insurance commissioners to participate and get back in the 
game. It places pressure on the European industries to make 
public what they've done. It calls attention to these matters 
to the public and to the media. Congressional pressure can be 
reinvigorated and renewed, of course, by this legal pressure.
    I published an op-ed in yesterday's New York Sun. It was 
really an invitation for the insurance industry to regain their 
goodwill, to not hide behind ICHEIC and to finally do what's 
right.
    My final point goes to a point that we've heard again today 
from Mr. Eizenstat. We've read it repeatedly. It's this 
question of rough justice and legal peace. I have an enormous 
amount of respect for my friend Stuart Eizenstat, an enormous 
amount of respect. But I can tell you, I've been a law 
professor for 17 years. I don't have the slightest idea what he 
means when he says rough justice and legal peace.
    I have a vague idea. These terms have become fashionable, 
they've been acceptable terms of art in these proceedings. But 
what he's really saying is that under these circumstances of 
Holocaust restitution we really don't accept--we can't expect 
justice, we can't expect it in any meaningful way. We must 
accept inadequate justice, insufficient justice, substandard 
justice, discounted justice, essentially rough justice.
    Now, why? I'll sum up in a second. Will that be all right, 
Senator Nelson? Thank you, sir.
    Senator Bill Nelson. If you could wrap up.
    Mr. Rosenbaum. I will, sir. Thank you.
    I would think that in this instance, given the enormity of 
the Holocaust, as with all victims of genocide, we would expect 
the exact opposite. The Nuremberg prosecutors didn't accept 
rough justice. We accept that victims of genocide are an iconic 
people, the possessors of forbidden knowledge. We don't settle 
for less than complete justice. We actually should ultimately 
settle for more.
    This basic idea that we should accept something as if it's 
better than nothing is obviously not enough. It's not enough 
for survivors because they're not satisfied. It hasn't in any 
way relieved their resentment or their sense of unjust 
resolution in this case. So ultimately there's no sense of 
restitution.
    The victims of the Holocaust and genocide in general 
require not rough justice, but actual moral justice; not legal 
peace, but moral peace. This is not about making governments 
and corporations feel better about themselves so they can sleep 
easier at night. In fact, it ought to be about allowing 
survivors to feel restituted in some truly meaningful way.
    Senator Bill Nelson. Thank you, Mr. Rosenbaum.
    Mr. Rosenbaum. And to also allow the dead to rest in peace.
    Thank you, chairman.
    [The prepared statement of Mr. Rosenbaum follows:]

   Prepared Statement of Thane Rosenbaum, John Whalen Distinguished 
 Lecturer in Law, Fordham University School of Law School, New York, NY

    Mr. Chairman, and the Senators on this committee, let me begin by 
thanking you for inviting me to testify here today in connection with 
the Senate's consideration of H.R. 1746, the Holocaust Insurance 
Accountability Act. My name is Thane Rosenbaum. I am a law professor 
specializing in the area of human rights and moral justice. Over the 
years I have written a great number of books, articles, and essays that 
concerned Holocaust-related themes and issues. I have been quoted in 
various national news media stories on matters involving Holocaust 
restitution. I have been a Yom HaShoah (Holocaust Memorial Day) speaker 
at synagogues, churches, universities, and public memorials in cities 
all across America. In fact, last week I was simultaneously writing 
this statement while preparing to deliver a Yom HaShoah address.
    Finally, I am the only child of two Holocaust survivors, both 
concentration camp victims, neither of whom are alive today. I have 
made no claims for restitution relief on behalf of my parents. I am 
here today at your invitation and without any tangible benefit to 
myself. Indeed, I am here only because when it comes to the Holocaust, 
this committee, this Chamber of Congress, is the appropriate place to 
be.
    Let me begin by stating that what you do here today is vitally 
important on so many grounds, most especially, for reasons of humanity 
and morality. Given my emotional, familial, and professional 
involvement in all things related to the Holocaust, I want to thank and 
commend you for convening this hearing. To my mind, there is great 
potential that your efforts here today will lead to righting a historic 
wrong and vindicating the rights of those who were the principal 
victims of the Nazi genocide.
    The voice of the Holocaust survivor has, tragically, and for far 
too long, been silenced throughout these restitution initiatives. And, 
in making this assessment, I am including here the measures taken 
against Swiss Banks, German industries for their use of slave labor and 
the confiscation of gold bullion and artwork, and now the matter of 
European insurance companies and their unconscionable denial of claims 
and $17 billion in unjust enrichment, which forms the centerpiece of 
this committee's hearings for today.
    Along the way, however, throughout each of these restitution 
efforts, the Holocaust survivor has been repeatedly stripped of his 
rights, separated from his property, and deprived of his dignity. No 
one ever bothered to stop and ask Holocaust survivors what they wanted. 
There was so little curiosity as to whether Holocaust survivors even 
had an opinion about how to best redress the crimes committed against 
them. And there has been great neglect from those who were purportedly 
entrusted to guard their interests. Finally, and perhaps most 
insultingly of all, Holocaust survivors have been readily dismissed and 
deemed too insignificant to speak for themselves. Self-appointed 
surrogates stepped in as custodians and proxies and immediately 
regarded the survivors as too unsophisticated to define their own 
interests and dictate the terms of how to proceed against those who had 
harmed them--six decades after their improbable survival.
    So few people can claim to have endured what they survived, and yet 
so many presume to speak for them, and speak so casually about what 
they should accept as restitution for the nightmares they experienced 
firsthand. Rare has been the case where Holocaust survivors 
meaningfully participated in the negotiations that have presumably 
addressed their losses, their property, and their family history.
    It is, in fact, grossly ironic that Holocaust survivors have been 
so infantilized during the last days of their lives. Those who survived 
the Nazi death camps as indefatigable teenagers have, in their old age, 
been reduced to voiceless reminders of fraud and neglect. After the 
recent various disclosures of wartime thefts of the Nazis and the 
complicity and self-dealing of other European nations and corporations, 
the objective should have been to find ways to empower Holocaust 
survivors to reclaim their property and discover the truths of how they 
were so cruelly defrauded and deceived. Instead, the very opposite 
outcome occurred. The failure of ICHEIC is but one example of how these 
well-meaning restitution initiatives only served to further marginalize 
and degrade Holocaust survivors during their greatest hour of need and 
during the final hours of their lives.
    What you do here today is a most righteous task. You have the power 
to enable a depleted community of Holocaust survivors, many of whom are 
living in poverty, to restore their rights, their dignity, and, most 
especially, their voice.
    Restitution is primarily about righting a historic wrong. It is 
about providing relief to those who have been subjected to the most 
unimaginable forms of human suffering. And it is relief in the broadest 
sense--relief that actually makes victims feel relieved. Restitution is 
not only about the recovery of assets and the receipt of monetary 
compensation. That is too simplified an understanding of restitution--
the language and mindset of lawyers rather than the wishes of moral men 
and woman. At its deepest most profound core, restitution demands the 
public acknowledgment of loss and the public reckoning that is achieved 
only by learning the truth. This is what historical justice means: The 
duty that is owed to victims, and the duty that is owed to history, can 
only be achieved when the truth is discovered, internalized, and 
preserved.
    The legislation before you serves this broad moral purpose. First 
and foremost, H.R. 1746 restores the survivor his voice and 
decisionmaking authority. It allows victims to finally receive their 
day in court and opportunity to testify to their losses--both personal 
and financial--in their own words and with their own appointed 
representatives. This legislation would also enable survivors to 
confront those who have harmed and defrauded them, and to do so in the 
most human terms possible--not as faceless entities folded into a vast, 
anonymous government bureaucracy, but as principals seeking to 
vindicate their rights in American courtrooms.
     Furthermore, H.R. 1746 would require European insurers to publish 
the names of all Holocaust-era insurance policies. For various and 
apparent self-condemning reasons, they have been reluctant to do so. 
This legislation would finally compel full disclosure as to these 
insurers' postwar misdeeds, and it would result in the necessary truth-
seeking that has been entirely absent from these proceedings for well 
over a decade. By finally acknowledging the names of, and being held 
accountable for their conduct toward, their customers, European 
insurance companies will invariably be forced to disclose how, and by 
how much, they benefited from the murder of those whose lives they were 
contractually entrusted and obligated to insure.
    In addition to achieving the historical justice that comes with 
truth, the threat of private lawsuits would empower Holocaust survivors 
to negotiate on their own terms, without surrogate institutions that 
otherwise seek to aggregate, standardize, and depersonalize claims. 
Institutions don't take things personally; individuals do. Restitution 
relief always requires some form of personal engagement--sometimes 
minimal, sometimes symbolic, but always personal. Given the enormity of 
their loss and the grotesque moral failure that gave rise to that loss, 
Holocaust survivors must retain substantively meaningful self-
determination over their family histories. Anything less is neither 
moral nor consistent with the objectives of restitution. Private 
lawsuits permit such personal engagement; courtrooms, after all, are 
places where individual losses are counted and damages are assessed.
    Under ICHEIC, however, which had the ostensible purpose of 
maximizing efficiencies and reducing costs, each survivor became simply 
a number that needed to be processed in order to establish that 
something was done, regardless of whether that something amounted to 
anything meaningful or just. In the vast majority of cases, such 
processing resulted in the alarmingly swift denials of casually 
disposable claims. ICHEIC was all too focused on maintaining global 
friendships and generating goodwill for future negotiations that may, 
ultimately, have nothing to do with the Holocaust at all. The legal and 
moral claims of the individual Holocaust survivor, however, ended up 
being the collateral damage of these perceived international 
commitments.
    There can be no restitution if the victim does not ultimately and 
actually feel restituted. This is precisely why so many of these 
restitution initiatives, and especially ICHEIC, despite all good 
intentions, have failed so miserably on moral grounds. The fundamental 
imperative to measure success only by looking at the score sheet of 
actual victims went completely ignored. No one asked Holocaust 
survivors how they felt about the tactics deployed on their behalf, or 
whether they were satisfied, or what they actually wanted. There are 
many possible remedies in addition to the face value of an insurance 
policy. Many survivors wanted to know the truth of their family 
histories--who purchased the policy, when and where? Other victims 
merely wanted to assist other Holocaust survivors in need. Instead, 
government leaders, Jewish institutions, and class action lawyers 
blithely went about their business as if they had the moral authority 
to speak for survivors and determine their level of satisfaction--or 
ignore their wishes altogether.
    Yet, what is undeniably true is that in order for restitution to 
have meaning--both in a strict moral and legal sense--it must offer a 
pathway to the relief of human misery and resentment. If restitution 
doesn't actually produce relief and dissipate resentment, then it may 
be many things, but it is decidedly not restitution. It is a 
halfhearted legal resolution that resolves nothing, a mere symbolic 
gesture, or, as my friend Stuart Eizenstat repeatedly proclaims, it is 
a measure of rough justice, a way to achieve some legal peace.
    But the entire concept of legal peace is such a curious idea; one 
that is purely legal and not at all moral. Peace for whom? Governments? 
Corporations? Lawyers, diplomats, and government negotiators who wish 
to rest much easier, or, more peacefully, at night? Something is 
terribly twisted here. After all, doesn't our duty to achieve peace and 
secure restful nights remain only with the survivor? And do we not have 
an equal duty to the memory of the dead? Isn't that what is meant by 
``rest in peace''? Why should the legal peace offered to nations 
supersede the moral peace owed to actual victims?
    Notions of rough justice and legal peace only appease the interests 
of governments, corporations, and morally lazy judges; they do not 
restitute and restore victims. These proclaimed remedies are, by 
definition, perfunctory--placebos that carry no moral weight or 
currency with the victims for whom these self-congratulatory measures 
were intended to benefit. In the end, short of bringing about relief, 
the futility and frustration of these restitution efforts have given 
rise to an unrelievedly mechanized process that has only added insult 
to injury.
    In the case of ICHEIC, its legacy, unfortunately, will be 
remembered for this familiar pattern of institutional callousness and 
neglect. European insurance companies stole premiums (or shared them 
with Nazi and Axis authorities), refused to pay on policies and failed 
to fully disclose the names of their Jewish customers, even though they 
were quite aware of the existence and special vulnerability of this 
particular class of insureds. Indeed, they marketed life insurance 
policies specifically to Jews, knowing full well that everything about 
European Jewry was soon to become irreparably short-lived. And then, 
after profiting from the premiums, they handed over their Jewish files 
and records to the Nazis without regard to this breach of fiduciary and 
contractual duty. Despite this level of duplicity and deceit, with a 
guilty party that was, stunningly, this guilty, ICHEIC, a public entity 
created to achieve justice, failed to achieve justice or to give 
victims any sense that it was capable of advancing their interests and 
fighting their cause.
    The recovery of 3 percent of the $17 billion in unpaid Holocaust-
era insurance policies hardly amounts to even rough justice. This is 
particularly true given the amount of poverty in the Holocaust survivor 
community and the astonishing wartime and postwar theft of the European 
insurance industry, whose entities are now counted among the largest 
corporations in the world. The relative benefit derived from these ill-
gotten gains, in which a mass shakedown of insurance policies would 
help these insurers grow to become financial behemoths, compared with 
the suffering of so many in the Holocaust survivor community, is a 
laughably poor demonstration of ``rough justice.'' Moreover, ICHEIC 
authorized the use of funds to promote Holocaust education over the 
needs of destitute Holocaust survivors; and the majority of claimants 
received $1,000 humanitarian payments in lieu of the proceeds of their 
policies, which has far more in common with a consolation prize than 
any true sense of justice, even of the ``rough'' variety.
    Mr. Eizenstat speaks with a certain degree of conviction as if 
ICHEIC was a success, as if all of its advertised benefits upon 
creation were actually realized, as if the Holocaust survivor community 
should be grateful for the relaxed standards of proof that ultimately 
resulted in tens of thousands of claims NOT being paid. We are reminded 
that the great benefit of ICHEIC is that Holocaust survivors were 
spared attorney's fees; through the beneficence of ICHEIC, Holocaust 
victims were shielded from having to engage in costly and protracted 
litigation in order to vindicate their rights, the very thing that H.R. 
1746 would unleash.
    But in not having to hire a lawyer, what did Holocaust survivors 
receive in return? The overwhelming majority was treated with the 
indignity of having their claims rejected, making a mockery of the 
presumed liberal evidentiary standards under which their claims were 
supposed to have been evaluated. ICHEIC stood in the shoes of the 
insurance companies, and, ultimately, echoed the same defenses that 
were uttered decades ago: Show us a death certificate or get lost. The 
token $1,000 humanitarian payments trivialized their actual losses and 
exonerated European insurers for now, and for history. What insurance 
company wouldn't sell life insurance policies if it knew that the lives 
that were being insured were so dispensable and worthless that six 
decades later, with the premiums long invested and with no dividends to 
pay out, the contract could be discharged with a mere check for $1,000?
    The point, all along, should have been to disgorge the insurers of 
their wartime booty and disclose the truth of their postwar deceit. 
Instead, ICHEIC administrators flew first class and initially spent 
more money on administrative expenses than in the payment of actual 
claims. The overall consequence of ICHEIC has produced not only the 
widespread feeling of justice denied and a windfall preserved for the 
European insurance industry, but also a renewed sense of resentment 
among the Holocaust survivor community--this time compounded and 
directed not only against their former insurers, but also America's 
deeply flawed ICHEIC experiment.
    And that's precisely why this is a job for the legislative branch. 
Indeed, it should have always fallen to Congress to establish the 
rights of those who had been defrauded in this sordid arena of 
international commerce, and to establish the jurisdiction of Federal 
courts in the service of redressing these crimes.
    The powers of the executive branch to conduct foreign policy surely 
cannot be expanded to allow the suppression of facts in the hands of 
foreign corporations that collaborated with the Nazis and defrauded its 
customers. Whether there is a compelling foreign policy interest here 
or not, the executive branch simply cannot preempt and cancel the 
rights of citizens to avail themselves of American courtrooms. Unless 
Congress acts decisively in this matter, the forfeiture of these legal 
rights is exactly what will have happened. The legal and moral 
authority of the Holocaust survivor to seek justice in his or her 
lifetime, surely under these circumstances, should supersede all other 
considerations of a political, as well as foreign policy, nature.
    As Mr. Eizenstat is here today to reaffirm, the executive branch 
always operates under a different set of priorities. Surely the State 
Department would prefer that European insurers look upon the American 
Government favorably for having spared them from lawsuits in the United 
States for crimes committed over 60 years ago. But absent a formalized 
agreement that would have purported to deprive Holocaust victims of a 
private right of action, of which there is none, nor, constitutionally 
speaking, could there ever be one, all that remains is the presumption 
that the insurers are somehow entitled to full immunity--a position the 
government never agreed to when the German Foundation was negotiated, 
and, never could have agreed to.
    To deprive Holocaust survivors of their day in court constitutes a 
twisted manipulation of realpolitik, the privileging of vague notions 
of international diplomacy over the moral duties that are fundamentally 
owed to victims of genocide. (The irony, of course, is that the State 
Department's obsession with realpolitik resulted in the abandonment of 
the Jews during World War II. Now, over 60 years later, similar 
concepts of global ``diplomacy'' are being reintroduced with respect to 
the vindication of the rights of these very same victims.)
    In order to have negotiated a payment of $5 billion from the German 
Foundation as compensation for slave labor ($3 billion of which was set 
aside for non-Jews; $1 billion for Jews; and another $1 billion for 
other compensatory purposes), Mr. Eizenstat maintains that it was 
necessary to limit the future rights of Holocaust survivors to sue 
insurance companies for claims arising out of their policies. Under 
what moral criteria is it appropriate for one group of victims, who had 
once purchased insurance contracts that entitled them to legal relief 
in any country in the world in which the insurer did business, to 
forfeit those rights as an inducement for the German Foundation to make 
restitution for slave labor--an obligation they should have undertaken 
years earlier and without regard to whether Jews owned insurance 
policies that were never honored? Did anyone consult Holocaust 
survivors to see whether they were willing to waive their legal rights 
under their insurance contracts in order to ease the negotiations on 
behalf of an entirely different category of Nazi victims?
    Moreover, in every sense of the word, Holocaust survivors stand as 
a separate category of Nazi victim. Their position is unique because 
the Nazis deemed them so; indeed, the Final Solution was conceived 
entirely for them. Slave laborers were surely victims of war, but they 
were decidedly not, by definition, selected for extermination and 
destined for the murderous flames of the Holocaust. While non-Jewish 
slave laborers surely deserve restitution, why should the insurance 
policies of those who stood fixedly atop the hierarchy of Nazi 
suffering be leveraged in order to bring German industries to the 
negotiating table to pay restitution to others? The $5 billion 
restitution payment for slave labor is worthy and impressive, but it 
devalues the nature of victimhood and the relative experiences of 
suffering by calling it a Holocaust settlement, and it should have no 
bearing on whether Jewish policyholders of life insurance can bring 
lawsuits against the companies that had defrauded them.
    Imagine if Mr. Eizenstat were testifying here today and took a 
similar position with respect to the victims of Hurricane Katrina. What 
if he told us that the casualties of a natural disaster could not avail 
themselves of Louisiana courtrooms in their pursuit of legal remedies 
against corporations that failed to honor their property insurance 
contracts? And what if the reason behind this forfeiture of rights was 
some foreign policy objective that necessitated the negotiating away of 
these legal remedies--rights otherwise guaranteed by contract and 
enforceable under American law--all for the purposes of achieving some 
other benefit for another party that had never before weathered a 
hurricane? What would this committee say if we were to invalidate those 
insurance contracts, and for these professed reasons?
    Let's look at a different type of injury and even a different class 
of victim--for instance, the makers of dangerous substances and 
defective products; and, more specifically, unwitting consumers who 
were damaged by say, tobacco smoke or faulty seatbelts. Should the 
competing considerations and nuances of foreign policy--with all that 
give and take and winks and nods--stand in the way of smokers and car 
accident victims to seek redress, under either tort and contract law, 
against those who may have harmed them? Would this body stand for that?
    Yet, today, in this hearing, we are faced with the legacy of the 
Holocaust. Holocaust survivors--as would be the case with the survivors 
of any genocide--have always been understood to be deserving of special 
treatment and protection. They were not, in any ordinary sense, the 
consumers of defective products. On the contrary, there was nothing 
voluntary about the nature of their victimhood. They couldn't simply 
have chosen to stop smoking or promise never again to step inside a 
car. They were the victims not of consumption, but rather human 
barbarism. For this reason, they stand in a privileged position in the 
eyes of the world, largely because they are eyewitnesses to the very 
thing that humanity is all too afraid to look at--the reflection of 
unimaginable evil. Holocaust survivors are the custodians of this 
forbidden knowledge, and therefore the range of responsibility that is 
owed to them is greater than any courtesy that might otherwise be 
exchanged in the course of international diplomacy.
    Realpolitik has no place in the world of atrocity. In this 
instance, and with respect to this legislation, the burden to do what 
is right is higher, because the burden that Holocaust survivors endured 
was greater. This committee, this Chamber of Congress, has, with H.R. 
1746, an opportunity to grant Holocaust survivors the return of their 
rights and the restoration of their dignity, both of which have been 
withheld from them--throughout these restitution proceedings--for far 
too long. And in empowering Holocaust survivors and exposing European 
insurers to the imperatives of truth, this committee will also serve as 
a moral voice that the United States offers no protection to those who 
profit from the suffering of others and who take advantage of the 
spoils of man's darkest hour.
                                 ______
                                 

                [From the New York Times, June 14, 2007]

                              Losing Count

                          (By Thane Rosenbaum)

    The Holocaust has always been marked by numbers. There was the 
numbering of arms in death camps and the staggering death toll where 
the words six million became both a body count and a synonym for an 
unspeakable crime. After the Holocaust, Germany performed the necessary 
long division in paying token reparations to survivors. More recently, 
Swiss banks and European insurance companies have concealed bank 
account and policy numbers belonging to dead Jews.
    Only with the Holocaust have dehumanization and death been as much 
a moral mystery as a tragic game of arithmetic. And the numbers 
continue, although now largely in reverse.
    After 60 years, Holocaust survivors are inching toward extinction. 
According to Ira Sheskin, director of the Jewish Demography Project at 
the University of Miami, fewer than 900,000 remain, residing primarily 
in the United States, Israel and the former Soviet Union. Most are in 
their 80s and 90s. Unless immediate measures are taken, many of those 
who survived the Nazi evil will soon die without a proper measure of 
dignity.
    According to Dr. Sheskin's data, more than 87,000 American 
Holocaust survivors--roughly half the American total--qualify as poor, 
meaning they have annual incomes below $15,000. The United Jewish 
Communities, the umbrella organization of the American Jewish 
Federations, determined that 25 percent of the American survivors live 
at or below the official federal poverty line. (The poverty figure in 
New York City is even higher.) Many are without sufficient food, 
shelter, heat, health care, medicine, dentures, eyeglasses, even 
hearing aids.
    Conditions worldwide are similar. It's a sad twist that the 
teenagers who mastered the art of survival so long ago have been 
forced, in their old age, to call on their survival instincts once 
again.
    It doesn't have to be this way. Although the various global 
financial settlements represent only a small fraction of the Jewish 
property that was plundered during the Holocaust, they still amount to 
billions of dollars. Which raises questions: Why aren't the funds being 
used to care for Holocaust survivors in whose name and for whose 
benefit these restitution initiatives were undertaken? Why weren't 
survivors permitted to speak for themselves in the very negotiations 
that led to the recovery and distribution of their stolen assets?
    Take the Swiss bank settlement, for instance. A federal judge in 
Brooklyn distributed 75 percent of the looted assets to survivors in 
the former Soviet Union, leaving only 4 percent for destitute survivors 
in the United States, even though roughly 20 percent of the world's 
Holocaust survivors live in America. Assets that had been stolen by the 
Swiss were once again diverted, this time by the charitable 
inclinations of a judge who, ignoring the voices of survivors, severed 
the connection between the victims of the theft and the proceeds of the 
recovery.
    On the matter of insurance, a federal judge in Manhattan recently 
approved a settlement in which fewer than 5 percent of the life 
insurance policies that had been sold to Jews would be restituted, 
allowing the Italian insurer, Generali, to escape with more than $2 
billion in unjust enrichment. By not requiring Generali to disclose the 
names of policyholders, the settlement amounts to a coverup. Tens of 
thousands of Holocaust survivors are being kept from the truth and will 
likely be foreclosed from bringing individual claims against the 
corporation that defrauded them.
    The Jewish Claims Conference, an organization established in the 
1950s to recover and distribute Jewish property, has assets under its 
care estimated at $1.3 billion to $3 billion, which includes a vast 
inventory of cash, real estate, and artwork. Despite the urgency of 
human suffering, the conference insists that it cannot respond to the 
unmet needs of Holocaust survivors.
    Meanwhile, it spent about $32 million last year on programs 
dedicated to ``research, documentation, and education.'' Some of those 
millions went to a program that paid $700,000 to a ``consultant''--a 
friend of the organization's president--who, in an interview with The 
Jewish Week, couldn't recall what he had been asked to consult on. 
While the conference supports many worthy projects, it is controlled 
not by survivors but by surrogates, and operates with limited oversight 
and financial accountability.
    The Holocaust, so large an atrocity, has a way of overshadowing 
everything, including its survivors. In focusing on the past in order 
to prevent history from repeating itself, we have forgotten those who 
are the direct casualties of this crime. Amid all the Holocaust hoopla 
the survivors have become secondary.
    This neglect is widespread. Even the United States Holocaust 
Memorial Museum has regarded itself as primarily a home for historians 
and a monument to history, but not as an institution that places 
survivors first. Yet without their anguished presence the museum would 
not exist.
    One demonstration of its inattentiveness involves the imminent 
transfer to the museum of electronic copies of Germany's Bad Arolsen 
archives, which hold 50 million documents pertaining to the fate of 
more than 17.5 million victims. Unfortunately, the museum has failed to 
commit to making the archives accessible on the Internet so that they 
can be accessed as easily by Holocaust survivors as by visiting 
scholars.
    So what can be done to honor those who survived but who seem to 
have been forgotten?
    First, all traceable assets held by the claims conference and the 
negotiated settlements with Swiss bankers and European insurance 
companies must be returned to their owners, with the remainder used for 
survivor needs.
    Second, Congress should pass the proposed Holocaust Insurance 
Accountability bill, which would require insurers to publish the names 
of policyholders and allow survivors to resolve claims on fair and 
truthful terms.
    Third, all Holocaust documentation, like the Bad Arolsen archives 
and the recently disclosed Austrian war records, must be made readily 
accessible. Survivors and their families must have easy access so 
family histories can be recovered and property claims verified. These 
archives cannot be just the province of scholars.
    Finally, if both the World Jewish Congress and the claims 
conference fail to achieve transparency in their operations, then 
Congress or law enforcement should publicly account for the funds that 
have been controlled by institutions that survivors never elected and 
did not authorize.
    Surviving the Holocaust, which was against all odds, is still a 
numbers game. The percentages are always against the survivors. Nearly 
murdered, shamefully defrauded and with the clock ticking, they wait 
for justice, accountability and, most of all, respect.

    Senator Bill Nelson. Thank you, Mr. Rosenbaum.
    Mr. Dubbin.

STATEMENT OF SAMUEL J. DUBBIN, PARTNER, DUBBIN & KRAVETZ, LLP, 
                           MIAMI, FL

    Mr. Dubbin. Mr. Chairman, I'm Sam Dubbin from Miami. I want 
to thank the chairman for holding the hearing and the others in 
attendance.
    I am here because, as a South Florida attorney, I was asked 
by members of the survivor community back in 1997--in fact, it 
was at a hearing held by Commissioner Nelson at the time--to 
get involved on their behalf, because their experience with the 
institutions that were charged with their affairs were not 
good. They felt they had been excluded all those years. They 
worried that with the issues coming up over asset restitution 
that they would be left out of the dialogue and out of the 
discussion. It's on their behalf that I sued some insurance 
companies. We tried to get Judge Korman in the Swiss Bank case 
to make an adequate provision of assistance for survivors in 
the United States.
    They are the ones who, because ICHEIC closed with such 
paltry results, have insisted that, instead of the 
nontransparent, nongovernmental, non-due process-oriented 
system that was produced, that they get a chance to go to 
court, where a judge and a jury can examine the conduct of the 
companies and get to the truth. So I'm here on their behalf.
    Now, I have a lot to say about ICHEIC and the legal peace 
process, but I want to start with the overriding point here 
because I think it's crucial. The argument being made is that 
the elders, the philosopher kings who have taken it upon 
themselves to do what they think is right, they think what the 
survivors should accept, have basically said: You should 
accept, not full payment of your insurance claims; you should 
not accept the full truth about what these companies did with 
your families' policies; but you should accept what we give 
you, because we want to try to help people in general.
    So they want to sacrifice property rights for doing 
something for the general good. Now, as you know, Mr. Chairman, 
I was at the forefront of trying to get a guarantee that all 
survivors had adequate long-term care and that the companies 
that stole billions be the ones to supply that.
    So this goes to your question, Mr. Menendez. If they're 
saying that people's property rights, guaranteed by contracts 
entered into in good faith, enforceable in the courts of this 
country for the last 200 years, should be sacrificed, should be 
thrown out, so that they can continue negotiations, the 
question is: What's the purpose of the negotiations?
    The data show that 80,000 survivors in this country either 
live below poverty or are so poor they can't afford food, 
medicine, dentistry, and the like. Unless the goal--why isn't 
the goal to make sure that every one of those survivors has 
what they need? That's not what you heard. You heard that we're 
trying to get a few more pension dollars, we're trying to get a 
few more payments here, a few more payments there.
    The burden should be on those who want to substitute their 
judgment for what the survivors want and need to justify the 
status quo. The status quo is a failure, and you've heard that 
from your constituents and you're going to continue to hear it. 
So that is not an adequate substitute because that's what 
Germany owes the victims. That's what they owe the victims, not 
rough justice, not legal peace. And that's what they haven't 
gotten today, and that's what the Claims Conference is not 
obtaining for them in these various negotiations. That's the 
principal question for those who talk about what other 
discussions are being ``threatened.''
    So let's talk quickly about, and I hope I get some 
questions about the ICHEIC issues per se, because States all 
over the country in 1998 passed laws requiring the companies 
doing business in their States to disgorge information, to 
produce records of how they treated customers after the war, to 
pay claims, and to be susceptible to court action. Congress was 
considering similar legislation and that's what brought the 
companies to the table, make no mistake about it. It wasn't 
some abstract desire to do right.
    The ICHEIC process was set up and the way that that--it was 
supposed to publish the names within a year and pay the claims 
within 2 years. The names were not published until late 2003, 
Germany ended up publishing about 400,000 names. But they did 
not publish their names until the summer of 2003, when the 
deadline for filing claims was almost over.
    Generali, one of the biggest companies, published 10,000 
names up until mid-2003 and then published another 30,000, 
again at the end of the deadline. But they sold well over 
150,000 policies to Jews easily, and the names of the Generali 
subsidiary customers were not even published on the ICHEIC Web 
site. So when they talk about the publication of names, it was 
woefully, disgracefully inadequate and it's not an adequate 
substitute.
    The valuations? Two hundred fifty million dollars in claims 
were paid, $31 million in $1,000 humanitarian payments. Those 
aren't payments on claims. For them to stand here and tell you 
that those were payment on claims, when Mr. Rubin told you that 
that was an insult, there is a disconnect here between what the 
survivors believe they were getting and what the establishment 
thinks that they were giving them.
    So the problem then became that court cases by people--let 
me just tell you another fraction. The Germans and ICHEIC paid 
10 cents on the dollar on the fair value. They paid at the same 
rate they were allowed to restitute policies for after World 
War Two. So when we hear that fair value was paid by German 
companies, that's not true. My question is, they paid $82 
million when a conservative valuation would have been $550 
million. Why should Germany today be paying Marshall Plan 
valuations? That's the system that was imposed on survivors, or 
would be imposed unless you act and enact a bill like H.R. 
1746.
    [The prepared statement of Mr. Dubbin follows:]

Prepared Statement of Samuel J. Dubbin, Partner, Dubbin & Kravetz, LLP, 
                               Miami, FL

    My name is Samuel J. Dubbin. I would like to thank you, Chairman 
Nelson, and all the members of the subcommittee, for holding this 
hearing on the vital and very urgent problems facing Holocaust 
survivors and heirs with unpaid insurance policies. The bottom line 
from my clients' perspective, and thousands of other survivors and 
families they represent, is that congressional action to restore 
survivors' rights is long overdue.
    For the past decade I have had the privilege of representing 
Holocaust survivors and family members in attempting to recover assets 
looted by a variety of governments and global businesses. In the eyes 
of the survivors and heirs I represent, the restitution enterprise has 
mostly failed. In their eyes, the interests of victims and families 
have been given the lowest priority, with the interests of governments, 
international corporations, and institutions having conflicting agendas 
taking precedence. I am here today because they are crying out for 
justice, and for a fair shake from the American political system. 
Today, the focus of my testimony will be on the problem of unpaid 
insurance policies that were purchased by Jews in Europe prior to World 
War II but never paid to the insureds or their rightful heirs.
         background representing holocaust survivors and heirs
    I will begin by describing how I became involved as a lawyer for 
survivors. Between 1993 and 1996, I served in the Clinton 
administration as Special Assistant to Attorney General Janet Reno and 
Deputy Assistant Attorney General for Policy Development in the 
Department of Justice, and as Chief Counsel to the National Highway 
Safety Administration (NHTSA) in the U.S. Department of Transportation. 
After I returned to private practice in Miami, a group of survivors in 
South Florida (the South Florida Holocaust Survivors Coalition) 
approached me because they feared that they would be excluded from a 
meaningful role in the emerging public negotiations, lawsuits, and 
settlements over ``Holocaust asset restitution.''
    They explained that for decades, Holocaust survivors had been 
excluded from major decisions affecting their rights and welfare, as 
nonsurvivor organizations purporting to speak on their behalf 
controlled these processes without the consent of the victims 
themselves. Meanwhile, tens of thousands of survivors in their 
seventies, eighties, and nineties were suffering without adequate home 
and health care, nutrition, shelter, dental care, and other essentials 
of life. This shocked me, Mr. Chairman, because one article of faith 
throughout my adult life has been that victims of the Holocaust occupy 
a hallowed place in the conscience of every civilized person and 
institution, and deserve every consideration possible in the 
recognition of the unique horror they endured. In practice, their 
experience has been quite the opposite.
    As you recall, Mr. Chairman, the coalition leaders worked with you 
in 1998 when you were the Florida State Treasurer and Insurance 
Commissioner to enact legislation in Florida to hold insurers 
accountable for policies sold to their parents and grandparents before 
WWII. The law required insurers doing business in Florida to disclose 
names of policyholders and allow survivors and heirs to bring lawsuits 
in Florida courts for unpaid policies. It also negated any statute of 
limitations defense for cases brought within 10 years, and, as with 
other insurance consumer statutes in Florida, provided for treble 
damages and attorneys fees for successful claimants. The legislation 
the survivors are asking Congress to enact, H.R. 1746, is an almost 
identical measure at the Federal level.
    The survivors in Florida also recall with admiration your efforts 
to obtain guaranteed long-term health care coverage for all Holocaust 
survivors in the State (and ideally everywhere), and to find a funding 
source beginning with some of the global insurers who profited from the 
Holocaust. Unfortunately, the industry succeeded in ducking your 
efforts and those of some of your NAIC colleagues to do the right thing 
at the time, and have managed to avoid a full and honest public 
accounting for their war-time and post-war conduct.
    In the year 2000, the South Florida Survivor Coalition leaders 
joined with elected survivor leaders from throughout the United States 
who had also reached the conclusion that it was past time for survivors 
to speak and act for themselves. They formed the Holocaust Survivors 
Foundation USA, Inc. (HSF), which has become the leading grassroots 
voice for survivors' rights to obtain a full and transparent accounting 
of assets looted during the Holocaust, to recover assets traceable to 
living survivors and heirs whenever possible, and to ensure that all 
survivors in need receive priority funding from restitution proceeds 
which are truly ``heirless.'' I have been the organization's legal 
counsel since its inception. HSF's activities have been widely reported 
over the last 8 years in national Jewish media such as the Jewish 
Telegraphic Agency, the New York Jewish Week, the Forward, as well as 
in national media such as the New York Times, the Wall Street Journal, 
the Los Angeles Times, the Miami Herald, South Florida Sun Sentinel, 
Palm Beach Post, and Associated Press. More information about HSF's 
activities and goals can be found at its Web site, www.hsf-usa.org.
                summary of house legislation--h.r. 1746
    H.R. 1746 is essential to require the insurers doing business in 
the American market to open their records, publish the names of 
policyholders from the prewar era, and allow survivors and heirs to 
bring actions in court if the companies refuse to settle on reasonable 
terms. It also provides a 10-year window for such suits since most 
survivors and heirs have no knowledge of the fact that these companies 
sold their parents or grandparents or aunts or uncles insurance before 
WWII.
    Let me be clear about what is at stake. It is money, yes, because 
the insurers profited outrageously from the Holocaust and turned their 
backs on those who trusted the companies' supposed integrity. But this 
law is also about the truth. And the current system, the status quo 
represented by the ICHEIC legacy, has permitted the companies to hide 
behind the secrecy of an unregulated and extra-legal process, chartered 
in Switzerland and headquartered in London, and make decisions about 
Holocaust survivors' rights with no governmental or judicial oversight. 
The few times Congress has knocked on the door to see what ICHEIC was 
doing, ICHEIC told Congress to get lost. ICHEIC refused to answer 
serious questions in congressional hearings, and refused to provide 
information required by statute. Now, its defenders say this regime 
should be sealed with the imprimatur of the U.S. Congress as an 
acceptable framework for the rights of the victims of history's 
greatest crime. The survivors I represent urge you in the most 
heartfelt way not to allow the bureaucratic and political focus 
opposing H.R. 1746 to substitute for a decent respect for the financial 
and human rights of Holocaust survivors.
    H.R. 1746 provides a legally enforceable remedy that survivors and 
family members have a right to control themselves. It places survivors 
where they would have been in 1998 after State laws passed to allow 
insurance consumers to pursue their traditional remedies against the 
companies that profited from the Holocaust at the expense of the 
families of the victims. Without legislative relief, hundreds of 
thousands of unpaid policies worth $18 billion in 2007 dollars if not 
more sold to Jews before WWII would evaporate--and be inherited by 
multinational insurers such as Generali, Allianz, Munich Re, AXA, 
Winterthur, Swiss Re, Swiss Life, Zurich, and others.
    overview of representation of survivors' interests in litigation
    Briefly, I wanted to give the committee an overview of my 
experience representing Holocaust survivors and heirs in litigation 
involving asset restitution.
                  swiss bank looted asset allocations
    In 2000, Swiss Bank Class Action Judge Edward R. Korman earmarked a 
total of $205 million in looted assets funds (from Swiss banks' fencing 
looted property) for the needs of poor survivors around the world, with 
75 percent of the funds allocated for the Former Soviet Union (FSU) and 
only 4 percent for the survivors in the United States. The leaders of 
the HSF and several other survivors and survivor groups challenged the 
allocations because American survivors represented 20 percent of the 
class members (all living survivors) and almost 30 percent of the death 
camp survivors, including tens of thousands who are indigent. The FSU 
was given $16 million per year, and about $800,000 per year was 
provided for the 80,000 poor or near-poor U.S. survivors. Under the 
settlement, most needy U.S. survivors received nothing, yet their 
rights were extinguished.
    The U.S. survivor leaders believed it was legally and morally wrong 
for the Judge to use money obtained in the settlement of their legal 
rights for others who he personally regarded as being ``needier.'' My 
firm, Dubbin & Kravetz, LLP, represented their challenge and appeal of 
Judge Korman's allocations formula. The Second Circuit Court of Appeals 
acknowledged that it was unprecedented for a court to give the 
overwhelming majority of settlement funds to a small minority of the 
class, and to deprive most class members any benefit from the 
settlement. However, it affirmed the allocation because of the wide 
discretion afforded district courts in class action settlements. The 
Supreme Court denied certiorari review of the survivors' appeal. 
Several Holocaust survivors and HSF leaders who appealed that decision 
testified about their perspectives in the Europe Subcommittee of the 
House Foreign Affairs Committee on Foreign Affairs in 2007. See, 
Testimony of Leo Rechter and David Schaecter before the Europe 
Subcommittee of the House of Representatives Foreign Affairs Committee, 
March 27, 2007, and Testimony of Alex Moskovic and Jack Rubin before 
the Europe Subcommittee of the House of Representatives Foreign Affairs 
Committee, October 3, 2007.
                          hungarian gold train
    My law firm was one of three firms which successfully represented 
Hungarian survivors seeking restitution and an accounting against the 
United States Government for the United States mishandling of property 
of the Hungarian Jews that was placed on the ``Hungarian Gold Train'' 
by the Hungarian Nazi collaborators and obtained at the end of World 
War II by the United States.\1\ The case was litigated in the United 
States District Court for the Southern District of Florida, Irving 
Rosner v. United States of America. After nearly 5 years of extremely 
intense litigation, the case settled, with the U.S. Government agreeing 
to (a) provide over $21 million for social services for Hungarian 
Holocaust survivors in need over a 5-year period ($25.5 million minus 
attorneys fees and minus the cost of creating the Gold Train archive); 
(b) to create of an archive of the history of the Gold Train and the 
fate of Hungarian Jews in World War II; and (c) issue an apology for 
its handling of the Hungarian victims' property on the Gold Train. Mr. 
Jack Rubin, a Holocaust survivor from Boynton Beach, FL, who is 
testifying at this subcommittee hearing, was active in the Gold Train 
case and has discussed it in his statement.
---------------------------------------------------------------------------
    \1\ The case was initiated by Jonathan Cuneo, of Cuneo Gilbert & 
LaDuca, and Steve Berman of Hagens Berman Sobol & Shapiro; they 
contacted my firm due to my representation of the survivor community.
---------------------------------------------------------------------------
                          insurance litigation
    I have also represented several survivors and heirs and 
beneficiaries with claims against European insurance companies.\2\ In 
addition, I assisted several survivors and heirs over the years who 
attempted to navigate the ICHEIC system. In that role, I have observed 
firsthand many of the inconsistencies, irregularities, and failures 
voiced by survivors and reported in the media over the past several 
years.
---------------------------------------------------------------------------
    \2\ In February 1998, the House of Representatives Financial 
Services Committee held its first hearing on the subject of unpaid 
Holocaust victims' insurance policies. One of my clients, Dr. Thomas 
Weiss, testified about the policies he believed his father purchased 
before the war from Assicurazioni Generali, S.p.A. which remain unpaid 
to this day. I also represented Holocaust survivor Arthur Falk in 
litigation against Winterthur Insurance Company, a Swiss entity. Mr. 
Falk testified before the House of Representatives Committee on 
Government Operations in November 2001. The case settled.
---------------------------------------------------------------------------
    In the case of Thomas Weiss, M.D., Generali denied for years that 
it sold his father (Paul Philip Weiss) any policies. In June 2000, he 
brought a lawsuit against Generali in State court in Miami. Within 
months of the suit being filed, Generali finally disclosed the 
existence of one policy owned by Mr. Weiss. Mr. Weiss's name later 
appeared more times on the ICHEIC Web site, along with the names of 
many of his brothers and sisters who died in the Holocaust. When Dr. 
Weiss attempted to secure information about those names, Generali 
refused unless he could give the birth dates of his father's brothers 
and sisters--all of whom were killed in the Holocaust before Dr. Weiss 
was even born. Other survivors and heirs in my experience were given 
similar impossible hurdles to overcome in the quest for family policy 
information from ICHEIC and other companies, including Allianz.
    Dr. Weiss's case was removed to Federal court and consolidated in 
New York with the other putative ``insurance class action cases.'' 
These included cases brought against Generali, Allianz, AXA, RAS, 
Victoria, Basler, Zurich, Winterthur, and other European-based 
insurers.\3\
---------------------------------------------------------------------------
    \3\ After the German Foundation Agreement, in 2001, the cases 
against the German insurers were voluntarily dismissed. They were not 
settled on a classwide basis, but were dismissed without prejudice to 
the rights of all others who were not named plaintiffs. This is 
significant because, if the Agreement was supposed to forestall any 
further litigation, the case would have had to have been settled under 
full Rule 23 notice and hearing procedures.
---------------------------------------------------------------------------
    In 2001, Generali moved to dismiss the case in favor of mandatory 
resolution by ICHEIC. The District Court, Judge Michael Mukasey, 
rejected Generali's argument in part because he found ICHEIC was 
``clearly unsatisfactory'':

          Defendants have moved to dismiss in favor of a private, 
        nongovernmental forum that they both created and control, the 
        continued viability of which is uncertain. Because of these 
        shortcomings, ICHEIC cannot be considered an adequate 
        alternative forum.

Id. at 355.

Among the court's findings was that ICHEIC was ``manifestly inadequate 
because it lacks sufficient independence and permanence.'' Id. at 356. 
It held:

          ICHEIC is entirely a creature of the six founding insurance 
        companies that formed the Commission, two of which are 
        defendants in this case; it is in a sense the company store. . 
        . . The concern that defendants could use their financial 
        leverage to influence the ICHEIC process is not merely 
        theoretical. . . . ICHEIC's decisionmaking processes are and 
        can be controlled by the defendants in this case. . . .

Id. at 356-57.

    However, in 2003, the United States Supreme Court held in American 
Insurance Association, Inc., v. Garamendi, 539 U.S. 396 (203) case, 
that executive branch actions supporting ICHEIC, though not required by 
the terms of the U.S.-German Executive Agreement, preempted traditional 
State law powers of regulators to investigate insurers' practices 
toward its customers. After Garamendi, Judge Mukasey held that 
Garamendi mandated that he dismiss the Generali cases, even though 
there is no executive agreement between the United States and Italy nor 
any other indication of executive branch interest in Generali. However, 
the Supreme Court and Judge Mukasey both noted that Congress had not 
addressed disclosure and restitution of Holocaust victims' insurance 
policies, leaving the door wide open for congressional action today.
    All plaintiffs, including Dr. Weiss, about 20 other individuals, 
and the putative class action plaintiffs, appealed Judge Mukasey's 
decision. On August 25, 2006, the ``class action'' lawyers entered into 
a settlement agreement with Generali. The settlement in effect adopts 
the results of ICHEIC as binding on those who tried and failed in the 
process.
    I was asked by several survivors including Floridians Jack Rubin, 
Alex Moskovic, and David and Irene Mermelstein, Fred Taucher of 
Seattle, Washington, and Hans Lindenbaum of Israel, who had attempted 
unsuccessfully to navigate ICHEIC's labyrinths, to file objections to 
the settlement. The district court judge, George Daniels, stated that 
he had a very limited role and was not at liberty to judge ICHEIC's 
effectiveness, and approved the settlement. He decided that given Judge 
Mukasey's dismissal of the cases, the class members were better off 
with ``something,'' however paltry and unpredictable it might be. About 
250 class survivors and heirs opted out of the settlement, and my 
clients appealed the decision.\4\
---------------------------------------------------------------------------
    \4\ On October 2, 2007, the Second Circuit Court of Appeals 
reversed the class settlement because the parties failed to provide 
individual notice to everyone who had applied to ICHEIC and whose names 
and addresses were available to Generali. The court ordered a new 
notice program and new deadlines for responses, a fairness hearing, and 
a new briefing schedule. A new notice program ensued which generated an 
additional 250 opt-outs, but the district court again approved the 
settlement citing primarily the fact that the cases had been dismissed 
by Judge Mukasey. Mr. Rubin, Moskovic, Mr. and Mrs. Mermelstein, Mr. 
Taucher, and Mr. Lindenbaum were joined by Israeli survivors Hanna 
Hareli and David Grinstein in appealing the settlement in January 2008, 
which is still pending.
---------------------------------------------------------------------------
    The 20-plus appeals (including Dr. Weiss's) of Judge Mukasey's 
decision applying Garamendi to the Generali cases is still pending in 
the Second Circuit Court of Appeals, as is the separate appeal of Judge 
Daniels' approval of the class action settlement. The Mukasey appeals 
are fully briefed and the parties were recently informed that oral 
argument has been tentatively set for the week of June 9, 2008. In 
addition, the appeal by Mr. Rubin, Mr. and Mrs. Mermelstein, Mr. 
Taucher, Mr. Moskovic, Mr. Lindenbaum, Ms. Hareli, and Mr. Grinstein of 
the class action settlement is also fully briefed and awaiting a 
decision.
                impact of legislation on pending appeals
    In my judgment as a lawyer, the appeal of Judge Mukasey's dismissal 
of the Generali litigation is very strong. Garamendi allowed much 
greater deference to executive branch actions untethered to any act of 
Congress in the area of preemption, or international commerce, than had 
ever preceded it, and Judge Mukasey went even further in the Generali 
case. Since those decisions, recent Supreme Court precedent limiting 
the executive branch's ability to ``make law'' governing enemy 
combatants without congressional authorization strengthen the Generali 
appeals. See, e.g., Hamdan v. Rumsfeld, 126 S.Ct. 2749 (2006).
    Nevertheless, the pending appeals make congressional action urgent. 
If H.R. 1746 or a similar measure is enacted that clarifies that 
survivors and heirs continue to have a right to sue insurers in U.S. 
courts notwithstanding the Garamendi decision, the Second Circuit Court 
of Appeals would have no choice but to apply that law and reverse Judge 
Mukasey's decision and remand for the cases to go forward. Plaut v. 
Spendthrift Farm, Inc., 514 U.S. 211 (1995). Similarly, if such 
legislation is enacted while the class settlement appeal is pending, 
the court would undoubtedly have to revisit the underlying basis for 
the district court's approval of the settlement, i.e., its pessimistic 
view of the chances of the restoration of survivors' rights to go to 
court to sue Generali and other insurers. Why should survivors and 
heirs have to await judicial decisions when Congress has remained 
silent and can change the dynamic with the legislation now on the 
table.
    The missing element in the survivors' battle for justice against 
recalcitrant insurers has been Congress. Despite numerous hearings 
documenting ICHEIC's inconsistencies and shortcomings, for reasons that 
are impossible for my clients to fathom, Congress has been silent. This 
is Congress's last opportunity to fulfill what should be a simple and 
straightforward duty to give every survivor and heir a chance to get to 
the truth about their families' policies, uninhibited by any political 
or institutional machinations or agendas.
 background of jewish people's insurance policies and insurers' conduct
    The survivors I represent are only asking Congress to restore the 
rights they always assumed they had and that no legislative body or 
even executive branch action purported to deny them--the right to have 
their injuries redressed in the courts of this country. They do not 
regard ICHEIC as an evil in of itself nor do they intend any disrespect 
for the intentions of many who participated there. However, given that 
ICHEIC was the foundation on which their rights have been eviscerated, 
it is necessary to discuss ICHEIC's creation and operation. That 
unhappy story is rooted in the tragic events intertwined with the 
Holocaust, the greatest crime in human history.
                                history
    In the inter-war years, insurance was one of the few means 
available for people to protect their families, both in Western and 
Eastern Europe. Most banking systems were not safe (e.g., no FDIC 
insurance) and many currencies were unstable. People could and did 
however purchase insurance from domestic branches or subsidiaries of 
global insurers such as Allianz, AXA, Swiss Life, Winterthur, Generali, 
RAS, Victoria, Munich Re, Swiss Re, Zurich, Basler Leben, and other 
insurers still in business today (or whose portfolios have been 
acquired by extant companies). Frequently, these policies were 
purchased in U.S. dollar denominations.
    One of the key selling points of many companies was the contractual 
right to receive policy proceeds ``wherever the customer requested'' in 
the world. There is ample evidence that the companies emphasized this 
feature in their sales to Jews who were increasingly living under the 
dark clouds of Nazism in Europe. For example, the policies of Victoria 
of Berlin provided: ``From the first day that the insurance becomes 
effective, the insured person has the right to change professions and 
residence and he may go to any other part of the world. Such changes 
will not affect the validity of the policy in the least, which will 
continue to be in effect as before.'' Evidence of similar provisions in 
other companies' policies is abundant in the record that has developed, 
limited though that is considering ICHEIC's secrecy.\5\
---------------------------------------------------------------------------
    \5\ As another example, Generali's marketing brochures and policies 
highlighted the availability and value of overseas assets--including 
assets in America--that would ensure the customers' ability to collect 
their benefits outside of Czechoslovakia if they so requested. Buxbaum 
v. Assicurazioni Generali, 33 N.Y.S.2d 496 (N.Y. Sup. Ct. 1942); Kaplan 
v. Assicurazioni Generali, 34 N.Y.S. 2d 115 (N.Y. Sup. Ct. 1942).
---------------------------------------------------------------------------
    When the Nazis came to power in Germany in 1933, they carried out a 
comprehensive scheme to identify and confiscate the property owned by 
the Jewish people. Known as the Aryanization of Jewish property, this 
included the forced redemption of insurance policies with short-rating 
which yielded much needed cash to a Depression-era Nazi machine, and 
proceeds such as accumulated cash values and prepaid premiums. Jews 
were required to report to the Nazi authorities their property and 
personal valuables, including insurance policies. Coupled with the 
Germans' comprehensive census data identifying residents according to 
their Jewish identity, including having up to one Jewish grandparent, 
and laws that prevented the pursuit of livelihood, these human beings 
were targeted by the Nazis for death and despoliation.
    The rape of Jewish insureds in Europe was exacerbated by the fact 
that German and Austrian census data identified Jewish residents and 
their assets, and such data was also gathered in areas that became 
occupied. This information pointed the way for the Nazi regime to use 
the Gestapo to target Jews they could now locate by address for forced 
``assignment'' of cash and other assets such as insurance policies. The 
plaintiffs who sued the 20 or so major European insurance companies in 
the late 1990s all alleged that the insurers and their affiliates 
(including reinsurers) participated in and benefited financially from 
the confiscation of Jewish-owned insurance policies (``short-rating''). 
These allegations have not been denied in court, and much has been 
written and published to corroborate this point. For example, historian 
Gerald Feldman wrote in Allianz and the German Insurance Business, 
1933-1945, Cambridge University Press, 2001:

          The companies licensed to operate in the Protectorate were 
        also affected by the particularly rigorous and systematic 
        seizure of Jewish insurance assets, so that by July 1942 the 
        Prague Gestapo was able to report 54.4 million Czech crowns in 
        confiscated repurchase values, the bulk of which came from the 
        portfolios of Generali (20.1 million), Victoria (13.8 million), 
        RAS (5.9 million), and Star-Verisherungsanstalt (4.6 million).

Feldman, at 356.

Professor Feldman's book and other studies and records clearly document 
how Allianz and other German, Swiss, Austrian, and Italian insurance 
companies willingly participated in confiscation activities throughout 
Europe.
    After World War II, as Holocaust survivors and their families 
struggled to reconstruct their lives, insurers refused to honor the 
policies they had issued to insure property the Nazis seized and the 
lives of those who perished before firing squads and in Holocaust death 
camps. The companies stymied their former customers with evasions and 
denials such as demanding original policy documents, demanding death 
certificates, denying the existence of policies, denying that they had 
records of policies from that period, claiming that their assets were 
confiscated or nationalized by post-war Communist governments obviating 
its obligations to Jewish Holocaust victims, and other bogus or legally 
deficient denials that frustrated Holocaust survivors and their 
families for decades.\6\
---------------------------------------------------------------------------
    \6\ There is evidence that one or more companies (or a number of 
its affiliates and subsidiaries) was a mutual company at the time of 
the war. If so, then in the demutualization process the policyholders, 
who ICHEIC would pay a scant fraction of their ``insurance values,'' 
would be denied much greater sums owed in that the policyholders would 
be the owners of the company.
---------------------------------------------------------------------------
    In 2002, the Government of Switzerland published the Bergier 
Report, also known as the Independent Commission of Experts 
Switzerland, Second World War (ICE) which addressed several areas of 
Swiss corporate and governmental complicity in and profiteering from 
the murder and plunder of Europe's Jews. The Bergier Report on 
insurance is disturbing but not surprising in its description of the 
Swiss insurers' dishonesty toward and disrespect for its Jewish 
customers. For example, despite the fact that Swiss insurers had 9 
percent of the German market, ``[i]n 1950 the Association of Swiss Life 
Insurance Companies reported that its members could not find a single 
policy whose owner had been killed as a result of the machinations of 
the Nazi regime so that their entitlement to claim under the policy had 
become dormant.'' Bergier Report, at 465. (Emphasis supplied). The 
report also showed:

          Immediately after the war, on 27 June 1945, representatives 
        of the four Swiss companies which had issued life insurance 
        policies in the Reich discussed in Zurich how they might avoid 
        claims from Jewish emigrants for restitution of such 
        confiscated policies. A large part of the discussion was 
        characterized by a decidedly aggressive tone. In a subsequent 
        memorandum, one of the companies concerned, Basler Leben, 
        stated: ``Jewish insurance holders aimed to compensate their 
        despoliation by the Third Reich by despoliating Switzerland of 
        its national wealth.''

Bergier Report, at 460.

    Public denials of insurers' Holocaust profiteering have continued 
even in the supposed recent environment of ``truth and transparency.'' 
In 1998, Allianz AG Board Member Herbert Hansmayer sought the 
Congress's sympathy for the company's alleged devastation during and 
after WWII:

          Like the rest of the German insurance industry, life 
        insurance companies, such as our German life insurance 
        subsidiary Allianz Lebensversicherungs AG were bankrupt or near 
        bankrupt at the end of the war after having to invest in 
        government bonds that became worthless when Germany was 
        defeated. Allianz Leben also held properties that were lost or 
        destroyed in war-ravaged Germany.

Transcript of February 12, 1998, Hearing before the House of 
Representatives Committee on Financial Services.

    But Mr. Hansmayer's ploy was contradicted months later in a 
detailed article in the Wall Street Journal in November 1999, which 
explained that Allianz's immense current power in the German financial 
world originated from its rich cash reserves available at the end of 
WWII:

          Allianz picked up the core of its stock holdings after World 
        War II. At a time when German companies were desperate for 
        capital, Allianz was one of the few sources of cash to rebuild 
        the bombed-out country. As German corporations regained 
        momentum and became global players, Allianz continued to invest 
        and maintain its influence in boardrooms.

Steinmetz and Raghavan, ``Allianz Eclipses Deutsche Bank As Germany's 
Premier Power,'' The Wall Street Journal, November 1, 1999.

    In the 1990s, after high-profile disclosures and revelations about 
European corporate and governmental theft of Jewish peoples' assets 
from the Holocaust, survivors began speaking publicly about family 
insurance policies. State insurance regulators started examining the 
conduct of insurers in the U.S. market who sold policies to European 
Jews before World War II. Congressional committees held hearings as 
well. While a small number of victims and heirs actually had scraps of 
paper describing a facet of an insurance relationship, most recalled 
statements by their parents that the family had insurance in case of 
disaster, or recounted their memories of agents who came calling 
regularly to collect a few Pengos or Zloty or Koruna as premiums on 
family policies. Others described post-war recollections by parents who 
survived Auschwitz only to be ``beaten'' by insurers out of large sums 
of money.
                             icheic formed
    In 1998 several States, including Florida, passed legislation 
requiring European insurers to publish names of unpaid policies from 
the Holocaust era and to pay claimants based on liberal standards of 
proof, and extending the statute of limitations for the filing of 
claims. Congress was poised to pass similar legislation when foreign 
governments and insurers persuaded nonsurvivor Jewish organizations and 
State insurance commissioners to create an ``international commission'' 
to supposedly standardize the process and avoid ``costly, protracted 
litigation.'' The International Commission for Holocaust Era Insurance 
Claims (ICHEIC) consisted of six companies, three ``Jewish 
organizations'' (the Claims Conference, the WJRO, and the State of 
Israel), and three State regulators. Former Secretary of State Lawrence 
Eagleburger was appointed chairman.
    Mr. Eagleburger has stated that ICHEIC was chartered under Swiss 
law and headquartered in London to avoid the reach of U.S. courts' 
subpoena powers. Decisions were to be made ``by consensus,'' with the 
chairman breaking any ties when necessary. Congress stayed its hand 
from enacting legislation.
    Five years later, after several scandals were reported in the New 
York Times, Los Angeles Times, and Baltimore Sun, the Economist, and 
other media, Chairman Eagleburger admitted to the House of 
Representatives Committee on Government Reform (September 2003) that 
the ICHEIC had spent far more in administrative expenses (including 
first class travel) than it paid to claimants. Survivors appeared at 
this and other hearings and told horror stories of multiyear waits for 
responses from ICHEIC, denials without any explanation other than ``no 
match found''; demands for information that no survivors or legal heirs 
could be expected to know; and denials by companies even in the face of 
documentary evidence that policies existed. Nevertheless, Congress 
again failed to act directly to address the companies' conduct or to 
assist survivors at that time.
    However, that year, Congress did mandate, in section 704 of the 
2003 Foreign Relations Reauthorization Act, that ICHEIC provide reports 
on its operations and the companies' performance to the U.S. State 
Department. In spite of this congressional mandate, ICHEIC refused to 
supply the required reports every year. Remarkably, State took no 
further action. Neither did Congress. Unfortunately, ICHEIC completed 
its ``mission'' in March 2007 and the results are catastrophic.
    There were 875,000 estimated life insurance and annuity policies 
outstanding valued at $600 million in 1938 owned by Jews. And while 
Western countries conducted limited restitution of policies for 
extremely low values, by 2007 the amount that was unpaid from policies 
in force in 1938 was conservatively estimated to be worth $18 billion. 
This estimate, by economist Sidney Zabludoff, is conservative because 
it uses a 30-year U.S. bond yield to get to current value, whereas 
insurance companies also invest in equities and real estate. Testimony 
of Sidney J. Zabludoff before the U.S. House of Representatives 
Financial Services Committee, February 7, 2008, and before the House of 
Representatives Foreign Affairs Committee Subcommittee on Europe, 
October 3, 2007.
    When ICHEIC closed its doors in March 2007, it had paid less than 3 
percent of the unpaid value of the policies and had left several 
hundred thousand policies unaccounted for. The body paid out $250 
million in recognition of insurance policies, it paid $31 million in 
$1,000 ``humanitarian payments'' and allocated another $165 million for 
``humanitarian projects'' through the Claims Conference (including 
funds unrelated to survivors' needs). So, even if one adds all of 
ICHEIC's claimed payments, totaling about $450 million, ICHEIC 
generated less than 3 percent of the money stolen from European Jews' 
insurance funds.
    Meanwhile, ICHEIC's cost of operations exceeded $100 million, 
though the exact cost has not to my knowledge been widely published. To 
this day, Congress has not examined ICHEIC's operations despite this 
terrible track record. ICHEIC operated in virtual secrecy for 9 years, 
disclosing only the barest minimum of information about its processes. 
Today's challenge for Congress is not to focus on ICHEIC, which has 
completed its mission. However, a review of ICHEIC's performance is 
necessary for the record because Garamendi and other decisions rely on 
ICHEIC as the reason to limit Holocaust victims' legal rights. 
Therefore, some particular concerns about ICHEIC's operations are 
examined later in this statement.
                      arguments against h.r. 1746
    Opponents of H.R. 1746 have coalesced around three major arguments: 
(1) It is premised on inaccurate estimates of the unpaid value of 
Holocaust victims' policies; (2) it violates ``deals'' to provide 
``legal peace'' for German and other insurance companies who 
participated in ICHEIC; and (3) it isn't likely to produce enough 
successful claims by survivors to justify the political costs of the 
ill will it will engender among foreign governments whose insurance 
companies profited from the Holocaust.
H.R. 1746 estimates are accurate and conservative
    Led by ICHEIC Chairman Lawrence Eagleburger's October 15, 2007, 
Statement to the House Foreign Affairs Committee, opponents claim the 
legislation is based on the ``erroneous allegation'' that ICHEIC paid 
less than 5 percent of the total amount owed to Jewish Holocaust 
victims and heirs. The Preamble to H.R. 1746 states that of the 
conservative estimate of $17 billion in unpaid policies in 2006 values, 
ICHEIC succeeded in paying only $250 million for policies.
    Mr. Eagleburger also says the legislation's sponsors do not provide 
substantiation for the figures cited. He is incorrect. In fact, the 
Preamble to H.R. 1746 cites experts' estimates of the value of unpaid 
insurance policies owned by Jews at the start of the Holocaust, as 
ranging from $17 billion to $200 billion.
    The $200 billion estimate was published in 1998 in the ``Insurance 
Forum,'' the widely respected and quoted insurance consumer newsletter 
published by industry expert Professor Joseph Belth of the University 
of Indiana Business School. Professor Belth updated his 1998 estimate 
to $309 billion in 2007. See, Letter from Professor Joseph Belth to 
Baird Webel, Congressional Research Service, January 24, 2008.
    The $17 billion estimate is based on an analysis by economist 
Sidney Zabludoff in the spring 2004 ``Jewish Political Studies 
Review.'' Mr. Zabludoff presented his analysis at the House Foreign 
Affairs Subcommittee hearing on October 3, 2007, and at the House 
Financial Services Committee on February 7, 2008. He used a base total 
value of nearly $600 million for the total value of Jewish policies in 
force in 1938, which was a consensus of ICHEIC participants. He then 
subtracted out the amount of policies paid for in post-war restitution 
programs (assuming 70 percent for most West European countries and 10 
percent for East European countries). He then brought the remainder up 
to date by using the extremely conservative 30-year U.S. bond rate. The 
result is that value of unpaid value of Jewish policies is 
conservatively estimated at $17 billion in 2006 prices. Therefore, the 
opponents' criticism is unfounded.
    Next, Mr. Eagleburger attempts to mock the sponsors' estimates by 
citing the 1999 ICHEIC Pomeroy-Ferras Report as containing the ``actual 
data on this issue.'' This criticism is odd because nothing in the 
Pomeroy-Ferras Report contradicts the estimates of unpaid policies and 
current values reported in the Preamble of H.R. 1746.
    The Pomeroy Ferras Report actually agrees in large part with Mr. 
Zabludoff's base calculations about the number and local currency value 
of Jewish policies at the start of the Holocaust. The report did not, 
however, make any effort to estimate the outstanding current value of 
the Jewish life insurance policies.\7\ That is what Mr. Zabludoff did 
in his 2004 article, using consensus numbers, to which the Preamble to 
H.R. 1746 refers.
---------------------------------------------------------------------------
    \7\ The Pomeroy-Ferras Report states: ``The Task Force did not want 
to make any proposal of a valuation process in order to bring the 
Holocaust exposure to a 1999 value.'' International Commission on 
Holocaust Era Insurance Claims, Report to Lawrence Eagleburger, 
Chairman, by the Task Force cochaired by Glenn Pomeroy and Philippe 
Feras on The Estimation of Unpaid Holocaust Era Insurance Claims in 
Germany, Western and Eastern Europe, at 6-7.
---------------------------------------------------------------------------
  Consequently, the opponents of H.R. 1746 are incorrect when they 
defend ICHEIC with such broad and inaccurate statements as the one Mr. 
Kennedy made before the Financial Services Committee: ``ICHEIC studies 
show that its claims and humanitarian programs did a credible job of 
adjudicating and paying claims on life insurance policies in effect 
during the Holocaust era.'' Ambassador J. Christian Kennedy, Special 
Envoy, Office of Holocaust Issues, United States Department of State, 
Statement before the House Financial Services Committee, February 7, 
2008, at 6.
    In his Europe Subcommittee testimony in October 2007, State 
Department representative Christian Kennedy's argued that the total 
current unpaid value is $3 billion, as opposed to the $17 billion 
estimated by H.R. 1746. Although Ambassador Kennedy gave no explanation 
for his $3 billion number, it was later explained to be an estimate of 
the 2003 unpaid value of policies using the ``ICHEIC valuations'' as a 
base. The ICHEIC valuation system was, a compromise that allowed the 
companies to take advantage of post-war currency devaluations and 
political events in Germany and Eastern Europe. This was the basis on 
which claims were actually paid in the ICHEIC, not a value determined 
by economists or by a judge and jury under expert rules applicable in 
litigation.
    However, even taking the $3 billion 2003 figure used by Kennedy, 
and updating it to $3.6 billion for 2007, the most generous estimate of 
insurance payments through ICHEIC, $450 million, is only 15 percent of 
the sum owed to European Jews and their families.
    H.R. 1746 opponents also misuse numbers to portray a false picture 
of ICHEIC's performance. They say ICHEIC paid $305 million to 48,000 
Holocaust survivors or their heirs for previously unpaid insurance 
policies.'' This is not true. According to the June 18, 2007, 
``Legacy'' document shown on the ICHEIC Web site, ICHEIC paid $250 
million for unpaid policies. ICHEIC made an additional 31,000 payments 
of $1,000 each (totaling $31 million) which were termed and treated as 
``humanitarian'' in nature.
    The ``humanitarian payments'' were neither intended by ICHEIC nor 
interpreted by survivors as payments on policies. They were viewed as 
an attempt to give ``something'' to the tens of thousands of applicants 
whose family policies ICHEIC or the companies would not acknowledge. 
ICHEIC paid $1,000 but promised to ``keep looking.'' Claimants have 
stated that they considered the $1,000 as tantamount to calling them 
liars. See, Testimony of Israel Arbeiter before the U.S. House of 
Representatives Financial Services Committee, February 7, 2008, and 
Testimony of Alex Moskovic and Jack Rubin before the U.S. House of 
Representatives Committee on Foreign Affairs, Subcommittee on Europe, 
October 3, 2007.
``Legal Peace''
    The insurance industry, the German Government, the State 
Department, and certain organizations that were part of ICHEIC (and 
their affiliates) oppose H.R. 1746, saying that ``a deal is a deal,'' 
and the insurance companies were promised ``legal peace'' if they 
participated in ICHEIC. The short answer to this argument is that the 
U.S. Government did not agree to waive survivors' rights to sue 
insurance companies in any executive agreement or other action arising 
out of the Holocaust restitution cases and negotiations. Today, 
opponents of H.R. 1746 want to give German insurers more than they were 
able to negotiate for in 2000, and more than the U.S. Government has 
the constitutional authority to provide.\8\
---------------------------------------------------------------------------
    \8\ Stuart Eizenstat's book ``Imperfect Justice,'' at page 270, 
refers to a letter from Solicitor General Seth Waxman which addresses 
the issue, but that letter has never to the best of this writer's 
knowledge been made public. It is imperative that this committee review 
this correspondence and make it publicly available so that survivors, 
heirs, the general public, and Congress can be completely informed 
about the formulation of this public policy decision that has 
profoundly and adversely affected thousands of Holocaust victims and 
families.
---------------------------------------------------------------------------
    Even though the U.S. never agreed to the immunity now demanded by 
Germany, unprecedented court decisions have held that survivors may not 
sue insurers over policies sold to their loved ones before WWII. But, 
even those very court decisions limiting survivors' access to courts 
today cite the absence of congressional action on the subject, an 
obvious acknowledgement of Congress's authority to guarantee access to 
courts through legislation. American Insurance Association v. 
Garamendi, 539 U.S. 396 (2003), In re Asscurazioni Generali, S.p.A., 
Insurance Litigation, 240 F.Supp.2d 2374 (S.D.N.Y. 2004). H.R. 1746 
would restore survivors' rights to sue recalcitrant insurers; rights 
that were never questioned prior to Garamendi.
    The basis now cited for the ``legal peace'' argument is the ``$5 
billion'' German Foundation agreement. That agreement arose from the 
dismissal of the lawsuits filed by Holocaust survivors against German 
manufacturers seeking compensation for slave labor they were forced to 
perform to survive. The courts held that international treaties 
settling WWII, which encompassed infliction of personal harm during the 
war, precluded the judicial branch from allowing suits for personal 
injuries such as the injustices of slave labor. While the cases were on 
appeal, Germany and the U.S. Government entered into a mediation to 
settle the slave labor claims.
    At the eleventh hour, after months and months of negotiations over 
slave labor compensation, and after months of speculation on the total 
to be offered, the Germans reportedly demanded that if the U.S. did not 
agree to include ``insurance'' in the agreement, there would be no 
slave labor settlement. Stuart Eizenstat's book about the negotiations 
describes the Germans' aggressive tactics to include insurance in the 
slave labor deal. Eizenstat, at 268. As part of the ``settlement,'' 
Germany agreed that its insurers would participate in ICHEIC, subject 
to a cap on their potential exposure. The ``cap'' was determined 
without any independent audit or investigation or analysis of the 
actual amount of insurance theft the German companies committed. The 
arbitrarily determined cap for all German insurers and those who sold 
in the German market was approximately $200-$250 million--with a 
portion earmarked for policies and a portion earmarked for humanitarian 
programs. The U.S. agreed in return that if German companies were sued 
in U.S. courts, it would file a ``statement of interest'' in the case 
stating that it would be in the ``foreign policy interest of the U.S. 
for the case to be dismissed ``on any valid legal ground.'' \9\ The 
President did not agree to abolish survivors' right of access to 
courts, nor could he have done so.
---------------------------------------------------------------------------
    \9\ The language of the agreement states: ``(1) The United States 
shall, . . . inform its courts through a Statement of Interest, in 
accordance with Annex B, and, consistent therewith, as it otherwise 
considers appropriate, that it would be in the foreign policy interests 
of the United States for the Foundation to be the exclusive remedy and 
forum for resolving such claims asserted against German companies as 
defined in Annex C and that dismissal of such cases would be in its 
foreign policy interest.'' Annex B provides more detail on what the 
Government would say: ``The United States will recommend dismissal on 
any valid legal ground (which, under the U.S. system of jurisprudence, 
will be for the U.S. courts to determine).''
---------------------------------------------------------------------------
    The fact that Congress did not legislate directly on this problem 
until 2003 does not mean that Members of Congress were satisfied with 
these developments. Several Members of Congress immediately protested 
the executive branch's decision to include survivors' insurance rights 
within the German Foundation settlement, which was always believed to 
be limited to slave labor. These members expressed strong disagreement 
that the German-U.S. Agreement over slave labor was expanded to include 
any kind of limits on insurance regulations or liabilities:

          [W]e reject the notion that insurance claims estimated to be 
        worth billions could be satisfied by the arbitrary DM 300 
        million ($150 million) set aside in the German Foundation Fund.

Letter of September 11, 2000, from Congressmen Waxman, Lantos, et al., 
to the Honorable Janet Reno, Attorney General of the United States.

    Several of these Representatives also wrote to the Solicitor 
General of the United States to protest the inclusion of insurance in 
the German-U.S. Agreement, and the Justice Department's efforts to 
undermine States' authority over Holocaust survivors' insurance claims:

          Since 1998, Holocaust insurance claims have been managed by 
        the International Commission on Holocaust Era Insurance Claims 
        (ICHEIC) under a seriously flawed process. As reported in a Los 
        Angeles Times story by Henry Weinstein on May 9, 2000, ICHEIC 
        has rejected three out of four of the claims that were fast-
        tracked and considered well documented. No appeals process 
        exists and the courts have provided the only recourse available 
        to Holocaust survivors. We were shocked, therefore, to learn 
        that the recent slave labor settlement reached between the U.S. 
        and German governments would also resolve claims settled by 
        ICHEIC and undermine viable class action suits.

See, September 11, 2000, Letter from Congressman Henry Waxman, et al., 
to U.S. Solicitor General Seth P. Waxman (Emphasis supplied).\10\
---------------------------------------------------------------------------
    \10\ Even Roman Kent, according to ICHEIC minutes, did not agree 
that insurance belonged in the slave labor agreement: ``Mr. Kent . . . 
said the insurance question should not have been grouped with the slave 
labor, as they are separate issues.'' See, ICHEIC Minutes, November 15-
16, 2001. Ironically, today, he is one of the institutional defenders 
of the proposition that Congress should not pass legislation to restore 
survivors' rights, because if it does Germany would consider it a 
breach of trust and withhold funding for new programs periodically 
negotiated by the Claims Conference.

    In response to concerns raised by U.S. Congressmen, the Justice 
Department made it clear that under the agreement, the Government did 
not purport to eliminate Holocaust survivors' legal claims against 
German insurers. Assistant Attorney General Raben, correctly stated 
that the terms of the agreement only required the Government to state 
``that it would be in the foreign policy interests of the United States 
for the Foundation to be the exclusive remedy and forum for resolving 
such claims,'' and ``that the United States does not suggest that its 
policy interests concerning the Foundation in themselves provide an 
independent legal basis for dismissal of private claims against German 
companies.'' Id. (Emphasis supplied).
    It is also ironic in light of the maximalist position now being 
taken by the administration and others, that at the time of the 
agreement, the Justice Department also acknowledged that if ICHEIC did 
not prove to be an effective forum for solving survivors' claims, even 
the limited protection that had been agreed to would be at risk: 
``Should the German Foundation fail to be funded and brought into full 
operation, or should the United States conclude that ICHEIC cannot 
fulfill the function for which it was created, the United States will 
certainly reconsider the balance reflected in its views on the 
constitutional issues.'' See, September 29, 2000, Letter from Assistant 
Attorney General Robert Raben to Congressman Henry A. Waxman.
    In 2003, the United States Supreme Court in the Garamendi case held 
by a 5-4 vote that though the executive agreement between the U.S. and 
Germany did not expressly preempt State law, there was a separate 
``Federal policy'' favoring ``nonadversarial resolution'' of Holocaust 
victims' claims that preempted the California Insurance Commissioner's 
power to subpoena records from German companies. In that case, several 
Members of Congress filed an amicus brief supporting California's 
primary jurisdiction over insurance regulation and opposing the 
unlegislated ``implied'' expansion of Federal executive authority to 
preempt State law. Unfortunately the congressional amici's position was 
not adopted by the court, however.
    This much is certain. No insurance company, and no country obtained 
any agreement from the United States Government to abolish survivors' 
and heirs' right of access to courts. No State legislature enacted any 
law proscribing survivors' or heirs' rights to sue insurers. H.R. 1746 
does not overturn any U.S. Government promise to provide legal immunity 
to international insurers, in spite of all the rhetoric that it would 
``break faith'' with the companies and countries that joined ICHEIC. To 
the contrary, they all exploited the practical impediments created by 
ICHEIC through the hushed tones of ``international diplomacy.'' The 
fact that the promises of ICHEIC never occurred are irrelevant legally; 
it could never have preempted State law rights prior to Garamendi and 
Generali II. Unfortunately, the courts have for the moment accepted the 
sweeping interpretation of executive authority advanced against 
survivors, even though no legislature has or could erect such barriers. 
But Congress clearly has the authority to enact legislation to correct 
any interpretation or supersede any provision of the executive 
agreement. Weinberger v. Rossi, 456 U.S. 25 (1982).
    Congress retains the authority to restore the status quo ante for 
Holocaust survivors and heirs, to enable them to bring court actions 
against the insurers who took their parents' and grandparents' sacred 
investments to protect their loved ones, then turned their backs on the 
insureds, heirs, and beneficiaries after the horrors of the Holocaust. 
Now is the time for Congress to rectify this 60-plus year injustice. 
Congress, not the executive branch, has the constitutional and 
statutory authority to regulate international commerce, and to define 
the jurisdiction of the Federal courts. Therefore, H.R. 1746 invokes 
fundamentally congressional prerogatives, which the executive branch's 
unilateral actions undermine in an intolerable and harmful fashion.
Other issues precluding ``legal peace''
    Congressman Wexler, in response to Ambassador Kennedy's ``legal 
peace'' argument at the Europe Subcommittee hearing in October 2007, 
asked what the survivors and heirs with possible insurance rights 
received in exchange for the ``deal'' the Department now says should be 
``honored.'' He pointed out the 3-percent payment rate as clear 
evidence that whatever was contemplated surely was not fulfilled. Or, 
as survivors and their supporters have stated, ``there can be no legal 
peace until survivors have moral peace'' through an honorable, 
transparent, and accountable process.
    ICHEIC's poor performance is the result of a series of adverse 
policy decisions dictated by the insurers' dominance of the panel, and 
other failures of execution. There are many other shortcomings about 
ICHEIC that have been presented to Congress or written about in the 
media or discussed in the courts, and this summary only touches on the 
surface of ICHEIC's failings.
Inadequate disclosure of policyholder names
    ICHEIC was supposed to begin with a comprehensive dissemination of 
names of policyholders in order to inform survivors and family members 
about the possibility of an unpaid policy in their family, but only a 
fraction of policies, including only 10 percent from Eastern Europe, 
were published. Most were published in mid-late 2003, after the filing 
deadline had been extended twice and shortly before the final deadline.
    This failure undermined one of ICHEIC's basic tenets, i.e., that 
almost all Holocaust survivors and the heirs of Holocaust victims would 
have to depend on the insurance companies to publish policyholder 
information before they would have any idea that they might have a 
possible claim. On September 16, 2003, the Committee on Government 
Reform of the U.S. House of Representatives held a hearing concerning 
the efficacy of the ICHEIC and the impact of the Supreme Court's 
Garamendi decision. Several members of the committee, and the survivors 
and survivors' advocates who testified, expressed their dismay with the 
ICHEIC. The concerns raised included the inadequacies in the 
dissemination of policyholder names that had occurred after nearly 5 
years, as well as the endless, frustrating, nontransparent, and 
unaccountable claims handling practices conducted under ICHEIC's 
auspices. See, Treaster, ``Holocaust Insurance Effort is Costing More 
Than It Wins,'' The New York Times, September 16, 2003, Exhibit 11. 
(``Lawrence Eagleburger . . . said today that his organization had 
spent 60 percent more for operations than it had persuaded insurers to 
pay in claims. . . . Independent Holocaust experts asserted at the 
hearing that the commission had been outmaneuvered by the insurers.'')
    Ranking Committee Member Henry A. Waxman remarked:

          ICHEIC is supposed to be a public institution performing a 
        public service, yet it has operated largely under a veil of 
        secrecy without any accountability to its claimants or to the 
        public. Even basic ICHEIC statistics have not been made 
        available on a regular basis and information about ICHEIC's 
        administrative and operational expenses have been kept under 
        lock and key. There is no evidence of systematic changes that 
        will guarantee that claims are being handled by ICHEIC in at 
        timely way, with adequate follow up.
          Even worse, many of the insurance companies remain 
        recalcitrant and unaccountable. ICHEIC statistics show that 
        claims are being rejected at a rate of 5:1. . . . The Generali 
        Trust Fund, an Italian company, has frequently denied claims 
        generated from the ICHEIC Web site, or matched by ICHEIC 
        internally, without even providing an explanation that would 
        help claimants determine whether it would be appropriate to 
        appeal.

Statement of Henry A. Waxman, House Government Affairs Committee, 
September 16, 2003.

    Mr. Waxman continued, with a critique of the failure of the ICHEIC 
to publicize names of policyholders from the areas of Europe in which 
large numbers of Jews lived and owned businesses:

          Look at a chart of Jewish population distribution throughout 
        Europe before the Holocaust and look at the chart of the names 
        that have been published through ICHEIC for each country. 
        Germany makes up most of the names released on ICHEIC's Web 
        site: Nearly 400,000 policies identified in a country that had 
        585,000 Jews. But look at Poland, where 3 million Jews lived 
        but a mere 11,225 policyholders have been listed, or Hungary, 
        where barely 9,155 policyholder names have been identified out 
        of a prewar Jewish population exceeding 400,000. In Romania 
        where close to 1 million Jews lived, only 79 policyholders have 
        been identified. These countries were the cradle of Jewish 
        civilization in Europe. Clearly, these numbers demonstrate that 
        claimants are far from having a complete list.

Statement of Congressman Henry Waxman, Committee on Government Reform, 
September 16, 2003.

    It is true that in mid-2003, 5 years after ICHEIC was created, 3 
years after the German-U.S. executive agreement, and after two 
extensions of the published filing deadlines for ICHEIC claims, an 
additional 360,000 names were added to the ICHEIC Web site from 
Germany, and in late 2003 approximately 30,000 more names of Generali 
customers were published. However, these were published long after the 
vigorous publicity that had occurred fully 3 years earlier, and after 
most who had been interested had simply become frustrated and 
disgusted. In October 2004, the Washington State Insurance Commissioner 
wrote:

          The deadline for filing claims was December 31, 2003. Despite 
        the terms of the MOU (Memorandum of Understanding), up until 
        the very end of the claims filing period the companies 
        continued to resist releasing and having the names of their 
        policyholders published, in some cases citing European data 
        protection laws. By failing and/or refusing to provide 
        potential claimants with the information they often needed to 
        file initial claims, the companies succeeded in limiting the 
        number of claims and their resultant potential liability. Had 
        the companies released the number of policyholder names that 
        could and should have been published over the entire ICHEIC 
        claims filing period, it is likely the number of claims would 
        have been significantly higher than the present 79,732.

    The German companies' and the GDV's claim for leniency from the 
proposed legislation based on their publication of 360,000 names 
requires close scrutiny. It is belied by their inexplicable 3-year 
delay in reaching an agreement with ICHEIC and producing the names it 
possessed. The U.S.-German Agreement was made in principle in December 
1999 and formalized in July 2000. Yet the German companies haggled and 
fought over minute details for their participation in ICHEIC (under 
separate rules than other countries) and no agreement was reached with 
ICHEIC until October 2002. They did not publish the 360,000 names they 
claim represent the universe of possible Jewish policies until April 
2003. By then, as the Washington Insurance Commissioner noted, 
virtually no one was paying attention and the deadline was looming.
    Several of the legislation's opponents argue that the 
``nonadversarial'' ICHEIC process, which avoided the necessity of 
``costly, prolonged litigation,'' was superior as a way for survivors 
to obtain redress of their claims against the culpable insurers. For 
example, Ambassador Kennedy stated:

          ICHEIC dealt with these issues by adopting relaxed standards 
        of proof and doing the claimants' research for them, but no 
        such relaxed standards will be available in court. Litigation 
        is also, of course, time-consuming and costly, and this 
        legislation would not ensure that any claims are resolved 
        within the lifetimes of the survivors.

Kennedy Financial Services Testimony, February 7, 2008, at 5.

    However, that argument, with ICHEIC taking 9 years to complete its 
work and recovering only a small fraction (3 percent) of the victims' 
losses, would seem to falter under its own weight. Rather than speedy 
and effective, ICHEIC was slow, bureaucratic, and seriously defective, 
as has been well-documented in the public record.
    However, a few examples of actual cases will illuminate for this 
committee the realities of how ICHEIC operated, which was stifling 
bureaucracy and no oversight to enforce even the nobler goals and rules 
adopted at the beginning of the process.
    Take, for example, the case presented by the GDV in its materials 
distributed to Members of the House in opposition to H.R. 1746. The GDV 
describes the odyssey of ICHEIC claim number 00010595, which was first 
made to ICHEIC on January 11, 2000. It was sent by ICHEIC to the GDV on 
May 28, 2003. GDV sent the claim to the ``responsible insurance 
company' over a year later, on September 20, 2004. The company offered 
the claimant a payment on December 20, 2004. So, ICHEIC's grand 
efficient and claimant-friendly process took 4 years, 11 months, and 19 
days to pay in the example cited by the GDV. Is this the ``speedy 
alternative to litigation'' that Congress would embrace?
    Another example is provided by the New York Legal Assistance Group 
(NYLAG), which represents hundreds of indigent clients in the New York 
City area. NYLAG also objected to the Generali class action settlement 
based on its clients' ICHEIC experiences and filed an amicus curiae 
brief in the court of appeals. One of the cases they presented to the 
court was that of Miklos Griesz. Mikos Griesz was a named beneficiary 
of his mother's policy, that Generali had that information in its 
records including the Policy Information Center (PIC), but that they 
all failed to inform Mr. Griesz of that fact because he filed as a 
beneficiary of his father's policy, not his mother's. Generali sat on 
that information for more than 4 years, without ICHEIC doing anything 
to help. That isn't unusual--the ICHEIC process really didn't have any 
kind of enforcement mechanism built in unless a claimant filed an 
appeal of a denial.
    Mr. Griesz submitted his ICHEIC claim on April 6, 2000. His claim 
form listed Generali as one of two possible companies that sold a life 
insurance policy to his father Arnold Griesz in Budapest, Hungary. It 
also identified three possible heirs, ``my mother, my brother, and 
myself.'' On February 24, 2004, the Generali Trust Fund in Israel (GTF) 
denied the claim on the basis that ``no match [was] found.'' However, 
it the evidence later unearthed show that all that time, Generali had a 
record that it sold a policy to Alice Spiegel Griesz, which listed 
``her son Miklos'' as a beneficiary. Yet, in nearly 4 years, Generali 
and the GTF either did not find this vital piece of information in its 
files that Miklos Griesz was a named beneficiary on a policy (sold in 
Hungary), or they withheld the information from the claimant and 
erroneously denied the claim on the ground that there was ``no match 
found.''
    Even after Mr. Griesz's counsel found his mother's name on the 
PHEIP Web site and the appellate arbitrator ordered the company to 
search its records for a match of the mother's name, Generali's 
response was not a model of full disclosure nor what would be expected 
in a system with ``relaxed standards of proof.'' It reported:

          That there is an insured in the archives of Assicurazioni 
        Generali named Alice Spiegel Griesz. We wish to clarify, 
        however, that this is the first time the claimant has brought 
        this name to our attention.

It is fortunate for Mr. Griesz that he had the assistance of the New 
York Legal Assistance Group, which recruited two top New York City law 
firms to assist in Mr. Griez's claim. The appellate arbitrator 
eventually required Generali to pay, but under the normal ICHEIC 
protocol, the ICHEIC system did not prevent the case from lasting more 
than 5 years. Without his own counsel Mr. Griesz likely would have 
never recovered even though Generali had sold his parents insurance and 
had that information in its records.
    In normal litigation, Generali's conduct in denying Mr. Griesz's 
claim while it held information that he was beneficiary under a policy 
issued to his mother would constitute bad faith and subject the company 
to treble or exemplary damages. E.g., Allstate Indem. Co. v. Ruiz, 899 
So.2d 1121 (Fla. 2005) (``if an insurance carrier engages in outrageous 
actions and conduct that constitutes an intentional tortious act, it 
may be liable for bad faith damages). This information was in 
Generali's possession for decades, yet Mr. Greisz did not recover his 
family's legacy for over 60 years. Why shouldn't he have the option of 
a judicial remedy if he chooses that route?
Hundreds of thousands of relevant archive files were not reviewed
    Another significant failure is the incomplete examination of 
European archival records to locate files of Jews' asset declarations 
from the Gestapo which in many cases showed the name of the victims' 
insurance company and the value of the policy. This research was 
helpful in many cases, but overall it was inconsistent and incomplete. 
Final Report on External Research commissioned by the International 
Commission on Holocaust Era Insurance Claims, April 2004, available at 
www.icheicorg.
    For example, the researchers reported that they had access to the 
Slovakian Central Property Office, which contained ``more than 700 
boxes of records dealing with the ``aryanization'' of Jewish firms in 
Slovakia. Those files contained information about ``the assets of the 
firms and of their Jewish owners . . . declared on a special form.'' 
However, the researchers searched only ``a small sample'' of those 700 
boxes, which provided information about ``18 policies.'' No explanation 
was given for leaving most of the 700 boxes unsearched.
    Another entry, for an archive in Berlin, says that the archive 
``comprises declarations on property belonging to the enemies of the 
Reich submitted by insurance companies and various custodians. Some 
10,000 of about 1,000,000 existing files were researched and 
contributed 11,067 insurance policies.'' The obvious question from the 
report is why didn't ICHEIC look at the other 990,000 files? According 
to the finds, these unreviewed files might well have evidence of 
hundreds of thousands of insurance policies. Remember, the files were 
turned over to the Reich by the insurance companies themselves.
    So, this information raises many important points, including not 
only the fact that the ICHEIC process failed to review a huge amount of 
relevant information for claimants, but contradicting the insurance 
companies' frequent refrain that there is no evidence that they turned 
over customer information to the Nazis.
    It is also likely that the ICHEIC researchers only examined a 
fraction of the relevant archives. However, this is somewhat academic 
because the primary source of information, i.e., the company records 
and the records of the reinsurers, would indeed provide much of the 
information that would enable survivors and family members to locate 
policy information. Today, the imperative of requiring the companies to 
disclose its records, not ICHEIC's performance, is the only relevant 
matter.
   the icheic ``audits'' were limited and secret until icheic closed
    Opponents of H.R. 1746 cite the audit program as a reason to defend 
the process. But the public and policymakers had no way of ascertaining 
what the audits actually signified, much less what they found. No 
ICHEIC audits were published until after the body closed its doors in 
March 2007.
    One of the startling revelations that was put on the ICHEIC Web 
site in March is that the audit for the Generali Trust Fund in Israel, 
the entity that handled all of the Generali ICHEIC claims between 2001 
and 2004, determined that the Generali Trust failed its audit. That 
audit was concluded in April 2005, but not disclosed until 2007. 
According to a letter from ICHEIC management to the New York Legal 
Assistance Group, ICHEIC made no systematic effort to go back and 
rectify mistakes that might have been made by the Generali Trust Fund 
during that time.
    Moreover, the ICHEIC audits were extremely limited. Under ICHEIC 
rules, the companies decided what the relevant scope of investigation 
and analysis would be in searching for names to publish, and in 
determining whether claims were ``valid.'' All the audits did was test 
whether the companies did what they said they were going to do. 
Therefore, even the audits that ``passed'' under this extremely limited 
ICHEIC mandate do not offer any comfort to claimants who were rejected, 
much less any basis for Congress to abandon the field in favor or 
ICHEIC. For example, the Deloitte & Touche LLP Stage 2 audit 
``passing'' Generali Trieste, which was not even issued until March 
2007, states:

          Our opinion . . . is not in any way a guarantee as to the 
        conduct of Insurer in respect of any particular insurance 
        policy or claim thereon at any time or in any particular 
        circumstances.

    What ICHEIC did not require was a comprehensive disgorgement of 
relevant company files, which survivors and heirs would have access to 
in litigation. So, Congress must be careful about drawing any 
conclusions about the insurers' arguments that ICHEIC audits should 
give them confidence about the integrity of the companies' performance 
and undermine the need for legislation such as H.R. 1746.
                 appeals were biased against claimants
    Another ICHEIC ``safeguard'' was the availability of an appeal 
mechanism for claimants who were dissatisfied with company decisions. 
However, after ICHEIC closed, one of the appellate judges, former New 
York State Insurance Superintendent Albert Lewis, disclosed that he was 
pressured by the ICHEIC legal office to deny appeals on claims he 
considered valid, based on a ``phantom rule'' that violated the 
published ICHEIC rules. He disclosed that he was pressured by ICHEIC's 
legal office to require claimants without documentation but with 
credible anecdotal evidence of a policy to overcome a ``heavy burden'' 
to prevail.
    In an amicus curiae brief submitted to the Second Circuit Court of 
Appeals, Mr. Lewis revealed not only that he witnessed a bias against 
claimants in ICHEIC appeals from the ICHEIC London office, but that it 
led to the de facto adoption of an unduly restrictive burden of proof 
on survivors by other arbitrators as well. In that brief, he stated:

          In my experience as an arbitrator I witnessed bias against 
        the claimants by ICHEIC's London office and especially as 
        manifested by the administrator, Ms. Katrina Oakley. She 
        demanded that ICHEIC arbitrator apply an erroneous and phantom 
        burden of proof rule in deciding appeals, a rule that would 
        force ICHEIC's arbitrators to deny an otherwise valid claim.

    Mr. Lewis explained that in at least two of the appellate decisions 
he reviewed, he concluded that the claimant had given plausible 
evidence that his family had an insurance policy, based on the 
``relaxed standards of proof'' published in the ICHEIC manual and in 
the rules provided to claimants who interacted with ICHEIC. Yet, when 
he provided a draft opinion to the ICHEIC legal office to have it 
reviewed for administrative form, he was pressured to deny the claim, 
based on what the ICHEIC legal office called a ``heavy burden'' imposed 
on claimants without documentation. Mr. Lewis's amicus brief in the 
Generali class action settlement compellingly shows how this ``phantom 
rule'' violated applicable ICHEIC rules and standards:

          [The ICHEIC rules and standards] contained no rule that 
        resembled in any manner or form that where no record of a 
        policy is produced by the claimant and the company that the 
        claimant's burden of proof is a heavy one. This rule is 
        contrary to the intent of the MOU.

(Emphasis by Mr. Lewis).
         icheic failed to apply ``relaxed standards of proof''
    Appellant Jack Rubin's claim is an example of Generali's strict 
standards that resulted in the denials of thousands of possibly 
meritorious claims. In light of Albert Lewis's disclosures, it is now 
apparent that Mr. Rubin's claim was denied due to the ``phantom rule'' 
surreptitiously instigated and imposed by the ICHEIC legal office.
    Mr. Rubin filed a claim with ICHEIC stating that the building that 
housed his family home and his father's general store in Vari 
(Czechoslovakia, later Hungary) had a sign affixed stating the building 
and premises were insured by ``Generali Moldavia.'' Mr. Rubin's family 
was forcibly removed from their home in April 1944 and taken to the 
Beregsastz Ghetto, and then deported to Auschwitz. His parents perished 
in the Holocaust but he survived. Mr. Rubin filed two claims with the 
ICHEIC, which named his parents Rosa Rosenbaum-Rubin and Ferencz Rubin, 
with their years of birth. He noted that when he returned from the 
camps, his family home and business were destroyed and he could not 
locate any records. He even noted that ``[t]he agent's name was Joseph 
Schwartz. He did not survive the Holocaust.''
    Mr. Rubin received a letter from the Generali Trust Fund in Israel 
which acknowledged that Generali Moldavia was a property insurance 
subsidiary of ``the Generali Company'' in Hungary, but denied any 
payment in the absence of a document proving the insurance. The letter 
stated that it could find no evidence of a life insurance policy in the 
main company's records for his parents or himself, but acknowledged 
that ``the archives of the Generali company did not contain the water 
copies of the policies issued by subsidiaries.''
    The arbitrator also upheld the denial of the life insurance claim 
based on Generali's representation that there was no evidence in its 
records pertaining to Mr. Rubin's family. The arbitrator did not demand 
any actual evidence from Generali's records pertaining to Mr. Rubin's 
family, such as data on common customers between Generali Moldavia and 
any life insurance branch or subsidiary, or whether or not it had an 
agent named ``Mr. Schwartz'' in the region where Mr. Rubin's family 
lived, nor examine files on agents. In court, Mr. Rubin's lawyer would 
have this right.
    The ICHEIC arbitrator stated the following in rejecting Mr. Rubin's 
claim:

          Where no written record of a policy can be traced by the 
        Member Company, the burden upon the Appellant to establish that 
        a policy existed is a heavy one, even when the burden is to 
        establish that the assertion is ``plausible'' rather than 
        ``probable.'' Where the Appellant is not able to submit any 
        documentary evidence in support of the claim, as in this case, 
        the Appellant's assertions must have the necessary degree of 
        particularity and authenticity to make it entirely credible in 
        the circumstances of this case that a policy was issued by the 
        Respondent.

(Emphasis supplied).

    The Arbitrator's use of the ``heavy burden'' of proof imposed upon 
Holocaust survivors such as Mr. Rubin is contrary to the ICHEIC rules, 
and the adoption and application of this extraordinary ``phantom rule'' 
that was not only never formally adopted by ICHEIC, but in fact was 
contrary to the rules ``relaxed standard of proof'' that were supposed 
to be applied. Mr. Rubin's experience demonstrates the unfairness of 
the processes thousands of survivors were forced to accept.
    The ``relaxed standards of proof'' which ICHEIC companies were 
supposed to apply were found to be ignored in a large number of claim 
denials, such as by Lord Archer on behalf of the ICHEIC Executive 
Management Committee in 2003. The Washington State Insurance 
Commissioner in October 2004 cited a multitude of other failures--
including companies' denials of claims in violation of ICHEIC rules, or 
denials submitted without providing the information in company files 
necessary to allow the claimants or the ICHEIC ``auditors'' to 
determine whether relaxed standards of proof were applied, failure to 
supply claimants with any documents traced in their investigations,'' 
and routine denial of claims by simply saying, even when a claimant 
believes he or she is a relative a person named on the ICHEIC Web site, 
that ``the person named in your claim was not the same person.''
 icheic did not require companies to disgorge information it provided 
                       about its jewish customers
    ICHEIC never required the companies to be accountable for their 
true conduct during and after the Holocaust, and this failure robs 
survivors of any sense of true justice, and robs history of the truth 
about this facet of the Holocaust. It is well-known that companies 
turned over records and funds relating to their Jewish customers to the 
Nazi and Axis authorities. ICHEIC failed to render a proper accounting 
of the companies' participation in the forced redemption of Jews' 
insurance policies and other practices whereby the companies assisted 
the authorities in looting their customers' property.
    The companies defense of their conduct for the last decade has 
centered on the representation that they ``could not identify who was 
Jewish'' among its customers after WWII, hence shouldn't be viewed as 
monsters for failing to pay policies of Jews who were Holocaust 
victims. However, contrary to such statements, records have surfaced 
that reveal at least one company's Italian portfolio had data entries 
including:

        ``Jewish race of policyholder (starting from 1938)''
        ``Jewish race of the insured person (starting from 1938)''
        ``Jewish race of beneficiary in case of death (starting from 
        1938)''
        ``Jewish race of beneficiary in case of survival (starting from 
        1938) at maturity''

    This source of the information is an ``examination of the collected 
data on unpaid policies shows that some of the insured had to specify 
their `Jewish race.' '' This revelation contradicts statements made 
over the last decade by the companies and their representatives.
    In addition, documents such as Generali's letter to the ``Prefect 
of Milan,'' in which the company did indeed identify its Jewish 
customers to authorities, repudiates the companies' denials:

          The holder of the policy in the margin is Mr. Arrigo Lops 
        Pegna of Ertore--the beneficiary is the wife. Mrs Gemma Servi 
        in Lopes--Milan, O sc C Ciano 10, both of whom belong to the 
        Jewish race. We renounce the aforementioned policy and signify 
        to you that the same is in effect for an insured sum of L. 
        100,000.

How many of these kinds of transactions were ``otherwise settled before 
maturity?'' Don't survivors and doesn't history have a right to all 
these facts?
    How much more information like that lies in their records? No one 
knows because ICHEIC did not probe that issue nor require the companies 
to disclose all records pertaining to their interaction with the 
authorities during the war, nor their internal accounting records or 
board minutes showing how they dealt with Holocaust victims' policies 
after the war.
    Survivors should not be deprived the right to choose for themselves 
whether to go to court to recover their families' insurance proceeds.
    Under traditional common law, Holocaust survivors and heirs and 
beneficiaries of Holocaust victims would be guaranteed access to the 
courts of the States to sue insurance companies who fail to honor their 
family policies. The legislatures of Florida, New York, California, and 
several other States in 1997 and 1998 enacted specific statutes to 
ensure that Holocaust survivors and their beneficiaries and heirs could 
go to court to advance their claims for unpaid insurance policies. No 
legislatively enacted statute either at the State or Federal level has 
provided that Holocaust survivors can be denied access to courts due to 
ICHEIC. The current legal landscape is entirely a creation of judicial 
decisions attempting to interpret executive branch actions in the 
absence of congressional direction.
    For example, Florida's Legislature and Insurance Commissioner have 
consistently rejected the proposition that the ICHEIC should be treated 
as a substitute for Florida's Holocaust Victims Insurance Act and 
traditional remedies under Florida law. In 1998, when Florida Insurance 
Commissioner Bill Nelson, now chairman of this committee, agreed to 
execute the Memorandum of Understanding which created the ICHEIC, he 
did so subject to several specific conditions, including the express 
acknowledgment that Florida laws would not thereby be diminished: ``The 
Florida Department of Insurance expressly reserves the right to enforce 
all applicable Florida laws and regulations to protect the interests of 
Florida citizens.'' See, April 29, 1998, letter from Florida State 
Treasurer and Insurance Commissioner Bill Nelson to the Honorable Glenn 
Pomeroy, NAIC President.
    Commissioner Nelson again rejected the idea that ICHEIC 
participation created a ``safe harbor'' from Florida law in a 
subsequent letter to the members of the ICHEIC: ``Participation on the 
Commission should not be seen by any company as a means to shield 
itself from Florida's laws. When I signed onto the Memorandum of 
Understanding establishing the International Commission, as every one 
knows, I stated: ``The Florida Department of Insurance expressly 
reserves the right to enforce all applicable Florida laws and 
regulations to protect the interests of Florida citizens. This has 
always been and continues to be my position.'' \11\
---------------------------------------------------------------------------
    \11\ Further, in resolutions adopted in 1999, both houses of the 
Florida Legislature emphatically rejected the idea that the ICHEIC 
could serve as an exclusive forum for Holocaust victims' insurance 
claims.
---------------------------------------------------------------------------
    The principal Senate sponsor of the Florida Holocaust Victims 
Insurance Act and Senate Resolution 2730, State Senator Ron Silver, 
explained that claimants' rights to go to court in Florida are part of 
the bedrock of the State's common law and statutory scheme to protect 
the rights of Holocaust victims and heirs. In a letter to the Honorable 
Michael Mukasey, he wrote: ``One of the key elements of our legislation 
was to establish a right for survivors, heirs, or beneficiaries to go 
to court in Florida to enforce their rights in relation to insurance 
policies sold before the Holocaust.'' Senator Silver's letter explains:

          In 1999, I sponsored Senate Resolution 2730, which reiterated 
        the legislature's strong policy in favor of assisting Holocaust 
        victims and their families to recover unpaid insurance policies 
        from companies. We were very aware of the work of the State 
        Insurance Commissioner, who was participating as a member of 
        the International Commission for Holocaust Era Insurance Claims 
        (ICHEIC), as well as working to enforce the provisions of the 
        Holocaust Victims Insurance Act. The reason we adopted S.R. 
        2730 was to restate the legislature's conviction that, 
        notwithstanding the efforts of the ICHEIC and other global 
        negotiations, individuals should retain the right to go to 
        court to press their claims for unpaid insurance policies from 
        the Holocaust era. . . .

See, Letter from Florida Senator Ron Silver to Hon. Michael Mukasey, 
October 31, 2001
Cost/benefit analysis of H.R. 1746
    Perhaps the most cynical objection raised to H.R. 1746 is that it 
might not generate enough actual payments to Holocaust survivors to 
justify the political opposition mounted by the insurance companies and 
the governments seeking to protect them. The analysis above 
demonstrates that more than 60 years after the end of WWII, only 3 
percent of the funds owed by these insurers to Holocaust victims' 
families has been repaid, after an excruciating 9-year hiatus in which 
ICHEIC was given sway to allow some companies to fly below the radar 
screen and still succeed in holding onto over 95 percent of their 
unjust enrichment.
    The provisions of H.R. 1746 represent common sense and common 
decency in allowing Holocaust survivors and families access to the 
United States court system to control their own right to obtain 
information from the culpable insurers, seek the truth about their 
families financial history, and recover the funds they might be owed. 
Given the shortcomings in ICHEIC's names disclosure record and claims 
payment record, H.R. 1746 is necessary to allow all victims' families a 
fair chance to recover their financial due. The status quo creates one 
subclass of Americans who cannot go to court to sue insurers that 
pocketed their hard-earned money--Holocaust survivors. This is an 
untenable position for America in the year 2008.
    Companies that did not participate in ICHEIC won an even greater 
windfall, but they would be required to publish policy information 
under H.R. 1746 if they want to do business in the United States.
    Further, as Congressman Robert Wexler pointed out at a public forum 
in South Florida on December 10, H.R. 1746 also sets a marker that the 
public policy of the United States will not tolerate or condone 
corporate or institutional profiteering from atrocity, whether against 
Jews or against any other people. It is appropriate and morally 
required to use all the tools at our society's disposal to discourage 
and even punish enterprises that do business with ruthless and 
genocidal regimes like those that do business with the Sudan, given the 
atrocities of Darfur.
    The evidence that multinational insurers profited from the 
Holocaust to the tune of some $17 billion in today's dollars is 
overwhelming. Making them pay for their unjust enrichment--even 63 
years after the end of the war--sends a message to other enterprises 
that might turn a blind eye to murder, and thereby save lives and 
prevent future atrocities.
                               conclusion
    As Holocaust survivor Jack Rubin stated before the Europe 
Subcommittee in October, it is indeed possible and even likely that 
tens of thousands of Jews' insurance policies went up in the smoke of 
Auschwitz. But why should the companies be able to retain the billions 
in unjust enrichment due to their greed and cynicism? Even if only a 
few additional policies are repaid to individuals, there is no 
plausible reason to allow the financial culprits from the Holocaust 
rest easy in 2007 or ever, until they have disgorged their ill-gotten 
gains. Their unjust enrichment is tainted and must be returned, to the 
owners or to survivors in need if necessary.
                                 ______
                                 

 Report to Congress: German Foundation ``Remembrance, Responsibility, 
 and the Future''--Bureau of European and Eurasian Affairs, March 2006

[As required by Section 704 of the Foreign Relations Authorization Act, 
FY 2003 (as enacted in Public Law 107-228)]
                              introduction
    Section 704 of the Foreign Relations Authorization Act, FY 2003, as 
enacted in Public Law 107-228, requires the Secretary of State to 
report to the appropriate Congressional committees on the status of the 
implementation of the Agreement between the Government of the United 
States of America and the Government of the Federal Republic of Germany 
concerning the Foundation ``Remembrance, Responsibility, and the 
Future,'' signed in Berlin on July 17, 2000, and, to the extent 
possible, on payments to and from the Foundation and on certain aspects 
of the functioning of the International Commission on Holocaust Era 
Insurance Claims (``ICHEIC''). This is the seventh report submitted 
pursuant to that law.
                               background
    The United States Government played a critical role in a 
multilateral effort that resulted in the establishment of a Foundation 
under German law entitled ``Remembrance, Responsibility, and the 
Future'' (``Foundation''). The Foundation was capitalized with 10 
billion German Marks (DM), valued at the time at approximately five 
billion dollars. Since June 2001, the Foundation has been making 
payments to survivors in recognition of the suffering they endured as 
slave and forced laborers. The Foundation also covers other personal 
injury claims and certain property loss or damage caused by German 
companies during the Nazi era, including claims against German banks 
and insurance companies. Further background is available in previous 
reports submitted to the committees.
                    implementation of the agreement
    The United States and the Federal Republic of Germany have taken 
various steps to implement the Foundation Agreement. In August 2000, a 
German law establishing the Foundation took effect. In October 2000, 
the United States and the Federal Republic of Germany exchanged 
diplomatic notes to bring the Foundation Agreement into effect. The 
United States note indicates that the German law, as clarified and 
interpreted by several German Government letters, is fully consistent 
with the Foundation Agreement, which sets forth the principles that 
shall govern the operations of the Foundation.
    The United States Government has filed statements of interest 
recommending the dismissal, on any valid legal ground, of lawsuits 
brought against German companies for wrongs committed during the Nazi 
era, and is committed to do so in future cases that are covered by the 
Foundation Agreement.
    On May 30, 2001, the German Bundestag declared that ``adequate 
legal certainty'' had been achieved for German companies in the United 
States. Under the law establishing the Foundation, this declaration by 
the Bundestag authorized the Foundation to make funds available to the 
seven partner organizations (foundations that had previously been 
established in Belarus, the Czech Republic, Poland, Russia and Ukraine, 
as well as the Conference on Jewish Material Claims Against Germany and 
the International Organization for Migration) that would make payments 
to individual recipients.
                   funds available to the foundation
    By early 2002, the entire sum of 10 billion DM had been made 
available to the Foundation by the Federal Republic of Germany and by 
German companies.
                      payments from the foundation
    As of December 2005, approximately $5.1 billion (4.265 billion Euro 
or 8.3 billion DM) had been paid to approximately 1,646,000 surviving 
slave and forced laborers. This represents 98 percent of the funds (8.1 
billion DM plus an additional amount from interest earnings) available 
from the Foundation's capital for slave and forced labor payments. The 
remaining funds will continue to be paid out over the next six months. 
A breakdown of payments by partner organizations follows:

------------------------------------------------------------------------
                                            Number of       Amount (in
          Partner organization             recipients         euro)
------------------------------------------------------------------------
Belarus/Estonia........................         129,000      345,300,000
Conference on Jewish Material Claims...         154,000    1,116,800,000
Czech Republic.........................          76,000      209,200,000
International Organization for                   87,000      366,300,000
 Migration.............................
Poland.................................         483,000      971,000,000
Russia.................................         245,000      392,000,000
Ukraine................................         472,000      864,500,000
                                        --------------------------------
      Total............................       1,646,000  * 4,264,800,000
------------------------------------------------------------------------
* Approximately US$5.1 billion.

                                 icheic
    The law establishing the Foundation provides funds to ICHEIC for 
the payment of claims arising from unpaid insurance policies issued by 
German insurance companies, as well as for the associated costs, and 
also a contribution to the ICHEIC humanitarian fund. The Foundation 
Agreement provides that insurance claims made against German insurance 
companies will be processed according to ICHEIC claims handling 
procedures and under any additional claims handling procedures that may 
be agreed among the Foundation, ICHEIC, and the German Insurance 
Association.
    Following two earlier extensions, the deadline for filing claims 
was extended to December 31, 2003. The later filing deadline was 
designed to provide additional time for applicants, assisted by a 
publicized list of names, to determine whether to file a claim. 
Applicants who contacted ICHEIC prior to the December 31 deadline to 
obtain claim forms had until March 31, 2004, to complete the form and 
send it so that ICHEIC receives it by that date.
    The Department of State was unable to obtain such information on 
the ICHEIC claims process as required by section 704(a)(3)-(7). Some 
information about ICHEIC, including statistics on claims and appeals, 
however, is publicly available on ICHEIC's Web site (www.icheic.org).
                                 ______
                                 

              [From the Wall Street Journal, Nov. 1, 1999]

       Allianz Eclipses Deutsche Bank As Germany's Premier Power

                 (By Greg Steinmetz and Anita Raghavan

    Munich, Germany.--Not much happens in corporate Germany without 
input from the country's largest insurer, Allianz AG.
    In September, when German conglomerates Veba AG and Viag AG 
announced their $14 billion merger, a pivotal question was whether 
Allianz would go along. Earlier in the year, truck maker MAN AG said it 
planned an acquisition spree, and investors immediately asked if 
Allianz had signed up. Investment bankers have tried to lure German 
drugmaker Schering AG and other companies in Allianz's portfolio into 
mergers for years. Instead of going to the companies, the bankers often 
go first to Allianz.
    In the U.S., Allianz is best known for owning Fireman's Fund and 
the controversy over missed insurance payments to Holocaust survivors. 
In a bid to expand its reach, it has reached an agreement to buy a 70% 
stake in Pimco Advisors Holdings LP, a U.S. asset-management company, 
for $3.3 billion, people familiar with the situation say. Allianz plans 
to list its shares on the New York Stock Exchange, but in the sprawling 
U.S. insurance market, it remains just a face in the crowd.
    Back home, it's another story. Here, Allianz is known as the 
``spider in the web'' of Germany Inc. In the clubby world of German 
business, where few degrees of separation stand between the top 
companies, no organization has more board seats or larger stakes in 
major German corporations than Allianz.
                             image problems
    ``We are not always embarrassed by having the label `powerful,' '' 
says Diethart Breipohl, the company's chief financial officer. ``But we 
would prefer the label global or European.'' He says the company's 
image creates problems overseas. Headlines with the words colosso 
tedesco (Italian for giant German) or le giant allemand (French for 
giant German) tend to scare the public, he says.
    Allianz has been a power broker for decades. What's new is how its 
influence is increasingly unrivaled. Power in corporate Germany used to 
cleave evenly between Allianz and Deutsche Bank AG. Deutsche Bank is 
the world's biggest bank in terms of assets, but in the past few years 
the balance of power in Germany has shifted to Allianz.
    That's partly because of Deutsche Bank's embarrassing string of 
slip-ups. It stumbled with its investment-banking strategy and got 
blamed for some of Germany's most high-profile corporate disasters, 
including Metallgesellschaft AG, which brushed with bankruptcy six 
years ago because of trading losses.
    Meanwhile, Allianz has stayed clear of trouble while increasing its 
muscle. It expanded outside Germany and has done well in its key 
domestic growth market, eastern Germany. Since 1994, Allianz's share 
price has sharply outperformed Deutsche Bank's. Allianz now has a stock 
market value of $71 billion, considerably larger than that of its 
Frankfurt rival.
                       deutsche bank trims stake
    Indeed, some of Allianz's success has come at the expense of 
Deutsche Bank, which used to be a close partner but is now its biggest 
rival. On Thursday, Deutsche Bank, in an effort to further unwind its 
relationship with Allianz, reduced its stake in the insurer to 7% from 
9.1%, selling off $1.5 billion of stock in the process.
    The relationship began unraveling in the early 1990s when Deutsche 
Bank broke an unwritten truce with Allianz by going into the insurance 
business. At the time, Deutsche and Allianz owned stakes in each other 
and each sat on the other's board. At a 1993 board meeting, the rivalry 
broke into the open. Deutsche Bank's then chief executive officer, 
Hilmar Kopper, came to an agenda item about insurance, prompting 
Allianz's chief executive, Henning Schulte-Noelle, a stern figure with 
a dueling scar on his cheek, to excuse himself.
    As Mr. Schulte-Noelle was leaving, Mr. Kopper quipped, ``No, why 
don't you stay? We have no secrets, and perhaps you can give us some 
good advice.'' Mr. Kopper says the remark was meant in good faith, but 
others saw it as sarcastic.
    Shortly after Deutsche Bank entered into insurance, Allianz 
countered by stepping up its interest in banking. In 1992, it raised 
its stake in Dresdner Bank AG to 22% from 19% and might have kept going 
had federal cartel authorities not ordered it to stop.
                           tensions surfaced
    Two years ago, tensions surfaced again when Deutsche Bank bought a 
stake in Bayerische Vereinsbank AG, the biggest bank in Allianz's home 
state of Bavaria. Rumors flew that Deutsche Bank wanted to buy up the 
rest. Eager to block Deutsche Bank, Allianz sanctioned an $18 billion 
merger between Vereinsbank and Bayerische Hypotheken- & Wechsel-Bank 
AG. Allianz held stakes in both banks. At the time, the deal, which 
created HypoVereinsbank AG, was the largest bank merger in European 
history.
    Allianz remained a powerful force after the merger. When the merged 
bank fell on hard times, shareholders looked to Allianz for a solution. 
Allianz sanctioned the departure of the bank's supervisory board 
chairman. Then, on a Sunday morning last April, Mr. Schulte-Noelle sat 
in his office with Kurt Viermetz, the former vice chairman of J.P. 
Morgan & Co., and offered Mr. Viermetz the job. Mr. Viermetz accepted.
    Economists question whether the German economy benefits from a 
company with so much power. Growth has been sluggish in Germany, and 
one factor is the slow pace of corporate restructuring. To get growth 
moving, German companies need to step up the pace of reform, even if it 
means allowing foreign companies to come in and do it, economists say.
                        difficult for foreigners
    But Allianz stands in the way. ``If you have these Allianz-type 
networks, it's hard for foreign investors to come in and break them 
up,'' says Paul Welfens, an economist at the University of Potsdam. In 
situations where a company might best be served by layoffs or asset 
sales that only an outsider would undertake, Allianz's solution is 
often inferior, he says.
    One example might be the case of MAN, a truck maker that also makes 
printing presses and has other business. Analysts say it makes little 
sense for those operations to be under the same roof. Sensing value in 
a breakup, investment bankers have been circling MAN. But instead of 
selling out, MAN is instead looking for acquisitions.
    The reason, bankers say, is because Allianz protects it. Allianz 
heads an investment group that owns more than a third of MAN's stock. 
Though Allianz could make a tidy profit by selling, bankers suggest it 
won't because it fears a backlash. As Germany's largest seller of life 
and car insurance, Allianz worries about its reputation and wouldn't 
want to be blamed for sponsoring layoffs.
    Mr. Breipohl, the Allianz finance chief, disagrees. ``Job losses 
are not something you want to be associated with,'' he concedes, but he 
notes that MAN's stock has performed well so there isn't any reason to 
break up the company. If the objective is to realize value by breaking 
up MAN, Allianz can do it without the help of outsiders, he says. 
``Investment banks are always useful but we also have the in-house 
experience to conduct such a process should it be necessary.''
                          takeover of schering
    Allianz is also blamed for holding up a takeover of Schering, the 
large, Berlin-based pharmaceutical company in which it owns 10%. Two 
years ago, Eli Lilly & Co. of the U.S. approached Schering about a $8 
billion takeover, according to people familiar with the situation. 
Schering told Lilly to go away. Schering and Lilly wouldn't comment.
    Mr. Breipohl denies having heard about Lilly's approach. But 
bankers say they have gone directly to Allianz with other takeover 
plans for Schering and been turned away.
    Allianz could profit handsomely by unloading its Schering stake. 
But given that Schering is one of the bright lights of German industry, 
Allianz wants to avoid blame for letting the company slip into foreign 
hands, investment bankers say.
    Mr. Breipohl says that isn't so. In principle, he says, Allianz 
would never stand in the way of a foreign company buying a German 
company as long as the price was fair. ``We are not the defenders of 
corporate Germany, and we would not want to be perceived as playing 
that role,'' he says. He notes that Allianz made possible the takeover 
of Germany's BHF Bank by the Dutch bank ING and the takeover of the 
Berlin waterworks by Vivendi SA of France.
                       opposition to french firm
    But there was at least one occasion when Allianz openly opposed a 
foreigner. In 1992, French insurer AGF sought to take control of a 
German insurer, Aachener & Muenchener Beteiligungs AG. Threatened by 
the presence of a big French insurer on its home turf, Allianz led a 
group of financial companies that bought a large stake in Aachener.
    At the time, Allianz said its investment in Aachener was purely an 
investment. Now Mr. Breipohl concedes that Allianz was unhappy with 
AGF's foray into Germany. It wasn't because it feared a French 
competitor, he says. Rather, it was because AGF was then controlled by 
the French government. ``If you have to compete against the state, 
regardless of whether it is a domestic or foreign government, then 
something is wrong,'' he says.
    That stake later proved extremely valuable. Two years ago, Italian 
insurer Assicurazioni Generali SpA made a hostile bid for AGF, which 
had been privatized some years before. The hostile bid prompted AGF to 
look to Allianz as a white knight. Allianz agreed to let Generali take 
over Aachener, and Generali dropped its bid for AGF. Allianz is now one 
of the biggest insurers in France.
    Allianz picked up the core of its stock holdings after World War 
II. At a time when German companies were desperate for capital, Allianz 
was one of the few sources of cash to rebuild the bombed-out country. 
As German corporations regained momentum and became global players, 
Allianz continued to invest and maintain its influence in boardrooms.
                             grudging move
    Mr. Breipohl says it did so grudgingly. Compared to the U.S., 
Germany has few companies big enough for Allianz to invest in, so it 
had no choice but to concentrate on the big players.
    Fundamental to Allianz's character is discretion. While Deutsche 
Bank CEO Rolf Breuer is often seen before the cameras and often gives 
interviews, Mr. Schulte-Noelle is more reticent. Deutsche's twin towers 
are fixtures in the Frankfurt skyline. But visitors have to hunt to 
find Allianz's five-story headquarters tucked behind a Munich 
university. Deutsche executives sit as board chairmen on a number of 
German companies. Allianz has a rule that executives take no job higher 
than deputy chairman. Mr. Schulte-Noelle sits on nine corporate boards 
and is deputy chairman of three.
    Allianz prefers discretion because it is a target. For decades, 
Germans have debated the powers of banks and insurance companies, which 
have broader powers than they do in the U.S. Populist politicians want 
to rein them in.
    But Allianz will speak out when cornered. This year, the government 
of Chancellor Gerhard Schroeder sought to raise taxes on insurance 
companies. Helmut Perlet, a top Allianz official, threatened to 
relocate some Allianz operations outside Germany if the government 
didn't relent. A few days later, the government slashed the tax 
increase.

    Senator Bill Nelson. Thank you, Mr. Dubbin.
    Ms. Rubin.

STATEMENT OF ANNA B. RUBIN, DIRECTOR, NEW YORK HOLOCAUST CLAIMS 
PROCESSING OFFICE, NEW YORK STATE BANKING DEPARTMENT, NEW YORK, 
                               NY

    Ms. Rubin. Good afternoon, Chairman Nelson and members of 
the committee. Thank you for the opportunity to appear before 
you today and share my knowledge on the important issue of 
Holocaust-era insurance claims. As Director of the Holocaust 
Claims Processing Office, I am pleased to be able to provide 
some insight into New York State's attempt to provide some 
measure of justice to the victims of a painful chapter in world 
history.
    For over 10 years, the State of New York has been at the 
forefront of efforts to ensure a just resolution of unresolved 
claims for assets lost due to Nazi persecution and in June 1997 
established the HCPO as a division of the New York State 
Banking Department. Claimants pay no fee for the HCPO's 
services, nor does the HCPO take a percentage of the value of 
the assets recovered. The goal of the HCPO is to advocate for 
claimants by helping to alleviate any cost and bureaucratic 
hardships they might encounter in trying to pursue claims on 
their own.
    Since its inception, the HCPO has assisted nearly 2,300 
individuals from 41 States and 24 countries in making claims 
for insurance policies. For the most part, the claims are for 
compensation of life, dowry, and education policies. To date, 
the combined total of offers extended to HCPO claimants for 
bank accounts, insurance policies, and other asset losses 
amounts to more than $118 million, over $28 million of which is 
compensation for insurance policies.
    Claims received by the HCPO range from the purely anecdotal 
to the partially or even fully documented. In response to the 
complex nature of restitution claims, the HCPO developed a 
systematic method, broadly described in four steps, to handle 
cases. First, individual claims as assigned to members of the 
HCPO's staff who assist in securing documentation through 
research in domestic and international public and private 
archives.
    Second, the HCPO determines where to file a claim. In order 
to submit a claim to the appropriate company or claims process, 
it is necessary to establish what present-day company or 
process is responsible for the policy in question. For claims 
for policies issued by companies still in existence, finding 
the appropriate successor is relatively straightforward. But 
for others determining the successor is more complex.
    Third, the HCPO staff submits claims to all appropriate 
companies, regulatory authorities, governments, and any 
independent organization established to resolve these claims. 
Prior to establishment of ICHEIC, the HCPO submitted claims for 
insurance policies directly to the issuing insurance company or 
its present-day successor if one could be located. With the 
launch of ICHEIC, the HCPO transferred over 2,100 insurance 
claims to the commission for settlement. The HCPO also 
submitted claims to a variety of other processes, either 
directly or in accordance with ICHEIC's partnership agreements. 
Throughout, the HCPO closely monitored the progress of these 
claims.
    Since ICHEIC has ceased operation, ICHEIC member companies, 
as well as members of the German Insurance Association, 
reiterated their commitment to continue to review and process 
claims sent to them, and now once again the HCPO deals directly 
with insurance companies to resolve outstanding claims.
    The final step in the HCPO process involves evaluating 
decisions and working with claimants on payment or appeal. The 
HCPO reviews a decision to ensure that it adheres to agreed-
upon processing guidelines. Decisions are discussed with 
claimants and staff follow up with the organization issuing the 
determination as needed. In addition, we help arrange for 
payment to be made directly to claimants.
    For the past decade the HCPO has been successful in 
obtaining closure for many Holocaust victims and their heirs 
who have been trying to arrive at resolution for more than half 
a century.
    Recently, the National Association of Insurance 
Commissioners, the HCPO, and the Banking and Insurance 
Departments of New York State have begun discussions of a 
proposal by which the NAIC will provide financial support for 
the HCPO's efforts at monitoring and reporting the insurance 
claims.
    Like the missing property we search for, no two claims are 
alike. Each requires conscientious individual attention and 
painstaking effort. The process of restitution is difficult and 
distressing for claimants. The HCPO's successes show that it is 
possible to obtain compensation for assets lost during the 
Holocaust era through open and mutual cooperation and at no 
cost to Holocaust victims or their heirs.
    Thank you again for the opportunity to discuss the HCPO and 
I would be happy to address any questions you may have.
    [The prepared statement of Ms. Rubin follows:]

    Prepared Statement of Anna B. Rubin, Director, Holocaust Claims 
 Processing Office, New York State Banking Department, New York State 
                   Insurance Department, New York, NY

    Good afternoon, Chairman Nelson, Ranking Member Vitter, and members 
of the subcommittee. Thank you for the opportunity to testify before 
you today and share my knowledge on the very important issue of 
Holocaust-era insurance claims. As director of the Holocaust Claims 
Processing Office (HCPO), I am especially pleased to be able to provide 
some insight into the work of New York State in its attempt to provide 
some measure of justice to the victims of a painful chapter in world 
history. Today I would like to provide you with background on the HCPO 
and in particular our experience working on Holocaust-era insurance 
claims, our cooperation with numerous compensation organizations, and 
our more recent efforts to assist individuals with outstanding 
insurance claims.
       i. introduction to the holocaust claims processing office
    For over 10 years New York State has been at the forefront of 
efforts to ensure a just resolution of unresolved claims for assets 
lost due to Nazi persecution. As you are undoubtedly aware, disputes 
over Holocaust-era dormant Swiss bank accounts and unpaid life 
insurance policies came to the forefront in the late 1990s. During 
those early days, before settlements and claims processes, New York 
State recognized the need for an agency to assist individuals 
attempting to navigate the emotionally charged maze of Holocaust-era 
asset restitution and, as a result, established the HCPO as a division 
of the New York State Banking Department in June 1997. The HCPO is 
jointly funded by the New York State Banking Department and the New 
York State Insurance Department.
    The HCPO was initially intended to assist individuals hoping to 
recover assets deposited in Swiss banks. It soon became apparent that 
claimants also needed help recovering a range of other property and by 
the end of its first year of operation, the HCPO expanded its mission 
to assist in the recovery of assets held in non-Swiss banks, proceeds 
from Holocaust-era insurance policies, and works of art that were lost, 
looted, or sold under duress between 1933 and 1945.
    The HCPO is the only government agency in the United States that 
assists individuals to file claims with a variety of multinational 
restitution processes. Claimants pay no fee for the HCPO's services, 
nor does the HCPO take a percentage of the value of the assets 
recovered. To date, the combined total of offers extended to HCPO 
claimants for bank accounts, insurance policies, and other asset losses 
amounts to more than $118 million, $28.3 million of which is 
compensation for insurance policies. (See, Section 1.--New York State 
Banking Department Holocaust Claims Processing Office Annual Report.*)
    The goal of the HCPO is to advocate for claimants by helping to 
alleviate any cost and bureaucratic hardships they might encounter in 
trying to pursue claims on their own.
                    ii. the hcpo's insurance claims
    Overall, the HCPO has handled in excess of 13,000 inquiries, of 
which 4,300 have been insurance-related inquiries from individuals in 
46 States and 29 countries. Of the 4,300 insurance-related inquiries, 
the HCPO assisted 2,290 individuals from 41 States and 24 countries in 
making claims for insurance policies. For the most part the claims are 
for compensation of life, dowry, and education insurance policies.
                       iii. hcpo claims research
    Claims received by the HCPO range from the purely anecdotal to the 
partially or even fully documented. Some claimants are able to furnish 
documentation such as the actual policy or premium receipt; handwritten 
lists kept by families that itemized their assets; and prewar and 
wartime confirmation letters from insurance companies referencing 
policy numbers and policies. In other instances, claimants document 
policy ownership through Nazi-era asset declarations; in some cases 
policy ownership is revealed by postwar compensation files.
    Those who cannot provide documentation often know significant 
details. Claimants know there was insurance; they even recall 
purchasing it, and they remember perhaps the name and location of the 
agent. They remember accompanying parents to medical exams, or to 
photographers for dowry policy photographs.
    Individual claims are assigned to members of the HCPO's staff of 
seven professionals--comprised of historians, economists, political 
scientists, lawyers, art historians and linguists--who provide 
assistance in a variety of ways. They assist in securing documentation 
through research in domestic and international public and private 
archives. As a result, the HCPO has cordial working relationships with 
archives, historical commissions, financial institutions, trade 
associations, and governmental colleagues at the Federal, State, and 
local levels in many different countries. This network enables the HCPO 
to research prewar, Nazi-era, and postwar documentation to obtain 
evidence about an individual's asset ownership, details of the 
dispossession, and prior attempts at recovery.
    Claimants have approached the HCPO convinced that the policies they 
are seeking were written by one company and the HCPO's research has 
been able to determine that it was in fact quite another. For instance, 
a claimant, originally from Vienna, approached the HCPO relatively 
certain that his father's life insurance policy was written by Der 
Anker or Phonix. Neither Der Anker nor UNIQA (the Phonix successor) had 
any record of a policy. The HCPO obtained a copy of the claimant's 
father's asset declaration from the Austrian Federal Archives, which 
revealed a Victoria life insurance policy, and even cited its 
repurchase value as of July 1938. In turn, the HCPO submitted the claim 
to the International Commission on Holocaust Era Insurance Claims for 
resolution.
         iv. hcpo submission of claims to appropriate entities
    With as much information in-hand as possible regarding the 
claimants' insurance policies, the HCPO must still determine where to 
file the claim. In order to submit a claim to the appropriate company 
or claims process, it is necessary to first determine what present-day 
company or claims process is responsible for the policy in question. 
For claims for policies issued by companies still in existence, finding 
the appropriate successor is relatively straightforward. But for 
others, determining the successor is more complex.
    A considerable amount of the HCPO staff's time is devoted to 
successor company research. Researching successor companies is 
complicated by the following facts: Policies written in contested 
geographical areas were transferred to a variety of companies and 
different portfolios within these companies; the prewar Nazi 
consolidation of the insurance industry and the postwar reconstruction; 
and in some instances nationalization of the industry led to further 
changes in corporate structures. Moreover, the ravages of war and the 
passage of time have left many companies with little or no 
documentation regarding their prewar holdings or the holdings of their 
subsidiary companies.
    Published industry handbooks and government statistical bulletins 
from the relevant time period help the HCPO determine where companies 
did business and provide some information regarding the aggregate 
statistics of the prewar insurance market as well as the market share 
of individual companies. For example, it is possible to state with some 
certainty which companies sold life insurance policies in Germany and 
Poland in 1936 and that in that same year the domestic German insurance 
market comprised 48.78 percent of the continental European insurance 
market, whereas the Polish market made up 0.68 percent of the market. 
(See, Section 2.--Overview of the Interwar Economy and European 
Insurance Industry.*)
    Once all of the HCPO's research is complete, the HCPO's role 
changes from detective to advocate and facilitator. The HCPO staff 
submits claims to all appropriate companies, regulatory authorities, 
governments, and any independent organization established to resolve 
these claims.
A. The International Commission on Holocaust Era Insurance Claims
    The International Commission on Holocaust Era Insurance Claims 
(ICHEIC) was established in October 1998 by the National Association of 
Insurance Commissioners in cooperation with several European insurance 
companies, European regulators, representatives of several Jewish 
organizations, and the State of Israel. ICHEIC was charged with 
establishing a process to address the issue of unpaid insurance 
policies owned by victims of the Holocaust. To accomplish this task, 
ICHEIC entered into agreements with European insurers and created 
mechanisms by which the Commission was able to identify, settle, and 
pay individual Holocaust-era insurance claims, at no cost to claimants, 
using relaxed standards of proof. With the launch of ICHEIC's claims 
process in February 2000, the HCPO transferred over 2,100 insurance 
claims to the Commission for settlement. The HCPO worked closely with 
ICHEIC staff in Washington and London, participated in working groups, 
provided technical assistance and ensured claimants' concerns were 
adequately addressed.
B. The Austrian General Settlement Fund
    The Austrian General Settlement Fund (GSF) Law of 2001 created the 
legal basis for dealing with the financial claims of Holocaust victims. 
The Austrian Insurance Association and its member companies passed a 
unanimous resolution in April 2001 to contribute $25 million to the 
GSF. The GSF has assumed the task of processing the insurance claims of 
Holocaust victims and their heirs. The HCPO has submitted claims on 
behalf of over 360 claimants either directly or through the GSF's 
partnership with ICHEIC. The HCPO continues to monitor these claims and 
conduct additional research.
C. Other claims processes
    In addition, HCPO insurance claims have been forwarded to a number 
of other entities for resolution, including the Generali Fund in Memory 
of the Generali Insured in East and Central Europe Who Perished in the 
Holocaust (GTF), the Holocaust Foundation for Individual Insurance 
Claims (Sjoa Foundation), the Claims Resolution Tribunal (CRT), and the 
Belgian Jewish Community Indemnification Commission (Buysse 
Commission). Claims were submitted to these organizations either in 
accordance with ICHEIC's partnership agreements with these entities or 
directly by the HCPO.
D. Insurance companies before and after ICHEIC
    Prior to the establishment of ICHEIC, the HCPO submitted claims for 
insurance policies directly to the issuing insurance company or its 
present-day successor, if one could be located. At ICHEIC's final 
meeting in March 2007, all ICHEIC member companies, as well as over 70 
companies in the German Insurance Association, through its partnership 
agreement with ICHEIC, reiterated their commitment to continue to 
review and process claims sent directly to them in accordance with 
ICHEIC's relaxed standards of proof. Since ICHEIC ceased operations at 
the end of March 2007, the HCPO has once again resumed dealing with 
insurance companies directly to resolve outstanding claims.
                        v. resolution of claims
    Once a company or claims process has completed its review of a 
claim and reaches a determination, the HCPO reviews the decision to 
ensure that it adheres to that entity's published processing 
guidelines. Since claimants may lose track of all the claims they have 
submitted, and since each agency has unique and often complex 
guidelines, the HCPO helps claimants to understand these guidelines in 
order to interpret decisions.
    In the event that a claimant disagrees with a company or claims 
process determination of his or her claim, the HCPO guides claimants 
through appealing the decision and offers whatever further assistance 
it can. Alternatively, when claimants receive positive decisions that 
include monetary awards, the HCPO facilitates payment by explaining the 
various release and waiver forms and by following up with the claims 
agency to confirm payment.
                           vi. naic proposal
    Recently, the National Association of Insurance Commissioners 
(NAIC), the HCPO, and the Banking and Insurance Departments of New York 
State have begun discussions of a proposal by which the NAIC will 
provide financial support for the HCPO's efforts at monitoring the 
insurance claims submitted to European insurers now that ICHEIC has 
ceased operation. It is anticipated that the HCPO will serve as the 
primary contact point for insurance companies and claimants with 
inquiries concerning Holocaust-era policies and ICHEIC guidelines. In 
order to facilitate the monitoring effort, the NAIC and its members 
will work with the HCPO to develop a bulletin on claims reporting, to 
help inform claimants of the opportunity to submit claims and the 
HCPO's ability to assist them. The HCPO will report the results of its 
monitoring activities to the NAIC.
    Through this partnership, the HCPO will oversee the processing of 
any claims submitted through the HCPO to insurance companies to ensure 
compliance with ICHEIC's relaxed standards of proof. By monitoring and 
regular reporting, and by serving as a primary contact point for 
insurance companies and claimants, the HCPO can facilitate a process 
that will hopefully obviate the need for recourse to the judicial 
process. (See, Section 3.--Correspondence between the NAIC and New 
York.*)
                             vi. conclusion
    Like the missing property we search for, no two claims are alike; 
each requires conscientious individual attention and painstaking 
effort. The process of restitution is difficult and distressing for 
claimants; however, the HCPO's successes show that compensation for 
assets lost during the Holocaust era is still possible. Experience has 
taught that the HCPO can greatly minimize the difficulties in dealing 
with matters of Holocaust-era asset compensation.

* [Editor's note.--The information referred to above is located in the 
Appendixes to this hearing transcript.]

    Senator Bill Nelson. Thank you, Ms. Rubin.
    Senator Coleman.
    Senator Coleman. Thank you.
    Ms. Rubin, why don't I start with you. I appreciate the 
work that you've been doing. You indicated that the HCPO has 
been successful in obtaining closure for Holocaust victims. Is 
some of that closure through the ICHEIC process?
    Ms. Rubin. Yes, sir.
    Senator Coleman. I don't know if I can--the Professor 
talked about ``restituted.'' I'm not sure that any victims can 
ever be restituted when their parents are gone, their brothers 
are gone, their sisters are gone. But in terms of just this 
process, is it your sense that there has been some successful 
closure by going through the ICHEIC process?
    Ms. Rubin. Through our experience, we have been able to 
obtain closure for claimants, either by showing that the policy 
had been paid out prior to the war, had been compensated 
immediately after the war, or compensated through the ICHEIC 
process.
    Senator Coleman. I'm not sure that you can answer this, but 
one of the issues on which there's been a lot of discussion has 
been the valuation of insurance claims, the Zabludoff study 
that estimated claims in the $17 billion area, other studies, 
more recent information, that it's been less. But can you 
provide any insight as to, what's the universe of claims that 
are out there?
    Ms. Rubin. The universe of remaining claims?
    Senator Coleman. Well, yes. Do you have any sense? Who 
should we look to? I've seen different studies here. Perhaps 
someone else can respond to that, but what are we looking at? 
What's the present day value of insurance claims that are still 
out there?
    Ms. Rubin. I can tell you that from the HCPO's experience, 
since ICHEIC closed we've only received about a half a dozen 
new claims. We have recently attempted to assess the scope of 
the market by reviewing the premium income from 1936 as a 
sample prewar year, to assess the size of the market. It is 
difficult to assess how many claims might remain.
    Senator Coleman. Is there anybody else who can give--Mr. 
Dubbin, if you can respond?
    Mr. Dubbin. Sure. There is no exact number, obviously, 
because there's no exact census. But based upon the agreed-upon 
base value from the Pomeroy-Ferras report of $600 million in 
valuation in 1938, Mr. Zabludoff, who is an economist, using a 
30-year bond rate as a multiplier, calculated that the value 
today of those policies would be $18 billion.
    The number of those claims--the number of policies that 
remain uncompensated in any way is clearly several hundred 
thousand, several hundred thousand.
    Now, there was a statement earlier that the work of ICHEIC 
and subsequent analyses verified that what was paid in by 
ICHEIC basically ratified their decisions. But ICHEIC itself 
never made an effort to bring that 1938 value up to current 
date. The Pomeroy-Ferras report, ``did not want to make any 
proposal of a valuation process in order to bring the Holocaust 
insurance exposure to a 1999 value.'' That wasn't done by 
anybody until Mr. Zabludoff in his published article in 2004.
    So when ICHEIC paid back, generously speaking, $300 million 
out of $17 or $18 billion, that's a lot. But the emphasis of 
the legislation--I mean, if it was only a half a billion, if it 
was only a half a million, the point of the legislation and 
what survivors want is the right to go to court, because 
they're the only citizens in this country who can't sue an 
insurance company who stole money from their families, the only 
Americans who don't have access to the courts.
    Senator Coleman. I only have time for one more question.
    Ambassador Eizenstat. May we answer that?
    Senator Coleman. Yes, Mr. Eizenstat, and then I do, just 
one other question that I'd like to at least put on the table.
    Ambassador.
    Ambassador Eizenstat. Let me take an initial stab and then 
let the Secretary conclude. On your specific question, first of 
all, the enormous bulk, the great percentage, Senator Coleman, 
of the policies written for Holocaust-era victims were written 
by those companies that participated in the ICHEIC process, 
either the Dutch companies, the Swiss companies, the German 
companies--Generali--or by companies that no longer exist, that 
were nationalized, that went out of business.
    Claims were permitted by ICHEIC and pursued by ICHEIC 
processes for all of those companies--all the German companies, 
even if they weren't subject to jurisdiction of a U.S. court; 
all the Dutch companies, even if they weren't subject to the 
jurisdiction; Generali; the Swiss companies, and the like. 
Again, as I emphasized, payments were made as well for those 
companies that no longer existed, that could never have been 
sued.
    So the notion that there are hundreds of thousands of 
claims that haven't been paid--one wonders where the companies 
are. Now, what I suggested in my testimony is that, have the 
ICHEIC companies publish newspaper notices reminding people 
that they're willing to continue to pay and process claims, 
giving them the Web site to the 500,000 names that were 
published based upon the research of ICHEIC itself, going 
through State archives, going through insurance archives.
    The notion that discovery in an individual class action is 
going to do a better job than all of this, against companies 
who couldn't be subject to jurisdiction, is very difficult, 
frankly, to comprehend.
    Senator Coleman. Ambassador Eagleburger.
    Mr. Eagleburger. I would refer you all to the HCPO document 
that was submitted and its appendix 2. And I understand this is 
complicated and so I will try to make it short, in fact too 
short perhaps, and you can correct me if I do things 
incorrectly.
    But if you look at that chart--let me back up. I think that 
the Zabludoff and other, whatever other estimates may have been 
made, are fundamentally flawed. I think they are much too high 
and there's no supporting evidence for them.
    Now, in regard to the HCPO document here, very quickly, let 
me simply say that, first of all, there are issues such as the 
propensity to insure, the number of Jewish policyholders in the 
first place in a population. Let me give you just one example 
to try to demonstrate what I'm getting at. If you look at this 
chart, you will find that Poland, with a population of 
32,133,000 in 1936, had a Jewish population of 2 percent of 
that total figure and as a consequence of that if you can find 
any way in the world in which you can judge from the fact that 
in the Polish case, if you take a look at it, in the Polish 
case there were very few who insured in the first place--I'm 
going to have to shorten this or it'll take forever.
    But my point is, and we could work on it later if it makes 
it any easier--we can submit something for the record. But the 
fundamental point is that the statistics simply do not give you 
any sense that their figures are in the neighborhood of $17 
billion or $200 billion, and we've seen both figures here.
    I apologize for not doing a very good explanation of your 
chart. But the point I'm trying to get at here is, the 
statistics which show the population in Poland, for example, 
and the number who insure and the number of Jewish population 
within that Polish population provides you with no evidence 
whatsoever that anything like these figures could have existed.
    Senator Bill Nelson. For the clarity of the record, we will 
insert in the record at this point the chart to which Senator 
Coleman has referred.

    [The information referred to above can be found in the 
Appendixes to this hearing transcript.]

    Senator Bill Nelson. Senator Cardin.
    Senator Cardin. Thank you, Mr. Chairman.
    There was a comment made by Mr. Rubin on the last panel 
that I would like to follow up, where he claimed that the 
privacy rights of insurance companies--at least I think that's 
what he was saying--meant that some of the records could not be 
made available. I would like to know how extensive the 
information was made available to those who negotiated the 
claims from the insurance companies or governments and how 
confident we are that we have gained access to all available 
information in order to know whether we have the widest 
possible efforts to find claimants.
    Mr. Eagleburger. First of all, I'm not sure he was talking 
about the privacy rights of the companies, but rather the 
privacy rights of the insured. So that's the first question I 
have.
    Certainly, in terms of our ability, for example in ICHEIC, 
to provide some of the information, a good bit of the 
information, from the claimants, was that when we went out to 
them with a proposal telling them they could file and they came 
back with a file, they were asked and they always signed off 
saying that these rights were private rights, we were not to be 
able to release them.
    Senator Cardin. I respect an individual's right to privacy. 
I'm talking about the companies', your access to the company's 
archives.
    Mr. Eagleburger. I just want to say, the fact of the matter 
is, with regard to the companies, we had as close to complete 
access as I can possibly explain to you. There may have been 
some places where it wasn't total, but I never saw any of them.
    In Alliance, the case of Allianz, or any of the other 
insurance companies, I will say it took some time and it took 
some work. But we got what we needed.
    Let me add to that that in addition to being able to go 
into the files with the companies, we had the audits which 
also--audits which also looked into the companies' files to see 
whether we had gotten everything that we needed.
    Senator Cardin. When the lists were released by, I think 
you said, the German Government of 400,000 or a total of about 
519,000----
    Mr. Eagleburger. That was the total for us, yes.
    Senator Cardin [continuing]. Was there verification by the 
commission as to how accurate that list was, based upon your 
access to their records?
    Mr. Eagleburger. We did--what commission are you talking 
about?
    Senator Cardin. I assume--the names were released, you 
said, by the German Government, or who released----
    Mr. Eagleburger. No, no.
    Mr. Dubbin. Who released them?
    Mr. Eagleburger. Our 519,000----
    Mr. Dubbin. Who released the--there was something about 
Germany released 400,000.
    Mr. Eagleburger. Well, I don't know what the Germans did. I 
do know we released 519,000 names, which is what we're talking 
about.
    Mr. Dubbin. ICHEIC released that----
    Mr. Eagleburger. ICHEIC released them, put them on the Web 
site, yes.
    Ambassador Eizenstat. Of that, Senator, of those 519,000 
about 300,000 were German names. That came significantly from 
the German census.
    Mr. Dubbin. But that didn't come from the records. That 
didn't come from insurance company records.
    Ambassador Eizenstat. It came from both. They were matched 
up with the records. But they also--Germany, unlike other 
countries, had a very good census and, unfortunately, had 
required Jews to register and register their property. So that 
was cross-checked against company records.
    Senator Cardin. And you're satisfied that you had access to 
the company records that were currently available?
    Mr. Eagleburger. You're talking about him?
    Mr. Dubbin. Mr. Ambassador.
    Mr. Eagleburger. I am satisfied absolutely that we had 
access to all of that, and we had double-checking of it and we 
had audits. I am convinced that we got everything we wanted, 
everything we needed.
    Mr. Dubbin. I need to speak to this, Senator.
    Senator Cardin. Certainly.
    Mr. Dubbin. Names were published, the companies published 
some names. Some names were found in archives by a researcher, 
because indeed there are property declarations where or the 
Jewish people had to state their assets. So some of the 
policies were found in the asset records documenting the names 
of some of the policyholders. So some of the names that were 
published on the Web site came from the companies, 360,000 from 
the Germans.
    Some of the names came from the archival research that was 
done independently. Now, the archival report makes it clear 
that it did not by any stretch of the imagination examine all 
of the relevant records which either are available or could be 
available if the State Department put more pressure on. So the 
archival research was incomplete. The names publication, as I 
said, was incomplete because Generali did not even publish the 
names of its subsidiary policyholders. Generali published a 
batch of names. Over 7,000 Generali policy names came from the 
archival research that had not been produced by Generali. So 
obviously they didn't publish all of the names of their 
policyholders.
    Now, that's just on the publication of names. Access to 
records, I do believe Mr. Eagleburger is not entirely correct 
on that point. ICHEIC did not do research into the company 
records. It did not. What ICHEIC did was have auditors and the 
auditors' job was to check out whether the companies in the 
process of examining their own records did what they said they 
were going to do. ICHEIC did not send auditors into the 
companies to find out what happened.
    The reason this is important is, you take Mr. Rubin's case, 
for example, Generali Moldavia, a clear subsidiary of the 
Generali company. Now, if you've read anything about that 
period of time you know how business was done. The agents all 
represented the same basic companies. So if there was a--so if 
Generali Moldavia was the property subsidiary of Generali 
Insurance Company and there was a plaque on the building, what 
are the chances that there's not a life policy there as well?
    But they did not in the ICHEIC process demand that Generali 
produce any information about Generali subsidiary policies. 
They did not demand that Generali produce any information about 
the name of the agent where the records might have been found. 
They didn't demand that Generali produce anything. Generali did 
not produce one piece of paper to ICHEIC as part of that one 
particular process.
    Here's something else. You made the statement before that 
the records----
    Mr. Eagleburger. Are we going to be able to get in here?
    Mr. Dubbin. That's fine, but this is important, because I 
realize the Senator is focusing on a very important question.
    You said the records cannot be reconstructed. That's not 
true. That is not true. The records can be reconstructed, and 
I'll give you another example. Here's a piece of paper----
    Senator Cardin. Just so I clarify, since I have the time.
    Mr. Dubbin. I'm just saying----
    Senator Cardin. What I was saying, which I was implying, is 
that with the victims went many of the documentations, and 
therefore we cannot reconstruct the record.
    Mr. Dubbin. From the victims' standpoint. But insurance is 
a paper-driven business. The reinsurance records are there. The 
company records are there. ICHEIC did not look at those 
records. The reason why they didn't and the reason why the 
legislation is necessary is because if a company wants to do 
business in the United States then this Congress has the 
authority and I believe the duty to force them to produce the 
information that they have that would allow Mr. Rubin and 
several thousand others--and I can give you example after 
example after example where they acknowledge that a policy 
existed but said it had been paid out before, but didn't 
produce any proof of that.
    Shouldn't a jury decide whether or not that was proper?
    Senator Cardin. My time has run out. Mr. Eagleburger, we'll 
give you at least--if I could ask the chairman for an 
additional minute.
    Mr. Eagleburger. This cannot go unchallenged. He's writing 
fiction and doing it beautifully. But the fact of the matter 
is, and then I'm going to end this thing as far as I'm 
concerned--the fact of the matter is we had auditors who 
checked to make sure that the names that we received from the 
companies or that we got in dealing with the companies were in 
fact legitimate and that we got everything we were looking for.
    This was checked with auditors. We had I don't know how 
many people going in and looking at these things. There was no 
intent on our part--and this is one of the things that is 
driving me nuts in this whole process. There was no intent on 
our part to cover up anything at all. We did everything we 
could to try to find, make sure that everything we said was in 
fact correct. And this ``ICHEIC wasn't doing this, wasn't doing 
that''--nonsense. The fact of the matter is we had 519,000 
names we put on a list.
    But the important thing is not that. It's not the list. It 
is rather that anybody could file a claim anyway, whether they 
were on a list or not on a list. The fact is people were 
permitted to file a claim. They could make it up, as far as 
that's concerned.
    But the point I'm trying to get at here is that list did 
not do anything to restrict what people could or could not 
claim. They could make a claim whether their name was on the 
list or not.
    Mr. Rosenbaum. Senator.
    Senator Bill Nelson. Mr. Eizenstat, did you want to 
respond?
    Ambassador Eizenstat. Yes, sir. Thank you.
    First, some $10 million was spent on outreach to claimants, 
making every effort to get the greatest universe of people 
involved.
    Second, as Secretary Eagleburger said, claims were 
accepted, processed, reviewed, regardless of whether they were 
on the list of 500,000. So that plus the independent auditors 
did as good a job as one could have done in a lawsuit, with 
more rigid rules of discovery.
    What's interesting is everyone here is trying to do the 
right thing for survivors, everyone is. There is no one who can 
truly speak for those who were killed, including the one lawyer 
on the panel who did not participate in our negotiations--we 
had a half dozen of the toughest class action lawyers 
representing claimants in all of these cases. They would have 
had to go into court. They would have had to obtain 
jurisdiction over the companies. They would have had to do 
their own discovery, whereas ICHEIC did the discovery for the 
claimants, at ICHEIC's expense, at the companies' expenses.
    They would have had to go through procedures that would 
have been very difficult to prove. And these class action 
lawyers--unfortunately, Mr. Dubbin did not participate in our 
process--decided that the settlements that we reached, 
including the 10 billion deuschmark settlement, again 500 
million marks of which were passed through to ICHEIC--provided 
the best measure of justice for what would have been very, very 
uncertain claims.
    The notion that one now is operating on some kind of a 
blank slate to which one can go back, as if companies had not 
participated in this process, had not paid in reliance on this, 
that an individual court could do a better job than auditors, 
ICHEIC, going through archives, even paying for companies that 
no longer exist, is simply not accurate.
    Senator Bill Nelson. Senator Menendez.
    Senator Menendez. Thank you, Mr. Chairman.
    Let me just ask a question here from Professor Rosenbaum 
and Mr. Dubbin. Do you ascribe any bad faith here, any bad 
actors?
    Mr. Dubbin. No; that's not what I was saying.
    Senator Menendez. I didn't think you were. I just wanted to 
make sure.
    Mr. Dubbin. Sure. I was just trying to address the point 
that ICHEIC was limited, it was a creature of compromise, it 
was--the insurance companies had as much say about the policies 
as the people supposedly representing the victims, and it was 
limited.
    The point isn't that it was bad. The point is it's over, 
and the point is that survivors who were disserved by it--there 
were 5,000 people who Generali acknowledged having paid--having 
had a relationship with previously and then they denied the 
claim based upon records they wouldn't show anybody.
    Senator Menendez. So you don't ascribe bad faith?
    Mr. Dubbin. That's right. I'm just saying that it's over 
and people, survivors, want their right to go to court today, 
not for class action suits, for individual suits, where they 
and a lawyer can decide what to do.
    Senator Menendez. I understand. You'll appreciate me trying 
to move along so I can get all my questions in.
    Professor Rosenbaum.
    Mr. Rosenbaum. Thank you, Senator.
    Senator Menendez. Are there any bad actors here?
    Mr. Rosenbaum. No; I do not--I do not see evil at this 
table. But I would say that Mr. Eagleburger's indignation here 
today is so symptomatic of the problem. He pronounces--earlier 
he screamed at us: Justice was done. And in the most 
incredibly----
    Senator Menendez. Screamed?
    Mr. Rosenbaum. Well, it was for you. It struck me as a 
little elevated. It was: ``Justice was done.'' From whose 
perspective? The chairperson of ICHEIC, the person who presided 
over ICHEIC, which has been incredibly discredited, which 
received an enormous amount of media attention for the amount 
of first class air travel that was undertaken. The first $100 
million was spent for administrative expenses.
    It just strikes me as so curious, the way he stands here 
today with his incredible indignation to say everything was 
done correctly, that justice was done, that ``we can't trust 
their numbers.'' He says: ``Their numbers are fundamentally 
flawed.'' Well, the truth is, Senator--let me just say, if I 
may--the survivors don't trust his numbers, and that should 
matter. It should matter to you that there is an enormous 
amount of resentment in the survivor community that there was 
injustice with ICHEIC and that these numbers--remember, when he 
talks about audits he keeps forgetting to tell us that the 
partners to ICHEIC were the companies that were being 
investigated. So it's very different from a lawsuit----
    Senator Menendez. I appreciate that.
    Mr. Rosenbaum [continuing]. When you really discover truth.
    Senator Menendez. I appreciate that.
    Let me now move to, now that there's no bad actors here, 
let me move to the question. Wasn't--in fact, as I listened to 
you, Mr. Secretary, respond and maybe, Ambassador Eizenstat, 
you can shed a little more light: To some degree you're 
depending upon the companies giving you information and 
therefore, while you say you audit them, you audit that which 
you receive. In the first instance how do we know that the 
information being given is in its totality accurate? That is to 
say, that the companies did not in fact be totally forthcoming 
we would obviously deal with a smaller universe.
    Mr. Eagleburger. The answer to that it seems to me is best 
said: For example, when we went to the companies to look into 
their records and so forth, we sent--in one of the cases I 
recall we sent, amongst others, Bobby Brown, who is a person on 
the commission, but an Israeli. He went and met with, I think 
it was, Allianz and spent a number of days there going over the 
files with them.
    He is not someone who is easily put off. In fact, he spent 
a number of days going through things and then going back 
again. My only point here is this is not that we simply went 
and they gave us a list of names and that was all there was to 
it. He went there, he looked into the files, he went through 
the files with them.
    But anyway, the point is that he--and this occurred in 
every single case. It wasn't that we accepted simply what they 
gave us. We went back and looked into what they were doing.
    Senator Menendez. Did he have in that opportunity and 
others the opportunity to look at all of their files----
    Mr. Eagleburger. Yes.
    Senator Menendez [continuing]. Or those files which they 
brought forth?
    Mr. Eagleburger. All I can tell you is, in any case that I 
can recall--now it's been a while, but certainly in the case 
you're talking about here, yes, he went through all, he had 
access to all of the files. I recall I think in his case there 
were some that he said, it's not necessary for me to look at 
these.
    Senator Menendez. When we say all of the files, we say all 
of the files that existed during that period of time?
    Mr. Eagleburger. I didn't understand the question.
    Senator Menendez. When we say ``all of the files,'' so that 
I understand that we're talking about apples and apples, that 
all of the files that existed for that given insurance company 
during that period of time?
    Mr. Eagleburger. Yes. And I've been reminded here as well 
that in the audit stage that we're talking about it looked at 
the completeness of what the companies were providing to us and 
the details of what was provided. Again, I'm assured, and this 
goes back again to my recollections, but I had no indications 
from any of these auditors--and they were usually members of 
the commission included in these audits that went with them--I 
had no indication at any point that they did not get everything 
they demanded. That's the best I can say.
    Ambassador Eizenstat. Senator, if I may just--you had asked 
me also.
    Senator Menendez. Yes, and then I'll turn to Professor 
Rosenbaum.
    Ambassador Eizenstat. The executive branch did not 
participate in this part of the process. We served as an 
observer. We blessed ICHEIC as the exclusive remedy. But we had 
assurance of the thoroughness, not only because of the items 
that Mr. Eagleburger mentioned, but because the participants 
who participated in the ICHEIC process, the State of Israel 
formally--Bobby Brown was not just an Israeli; he was the 
official representative of the government of Israel. The World 
Jewish--the Claims Conference, the American Jewish Committee, 
all of these have blessed this. And ICHEIC was an invention of 
the insurance commissioners of the United States, who had an 
interest in seeing that the companies that they regulated, 
including foreign companies doing business in the United 
States, were being completely thorough in what they were 
providing.
    So although we didn't participate in those audits, we had 
comfort in the fact that the various stakeholders in ICHEIC had 
a deep interest in making sure that the most thorough job was 
being done and the most thorough job possible, given the fact 
that we were trying to reconstruct records that were over 60 
years old.
    Mr. Eagleburger. I should also add, if I may, that the 
audits were done by professionals, Ernest and Young for 
example. We hired them to do the audits. It isn't that we went 
in there with some nonprofessionals. We had professional 
auditors that were involved in all of this.
    Senator Menendez. Well, after some of the auditing that's 
gone on here in the United States, I sometimes wonder about 
that.
    Mr. Dubbin. Mr. Senator, let me----
    Senator Menendez. Mr. Chairman, with your indulgence, just 
one or two more questions and then I'll cease.
    I know you want to opine on this a moment, but just let me. 
Just hold on.
    Ambassador Eizenstat, one other question. The difference 
between what has been put out there as to the valuation, 
understanding that there is no finite valuation because the 
universe is hard to fully determine. But these figures that 
come out, $17 billion versus--and then of course some who 
extrapolate beyond that based upon value over periods of time. 
But let's say at the low end of those numbers that are out 
there, $17 billion. Does the amount that was achieved through 
ICHEIC really reflect the most aggressive nature that could 
have been achieved in terms of the actual sum of dollars?
    Ambassador Eizenstat. Well, again, the executive branch did 
not negotiate these agreements. ICHEIC did. But we had 
confidence that the plus-up of policies, which was quite 
similar to what was done in the Swiss settlement where we were 
involved, which was essentially 10 times the face value with 
the conversions, and the publication of 500,000 names was the 
best universe that could be determined was a fair process.
    Again, when we talk about how to best do justice, it's our 
feeling that by doing the process ICHEIC did, by doing the 
research it did, by doing the outreach it did, by finding 
claimants, by identifying companies for them that they might 
not have even known existed, they were doing a job that could 
not be done by any individual court.
    In addition, it was not only, Senator, the actual 
policyholders of the companies, but ICHEIC went into the 
archives of a number of the countries, which any court would 
have great difficulty doing. So I think under the 
circumstances, I think this was the best that could be done and 
far better than what could be done under much more restrictive 
rules of evidence, jurisdictional rules, by a single lawyer.
    It's interesting that all the lawyers who have not been 
called as witnesses, who participated in this process, who were 
vigorously defending their interests, all settled. It's very 
important for all the Senators to recognize. Two Federal 
judges, the same day in your State, Federal judges in New 
Jersey, dismissed the class action suits brought by very 
competent lawyers against Ford and other companies for slave 
labor, on the ground of statute of limitations, on the ground 
of postwar agreements. And yet we still were able, even with 
that, to get those companies to contribute half of the 10 
billion deuschmarks, a good portion of that which was then 
transferred to ICHEIC.
    So we are dealing with a very imperfect ability of courts, 
and everything about this was imperfect, but I believe this was 
the best, most thorough, most comprehensive way of doing it. 
And to pretend that again we're now operating on a clean slate, 
as if nothing had happened, as if companies hadn't paid in 
reliance on the legal peace that they were given--it would be a 
tragedy to go and undercut the negotiations that we did with 
Austria, with Germany, and say that those companies should now 
be subject to lawsuits.
    Senator Menendez. I appreciate that.
    Mr. Rosenbaum. Could I address that?
    Senator Menendez. Well, I had asked you to withhold, so if 
you want to now go ahead.
    Mr. Rosenbaum. That was very fine of you. Thank you, 
Senator, but Mr. Dubbin will also have an opportunity as well?
    Senator Menendez. Well, if the chair indulges it.
    Mr. Rosenbaum. OK. Well, I'll let him, and then if you will 
indulge me, Senator, I'd appreciate it.
    Mr. Dubbin. I want to just remind everyone here what 
``legal peace'' was. It's true the German negotiations 
originated out of the dismissal of the slave labor lawsuits. 
Mr. Eagleburger has said in his own book that at the 11th hour 
the German said: If you don't roll insurance into this, you'll 
get no money for slave labor.
    The Germans demanded that in return that the United States 
abolish insurance claimants' rights to go to court, and the 
United States Government does not have the authority to do that 
and the Germans were told that. So what they agreed to as legal 
peace was that the United States would file a statement of 
interest in these cases, not that the suits were abolished, but 
that it would be in the foreign policy interest of the United 
States for cases to be dismissed on any available legal ground.
    Now, that was the executive agreement, and when Congress 
reacted to that by sending a letter to the Attorney General the 
Attorney General reiterated: We are not waiving anybody's right 
to go to court. There is no abolition of the right to go to 
court for insurance policies. And the class action lawyers who 
were part of that, No. 1, when they dismissed their cases it 
was the individual cases. They did not go through a class 
action settlement process, which would have required notice to 
everybody in the class. People would have had the right to opt 
out. That would have made it real legally binding. But the 
lawyers involved knew that thousands and thousands would opt 
out.
    So today the Germans have more than they were able to get 
at the bargaining table back in the year 2000, because the 
courts have subsequently said that the involvement of the 
executive branch making a policy that nonadversarial resolution 
was U.S. policy preempts the right of States to have laws to 
let people get their insurance policies. But the court said 
that Congress has been silent. That's what the courts have 
said, and Congress's intervention is constitutional and it's as 
a matter of policy what Congress ought to do.
    So let's not be confused about what was actually agreed to 
at the time. And when Congress also mandated--a lot of these 
questions would have been resolved. In the Foreign Affairs 
Authorization Act of 2003, Congress demanded that ICHEIC report 
to the State Department all these facts about what the 
companies were doing. ICHEIC refused to do that. ICHEIC refused 
at the time. That's what the State Department's report said: We 
could not get this information from ICHEIC. That should tell 
you everything you want to know.
    Mr. Rosenbaum. Senator----
    Mr. Eagleburger. That's not true. That is absolutely false.
    Senator Bill Nelson. Would the committee come to order.
    Senator Coleman.
    Senator Coleman. Thank you, Mr. Chairman.
    Just one followup. Ms. Rubin, you're not a lawyer, are you?
    Ms. Rubin. I am.
    Senator Coleman. You are, OK. Let me ask you the question 
then, because your testimony has been actually very helpful to 
me. You mentioned that there were settlements that were based 
on things that were either, claims that were either purely 
anecdotal or partially documented, claims that HCPO took care 
of. How were those--if those claims would have been litigated 
in the Federal court, how do you think they would have turned 
out?
    Ms. Rubin. I'm afraid I can't really say. I have no 
experience or I have no evidence of any of these cases being 
settled in court, so I don't know. I'm sorry.
    Senator Coleman. The reason I ask the question--and again, 
I understand the great passion and the sense of frustration 
folks have. Perhaps I'll ask Professor Rosenbaum or Mr. Dubbin 
to respond to a concern, a specific criticism of Mr. Eizenstat 
of H.R. 1746, and I'll quote: ``U.S. courts would not be so 
friendly a venue. Litigants would be faced with statutes of 
limitation, jurisdictional arguments, rules of evidence, and 
burdens of proof. They would be faced with considerable costs, 
including attorney's fees, which might only be recovered at the 
end of the process if he or she wins and wins on appeal. Such a 
course of action would likely raise the hopes of survivors 
without offering them a real chance at additional recovery. 
Perhaps most importantly, litigation would take time, time that 
survivors on the whole do not have.''
    How do you respond, particularly to this concern, claims 
that are purely anecdotal, the partially documented, the 
humanitarian claims? Give me your sense of kind of the sense of 
justice or resolution that you think folks are going to get 
with those kind of claims?
    Mr. Rosenbaum. Well, Senator, the presumption that we keep 
making is that ICHEIC was a success.
    Senator Coleman. I'm not----
    Mr. Rosenbaum. No; I know that you aren't.
    Senator Coleman [continuing]. Talking about ICHEIC. I'm 
asking you to respond to, if you have a partially--Ms. Rubin 
said you have partially documented or purely anecdotal claims. 
Can you give me a sense of how you think they can be resolved 
in a Federal court?
    Mr. Rosenbaum. Senator, my sense is what I said during my 
opening remarks: Giving people autonomy, empowering them, 
giving them an opportunity in court to provide testimony is a 
moral and legal victory. It is true that they would not be 
subject to the liberal standards of proof that purportedly 
ICHEIC provided. ICHEIC didn't result in any victory, either.
    What we're hoping for here is that--unprotected by ICHEIC's 
organizational powers--the insurance companies on their own 
accord, through these lawsuits may come to their senses. They 
may seek an opportunity to restore their honor and regain their 
respectability. We understand from a legal perspective what Mr. 
Eizenstat is saying. From a moral perspective, however, there 
is great potential in seeking some kind of movement, which has 
been essentially intractable under ICHEIC because ICHEIC 
essentially co-opted the entire restitution experience.
    I was very moved by Senator Menendez's question to Mr. 
Eizenstat, because he said, given the claim that there was $17 
billion--Senator Menendez's actual question was: Do you think 
ICHEIC was aggressive enough? I thought that was the 
appropriate word. I think that what Mr. Eizenstat was again 
suggesting was: No; we were diplomatic; we weren't aggressive. 
And I think that that kind of response, that kind of approach, 
has resulted in great injustice and an enormous amount of 
resentment. And I don't see how we can do worse from that 
position by pursuing claims in Federal court.
    Ambassador Eizenstat. Senator----
    Senator Coleman. Let me. I want to give you a chance, but, 
Mr. Dubbin, if you can respond. Then Mr. Eizenstat, I'll give 
you a chance to respond afterward.
    Mr. Dubbin. The State laws could be amended to allow time 
for people to bring those suits, which would abolish the 
statute of limitations defense. That's constitutional. That's 
done all the time. Congress had legislation pending that would 
do the same thing.
    The privacy issues are I think--even Mr. Eagleburger said 
he thought it was the privacy of the customers that prevented 
that information from being disclosed. If you do business in 
the United States and if you're subject to U.S. jurisdiction, 
then the court has the right to order you to produce your 
records.
    Again, I'm not saying ICHEIC was bad. It was just 
incomplete. It wasn't as thorough as it could have been. I'm 
looking here at documents from Generali where the German tax 
office said to them: Would you please tell us whether or not 
Mr. Herman Hyman is a Jew? And Generali said: We confirm that 
the insured is a Jew.
    Now, this is the kind of information that they obviously 
had, but ICHEIC didn't ask them for the files of the inquiries 
they received from the German tax office. I mean, that just 
didn't happen. Now, a lawyer who has a private agreement with 
the client and he goes in there with his eyes open would have 
the ability to get discovery from Generali and the other 
companies. I'm not singling out Generali. Mr. Feldman, 
Professor Feldman, has shown that Allianz, Victoria and AXA and 
the others did the same thing.
    Those records are there. They're there. We did not get--the 
documents can be reconstructed. The reinsurance agreements can 
be reconstructed. The reinsurers are in London, they're in the 
United States. The truth can actually be obtained, but it 
hasn't been. And that's what people would have the opportunity 
to do.
    Like Mr. Wexler said in the House, this bill doesn't 
require anyone to pay anything. Jack Rubin would have to walk 
into a lawyer's office and say: This is what I know; will you 
take my case? And just like in any other private arrangement, 
like any other citizen would have the right to do against a 
potentially difficult adversary, he would have to--the lawyer 
would have to decide whether or not he wanted to be paid by the 
hour or take the risk or whatever, and he would have the 
ability to make that decision for himself.
    Mr. Rosenbaum. Senator----
    Ambassador Eizenstat. Excuse me. May I?
    Senator Coleman. Mr. Eizenstat, if you can just respond.
    Ambassador Eizenstat. I'm going to have to take leave of 
the committee in a minute, I'm sorry.
    I want to respond in two ways. First, to suggest that those 
of us who spent 6 years of our life, 6 years of our life, 
fighting hand to hand combat to get every nickel we could for 
survivors, were not aggressive, that those of us who were on 
the battlefield--and it was a battlefield, Senator--were not 
aggressive, is inappropriate and unacceptable.
    Now, I know--and Larry can't say this. I know the personal 
sacrifices that were made to his health with the work that he 
did. I know that for my entire team, my interagency team, this 
was our second job. We had actual jobs in our departments. We 
were doing this after hours, so to speak, and we put in 
unbelievable time and effort. We were unbelievably aggressive.
    Second, the reason that I say that we can't start from a 
clean slate is that in the German case we made a commitment on 
behalf of the President of the United States, with the full 
knowledge of the Congress, that there would be legal peace for 
all German companies, including German insurers, for all 
Austrian companies, including Austrian insurers, for all French 
companies, including French insurers, if they paid the amount 
of money they paid.
    It was 10 billion deuschmarks in the German case, close to 
a billion dollars in the Austrian case, moneys that would never 
have been obtained in court.
    Last point. The United States Supreme Court in the 
Garimondi case accepted the legal peace concept. It is true, 
everything that Sam said. We did not cut off claims. We did not 
believe we had the legal authority to cut off claims. What we 
did, we said, as Sam said, it was in the foreign policy 
interests of the United States. And the court accepted that. 
Attorney General Mukasey, then Judge Mukasey, in a separate 
case likewise accepted it, because we put the full faith and 
credit of the United States Government behind these 
settlements, working aggressively day and night for the 
victims.
    Thank you.
    Mr. Rosenbaum. Senator, might I have a moment to respond?
    Senator Coleman. I'm going to end my questioning there 
because I think this could go back and forth. I think everyone 
has made their point, and this is--I'm going to end my 
questioning. Otherwise there will be a counterresponse and we 
could go on. I think all sides have made very clear their 
feelings. I'm going to leave it at that point.
    Mr. Chairman, whatever you want to do here, but I just 
think this could go back and forth.
    Mr. Rosenbaum. I promise it won't. I'll be done.
    Senator Bill Nelson. All right.
    Mr. Rosenbaum. Thank you, Senator.
    Senator Bill Nelson. Mr. Rosenbaum, if you will respond 
quickly.
    Mr. Rosenbaum. Yes; very quickly.
    Senator Bill Nelson. We're going to wrap up this hearing.
    Mr. Rosenbaum. Mr. Eizenstat, I'm very sorry if you were 
personally offended by anything that I said. You know I have a 
lot of affection and respect for you. But you also know that I 
don't spend that much time in an ivory tower, and I resent that 
question, because the point is I'm on the ground with the 
survivors. I've heard from the survivors. I've heard from more 
survivors than you will ever know, and they're not happy. 
They're not happy with what you've done, they're not happy with 
what ICHEIC has done. That's why I'm here today on my own 
accord.
    When I talk about lack of aggressiveness that Senator 
Menendez alluded to, what would you call it? A $300 million 
recovery out of $17 billion. I'm just sorry. If it's $300 
million out of $17 billion, if that's the recovery, then it is 
certainly not an aggressive recovery. It may be the best we 
could have done under the circumstances, but it's not 
aggressive.
    Finally, I just want to ask the Senators who are still here 
today, if Stuart Eizenstat were here at the table and there 
were people from the State of Louisiana and they had been 
victims of Hurricane Katrina and they were being told because 
of some foreign policy objective, some agreement that he 
undertook in order to achieve some kind of other settlement on 
behalf of other people, that their contract rights for suing 
global insurance companies for property and casualty insurance 
for the destruction of their homes had somehow become 
invalidated, what would we say to that?
    Why is it that the Holocaust survivor is deprived contract 
rights in American courtrooms under policies that they and 
their heirs, they and their relatives had purchased, but we 
wouldn't do that with any other policyholder in this country?
    Senator Bill Nelson. All right. Gentlemen----
    Mr. Eagleburger. May I have----
    Senator Bill Nelson. Gentlemen, this commentary's going to 
stop. We are going to adjourn this hearing, and the record will 
be kept open for 2 days for Senators.
    Ms. Rubin, I want to clarify something for the record 
before we adjourn. Your operation has been open how long?
    Ms. Rubin. We opened in June 1997.
    Senator Bill Nelson. And at present you have how many 
outstanding claims that you are processing?
    Ms. Rubin. Insurance claims?
    Senator Bill Nelson. Yes.
    Ms. Rubin. About a dozen, a dozen non-Austrian, and then a 
couple of hundred Austrian claims.
    Senator Bill Nelson. Where in your testimony do I remember 
the number six?
    Ms. Rubin. New claims since ICHEIC's closing; we received 
about a half a dozen new claims.
    Senator Bill Nelson. OK. Lady and gentlemen, thank you for 
your participation in a very spirited discussion. The meeting 
is adjourned.


    [Whereupon, at 5:07 p.m., the hearing was adjourned.]


                          A P P E N D I X E S

                              ----------                              



Appendix I.--Responses to Additional Questions Submitted for the Record 
                      by Members of the Committee

      Responses to Additional Questions Submitted for the Record 
                  by Senator Bill Nelson to Jack Rubin


    Question. In your testimony you referred to the fact that in the 
Swiss bank settlement, the court is still holding $400 million that 
hasn't been spent? Do you know why those funds haven't been distributed 
to survivors?

    Answer. Two survivors I know well, Alex Moskovic and David 
Mermelstein, attended a meeting in January 2006 in the chambers of 
Judge Korman in Brooklyn, with a few other survivors. One of the topics 
was why the Judge had not allocated the funds that remained at the time 
from the Swiss bank settlement, when so many Holocaust survivors have 
been suffering without desperately needed assistance. Judge Korman 
acknowledged in that meeting that over $400 million remained unspent 
from the settlement, but that his priority was to pay bank account 
claims before using any of the money that remained for poor survivors. 
I am attaching the minutes of that meeting as prepared by one of the 
participants as Exhibit 1.
    I have seen other reports as well from that time period that 
indicated that around $400 million from the settlement remained 
available for distribution but that no funds would be added to the 
Looted Assets class, i.e. for needy survivors, until all bank account 
claims were finished.


    Question. In your testimony, you referred to the Holocaust 
survivors in need and state that the needs are not being met by Jewish 
social service organizations. How do you believe additional 
compensation for insurance policies can help them, when there isn't 
necessarily a direct link between any one policy and any one survivor 
in need?

    Answer. I have two answers for this question. First, it is obvious 
to me that with the number of poor survivors in our community and other 
communities, and with the hundreds of thousands of unpaid policies 
estimated by Mr. Zabludoff, there are undoubtedly a lot of survivors 
living in poverty today whose family policies haven't been paid. If the 
insurers were required to make good, through litigation if necessary, 
those survivors would be helped.
    Of course, compensation for unpaid policies is a moral and legal 
right of all survivors, whether they are poor or not.
    Second, Mr. Zabludoff estimates that over $18 billion in insurance 
policies have not been paid. (Only $250 million was paid by ICHEIC.). 
With so many Jewish families having been destroyed in the Holocaust, I 
am sure that even with the best legislation for allowing survivors to 
go to court, billions would remain unpaid. These are the policies I say 
``went up in smoke at Auschwitz.''
    In my opinion, the insurance companies should not keep this money. 
That would make them the heirs of the Jews who were murdered in the 
Holocaust. Congress should not let this happen. Speaking for myself and 
other survivor leaders such as the leaders of the Holocaust Survivors 
Foundation USA, we believe those funds should be used to assist poor 
survivors around the world. The companies stole the money, and all 
survivors were deprived of their worldly possessions. For the companies 
to prosper while survivors suffer is unacceptable.
    As a member of the Advisory Board of the Jewish Family Services, I 
am personally aware of the needs that cannot be met in our community. 
Some of this information is contained on Exhibit 2. My fellow survivors 
report the same things where they come from, and I have read the 
studies and articles showing that tens of thousands of survivors in the 
U.S. alone--about half--are too poor to meet their basic needs.
    One of the possibilities I discussed with members of Congress and 
their staffs was to allow the Government to recover this money from 
insurers where there are really no living heirs. I understand the 
Federal Trade Commission has such authority for other kinds of consumer 
fraud. Why not extend this ability to recoup looted insurance policies 
from the Holocaust and help survivors in need?

                               Exhibit 1

   meeting on 1/20/2006 between chief judge edward r. korman, united 
states district court for the eastern district of new york and special 
 master judah gribetz and representatives from the holocaust survivor 
  community mr. and mrs. jehuda evron, mrs. hanna hirshaut, mr, roman 
  kent, mr. david mermelstein, mr. alex moskovic, mr. joe sachs, mrs. 
                             rosian zerner.
    The first item on the agenda was to show that there was an 
increased need for funds by survivors. There are more applicants with 
greater need for more intensive care and far too many survivors do not 
receive appropriate care. A chart was presented to Judge Korman that 
showed that care for survivors in Dade County was reduced from about 
3000 hours to 1200. Judge Korman found the figures unclear since the 
same money was being distributed to survivors and there was 
approximately the same number of needy survivors. He, and Master 
Gribetz, then were asked to squash rumors and release a statement 
listing all pay outs as well as various fees and administrative costs. 
In Boca Raton, after the success of Cafe Europa and increased 
membership in the survivor organizations, applications from needy 
survivors increased by 50% while the funds received have remained 
unchanged.
    Judge Korman, with assistance from Special Master Gribetz 
throughout the meeting, gave an update on the 1.2 billion collected 
from the bank accounts held in Switzerland and said that 335,000 people 
have been touched by the judgments so far. From the original figure, 
800 million are gone, distributed to bank account holders and heirs. 
That leaves US$425 million. A decision was made to allocate US$60 
million to 12,000 ``plausible'' applicants who would receive US$5,000 
per claim. US$365 million would then remain for future allocations and 
to cover appeals - there have been 174 so far and there is expectation 
of other settlements subject to review.
    Judge Korman mentioned that he felt that the allocation to the 
``plausible'' applicants could be controversial since it was a 
difficult choice that may not satisfy everyone. For instance, an 
applicant who had applied for 20 million and receives $5,000 would feel 
very slighted, and if he had applied in the name of four other 
additional family members, that $5000 would then be diminished to only 
$1,000 per person distribution.
    Judge Korman went on record to make assurances that distribution of 
the remaining monies will continue only to survivors, but in most 
instances it would be supervised through organizations. At the same 
time he mentioned that 10 million were allocated to projects for Jews 
and non-Jews like the Victim List project at Yad Vashem, USHMM and 
other institutions. A suggestion was made by him that a new list of 
names and other information is available on www.swissbankclaims.com and 
invited survivors to explore the site.
    Roman Kent then listed three points. 1) Asking for greater 
allocation of the money from Switzerland to the USA 2) Reduction of the 
time frame for the allocation from 10 years to 7. 3) Clarification of 
attorney fees - especially, 4 million for attorney Burt Neuborne. I 
list the reply accordingly:


          1) Approximately 70% was allocated to the former Soviet Union 
        because they do not have the ``safety net'' that the needy in 
        the USA have - such as food stamps, housing and medical 
        assistance, etc--and are often destitute with nowhere to turn. 
        Judge Korman also suggested that survivors go to Jewish 
        philanthropists who give to Jewish and non-Jewish causes but 
        skip survivors and he mentioned Governor Bloomberg as an 
        example.

          2) Although this issue was not directly addressed, it was 
        implied that survivors need to have a ``cushion'' now as well 
        as in the years to come and that 4 of the 10 years are already 
        gone.

          3) The Judge could not comment on this since judgment has not 
        yet been rendered and this is a pending case. However, he 
        reminded the attendees that attorney Neuborne never charged for 
        all the negotiations to obtain the 1.2 billion and that if the 
        4 million would be assigned to him, it would be for 
        administration of the funds from 1999 and for being the lead 
        settlement counsel. In addition, he wanted us to be aware that 
        because attorney Burt Neuborne did the work pro-bono, Judge 
        Korman was able to negotiate with the other attorneys for 
        reduced fees and that instead of the projected 22 million to 
        lawyers fees he only gave out 6 million.


    Before adjourning from the meeting, the survivors asked and were 
promised communications on any new developments and updates on 
accounting.
                                             Rosian Zerner.

                               __________

      Responses to Additional Questions Submitted for the Record 
               by Senator Bill Nelson to Samuel J. Dubbin


    Question. If legislation granting a federal cause of action is 
passed by Congress, do you have an estimate of the number of survivors 
or heirs who would come forward to file lawsuits against insurance 
companies?
    Should past participation by a claimant in ICHEIC or one of the 
other compensation processes or class action settlements limit the 
ability of that claimant to participate in a newly created federal 
cause of action? Would the ability to participate differ among 
claimants who were:


   Compensated for a policy?

   Given a humanitarian award?

   Denied by ICHEIC?

   Appealed an ICHEIC determination?

   Compensated by earlier restitution processes, but for less than 
        full value?


    Do you have an estimate of the number of survivors or heirs who 
have legitimate claims for restitution and will come forward to take 
advantage of the cause of action provided by the legislation?

    Answer. It is impossible to estimate the number of survivors or 
heirs who would come forward to file lawsuits if the provisions of HR 
1746 that passed the House Foreign Affairs Committee in October 2007 
were to become law. However, federal legislation establishing a federal 
cause of action and/or restoring state law rights of action is 
justified by the moral imperative to restore the basic rights under 
American law that have been eviscerated by court decisions concerning 
the United States-Germany Executive Agreement, and statements by 
Executive Branch officials relating to ICHEIC (the Garamendi decision 
and Judge Mukasey's dismissal of the Generali cases 2004) far more 
broadly than the President agreed, or would have the power to attempt.
Companies' Past Participation in ICHEIC or Other Forum.
    In my opinion, and the opinion of the survivors I represent, mere 
participation by a claimant in ICHEIC should not limit the ability of a 
claimant to have access to U.S. courts to seek recovery of a family 
insurance policy sold prior to the Holocaust. ICHEIC was always 
understood to be a voluntary process that was available for survivors 
and heirs to attempt, but was never supposed to be binding (unless a 
claimant accepted an offer of payment). Moreover, there is sufficient 
evidence of severe flaws in ICHEIC's performance, such as denials in 
violation of ICHEIC rules, denials without explanations, denials 
without producing existing documents, denials of documented claims, 
failure of companies to produce policy holder names or of ICHEIC to 
publish names, delays in the publication of names for long periods of 
time so as to limit the number of claims that were filed under ICHEIC's 
deadlines, publication of names without identifying the issuing 
companies, secret use of a phantom rule that raised claimants' burden 
beyond published ICHEIC standards, and other shortcomings that 
survivors believe Congress has an obligation to enact a legislative 
remedy to overcome the court decisions that have obliterated their 
rights. The attached examples of Herbert Karliner, Suzie Marshak, 
Alberto Goetzl, Sello Fisch, David David, and Jack Brauns are a small 
but representative sample of problems encountered. See, also Yisroel 
Schulman, ``Holocaust Era Claims, Mission Not Accomplished,'' The 
Jewish Week, May 4, 2007; Stewart Ain ``Phantom Rule May Have Limited 
Holocaust Era Awards to Claimants,'' The Jewish Week, June 29, 2007. 
(Composite Exhibit 1).
    The above answer would apply equally to the federal cause of action 
contained in the House Foreign Affairs Committee version of HR 1746 and 
to state law causes of action against ICHEIC companies that would be 
restored by enactment of such legislation. Notwithstanding that the 
Financial Services Committee voted out a significantly diluted version 
of HR 1746 on June 25, 2008, my answers here will refer to ``original 
version of HR 1746,'' i.e. the one that passed out of the Foreign 
Affairs Committee on October 23, 2007, or simply ``HR 1746.''
Status of Claimants Who Had Been Through ICHEIC or Other Processes.
    Under the original version of HR 1746, the right of action would be 
available to any claimant, notwithstanding their participation in 
ICHEIC or another process or case, unless that person received money 
and signed a release.
Estimate of the number of court claims.
    It is impossible to estimate the number of survivors or heirs who 
``have legitimate claims for restitution and will come forward to take 
advantage of'' such legislation such as is the original version of HR 
1746, as noted above. It is beyond dispute that there are hundreds of 
thousands of life, annuity, and endowment policies that were sold to 
Jews before WWII that have not as of this date been paid to any 
legitimate beneficiary or heir. (This number does not include non-life 
policies.). How many of these potential claims might result in lawsuits 
would depend on a number of factors, such as the quality of name 
publication that would occur as a result of the legislation, the 
quality of publicity that accompanies any publication of new names or 
re-publication of the names previously published by ICHEIC, and other 
factors. For example, though the German insurance industry (GDV) 
published some 360,000 names via ICHEIC, it did not publish the names 
of the issuing companies. Unless this loophole is rectified, many 
legitimate claims against German companies might not be pursued.
    Another important element in HR 1746 is the attorneys' fee 
provision, which mirrors bad faith insurance statutes in many states. 
These level the playing field between claimants and insurance 
companies, which have the financial ability to outspend ordinary 
claimants in the absence of statutes calling for exemplary damages and 
attorneys' fees for prevailing claimants. See, e.g. Letter from Deborah 
Senn, former Washington State Insurance Commissioner, to Hon. Barney 
Frank, February 4, 2008.
    It should also be noted that HR 1746 only clarified claimants' 
rights to bring actions in courts and extend the period of time for 
filing a case. A survivor or heir with a possible insurance claim would 
have to convince an attorney that the case was sufficiently strong to 
file. In other words, the legislation would not open the door to cases 
except those which attorneys and clients working together believed 
stood a significant chance of succeeding.
    However, the fact that so many families were destroyed in the 
Holocaust, leaving few if any heirs today, raises two important issues. 
First, many meritorious suits will not likely be brought. Second, if 
heirs do not exist today with whom the companies can settle, or who 
would be able to bring lawsuits under the new law, the companies will 
be unjustly enriched by billions unless Congress requires them to 
disgorge their unjust enrichment. As Congressman Robert Wexler and 
others have said, one of the principles that the status quo has 
abandoned is the principle that no business or individual should be 
unjustly enriched as a result of atrocities such as the Holocaust. We 
ask this Committee to consider action to enforce this principle, both 
to effect the necessary disgorgement of Holocaust insurance profits, 
and to send the message to today's collaborators with the atrocities of 
this era that the policy of the United States is that they will not be 
welcome to do business in this country unless they disgorge their ill-
gotten profits and make full disclosure of their conduct. Perhaps, with 
the kind of clear moral signal absent from the current paradigm, the 
United States would set an example for global enterprises and 
governments who might then be less likely to collaborate with regimes 
committing or permitting atrocities of the kind now seen in Darfur and 
elsewhere.


    Question. At the hearing, Roman Kent expressed his concern that the 
proposed legislation, H.R. 1746, would ``greatly damage critical 
ongoing negotiations, especially with Germany, involving hundreds of 
millions of dollars in Holocaust-related compensation which, as you 
know, is desperately needed now. . . .'' How do you respond to this 
concern?

    Answer. The Holocaust survivors I represent reject in principle any 
linkage between annual negotiations with the Government of Germany over 
various programs and passage of HR 1746. I reject it as well.
    As part of my answer to Question 2, I submit the attached July 31, 
2008 Holocaust Survivors Foundation USA, Inc. Response to Argument that 
HR 1746 Will Interfere With German Government Payments to Survivors, 
dated July 31, 2008. (``HSF Statement''). (Exhibit 2). To quote the HSF 
position: ``the House Foreign Affairs version of HR 1746 would 
reinforce the principle that Holocaust survivors, and legal heirs, own 
the rights to negotiate and make decisions over their own property 
claims and their families' legacies.''
    Moreover, as the HSF states, not only is the linkage objectionable 
in principle, the threat is not substantiated by the record. Mr. 
Scharioth, the German Ambassador to the United States, has never stated 
publicly that passage of HR 1746 would threaten the German government's 
commitment to provide funding for various programs for Holocaust 
survivors. In fact he reiterates his country's acknowledgement of its 
moral obligation for the Holocaust and for survivors. Moreover, 
contrary to Mr. Kent's claim, representatives of the German Embassy in 
Washington, when asked this question by various sources, have denied 
that the German government would reduce benefits for poor survivors if 
legislation such as HR 1746 were to become law.
    However, this question does raise an additional important policy 
issue for the Committee and the Congress, which is that the current 
framework for funding social services for survivors today is totally 
inadequate. To quote HSF again, the ``failure of Germany and the Claims 
Conference to produce a minimal basket of social services for survivors 
predates and is completely unrelated to HR 1746.''
    Ira Sheskin, the leading American demographer of Jewish 
communities, found in 2004 that over 40,000 Holocaust survivors in the 
United States live at or below the official federal poverty level, and 
another 40,000 have incomes so low they are considered poor. According 
to the Greater Miami Jewish Federation, citing data from several Jewish 
demographers filed with the Federal Court in 2004, the problem of 
survivor poverty is a worldwide phenomenon.

----------------------------------------------------------------------------------------------------------------
                                                                                            Number In or Near
                           Country                               Survivor Population             Poverty
----------------------------------------------------------------------------------------------------------------
United States...............................................                  175,000                    87,500
Israel......................................................                  393,000                   137,300
Former Soviet Union.........................................                  146,000                  126,000
----------------------------------------------------------------------------------------------------------------
SOURCES: Sheskin, Estimates of the Number of Nazi Victims and Their Economic Status, January 2004; Brodsky and
  Della Pergola, Health Problems and Socioeconomic Neediness Among Jewish Shoah Survivors in Israel, April 2005;
  American Joint Distribution Committee, Presentation on the Condition and Needs of Jewish Nazi Victims in the
  Former Soviet Union, January 2004.

    It should also be noted that the principal source of funding for 
social services for Holocaust survivors is not the German government, 
but funds obtained by the Claims Conference through its acquisition and 
sale of properties and businesses formerly owned by Jews in East 
Germany that were not recovered by individual victims or heirs after 
WWII. HSF and other survivor groups, including a growing movement in 
Israel, have consistently raised questions about the efficacy, 
transparency, and adequacy of this system. A few news articles 
addressing this problem are attached as Exhibit 3. So, as HSF noted, 
while the German government does periodically augment existing programs 
for survivors, including $320 million announced in June 2008, the 
status quo is not doing an adequate job across the board.
    Here is what an analysis of the additional $320 million for 
programs for Holocaust survivors announced by the Claims Conference in 
June actually provides. First, $250 million is payable over a ten-year 
period, so it in reality equals $25 million annually. Most of that sum 
($166 million) represents an 8% cost of living increase for various 
existing programs, payable primarily to residents of Eastern Europe. 
Another $83 million (over ten years) will provide first-time payments 
to some 2000 survivors who lived in Western Europe during the Holocaust 
but who were excluded from prior pension programs.
    A total of $70 million of the $320 million, representing a two-year 
budget for home care funds for survivors, would directly augment social 
services for poor survivors. That is an average of $35 million per year 
in new home care funding for the entire world. When measured against 
the actual needs of Holocaust survivors in the United States and 
elsewhere, such supplemental funds make only a small dent in the 
current shortfall in funding for survivors.
    In 2004, the U.S. Jewish Federation system estimated that the 
annual budget that would be needed to provide the unmet needs for basic 
social services for poor survivors in the Untied States alone, exceeded 
$70 million per year. With this population now in their 80s and 90s, 
and with Holocaust-related trauma a cause of significant medical and 
other problems, a major component of that shortfall is funding for in-
home care for survivors.
    The average annual cost of in-home care for survivors in an average 
U.S. city is $9,360. So, assuming for illustrative purposes that all of 
the ``additional'' money Germany agreed to provide for home care for 
the next two years, were spent in the U.S., would serve fewer than 
4,000 Holocaust survivors per year on average. With tens of thousands 
of poor survivors living in the U.S. alone, and with similarly dire 
needs for home care and other vital social services throughout the 
world, the average $35 million two-year home care fund announced this 
year by the Claims Conference, is not nearly adequate to care for this 
special population.
    The issues of survivor poverty and insurance are related but not in 
the way suggested by Mr. Kent. With so many insurance policies 
remaining unpaid, there are undoubtedly a very large number of poor 
survivors whose families' insurance policies remain unpaid that deserve 
to have their families' property rights honored. But there is no 
negative relationship between Congress acting to restore survivors' 
rights of action to recover family insurance policies and the goal of 
helping poor survivors achieve a dignified standard of living in their 
final years.
    Again, unrelated to restoring survivors' basic right of access to 
courts to recover family assets looted by corporations doing business 
in this country, survivors have been looking to Congress for leadership 
in addressing the overarching problems facing survivors as they age. 
With the level of looted insurance assets in the range of $18 billion, 
and the value of other unreturned assets exceeding $160 billion, it is 
puzzling and tragic that so many survivors today have to face their 
final years in poverty and misery.
    In 1997, the United States Senate unanimously passed a resolution 
co-sponsored by Senators Moynihan, Graham, Hatch, Dodd, and Biden, 
calling on Germany to provide adequate material and social service 
support so that all Holocaust survivors could live in dignity. S.Con. 
Res. 39, July 15, 1997. The resolution noted that retired SS officers 
in Germany and elsewhere receive far more generous health care benefits 
from Germany than Holocaust survivors. It called for, among other 
goals, that ``the German Government should fulfill its responsibilities 
to victims of the Holocaust and immediately set up a comprehensive 
medical fund to cover the medical expenses of all Holocaust survivors 
worldwide.''
    Unfortunately, neither Congress nor the United States Government 
followed through on persuading Germany to live up to these aspirations. 
Germany, despite its significant commitment to Holocaust education and 
outlawing Holocaust denial and neo-Nazi movements, and despite what it 
might have genuinely believed years ago to be a significant set of 
programs for Holocaust victims, has not committed to meeting this 
rather minimal standard of decency for all living survivors. See, 
correspondence from Holocaust Survivors Foundation USA, Inc. to 
Chancellor Angela Merkel. (Exhibit 4).
    The survivors I represent ask Congress and this Committee to 
address this problem directly. Inasmuch as the current framework for 
providing social services to Holocaust survivors, based principally on 
funding from the Claims Conference's Successor Organization funds 
derived from East German properties, but also including periodic 
negotiations with the German government, has allowed tens of thousands 
of survivors to slip into poverty and live without the dignity of food, 
medicine, shelter, proper dental care, home care, and other vital 
needs, this problem should be met head on. It is simply a red herring, 
and a cynical one at that, for anyone to argue that individuals should 
have their Constitutional rights to sue unjustly enriched insurance 
companies eliminated due to the failure of the current restitution 
establishment and the German government to adequately care for elderly 
survivors of the Holocaust.


    Question. In his April 24, 2008 letter, Robert Swift, the lead 
counsel in the Generali class action litigation, writes:


          I believe the proposed legislation will be detrimental, if 
        not fatal, to the August 25, 2006 Settlement between the Class 
        and Generali. That Settlement has been approved by the Federal 
        Court although processing of the over 40,000 claims has been 
        delayed by an appeal by six (6) claimants.


    How do you respond to this statement?

    Answer. Mr. Swift's position is completely undermined by Generali's 
statements to two Congressional committees to continue to process ``new 
claims'' notwithstanding ICHEIC's closure and notwithstanding the 
passage of the deadline for filing new claims in the class settlement.
    The survivors who appealed the Generali class settlement did so 
because it would retroactively make ICHEIC binding on thousands of 
survivors and heirs whose ICHEIC claims were denied, or who have no 
knowledge about the existence of possible claims, due to the inadequacy 
of ICHEIC's names publication. Because ICHEIC was always represented to 
be voluntary, the retroactive imposition of ICHEIC as being binding on 
class members who could not possibly benefit from the settlement 
violates due process and Federal Rule of Civil Procedure 23. The 
survivors who appealed objected to the releases that would be imposed 
by the settlement under those circumstances.
    Mr. Swift and class counsel argued to the district court and the 
court of appeals that the releases to be imposed by the settlement were 
necessary to induce Generali to enter into the agreement and process 
``new claims'' even though ICHEIC had expired. But, in light of 
Generali's promise to this Committee and the House Financial Services 
Committee (through former ICHEIC official Diane Koken) to process all 
new claims in any event, the releases that would be imposed under the 
settlement are now clearly unnecessary, even if one assumed for the 
sake of argument that the benefits of the settlement justified the 
releases imposed. So, the survivors and heirs who have appealed were 
correct not only because the settlement violated their rights, but 
because Generali's recent actions have proven that the broad, damaging 
release of tens of thousands of possible Generali policy holders, which 
Mr. Swift and others agreed to in the settlement, were not in fact 
necessary to generate the ``benefits'' of the settlement, i.e. the 
reopening of the ICHEIC-Generali claims window for people who failed to 
apply by the previous ICHEIC deadline.
    In addition to the foregoing, my clients believe the settlement was 
ill-conceived for a number of reasons, mostly arising from ICHEIC's 
deficiencies. Before agreeing to the settlement, Mr. Swift and other 
class counsel whose cases were dismissed by Judge Mukasey considered 
ICHEIC to have been an inadequate forum for survivors and heirs with 
possible insurance claims against Generali. See, Brief of Cornell 
Plaintiffs in Second Circuit Appeal No. 04-2527 (Brief styled Appeal 
No. 05-5602; joined by all plaintiffs) at pages 4-15. Mr. Swift and his 
colleagues described ICHEIC as follows:


          In theory, and as reflected in the Memorandum of 
        Understanding creating ICHEIC, Generali agreed to establish a 
        ``just process'' that ``will expeditiously address the issue of 
        unpaid insurance policies issued to victims of the Holocaust.'' 
        In reality, ICHEIC has simply forwarded claims to Generali, 
        which has then denied the vast majority of claims after 
        scrutiny under standards of review that directly violate the 
        ICHEIC agreement. The remainder of claims simply languish. \1\
---------------------------------------------------------------------------
    \1\ Cornell Plaintiffs' Brief in In re Assicurazioni Generali, 
S.p.A., Appeal No. 05-5602 et al, at 13.


    Mr. Swift and others also cited the exchange between ICHEIC 
Chairman Eagleburger dismissed the Generali Trust Fund (GTF), the 
entity responsible for processing Generali ICHEIC claims between 2001-
2004, which Mr. Eagleburger dismissed in November 2004 for non-
performance. Id., at 13, note 21. After ICHEIC closed in March 2007, 
the previously secret audits were published for the first time and it 
was revealed that the Generali Trust Fund had failed its audit in April 
2005. Its decisions were never revisited by ICHEIC according to 
correspondence between ICHEIC officials and the New York Legal 
Assistance Group (NYLAG).
    Moreover, Mr. Swift alleged in his initial complaint, and argued in 
his Second Circuit Brief, that Generali had collaborated with the Nazi 
regime in the confiscation of Jewish customers' policies during the 
Holocaust:


          In the early 1930s, the government of Nazi Germany began 
        systematically to persecute certain groups, including Jews, by 
        confiscating or destroying their assets, deporting them to 
        concentration camps, forcing them into slave labor, and 
        inflicting mass extermination. . . . \2\
---------------------------------------------------------------------------
    \2\ Cornell Plaintiffs' Brief in In re Assicurazioni Generali, 
S.p.A., Appeal No. 05-5602 et al, at 10.


    Generali facilitated these efforts. It encouraged Europeans who 
were fearful of Nazi persecution to deposit their assets with and 
purchase insurance from Generali to safeguard their families' futures. 
In all this, Generali was little more than a bookie for the Nazi 
regime. Generali knew that the Nazis were going after the property of 
its insureds, including insurance policies and their proceeds. And, 
Generali allowed it. Under Generali's watch, with its knowledge, 
acquiescence, and participation, the Nazis liquidated and cashed in the 
insurance policies that Generali had sold to victims of the Holocaust. 
The proceeds were used to fund the Nazi war machine.
    Yet, in justifying the settlement about which the Committee's 
question applies, Mr. Swift echoed Generali's denials that it ever 
identified its customers as Jews to the authorities:


          Your Honor, it's not surprising that when Generali was 
        keeping its records, it didn't list in the records whether 
        someone was Jewish or not Jewish. There is no record that 
        Generali or anyone else can go back to to determine whether a 
        policy was issued to a Jewish family or to a non-Jewish family 
        or, for that matter, to people who were likely to be persecuted 
        in the years after the policy was issued.\3\
---------------------------------------------------------------------------
    \3\ Transcript of January 31, 2007, Fairness Hearing, at 68.


    In their appellate brief, Mr. Swift and the other settling 
attorneys said ``Class counsel could find no basis in the extensive 
documentation to distinguish a Jewish insured from a non-Jewish 
insured, and Generali confirmed this.''\4\
---------------------------------------------------------------------------
    \4\ Plaintiffs' Brief in Appeal No. 07-1380 at 14.
---------------------------------------------------------------------------
    Documents submitted for the record to this Committee, and a huge 
volume of historical evidence repudiates Mr. Swift's position. See, 
Statement of Samuel J. Dubbin to Senate Foreign Relations Committee, 
May 6, 2008, at 12-13, 40-43; see also Gerald Feldman, Allianz and the 
German Insurance Business, 1933-1945, Cambridge University Press, 2001, 
at 356 and passim. There is no serious historical question about this 
point, but Generali and class counsel found it necessary to suggest 
otherwise to justify the settlement. The reason this is important is 
that the survivors who have challenged the settlement believe not only 
that it unfairly extinguishes their opportunity for fair compensation, 
but that it results in a cover-up of the history of their families' 
policies, a cover-up that exacerbates the ICHEIC record of non-
disclosure of all companies' insurance records, contrary to the open, 
transparent, claimant-friendly scenario that was promised to survivors 
in 1998.
    In short, not only is the basis for the settlement undermined by 
Generali's commitment to process new claims regardless of the 
expiration of other deadlines, the ``six'' survivors who appealed the 
class settlement represent thousands of survivors, heirs and 
beneficiaries of Generali policies whose rights were ignored by Mr. 
Swift and the other class counsel, and rights that would be 
unnecessarily and unfairly extinguished by the settlement. They are 
looking to Congress for more direct relief in the form of legislation 
such as the House Foreign Affairs version of HR 1746.


    Question. It has been suggested that a significant portion of the 
unpaid claims involve insurance companies that did not participate in 
ICHEIC, primarily Eastern European insurance companies that were 
nationalized or Eastern European companies whose assets were 
liquidated.


   Would H.R. 1746 enable survivors and their heirs to sue these 
        companies and go after those unpaid assets?

   Assuming a value for unpaid policies of $18 billion, what 
        percentage of that $18 billion could be recovered under the 
        legislative language you drafted for introduction in the House?


    According to one estimate, at least $13 billion of that $18 billion 
expert estimate would not be recoverable under H.R. 1746. Do you agree 
or disagree with that estimate?

    Answer. This question raises a number of important issues that 
reveal greater complexity about the nature of the enterprises engaged 
in insurance business, and the nature of the relevant transactions and 
relationships, than the question itself implies.
Nationalized Assets In Eastern Europe
    Insurance was in the 1930s and 1940s and remains a highly 
globalized business. The role of reinsurance reinforces the cross-
national and inter-company nature of the ``typical'' insurance 
transactions engaged in by German, Swiss, Italian, and other insurers 
and reinsurers that sold policies to Jews prior to WWII and should be 
responsible for the losses unquestionable suffered by survivors, heirs, 
and beneficiaries of these policies. For example, a 1998 study by 
economist Sidney Zabludoff found that
    The German and Swiss markets were highly interwoven . . . . The 
normally tight Nazi foreign exchange controls were minimal, even during 
the war, on reinsurance payments--which allow insurance companies to 
spread their risks. The large German reinsurance companies had 
subsidiaries in Switzerland such as Union Reinsurance Company and the 
Universale Insurance Company, both of Zurich. Under the leadership of 
Munich Reinsurance Company, a cartel was formed in 1941 that included 
companies from Switzerland and Italy as well as Germany.
    German Assets in Switzerland--End of World War II, published by the 
World Jewish Congress, 1998, at 25. In addition, Mr. Zabludoff found 
that ``shadow agreements'' existed in all reinsurance contracts in case 
of war, which allowed Swiss companies to front for Munich Re in 
countries with which Germany was at war.
    The assumption that post-war nationalizations in Eastern Europe 
would limit the effectiveness of the disclosure and litigation remedies 
as against many current global companies called for in the original HR 
1746 is incorrect for several reasons. First, for example, there is 
evidence that Generali moved assets out of Eastern Europe including 
premium income received from customers in Czechoslovakia, Hungary, 
Poland, and Yugoslavia to safe havens such as Trieste, South America, 
and the United States. In addition, Generali has recovered some or all 
of the real property that was nationalized after WWII, and has received 
compensation from Italy that was derived from agreements and treaties 
involving Eastern European countries that nationalized property 
belonging to Italian citizens and companies.
    The fact that this information is extant as concerns Generali 
certainly suggests that it would be ill-advised to make any assumptions 
about the status of other companies' conduct or assets wherever they 
operated, including Eastern Europe. Therefore, the use of the term 
``whose assets were liquidated'' may represent only a narrow group of 
companies, and there is strong evidence to suggest it does not apply to 
the global insurers who did business in Eastern Europe and elsewhere 
during WWII and who exist today, or whose portfolios were acquired by 
extant companies.
    Moreover, the law does not support the proposition that 
nationalization of insurance companies relieves the companies of their 
obligations to policyholders. See, e.g. Pan Am Life Ins. Co. v. Blanco, 
362 F.2d 167, 170 (5th Cir. 1966) (nationalization of Cuban assets by 
Government of Cuba did not excuse insurance company from its obligation 
to pay insured under life insurance policy whose proceeds were payable 
to the insured in the United States: ``It is difficult to see how the 
seizure of the assets of the insuring obligors would of itself change 
the rights of the insured obliges to be paid at the places and in the 
currency stipulated.'').
    In addition, in Generali's case, it has stated on its website that 
at the meeting of the shareholders in 1946, the company ``approved the 
1944 accounts.'' This is a remarkable admission and undermines the 
assumptions underlying Question No. 4, at least as it pertains to 
Generali. Generali apparently dealt with Holocaust victims' policies in 
1946, prior to any socialist or communist confiscations. It is strange 
for Generali, or any company that behaved similarly, to now argue that 
they should be treated as victims of Communism, but that Holocaust 
survivors and heirs of Holocaust victims (such as Generali's customers 
whose accounts were ``approved'' by the shareholders in 1946), should 
have their rights dishonored because of the passage of time, the loss 
of records, Communism, or other myths propagated to justify paying only 
a fraction of the policies and policy values of its Jewish customers.
Amount of Unpaid Insurance Policies Covered By HR 1746
    The predicate underlying the House Foreign Affairs Committee 
version of HR 1746 is that it would extend jurisdiction over insurance 
companies and their subsidiaries and affiliates doing business in the 
United States, to the broadest extent permitted by the U.S. 
Constitution. While today's global economy reinforces the complexity 
and international nature of the relationships involved, there are 
undoubtedly a number of policies within the $18 billion estimate that 
were sold by companies that no longer exist, or that would not be 
subject to U.S. jurisdiction. Even if ``only'' $5 billion of the $18 
billion outstanding would be subject to possible recovery under HR 
1746, that sum is twenty (20) times greater than the amount paid to 
claimants through ICHEIC in recognition of insurance policies. More 
important is the standpoint of victimized individuals, whose 
constitutional rights would be restored.


    Question. Have you identified any insurance companies that issued 
Holocaust era insurance, did not participate in ICHEIC, and do business 
in the U.S., and therefore could be subject to suit?
    If so, which insurance companies?

    Answer. As noted in my answer to Question No. 4, the insurance and 
reinsurance industries are so interrelated and globalized, and were in 
the 1930s and 1940s, that it is overly simplistic to analyze companies' 
business activity in terms of national borders and discrete corporate 
entities. Their historical relationships are described in numerous 
sources, including for example, reports of the Allied Military Command: 
``Axis Penetration of European Insurance,'' Board of Economic Warfare, 
June 15, 1943; ``A Study of German Insurance Companies, Combines, and 
Associations,'' Decartelization Branch, Foreign Economic 
Administration; April 30, 1947; ``Private Insurance in Italy; 
Recommendations and Guide,'' Office of Economic Warfare, Reoccupation 
Division, November 1943; Independent Commission of Experts Switzerland, 
Second World War (ICE), Report of the Swiss Committee of Eminent 
Persons, 2002 (Bergier Report), at 458-456; Zabludoff, previously 
cited, and others. Whether their current affiliations and activities 
would render them subject to suit under HR 1746 is a question that 
would have to be addressed by courts on a case by case basis.
    There are some companies that would seem to be subject to U.S. 
jurisdiction who did not participate in ICHEIC, such as Swiss 
Reinsurance, Swiss Life, and Basler Leben, to name a few. The reports 
of state regulators who enacted laws such as California, Florida, and 
New York in 1998-1999 would have a list of companies that understood 
themselves to be subject to the legislative jurisdiction of those 
states under the 1998-1999 statutes such as section 626.9543, Florida 
Statutes. See, e.g. Florida Department of Insurance Holocaust Victims 
Insurance Act Report to the Legislature, July 1, 2002. I have not 
personally surveyed all of these reports.
    But in general, the question of which companies would be subject to 
suit under HR 1746 would require a court to review the company's and 
its affiliates' activities in the state, or in the United States, and 
apply a jurisdictional analysis to each case.


    Question. Your testimony references one expert's estimate that sets 
unpaid value of Jewish Holocaust-era policies as high as $300 billion. 
What is the basis for that valuation estimate?

    Answer. The basis for that valuation is an estimate by Joseph 
Belth, Professor Emeritus of Insurance at the Kelley School of Business 
at Indiana University, and publisher of the insurance consumer 
newsletter The Insurance Forum, which he outlines in a letter dated 
January 24, 2008, to Mr. Baird Webel of the Congressional Research 
Service.


    Question. My understanding is that the appeal of Judge Mukasey's 
decision dismissing the consolidated lawsuits on the basis of the 
Supreme Court's Garamendi decision finally is scheduled for argument in 
June, after a long delay. If the Second Circuit rules that the case 
against Generali was wrongly dismissed because there was no executive 
agreement between the U.S. and Italy, allowing that suit to proceed, 
would that affect the need for new legislation?
    Would a decision by the Second Circuit that Generali is not 
entitled to legal peace open the way for suits to be brought under 
state laws, such as Florida's law on Holocaust era insurance 
restitution?

    Answer. The Second Circuit held oral argument in the appeal of 
Judge Mukasey's decision on June 10, 2008. Even if the Second Circuit 
reverses Judge Mukasey's decision, it would not necessarily obviate the 
need for legislation. First, the possibility that Generali might seek 
Supreme Court review and delay the claims of the named parties in the 
Mukasey appeals presents a strong argument for Congress to settle the 
issue of whether state claims are preempted. Moreover, even if the 
Mukasey decision is reversed, enactment of HR 1746 would also settle 
any possible statute of limitations issues that might be raised by 
Generali on remand of the cases now on appeal, or of claims brought by 
those who opted out of the class settlement. Though we would regard 
such defenses as lacking in merit, survivors and heirs, after all these 
decades of being manhandled by Generali, deserve a clear statement by 
Congress as to their rights.


    Question. In his testimony, Ambassador Eizenstat suggests that 
ICHEIC paid claims under legal standards far more lenient than those 
that would be applied by a court should your legislation creating a 
federal cause of action be enacted? Do you agree with this statement 
and, if so, how will the heightened evidentiary and jurisdictional 
standards applicable in a court affect the ability of survivors and 
their heirs to prevail in litigation?

    Answer. There are two basic answers to this question. First, with 
respect to the assertion that ICHEIC claimants were the beneficiaries 
of ``lenient'' procedures, there is a substantial amount of evidence 
that despite its published rules, which did purport to create a system 
in which the burden of proof shifted to the companies if there was any 
documentation to support the existence of policy, and in spite of the 
repeated references to ``relaxed standards of proof'' by ICHEIC 
defenders, in practice ICHEIC claimants did not enjoy the benefit of 
``legal standards far more lenient that those that would be applied by 
a court . . ..''
    As I noted in my formal statement, whatever ``relaxed standards of 
proof'' was supposed to mean, ICHEIC rules were found to be ignored by 
companies in a large number of claim denials, such as by Lord Archer on 
behalf of the ICHEIC Executive Management Committee in 2003. The 
Washington State Insurance Commissioner in October 2004 cited a 
multitude of other failures--including companies' denials of claims in 
violation of ICHEIC rules, or denials submitted without providing the 
information in company files necessary to allow the claimants or the 
ICHEIC auditors to determine whether relaxed standards of proof were 
applied, failure to supply claimants with any documents traced in their 
investigations, and routine denial of claims by simply saying, even 
when a claimant believes he or she is a relative a person named on the 
ICHEIC website, that ``the person named in your claim was not the same 
person.''
    These and other practices that worked to the disadvantage of 
claimants have been reported in several news articles and in testimony 
and documentary submissions to this and other Congressional committees, 
and detailed at some length in the Second Circuit amicus curiae briefs 
of the New York Legal Assistance Group and former New York 
Superintendent of Insurance Albert Lewis in opposition to the Generali 
class settlement. See, also Yisroel Schulman, ``Holocaust Era Claims, 
Mission Not Accomplished,'' The Jewish Week, May 4, 2007; Stewart Ain 
`` `Phantom Rule' May Have Limited Holocaust Era Awards to Claimants,'' 
The Jewish Week, June 29, 2007.
    Second, while many opponents of HR 1746 continue to refer to the 
generalized rubric of ``relaxed standards of proof,'' or ``lenient 
standards,'' that was a concept oft-repeated in testimony and 
publications but never clearly defined. The published ICHEIC 
retrospectives authored by ICHEIC participants do not cite examples of 
claims paid based on ``relaxed standards'' hence it would be difficult 
based on public information to prove IHEIC companies in fact applied 
standards more lenient than a court would use. The most that can be 
said of ``relaxed standards'' in practice is that some claimants who at 
the outset of the process were not able to name the issuing company, or 
who did not have original documents in their possession, nonetheless 
were able to recover a payment for their policies. This is a far 
different meaning than the one ascribed by ICHEIC at the time it was 
created, or the meaning implied by Question 8.
    If the practical meaning of ``relaxed'' standards under ICHEIC is 
that some policyholders who did not know what company issued a family 
policy were able to find that out, such a impact is identical to the 
benefits that would have resulted from the publication requirements of 
HR 1746, and the publication requirements of the California, Florida, 
New York, and other State laws that are not enforced today because they 
have been held to be preempted under Garamendi. Had enforcement of 
those laws (which passed in 1998 and 1999) not been stymied, Holocaust 
survivors and heirs would have received the information to allow them 
to lodge claims with unknown companies long before the spring of 2003, 
when the overwhelming majority of the names published by ICHEIC were 
finally published. So, the fact that some ICHEIC claimants learned of 
their family policies through ICHEIC and received an offer they were 
willing to accept hardly justifies the denial of that opportunity to 
the tens of thousands of other possible claimants not satisfied by 
ICHEIC, or worse, the denial of access to courts that has emerged from 
judicial decisions after Garamendi.
    Further, when one considers the evidence required to succeed in 
making a claim, ICHEIC's numerous failures to honor the published 
principles of ``relaxed standards'' renders it an inferior tribunal to 
court litigation who, unlike ICHEIC claimants, would be entitled to 
have court-supervised discovery of the insurers' and reinsurers' 
records. Moreover, ICHEIC's decision to invert the whole notion of 
``relaxed standards of proof'' in allowing Generali to deny thousands 
of documented claims based on ``negative evidence,'' i.e. were able to 
deny claims for which policies could be proven but which Generali 
claimed had been paid, lapsed, or surrendered, without providing 
documentation of such transactions, is a far more difficult burden of 
proof than claimants would have to deal with in most states, where once 
a policy is established, the burden is on the insurance company to 
prove that the policy was paid or lapsed, or any other defenses. See, 
e.g., Pan American Bank v. Glinski, 584 So.2d 52 (Fla. 1st DCA 1991); 
Viuker v. Allstate Ins. Co., 70 A.D.2d 295, 420 N.Y.S.2d 926 (N.Y. App. 
1979); Sanchez v. Maryland Cas. Co., 67 A.D.2d 681, 412 N.Y.S.2d 173 
(N.Y. App. 1979).

                               __________

       Response to Additional Questions Submitted for the Record
               by Senator Bill Nelson to Thane Rosenbaum


    Question. If the present-day value of Holocaust-era policies is at 
least five to ten times higher than the amount paid through the ICHEIC 
process, what additional measures, other than litigation, could be 
taken to compel European insurers and/or governments to pay closer to 
the total value of unpaid policies?

    Answer. I think we are well past the point where anything other 
than litigation would help Holocaust survivors obtain the justice they 
deserve. Indeed, that's the main thrust of this legislation: the stark 
reality that ICHEIC,. the Claims Conference, diplomatic negotiations, 
and class action lawsuits have simply failed to restore the looted 
property of survivors, and worse, have so alienated them from the 
restitution process that they have been left demoralized and 
disempowered to speak for themselves.
    The plain truth is that government negotiators, ICHEIC, Jewish 
institutions; class action lawyers, and the Claims Conference have 
exhausted whatever resources they were able to mobilize on behalf of 
survivors. And while they have purported to act in the interests of 
survivors, the result has not been especially favorable. Therefore, 
given the advanced age and declining health of survivors, it is time 
for other measures, such as . this legislation, to be implemented. Even 
if these individual lawsuits do not succeed, at least will have the 
advantage of empowering the survivors to exercise their own control in 
vindicating their rights during the last phase of their life.
    Passage of legislation restoring Holocaust survivors' and heirs' 
rights of access to courts such as HR 1746 as passed by the House 
Foreign Affairs Committee is an essential first step to redeeming the 
unpaid policies due to victims and their families. This is because it 
is not just ``litigation,'' but the threat of litigation, which would 
facilitate payments by insurers to those to whom funds are still owed.
    One of the obvious shortcomings of ICHEIC was that the companies 
believed they were immune from court actions and so in addition to 
controlling the process by virtue of their sheer numbers and the 
structure calling for ``consensus,'' the insurers (especially after 
American Insurance Association v. Garamendi) were able to deny claims 
without the fear of being held liable for bad faith or punitive 
damages.
    In addition, I believe there is a moral perspective that should 
motivate companies voluntarily to come forward to satisfy their debts 
to victims of the Holocaust, and any legal heirs or beneficiaries who 
are owed funds. My op-ed in the New York Sun published on May 5, 2008, 
proposed as much, given the modern precedents in truth and 
reconciliation commissions and the like arising from more recent 
atrocities such as Rwanda.
    Despite what the benefits I believe would accrue from such 
acceptance of corporate responsibility, I still believe that victims of 
the Holocaust should not have to depend for justice, and an accounting 
of what happened to their families' assets, on the voluntary good will 
of global insurance corporations. A law such as HR 1746, in its 
original form, must be part of a society's acknowledgement that it is 
the victims' who possess the right to determine when and how 
``restitution'' has been finally achieved.


    Question. In your written testimony, you stated that ICHEIC 
required death certificates from claimants. Is this based on 
information you have from claimants, official ICHEIC documents, 
statements from ICHEIC officials, or Some other source?

    Answer. My written statement is a metaphor describing the 
ridiculous and patronizing treatment survivors received under ICHEIC, 
which mirrored the original treatment Holocaust victims and their 
families received from insurance companies when they sought to collect 
on policies after WWII.
    For example, I have seen evidence that companies participating in 
that process required claimants to supply information that they could 
not possibly have supplied, such as the birth dates of relatives who 
perished in the Holocaust when the claimant - if a survivor - would 
have only been a teenager at the most. I have seen examples of claims 
where a company acknowledged that it sold a policy to a claimants' 
father or other relative, only to deny the claim because the company 
claimed the policy lapsed or was paid - but refused to supply evidence 
of such terminating event to the claimant. I have seen examples where 
companies refused to supply available records to the claimants unless 
the claimant filed an appeal, even though ICHEIC rules required the 
companies to supply all available information in response to a claim. 
Such a practice obviously suppressed the utilization of appeals and 
reduced claims paid.
    The foregoing, and other practices such as the ``phantom rule'' 
cited by former New York Insurance Superintendent and ICHEIC arbitrator 
Albert Lewis which placed a greater burden on claimants than the 
published rules, undermine all of the rhetoric about ``relaxed 
standards of proof'' on which survivors based their initial trust for 
the process, and about which ICHEIC's defenders so ostentatiously but 
unjustifiably in my view represent to the Congress and others was 
employed. For respectable individuals and institutions to mock 
Holocaust survivors in this way in the years 2000-2008 is no less 
disgraceful than the insurers' original handling of these claims when 
they asked for death certificates and original documents that everyone 
knew survivors or the victim's children could not have had.


    Question. In his testimony, Ambassador Eizenstat refers to the 
substantial legal hurdles that would face survivors and their heirs if 
they were to go into court to pursue claims under a federal cause of 
action. These hurdles might substantially delay or prevent altogether 
the ability of survivors to obtain compensation. Do you agree, and if 
so, are you concerned that a federal cause of action would give rise to 
false hopes and further disappointment for survivors?

    Answer. Respectfully, I think we are asking the wrong question 
here. The issue is not one of false hopes and further disappointments. 
The issue is one of empowerment and dignity.
    It should not matter whether the survivors ultimately prevail in 
asserting their own individual legal claims. The victory arises in the 
empowerment of those who have for too long been patronized and 
infantilized. We should not be confused by utilitarian concerns, the 
kind of zero sum thinking that unless the survivors can overcome these 
perceived legal hurdles there is no point giving them back their 
rights. The rights are theirs. Why they were taken away in the first 
instance is a separate question and one that historians, hopefully, 
will one day evaluate and judge accordingly. But the rights must be 
returned, regardless of the potential outcomes of these individual 
lawsuits. It is time for those who have deprived Holocaust survivors of 
their day in court to be magnanimous and gracious rather than political 
and legalistic.
    Moreover, I not believe that the ICHEIC process was itself free of 
legal hurdles. The purported flexible legal and evidentiary standards 
that were supposed to be applied to insurance claims ultimately were as 
Byzantine and obstacle laden (not to mention degrading and dismissive) 
as anything that could possible be found in a court of law.
    But even if one were to assume that ICHEIC was more flexible and 
liberal than the courts would be, I believe as a matter of principle 
that our justice system cannot deny Holocaust survivors, and heirs of 
Holocaust victims, the ability to access federal or state courts to 
pursue claims against insurance companies that sold their families 
policies. It is inconceivable to me that any public official would 
suggest that Holocaust survivors should not have the autonomy in the 
United States of America to decide for himself or herself whether to 
accept the highly compromised ICHEIC system or to have a judge and 
jury, using traditional rules of evidence and due process standards, 
decide their rights.
    As Congressman Robert Wexler said, the original HR 1746 does not 
require insurers to pay anyone, it would have only allowed a survivor 
to find a lawyer willing to take the case based on the evidence 
available using customary laws. In most states, these laws frown upon 
insurance companies who use their superior economic might to deny 
bargained- and paid-for insurance policies, with treble damages and 
attorneys fees for prevailing consumers. Then again, HR 1746 does not 
obligate any lawyers to take cases they do not want to take. So this 
will be left to individual decisions. Holocaust survivors are full-
grown adults and are capable of deciding for themselves whether to 
subject themselves to the legal process, and should have no fewer 
rights than other. Americans in this respect.
    This is a perfect example of what I meant when I referred to the 
``infantilization'' of survivors by the status quo and the defenders of 
the ICHEIC process. I submit that it is the responsibility of Congress 
to legislate that victims of the Holocaust, having been denied their 
humanity by Hitler, and been denied their property and insurance assets 
by Allianz, Generali, and others, will not be denied their basic legal 
rights by the U.S. Government.

                               __________

      Responses to Additional Questions Submitted for the Record 
                  by Senator Bill Nelson to Roman Kent


    Question. How do you respond to Mr. Rubin's statement at the 
hearing that no one asked survivors what they wanted and they never 
agreed to ICHEIC or any other compensation process as their exclusive 
means of obtaining compensation for Holocaust era insurance policies?

    Answer. ICHEIC was established with substantial input from 
Holocaust survivors. Both before and during the time in which ICHEIC 
was formed, insurance regulators and survivor representatives made 
numerous efforts to include Holocaust survivors--to try to understand 
the circumstances surrounding the pre-war insurance policies survivors 
had purchased, to solicit their suggestions and other comments, as well 
as to explain proposed developments in the insurance claims process.
    In this regard, it also is relevant to take into account the 
context in which ICHEIC arose. For over a half century following World 
War II, survivors faced difficult, if not impossible, obstacles to 
collect on their unpaid Holocaust era insurance policies. Insurance 
companies were not eager to pay or give fair hearing to such claims, 
legal obstacles in courts proved insurmountable, and many of the 
insurance companies at issue no longer existed after the war. Not only 
was there no effective mechanism for survivors to obtain payment for 
their pre-war insurance claims during this period, there was no 
serious, concerted effort to establish any sort of process sensitive to 
the circumstances survivors faced regarding their unpaid insurance 
policies. ICHEIC, in spite of its eventual difficulties, provided 
survivors--and proved to be--a much more effective forum than the 
courts or appeals to individual insurance companies (if they still 
existed) to convert the unpaid policies into the compensation they were 
owed.
    ICHEIC was founded, basically, by four groups: the National 
Association of Insurance Commissioners (NAIC); insurance regulators 
from Europe (who ultimately did not participate in the ICHEIC process); 
a number of the largest insurance companies in Europe before World War 
II; and Jewish groups.
    There were three entities that comprised the Jewish groups--the 
Claims Conference, the World Jewish Restitution Organization (WJRO) and 
the State of Israel. Moshe Sanbar, the representative from the Claims 
Conference, is a survivor who was the Chairman of the Board of 
Directors of the Center of Organizations of Holocaust Survivors, the 
umbrella organization for forty survivor groups in Israel. Mr. Sanbar 
reported to the leaders of these survivor groups about developments 
related to the formation of ICHEIC, as well as solicited suggestions 
and comments from them. The survivor leaders, in turn, reported to and 
heard from their constituencies. I represented the WJRO. I am a 
Holocaust survivor and serve as Chairman of the Board of the American 
Gathering of Jewish Holocaust Survivors, the umbrella organization for 
survivor groups and landsmanshaften in North America. I reported about 
developments and issues related to ICHEIC during leadership meetings of 
the American Gathering. For example, during the time when the German 
insurance companies, including Allianz, collectively negotiated with 
ICHEIC--ultimately leading to a $350 million fund which was contributed 
to pay for unpaid Holocaust era insurance policies issued by German 
companies--I was involved in extensive discussions with the survivor 
leadership in the American Gathering. These discussions with survivor 
representatives, which included explanations of ICHEIC and the 
solicitation of survivors' views, were considered in the formation of 
ICHEIC and, for that matter, in the establishment of the German 
Foundation Remembrance, Responsibility and the Future. The third Jewish 
group involved was the State of Israel, which was represented by Bobby 
Brown, a child of Holocaust survivors.
    There were others involved in the ICHEIC negotiations who also 
reached out to survivors, to tell them what was going on and to seek 
their input in the process. Representatives of NAIC periodically 
provided reports about ICHEIC to insurance regulators from the various 
states. The regulators took it upon themselves to contact and apprise 
their survivor constituencies of these developments. Indeed, by the 
fall of 1997, NAIC had voted to establish a working group to deal with 
Holocaust era insurance issues. The working group, made up of 
representatives from 26 states and the District of Columbia, held 
informational hearings in 1997-1998 in a number of cities with 
significant survivor populations, including Chicago, Los Angeles, 
Miami, New York, Philadelphia, Seattle, Skokie, Illinois, and 
Washington, D.C. See, ICHEIC legacy document, entitled ``Finding 
Claimants and Paying Them: The Creation and Workings of the 
International Commission on Holocaust Era Insurance Claims'' 
(www.icheic.org), page 16. During the hearings, survivors presented 
their insurance-related recollections and, along with regulators and 
insurers sought to ``arrive at proposals for further action.'' See, 
``Finding Claimants and Paying Them,'' page 16.
    An additional point is relevant here. The representatives from the 
Claims Conference, WJRO and State of Israel--consisting of two 
Holocaust survivors and a child of survivors--would not always agree 
with the views expressed by the representatives of the insurance 
companies about the positions that ICHEIC should take. If, ultimately, 
representatives of the survivors, insurance regulators and insurance 
companies could not arrive at an agreement on particular issues, the 
process placed responsibility for resolving such disputes with the 
Chairman of ICHEIC. Moreover, even after the Chairman made his 
decisions, the survivors involved in the negotiations, who had 
advocated their positions as vigorously as possible, might still 
intensely disagree with the result. Nonetheless, they accepted the 
decisions for the sake of the larger goal of establishing a claims 
mechanism for unpaid Holocaust era insurance policies which was a 
substantial improvement over what had existed for decades following 
World War II.


    Question. Can you describe what negotiations presently are ongoing 
between the Claims Conference and the German Government regarding 
compensation and restitution?

    Answer. As a result of negotiations with the German Government this 
summer, the Claims Conference obtained an additional, estimated total 
of $320 million for programs assisting Holocaust survivors over the 
next decade. The funding consists of a combination of homecare funding 
for Jewish victims of Nazi persecution, increased pension payments to 
survivors, the inclusion of additional survivors in the pension and 
one-time payment programs, as well as the establishment of a new one-
time payment program.
                       a. homecare for survivors
    During the most recent round of negotiations this summer, the 
Claims Conference obtained additional funding for in-house services for 
Jewish victims of Nazi persecution worldwide, which is the most 
urgently needed and most effective form of assistance. The German 
Government agreed to provide a total amount of approximately $70 
million (?49 million) for such homecare services for 2008 and 2009, 
which can be immediately distributed for survivors in need.
    This amount is more than double the funds obtained in previous 
negotiations, as the Claims Conference had obtained approximately $30 
million (?21 million) for 2006 and 2007. The Claims Conference will 
allocate the funds to agencies which help needy Jewish victims of 
Nazism around the world.
    However, there is no agreement in place for German Government 
funding of these critical homecare projects after 2009. Funding for 
2010 and beyond will require further negotiations.
                    b. direct payments to survivors
Increase in Article 2 Fund and CEEF Pension Payments
    The Claims Conference negotiated an increase of 8% in monthly 
payments to 65,800 Holocaust survivors worldwide from the Article 2 
Fund and the Central and Eastern European Fund (CEEF). This means that 
an extra, estimated $166 million will be paid by these programs over 
the next decade. Payment under the Article 2 Fund will increase to 
approximately $430 (=300) per month; and payment under CEEF will 
increase to approximately $320 (=224) monthly to survivors in EU 
countries and approximately $260 (=182) monthly to survivors in non-EU 
countries.
New Category for Article 2 Fund: Western European Survivors
    The negotiations also resulted in Germany liberalizing criteria so 
that certain Holocaust survivors from Western Europe who were in 
concentration camps or ghettos, or who lost a family member and 
received payment(s) from a German government source, may now--for the 
first time--be eligible for Article 2 Fund payments. This compensation 
will benefit an additional, approximately 2,000 Holocaust survivors and 
will result in payments in the amount of $83 million during the next 10 
years.
New Category for Hardship Fund: Leningrad
    The negotiations will result in one-time Hardship Fund Program 
payments--of approximately $3,760 (=2,635)--being made for certain 
Jewish victims of the Nazi siege of Leningrad, so long as other 
requirements of the Hardship Fund are satisfied. This means that 
payments will be issued to several thousand Jewish victims of Nazism 
from the former Soviet Union now living in the West. It is the first 
time that the persecution of Jews who lived through the 900-day siege 
of Leningrad has been recognized by Germany.
New Program Offering One-Time Payments: Budapest Ghetto
    Further, the negotiations succeeded in establishing one-time 
payments, of approximately $2,800 (=1,962), for every Holocaust 
survivor residing in Eastern Europe who was in the Budapest Ghetto 
during World War II and was alive on June 4, 2008. It is estimated such 
payments will be made to approximately 6,000 survivors. In addition to 
the compensation, these payments are an important acknowledgement of 
the suffering of these Hungarian Jews who, previously, had not been 
eligible for payment
                  c. other activities and open issues
    During the negotiations, the Claims Conference pressed the German 
Government for modifications in the processing of cases submitted by 
Holocaust survivors for a social security pension as a result of work 
performed during their incarceration in a ghetto. The Claims Conference 
also urged a speedy and liberal implementation of the recently 
established program providing for one-time payments for ghetto labor. 
It is estimated that 50,000 survivors worldwide will be affected and 
may receive, cumulatively, up to $150 million under this program.
    Moreover, there remain a number of open issues, raised and 
previously advocated by the Claims Conference, which will be the 
subject of future negotiations. Among these open issues are the 
following: increasing the payments made through the Article 2 and 
Hardship Funds; lowering the time period required for Budapest Ghetto 
survivors to be eligible for pensions; raising the stipulated income 
level below which survivors are eligible for pensions; making survivors 
who were in open ghettos eligible for payments; obtaining payments for 
child survivors; and increasing homecare funding.


    Question. What is the Claims Conference doing today to assist needy 
survivors and are the resources available sufficient to meet the needs?

    Answer. As they age, Nazi victims suffer from physical and 
emotional distress at higher rates than the elderly population as a 
whole. Prolonged malnutrition under the Nazis has affected the health 
of survivors in later years of life, there are particularly high rates 
of mental illness among Jewish victims of Nazism, and many are alone as 
a result of having lost their entire family during the Shoah. Put 
simply, the health needs of aging survivors around the world have 
become increasingly urgent.
    The Claims Conference, committed to easing the situation of 
survivors, has been the primary organization which has identified and 
addressed the unique social needs of victims of Nazi persecution. Once 
the Claims Conference commenced receiving funds from Jewish property in 
the former East Germany, through its Successor Organization, it 
established programs throughout the world to assist Nazi victims. \1\
---------------------------------------------------------------------------
    \1\ The Claims Conference already has allocated a total of 
approximately $1 billion to organizations addressing the social service 
needs of Holocaust survivors and engaging in education, research and 
documentation of the Shoah. This is in addition to compensation 
payments--to over 500,000 survivors in 75 countries--totaling more than 
$60 billion as a result of the work of the Claims Conference. The 
institutional allocations of the Claims Conference are made from the 
proceeds of the sales of unclaimed, formerly Jewish owned property in 
the former East Germany, as well as from humanitarian funds established 
for the benefit of Holocaust survivors by various governments and 
businesses.
---------------------------------------------------------------------------
    The Claims Conference funds vital services which are provided to 
Nazi victims in more than 40 countries. In the United States alone, 
over 50 programs, exclusively for Nazi victims, are now operational. 
While more complete details about these services are available in the 
annual report of the Claims Conference, which is attached, as well as 
at http://ww.claimscon.org/allocations, some of the assistance provided 
by Claims Conference funding includes the following: homecare--
including assistance with activities of daily living, such as washing, 
dressing, cooking, laundry, housekeeping and shopping; hunger relief, 
in the form of food packages and hot meals; meals on wheels; medical 
assistance, such as doctors' visits, medical equipment and medicine; 
emergency cash grants to help meet expenses, such as rent, utilities 
and eyeglasses; winter relief (especially in the former Soviet Union)-- 
including coal, wood or gas, clothes, coats and blankets, and grants 
for electricity; home nursing; counseling services; and numerous other 
services and social programs which ease and enhance the lives of 
elderly, Nazi victims.\2\
---------------------------------------------------------------------------
    \2\ The Claims Conference believes that the involvement of the 
local survivor community is essential to the success of the 
institutional allocations program. Thus, the Claims Conference requires 
that each recipient agency set up a local Holocaust Survivor Advisory 
Committee. These survivor committees help to provide outreach and 
oversight for the programs, as well as help to determine local needs 
and identify survivors in need of assistance.
---------------------------------------------------------------------------
    For programs in 2008, the Claims Conference has made allocations 
that will total $170 million, primarily for agencies and institutions 
around the world which provide services to survivors in need. These 
allocations are primarily from Successor Organization funds, but also 
other sources of Holocaust-related compensation and restitution, such 
as ICHEIC, the Swiss Banks Settlement, German government funds 
negotiated by the Claims Conference, the 2005 ``Hungarian Gold Train'' 
settlement, and Austrian funds negotiated by the Claims Conference.
    At its annual meeting in 2008, the Claims Conference authorized to 
increase annual funding from the Successor Organization to $135 million 
for the next five to seven years. The allocations are made primarily to 
social welfare agencies and institutions aiding Jewish victims of 
Nazism in need in over 40 countries and are used for vital services.
    For 2009, the total allocations which will be administered by the 
Claims Conference, using funds from the Successor Organization and from 
these other sources will amount to $193 million.
    Further, with Claims Conference encouragement, local philanthropic 
fundraising has made additional resources available to support programs 
assisting Nazi victims.
    While we believe that the Claims Conference has met many of the 
most serious needs of Holocaust survivors worldwide, these needs are 
continuing ones. To satisfy them, success in the ongoing negotiations 
with the German Government regarding one-time payments, pensions and 
funding for social welfare programs for survivors remains critical.

                               __________

      Responses to Additional Questions Submitted for the Record 
             by Senator Bill Nelson to Lawrence Eagleburger


    Question. What are the appropriate criteria for measuring ICHEIC 
performance?

    Answer. ICHEIC concluded its work with over $306 million paid to 
more than 48,000 Holocaust victims or their heirs for previously unpaid 
insurance policies. Of this amount, more than half went to individuals 
with so little information about their potential claim that they were 
unable to identify even the company that may have issued the policy. In 
addition to the over $306 million payments made by ICHEIC companies or 
related entities, ICHEIC distributed nearly $200 million more for 
humanitarian purposes.
    The resolution of these undocumented claims sixty years after the 
devastation of the Holocaust and the Second World War clearly 
illustrates the success of ICHEIC's research efforts. Moreover, the 
successful settlement of these claims through the ICHEIC process, along 
with restitution efforts during the immediate postwar period and the 
present ongoing work of ICHEIC-related entities to resolve remaining 
unpaid life insurance policies within their respective jurisdictions, 
addresses a preponderance of the pre-war insurance market.
    The criteria you list below are neither relevant nor useful tools 
of measurement.
    For example, you ask about the measuring of the percentage of names 
a given company published. Such a measurement would bear no 
relationship to ICHEIC performance. To measure percentages, you would 
need to know the total number of policies for each company, by name. 
Many companies do not have/retain names of policyholders. Victoria, a 
major German company, had only policy numbers, not names, on record. If 
the claimant could provide a policy number, then they could search 
based on that information, but they could not search files by names.
    Moreover, ICHEIC's list publication of potential policyholder names 
was not based solely on records held by companies, but on independent 
ICHEIC research. Take asset declarations, for example. Many of the 
`policies' listed were from asset declarations. In many instances the 
declarations did not include a company name but rather stated 
``insurance policy, worth x.''
    Similarly, measuring the relative value of policies paid to the 
total outstanding begs the question of the impossibility of measuring 
the universe of total outstanding policies. First, we cannot determine 
what the Holocaust victim share of the market was, and second, we know 
that some portion of Holocaust policies were previously paid in the 
postwar period by companies and others through previous compensation 
programs. For more on assessing the nature, size, and scope of the 
market, please see my description below of the work of the Pomeroy-
Ferras task force.


    Question. Are you aware of the statement of the Washington State 
Insurance Commissioner in 2004 that the publication of the largest 
number of names near the end of the ICHEIC claims filing period 
seriously reduced the number of survivors and heirs who applied to 
ICHEIC for payments?


   How would you respond to that concern?

   Why did it take so long to publish the list?

   Did the insurance companies oppose publication of the lists?


    Answer. First, from the outset, finding one's name on a list 
published by the Commission was never intended either as necessary to 
file a claim or as any proof that a previously unpaid claim existed. 
From inception, the Commission strived to identify as many people with 
possible unpaid Holocaust-era policies and encourage them to file 
claims, even if they lacked detailed information about their family's 
coverage.
    Our outreach initiatives included both a 24 hour ICHEIC call center 
and grassroots efforts through global Jewish communal and survivor 
organizations and representatives of other victims groups. We 
distributed packets to survivor communities and Jewish organizations 
that included press releases, posters, and guidance on how to request 
and complete a claim form.
    As a result of ICHEIC's outreach, during the five years that the 
Commission accepted claims, it received 120,000 claim forms in more 
than 20 languages from more than 30 countries. ICHEIC's extensive and 
targeted outreach prior to the filing deadline was important given our 
understanding that many of those who filed would do so with little 
documentation or information about policies. Even with ICHEIC's ongoing 
messaging that finding one's name on a list was not predicate to filing 
a claim, we extended the last deadline by some months to allow for 
additional outreach, after the final tranche of names was added to the 
list, to make our best efforts to reach the broadest audiences to 
encourage filing. \1\
---------------------------------------------------------------------------
    \1\ Approximately, 30,000 of the claim forms received by the 
Commission either did not fall under ICHEIC's mandate and were 
therefore forwarded to the appropriate agency, for example, the Sjoa 
Foundation, Buysse Commission, CRT, or did not pertain to life 
insurance policies, i.e., slave labor, forced labor, Swiss bank 
accounts.
---------------------------------------------------------------------------
    The role of the published lists within the overall scope of the 
Commission's work and the relative utility of publishing more names 
going forward have received a great deal of attention, but continues to 
be widely misunderstood. Development of the lists that were published 
was a by-product of ICHEIC's efforts to match claim form information 
with relevant policy information discovered through archival research 
or in company records. The end result was that member companies were 
ultimately able to match 16,243 unnamed claims against these records.
    The 2004 assertions of the Washington State representative are 
without merit, as I stated at the time that the charge was first made.
    For more detail on our effort with respect to lists, the time it 
took to develop them, the research efforts that went into them, or the 
like, I would recommend that you review my written submission to your 
committee in preparation for the hearing, which contains extensive 
discussion on this very topic.


    Question. ICHEIC's claims-based approach resulted in the payment of 
close to $400 million to individual claimants and to a ``humanitarian 
fund'' for Holocaust survivors and their heirs. Estimates of the 
present-day total value of insurance policies owned by Jews during the 
Holocaust range from $3 billion to $17 billion and higher. Whichever 
valuation one applies, why did the ICHEIC process recover far less than 
the total value of Holocaust-era policies sold to Jews? Why did the 
U.S. government back a claims-based approach rather than seek a global 
settlement to recover closer to the estimated total value of unpaid 
Holocaust-era policies?

    Answer. I do not accept either of the estimates you advance as the 
present-day total value of insurance policies owned by Jews during the 
Holocaust. I have no idea about the basis nor the expertise from which 
you are drawing these numbers. I can tell you that I know of no 
reputable expert who would put estimates at a figure even approaching 
the $3 billion on the table. Instead, let me explain, again, why those 
who have long advised ICHEIC note that it is not possible to determine 
with any precision the total value of Holocaust-era policies sold to 
Jews. I would note as well that the figures you cite here do not appear 
to take into consideration compensation provided for such policies in 
the immediate postwar period.
    Please recall, as we have explained previously, that the Commission 
was created as a means of addressing the gaps and shortfalls of postwar 
compensation programs of the 1950s and 1960s. It was intended to 
provide an opportunity for thousands of Holocaust survivors and their 
heirs to submit claims for the first time.
    In the fall of 1999, the Commission sought macro-level guidance on 
the overall volume and estimated value of potential claims. For this 
effort, I appointed Glenn Pomeroy, then North Dakota Insurance 
Commissioner and former President of the NAIC and Phillippe Ferras 
(then Executive Vice President of AXA France) as joint chairmen of a 
task force to report on the estimated number and value of insurance 
policies held by Holocaust victims. The Pomeroy-Ferras report, 
available at www.icheic.org, provided data that allowed the Commission 
to assess the scope and size of the European pre-Holocaust insurance 
market relevant to Holocaust victims and their heirs.
    The Pomeroy-Ferras report determined how the relative maturity of 
the various European insurance markets probably affected local 
populations' access to insurance. It provided an overall view of what 
total damages might be by trying to determine the Jewish population's 
respective rates of participation in the life insurance market and by 
estimating the average value of life insurance policies, based on the 
scope of the insurance market and the size of the Jewish population in 
each country. While the propensity of the Jewish population to insure 
was found to be two to three times that of the regular population in a 
given country, the propensity to insure differed significantly from 
country to country, which dramatically affects the overall estimates of 
market size.
    The Pomeroy-Ferras report also details some of the challenges that 
participants faced in accurately assessing the value of unpaid 
policies. While the task force reached consensus on the overall size of 
the each country's insurance market and estimated the propensity of 
Jews to purchase life insurance, it was far more difficult to determine 
the number, average value, and percentage of unpaid Jewish-owned 
policies.
    Given these considerations, the Pomeroy-Ferras report provided a 
range of figures in different categories for different markets. These 
ranges served to guide the Commission as it entered its deliberations 
on how to assess appropriate settlement amounts company by company (and 
in some cases, with national insurance associations) across markets in 
Europe.
    The various national commissions working to assess their own 
situations have confirmed the reliability of the Pomeroy-Ferras work. 
The total overall settlement reached by the Commission with all its 
entities, approximately $550 million, was premised on the Pomeroy-
Ferras work, and has met the test of time, both with respect to the 
over $306 million paid out in claims, and the remaining amount going to 
humanitarian activities to honor the memory of those who were not able 
to make claims directly.
    With respect to your query about why the U.S. government backed a 
claims-based approach rather than seek a global settlement process. Two 
comments: first, you should direct that question to U.S. government 
actors, and second, ICHEIC was a private enterprise and was not subject 
to instructions from the U.S. government or any other government. 
Finally, I do not accept that the estimates with respect to the total 
value of unpaid Holocaust-era policies are accurate or reliable.


    Question. One of the concerns that have been raised regarding H.R. 
1746 is that the disclosure of the names of all Holocaust-era 
policyholders would violate European privacy laws. What are the 
specific concerns and how would the privacy law applicable to a given 
company's disclosure be violated if all the names of policyholders were 
disclosed. If privacy laws did not prevent the publication of a list of 
potential Jewish policyholders that ICHEIC published, why would it 
prevent the publication of a broader list?

    Answer. In 1999, ICHEIC initiated the most extensive project ever 
conducted to investigate and record information on Holocaust-era 
insurance policies from archives and other sources from around the 
world. In addition, the Commission was largely successful in acquiring 
lists of policyholders from participating insurance companies, which 
have been matched against Yad Vashem's database of Holocaust victims 
using the broadest possible criteria, as well as from governmental 
organizations in a number of countries. These combined efforts have 
yielded substantial information regarding hundreds of thousands of 
insurance policies in effect prior to and during World War II. Arranged 
through ICHEIC, with publication on Yad Vashem's website 
(www1.yadvashem.org/pheip/) and still referenced on the ICHEIC website, 
(http://www.icheic.org), this information remains publicly available.
    It is important to sound a cautionary note on policyholder names: 
Although ICHEIC has published this extensive list of Holocaust-era 
insurance policies, not all of them remain unpaid. Let me state that 
another way: just because a name appears on the ICHEIC website, it does 
not necessarily follow that the heir or beneficiary is entitled to 
payment. Many of these policies have been compensated previously 
through restitution programs or by the companies directly.
    As we have explained, ICHEIC's claim filing process was 
purposefully not dependent on an individual finding his or her name on 
a list. Anyone who believed they might have any possible connection to 
a Holocaust-era insurance policy was encouraged to file a claim, and 
the information they provided was matched against all ICHEIC companies' 
databases and ICHEIC's research database.
    The list that ICHEIC was able to publish, and that remains publicly 
available on a website now maintained by Yad Vashem, was possible 
because ICHEIC worked with the companies to ensure that the processes 
involved fell within exceptions to otherwise extremely restrictive 
European data protection laws. We needed to ensure not only that there 
was a direct and limited nexus between the names we sought and the 
public interest at hand--but also that we had sufficient safeguards in 
place to ensure that we were providing adequate levels of data 
protection so that unintended information beyond the scope of the 
exception would not be provided. And most important, through our 
various matching and ``sound-ex'' processes we were doing our utmost to 
cull out only the names of likely Holocaust victims.
    HR 1746 takes the opposite approach in all respects, and thus 
likely would run head first into a host of European data protection 
legal challenges. It demands all policyholder names over a period of 
years, with no methodology suggested for culling out the names of those 
who were likely Holocaust victims (in fact, most sound methodologies 
likely would result in a list largely duplicative of the already 
existing publicly available ICHEIC list); it provides no means for 
safeguarding how, where, when, or by what means this otherwise 
restricted information would be provided. Moreover, its definitions of 
geographic scope and nature of policies at issue are so broad that the 
universe of data it potentially is demanding is overwhelming in nature, 
making compliance on a purely practical level virtually impossible.


    Question. In his written testimony, Roman Kent emphasized that 
``the companies which participated in [ICHEIC] did not represent the 
entire, not even the majority of the Holocaust-era European insurance 
market.'' What percentage of the Holocaust-era insurance market did the 
ICHEIC process account for? For that part of the market not covered by 
ICHEIC, how much was covered by eastern European companies that were 
nationalized and have no traceable successors? How much was covered by 
companies or successor companies still in existence today?

    Answer. I believe this is a mischaracterization of Mr. Kent's 
comments, and the work of ICHEIC. First, I would direct you to the 
appendix submitted by Ms. Anna Rubin with her written testimony in May. 
She has an excellent pie chart with that material that shows that in 
1936, ICHEIC companies represented approximately 21 percent of the 
European insurance market. The German insurance association (a direct 
partner with ICHEIC in its work) represented another 33 percent of the 
market. So together, ICHEIC and its most immediate partner entity 
represented a clear majority of the Holocaust-era European insurance 
market. In addition, that pie-chart shows that other ICHEIC partner 
entities--such as Sjoa, GSF, or Buysee--make up an additional 26.5 
percent of the market, bringing us to well over 80 percent of the 
market.
    Additionally, in reflecting on the Eastern European market, 
although outside the direct remit of ICHEIC companies, one must 
consider ICHEIC's extraordinary humanitarian claims payment program for 
liquidated, nationalized, or no known successor companies. Under this 
program, ICHEIC evaluated according to ICHEIC standards and guidelines, 
and paid from humanitarian funds, many Eastern European claims with 
some form of documentation but no company in existence to hold 
accountable. Moreover, one must also consider the work of companies 
outside of ICHEIC or any of the other national associations, such as 
Prudential plc, which established an independent reparations effort to 
identify and compensate claimants from a Polish company it had acquired 
prior to World War II.


    Question. In her written testimony, Ms. Rubin indicates that as of 
January 2008, Austria's General Settlement Fund (GSF) had issued 
decisions on 83 out of 364 claims submitted to the Fund by New York 
State Holocaust Claims Processing Office (HCPO). The claims were 
submitted to the GSF before a November 2003 filing deadline. Why has it 
taken the Fund close to five years to rule on less than half of the 
claims submitted by HCPO? What assurances if any has the Austrian 
government given to indicate that the remaining claims will be 
processed in a timely manner?

    Answer. This question is best submitted to Ms. Rubin at the New 
York Holocaust Claims Processing Office, since it is her office that 
has had all contact with the GSF since ICHEIC ceased operating 
activities more than a year ago. I will say, however, that my 
experiences with the Austrian GSF during the life of ICHEIC leave me 
with a conviction that one should expect to be deeply disappointed with 
the ability and willingness of that institution and the Government of 
Austria to follow through on its commitments and responsibilities in 
these areas.


    Question. Please describe ICHEIC's research efforts. How did ICHEIC 
use the data that was gathered?


   What percentage of the relevant names were supplied to ICHEIC?

   What percentage of each company's names of policy holders were 
        published on the ICHEIC website?

   Critics of ICHEIC maintain that obvious sources of information were 
        ignored and the companies had free reign to decide what 
        information to produce and what information to withhold. How do 
        you respond?

   Did the research look comprehensively at the Jewish property 
        declarations scattered throughout the state archives throughout 
        Germany?

    Answer. ICHEIC launched its archival research project in 1999, 
commissioning experts to investigate and record information from public 
archives and repositories containing Holocaust-era records, in Central 
and Eastern Europe, Israel and the United States. Through its 
researchers, the Commission gained access to Holocaust-era record 
groups previously closed to examination--an achievement that was the 
result of perseverance and unprecedented international cooperation, all 
with the very worthy objective of assisting Holocaust survivors, their 
families and heirs in getting compensation for valid unpaid insurance 
policies. From the outset, this project was intended to complement the 
ICHEIC claims process; both the research results and the subsequent 
mechanisms ICHEIC developed to maximize use of the information can be 
considered a major success.
    These efforts led to the creation of a database that provided a 
critical tool used by companies and ICHEIC to further enhance 
information provided by claimants and thus chances of identifying 
policies on submitted claims.
    ICHEIC's research spanned 15 countries and included over 80 
archives. Researchers reviewed three types of records. The first, 
representing the bulk of the material reviewed, consisted of Nazi-era 
asset registration and confiscation records. Files pertaining to the 
post-war registration of losses made up the second category. The third 
category was comprised of insurance company records located in public 
and regulatory archives.
    While German archival records impose some access constraints, this 
was not an obstacle for ICHEIC research. Under German data protection 
laws documents are always available to the individuals or their heirs 
or representatives who are the subject of the documentation--e.g. 
postwar compensation, even while records containing personal 
information are not accessible to the general public until 50 years 
after the date of the documents. Moreover, since asset declarations 
predate the war, they are actually fully accessible. In addition, in 
February 2002 the German Parliament passed an amendment to the Archives 
Law, allowing still broader access to personal records of victims of 
Nazi persecution.
    ICHEIC conducted research in German archives and repositories first 
in 2000, and again from late 2002 through April 2003.\2\ Through this 
research many asset declaration files were reviewed and a considerable 
number of polices were identified. Overall research in German archives 
contributed information on 41,540 insurance policies belonging to 
27,886 policyholders.
---------------------------------------------------------------------------
    \2\ As part of ICHEIC's agreement with the German foundation 
``Remembrance, Responsibility and Future.'
---------------------------------------------------------------------------
    ICHEIC's thorough audit processes, detailed in response to the 
question below, ensured full and consistent compliance by all 
companies.


    Question. What was the nature of ICHEIC's audit processes?


   How were they developed?

   What did they accomplish?

   Did ICHEIC have access to and review the documentation underlying 
        insurance company claim determinations?

   Were claimants provided with the underlying documentation?

    Answer. ICHEIC required all entities directly involved in claims 
processing and decision making to be audited by an internationally 
recognized accounting firm or, in the case of the German companies, 
their government regulator accompanied by ICHEIC observers. While 
audits varied in type, depending on the entities audited, audit 
requirements were defined in such as way as to confirm that all 
procedures were structured and decisions rendered appropriately. 
Parameters were defined and agreed to by all participants at the outset 
as part of the Audit Mandate Support Group's early work, and all 
subsequent agreements with participating companies and partner entities 
reflect the importance accorded to the performance standards and 
appropriate measures.
    By using outside auditors who reported back to a specific 
committee, ICHEIC was able to secure access to previously inaccessible 
records; the reports back to the committee resulted in thorough reviews 
of the auditors' findings by a representative group of ICHEIC 
stakeholders. As a result, the early audits helped to reduce the 
historical suspicions and increased participants' trust in some of 
their fellow stakeholders. Stage 1 audits were carried out in the first 
instance by audit firms appointed by the insurers. These firms 
submitted a Compliance Report, with an attached copy of the Management 
Report, relating to each company or group. ICHEIC then appointed a 
second audit firm to carry out a Peer Review audit of each Compliance 
audit. The Peer Review auditors also carried out their own limited 
additional testing of each insurer's records. All of the audit firms 
involved in both Compliance and Peer Review audits had extensive 
international experience and reputation.
    All reports-Management, Compliance and Peer Review-were submitted 
in final draft form to the Audit Mandate Support Group (AMSG) empowered 
to oversee the audit process. This committee included representatives 
of all stakeholders (regulators, Jewish organizations, and companies). 
The group met to discuss and consider the auditors' findings at formal 
debrief meetings, where the insurers and audit firms presented their 
reports for discussion and review by the AMSG. Any additional work 
requested by the AMSG was carried out by the companies and/or audit 
firms prior to the finalization of their reports.
    A subsequent Stage 2 audit was conducted to ensure that all 
entities responsible for the various aspects of claims processing had 
performed appropriately. Similarly, ICHEIC's own operations were 
independently audited to ensure ICHEIC standards were met in the 
humanitarian claims processes as well.
    Stage 2 audits were carried out by firms appointed directly by 
ICHEIC. Stage 2 examined member companies' handling of claims using the 
systems and procedures covered in Stage 1. In keeping with the 
procedures established during the Stage 1 audits, and building on the 
subcommittee members' expertise, the AMSG reviewed the peer review 
auditors' findings at debrief meetings, where all members had ample 
opportunity to discuss the reports and request clarification and/or 
additional follow-up work.
    For each insurer, audits related either to the entire company or 
group, or to individual subsidiaries or sub-groups. In totality, 15 
entities were subject to Stage 1 audits and 12 entities subject to 
Stage 2 audits. Fewer entities were subject to Stage 2 because (1) 
Chairman Eagleburger agreed that a sub-set of Belgian companies would 
not require a Stage 2 audit as their claims processing functions had 
been taken on by the Buysse Commission, a government commission that 
confirmed claims handling standards were appropriate; and (2) some 
company groupings changed between Stages 1 and 2 as a result of mergers 
and acquisitions over the course of ICHEIC's lifetime.
    Finally, each individual company decision was reviewed and verified 
by an ICHEIC claims team staff person, to ensure that it was made 
according to ICHEIC rules and guidelines. Where and as the staff had 
questions with respect to compliance, lack of underlying documentation 
or the like, staff went back to the company until the query was 
resolved. ICHEIC staff verified each company decision based on review 
of the same information from the company received by the claimant.


    Question. How were the ICHEIC lists developed, and what role did 
the lists play in the ICHEIC process?


   Are the lists still available?

   Where are they available?

   Would it be beneficial to make the lists more widely available and 
        publicize them again?

    Answer. Please see responses above. As already noted, the list 
remains public and widely available, as ICHEIC arranged long ago for it 
to remain so and posted on Yad Vashem's website at www1.yadvashem.org/
pheip/.


    Question. How do you respond to assertions made at the hearing that 
the Holocaust-era insurance market with respect to likely victims might 
be valued at $17 billion?

    Answer. Please see earlier response about lack of reliability of 
the far lower estimates of Holocaust-era insurance market. Given the 
lack of reliability of those estimates, it goes without saying that the 
$17 billion figure should carry no weight whatsoever, and has never had 
any justification, to the best of my knowledge.


    Question. There is an ongoing feeling on the part of some survivors 
and their heirs that the insurance companies have not been entirely 
forthcoming with the information in their files that would illuminate 
the extent of Jewish policyholders or the extent of their cooperation 
with the Nazi regime. This feeling is further heightened by the 
inaccessibility of the ICHEIC records that have been turned over to the 
Holocaust period for many years. In response to these concerns, it has 
been suggested that if the companies and the countries that signed 
executive agreements were more forthcoming with information and made 
additional disclosure, such actions would provide reassurance to 
critics and allay concerns that information has been hidden.


   How do you respond?

   Can you identify steps that could be taken now by companies to make 
        additional disclosures?

   Why are the ICHEIC records at the U.S. Holocaust Memorial Museum 
        off limits for such a long period of time--unavailable to 
        researchers and others who might find the records valuable?

    Answer. First, my response with respect to audits should address 
the extent to which insurance companies within our process have 
identified and made available any and all information relevant to 
holocaust victims, survivors, and their heirs, and the extent of their 
cooperation with the Nazi regime. This criteria was embedded within our 
audits, conducted by established internationally recognized third party 
auditing firms. The results were then affirmed by the Commission's 
Audit Mandate Support Group, which included representatives of the 
survivors' organizations and the regulators.
    Next, there is evidently confusion with respect to ICHEIC records 
that were provided to the U.S. Holocaust Memorial Museum and are 
publicly available there, and personal files of individuals who filed 
claims with ICHEIC, which were archived at the Museum. The terms of the 
agreement between ICHEIC and the museum were proposed and explained 
generally at ICHEIC's concluding meeting on March 20, 2007, and are 
available on the ICHEIC website. Under this agreement, the museum 
maintains and hosts the ICHEIC web site (www.icheic.org); it maintains 
ICHEIC key documents and research database in its library and makes 
them available to visitors to the library. These documents include key 
policy decision memoranda as well as meeting minutes produced over the 
lifetime of the organization, as well as the research information that 
ICHEIC culled from its work in archives across Europe.
    With respect to individual claimants' files, applications and 
appeals, the museum maintains these in its archives. Given that these 
documents contain personal and sensitive information, this material 
must be archived for a period of fifty years. In reaching this 
agreement, ICHEIC sought legal guidance from privacy law experts, who 
reviewed the releases that individuals signed when they filed with 
ICHEIC and recommended that based on the strong commitments made by 
ICHEIC regarding data confidentiality and use of data only for the 
limited purpose of investigation/claims processing, combined with 
relevant data protection laws, ICHEIC would need to obtain specific 
consent from claimants prior to sharing of any claimant data with a 
third party. Given ICHEIC's 90,000+ claimants, the costs in March 2007 
of obtaining such specific consent were estimated in the millions, and 
the more prudent outcome was deemed to be archiving for the fifty-year 
period (recommended given range of ages of individuals filing.) The 
legal analysis provided in summary form is as follows:
    ICHEIC explicitly indicated that the information would not be used 
for any purpose other than claims purposes. Specifically, individuals 
were informed through a fair collection notice posted at the Web site 
that ``[n]o information will be given/sold to any private 
organization.'' Further, in the Declaration of Consent, which is the 
key document that individuals were required to sign in providing their 
claim information, ICHEIC promised that data would be ``used only for 
these investigations and otherwise remain confidential.'' In addition, 
ICHEIC represented in its FAQ regarding the Declaration that other than 
giving claimant information to insurance companies and relevant 
organizations, including archives, ``we will not send your claim form 
to any other person or organization without your permission,'' which 
``is a requirement of European data protection laws.'' \3\
---------------------------------------------------------------------------
    \3\ As used in the FAQs, the term ``archive'' refers only to an 
organization that would store the claimant data on behalf of ICHEIC and 
not any organization that would use the data for its own purposes. The 
reference to ``archives'' in the Declaration of Consent refers only to 
organizations from which ICHEIC obtained additional information to 
supplement claims data.

---------------------------------------------------------------------------
                               __________

      Responses to Additional Questions Submitted for the Record 
                  by Senator Bill Nelson to Anna Rubin


    Question. 1. Estimates on overall unpaid valuation of insurance 
claims range from approximately $3 billion to $18 billion or $300 
billion.


   How do you account for the disparities in valuation?

   Are there valid reasons to prefer one figure over another?

   Are there standard statutory or common law methods applied to value 
        claims that are many years old?

    Answer. Calculating the present-day value of historic financial 
instruments is a complex undertaking under the best of circumstances, 
as the final sum depends on a variety of factors, such as the base sum 
(e.g. nominal value of insurance policies versus premium income), and 
the methods used to calculate a present-day value (e.g. consumer-price 
index; thirty-year Treasury bond yields). The valuation of pre-World 
War II European financial instruments such as insurance policies, bank 
accounts, and stocks, is additionally complicated by the economic 
upheavals of the Great Depression and the post-World War II period, 
which resulted in hyperinflation and currency devaluations.
    Since 1997 the HCPO has been working on matters of restitution and 
has seen first-hand the difficulties of trying to assign an overall 
present-day value to the European insurance market. Given the ravages 
of war and the passage of time it is difficult, if not impossible, to 
assess how many Holocaust-era insurance policies remain unpaid: the 
records of many companies' branch offices were either destroyed during 
the war or confiscated by Soviet troops. Moreover, as companies did not 
distinguish policyholders by religion, sexual orientation, or political 
affiliation when issuing insurance policies, particularly in the pre-
Holocaust period when most of the insurance policies in question were 
issued, it is hard to determine which policies were owned by 
individuals subjected to Nazi persecution. Finally, even where records 
are available, it is not always possible to know how many policies 
lapsed because of non-payment of premiums during the straitened 
financial circumstances faced by many people during the Depression 
years, or were otherwise reduced (by loans, or by the conversion into 
premium-free policies from the original insured sums).
    The HCPO is unable to opine on the methods used by others to obtain 
the proposed estimates on the valuation of unpaid insurance claims ($3, 
$18, or $300 billion) and therefore cannot evaluate the accuracy of 
these figures. However, using the direct premium income of insurance 
companies in 1936, a representative prewar year, the HCPO can provide 
both information about the market as a whole and a context for viewing 
restitution efforts to date. (See, Appendix 1: HCPO Analysis of the 
1936 European Life Insurance Market).
    It should also be noted that the valuation of prewar claims for 
financial instruments has been a matter of negotiation between numerous 
parties and the method chosen has varied by country and claims process. 
For example, claims for insurance polices issued in Germany are valued 
in accordance with the German Federal Law for the Compensation of the 
Victims of National Socialist Persecution (Bundesentschaedigungsgesetz 
or BEG).
    Alternatively, the Claims Resolution Tribunal (CRT) applies a 
valuation method in compliance with the settlement agreement in the 
Holocaust Victims Assets class action litigation. In re Holocaust 
Victim Assets Litig., 105 F. Supp. 2d 139 (E.D.N.Y. 2000). Claims 
submitted to the US Foreign Claims Settlement Commission of the 
Department of Justice were valued using still another method. And this 
just names a few possibilities.
    Simply put, we believe there is no one way to calculate the 
present-day value of Holocaust era assets; however, all valuation 
methods employed by claims processes and organizations strive to 
produce the current value of a given asset and when necessary apply 
presumptions (e.g., average values when the actual value is unknown) to 
obtain the most advantageous offers for claimants.


    Question. In his written testimony, Roman Kent emphasized that 
``the companies which participated in [ICHEIC] did not represent the 
entire, not even the majority of the Holocaust-era European insurance 
market.''


   What percentage of the Holocaust-era insurance market did the 
        ICHEIC process account for?

   For that part of the market not covered by ICHEIC, how much was 
        covered by eastern European companies that were nationalized 
        and have no traceable successors?
   How much was covered by companies or successor companies still in 
        existence today?

    Answer. The HCPO's research suggests that over 85% of the companies 
doing business in Europe in 1936 were covered by the ICHEIC process. 
For a more detailed breakdown, please refer to Appendix 2: HCPO 
Analysis of ICHEIC Member Companies' and Partner Entities' Coverage of 
the Relevant Insurance Market.
    The market covered by the ICHEIC process includes Eastern European 
companies that were nationalized or liquidated after World War II and 
have no present-day successors. ICHEIC's humanitarian claims process 
(the 8A2 process) covered claims for policies issued by such companies, 
which comprised approximately 3% of the 1936 market.
    A small number of companies (0.5%) present in the 1936 market which 
are still in existence or have successors still in existence today did 
not participate in the ICHEIC process. For example, Prudential plc 
(based in the United Kingdom) covers policies written during the 
relevant period by its Polish subsidiary Przerzornosc, and has 
established its own claims process.


    Question. My understanding is that the prewar insurance market is 
an area that the HCPO continues to research and analyze. Can you please 
provide any additional information you might have developed on the 
prewar insurance market during the course of your research?

   Can you explain the content and significance for this Committee of 
        the pie chart and table showing the 1936 Insurance Market for 
        Nazi Occupied Continental Europe and Switzerland?

    Answer. The HCPO's research used historical data to generate 
information on market share and on the relative sizes of different 
domestic markets rather than to assign a current value to the 
historical market. Determining present-day values for financial 
instruments is a subjective exercise that is heavily dependent on the 
method chosen for valuation. Market share, however, does not depend on 
the choice of method used to calculate present-day values, as it 
measures percentages, rather than absolute figures. Analyzing market 
share provides a tool to determine the comprehensiveness of restitution 
efforts both past and present, while studying the size of the market as 
a whole provides a perspective on the number of potential unpaid 
Holocaust-era policies, i.e. the smaller the market, the fewer policies 
overall, and therefore, the fewer policies that potentially remain to 
be paid today.
    To take one example, Poland, the most populous country in Eastern 
Europe other than the USSR, had one of the smallest markets, both in 
terms of market share and per capita insurance. In 1936, the total 
Polish life insurance market was comprised of 257,685 policies covering 
a population of 32 million. It is, therefore, unlikely that there are 
hundreds of thousands of still-unpaid Polish life insurance policies.
    To provide a snapshot of the total pre-war European insurance 
market, the HCPO compiled statistics on direct premium income (the 
industry standard used to measure market share) in 1936. The resulting 
chart illustrates that the domestic German market was by far the 
largest in continental Europe, comprising nearly 50% of the whole. In 
contrast, the domestic markets in other Central and Eastern European 
countries, even in Czechoslovakia, the most industrialized of those 
states, were significantly smaller, both in absolute terms and relative 
to population. To provide a further contrast, the US, with a population 
less than half the size of the continental European population, had an 
insurance market four times as large. Please refer to Appendix 1: HCPO 
Analysis of the 1936 European Life Insurance Market for additional 
information.


    Question. In your testimony you provided copies of correspondence 
between you and the National Association of Insurance Commissioners 
(NAIC) regarding the ongoing role of the New York Holocaust Claims 
Processing Office in assisting survivors and their heirs with filing 
claims that the ICHEIC companies have agreed to accept and consider 
under relaxed standards now and forever. Since the hearing have there 
been further developments with respect to the office undertaking this 
role?


   Does the office have the authority and resources necessary to 
        perform this role of facilitator and clearinghouse?

   If a claimant wasn't satisfied with the results your office 
        achieved, would that claimant be able to pursue the claim in 
        State court?

   Will there be a cost to the federal Treasury to this arrangement?

   Is congressional action required or desirable in order for the 
        agreement to take effect?

    Answer. The HCPO was created by Executive Order in 1997 to assist 
individuals of all backgrounds obtain a measure of just resolution for 
the theft of property during the reign of the Nazi regime. Since 
inception, the HCPO has functioned as a liaison between Holocaust 
victims and their heirs and companies, banks, claims organizations and 
other entities to aid with the submission and management of claims. As 
such the HCPO has the authority to continue to function as a 
facilitator and monitor of Holocaust-era asset claims.
    Discussions and negotiations are currently underway between the 
HCPO, the Banking and Insurance Departments of the State of New York 
and the NAIC to explore mechanisms to ensure that insurance claims 
submitted to former ICHEIC member companies as well as members of the 
German Insurance Association are being handled in accordance with 
ICHEIC's relaxed standards of proof and to publicly report our 
findings.
    At present the HCPO is jointly funded by the Banking and Insurance 
Departments of New York State. Under the proposed working arrangement 
between with NAIC and the HCPO, the NAIC will provide additional 
financial support for the HCPO's monitoring and reporting efforts with 
respect to insurance claims. This will address any needs for additional 
resources and funding. (The HCPO currently maintains a staff of eight 
professionals who utilize their unique skills to advocate on behalf of 
claimants. Additional staffing needs are unknown at this time.) The 
federal Treasury would incur no costs for an agreement between the HCPO 
and the NAIC to move forward. Neither is congressional action required 
and in fact may complicate the approval process.
    Filing a claim with the HCPO does not preclude a claimant from 
simultaneously or subsequently pursuing alternative means of redress, 
including legal.


    Question. Of the Holocaust-era insurance claims your office has 
already handled, do you know how many claimants were not satisfied with 
the results your office achieved? Do you know of any unsatisfied HCPO 
claimants who later brought action in court?

    Answer. The HCPO has assisted thousands of Holocaust victims and 
their heirs obtain resolution of their claims by: demonstrating that 
the assets sought had been previously compensated via a postwar 
restitution or compensation proceeding; showing that the claim has 
otherwise been handled appropriately (i.e., in accordance with the 
original owners' wishes); or obtaining a decision from a company or 
claims agency.
    Any discontent voiced by HCPO claimants has usually been directed 
toward the agency assessing and deciding claims and not toward the 
HCPO, which acts as a voice for Holocaust victims and their heirs. 
Claimants know that the HCPO zealously advocates on their behalf and 
does everything within its power to assist and obtain the most 
advantageous result possible.
    While several HCPO claimants have been involved in lawsuits related 
to Holocaust-era asset losses, we can neither speak to the claimants' 
motivation for participating in litigation nor as to when the suits 
were filed, i.e. before or after submitting a claim to the HCPO. 
Claimants seem to have been satisfied with the support and assistance 
provided by HCPO staff. (See, Appendix 3: Letters from HCPO Claimants.)


    Question. Your testimony indicates that all ICHEIC participants 
have agreed to participate in an ongoing monitoring process like that 
proposed by the NAIC. Do you know of any insurers doing business in the 
New York (or elsewhere in the U.S.) that are not ICHEIC participants, 
but are potentially liable for Holocaust era insurance claims?

    Answer. As stated in my testimony, at ICHEIC's final meeting in 
March 2007, all ICHEIC member companies as well as members of the 
German Insurance Association, through its partnership agreement with 
ICHEIC, reiterated their commitment to continue to review and process 
claims sent directly to them in accordance with ICHEIC's relaxed 
standards of proof.
    It has been the HCPO's experience that all companies potentially 
liable for Holocaust-era asset claims are at least willing to consider 
such claims. The HCPO is unaware of any insurance companies doing 
business in the United States that are unwilling to review possible 
claims for Holocaust-era policies.


    Question. Do you have any case studies (samples from the HCPO 
claimant population) that include examples of anecdotal claims settled, 
demonstrate the relaxed standards of proof, and HCPO archival research?

    Answer. Please refer to Appendix 4: HCPO Case Studies, Group 1 
where we have described 5 cases. [The case studies submitted with this 
response have been maintained in the committee's permanent files.]


    Question. Can you please provide some examples of both anecdotal 
and documented cases that the HCPO has assisted to resolve either 
directly, through the ICHEIC process, or one of the other organizations 
currently handling insurance claims?

   Can you please include a description of the valuation used to 
        calculate offers extended to claimants?

    Answer. Please refer to Appendix 5: HCPO Case Studies, Group 2 
where we have described 5 cases. [The case studies submitted with this 
response have been maintained in the committee's permanent files.]

                               __________

      Responses to Additional Questions Submitted for the Record 
          by Senator David Vitter to Hon. Lawrence Eagleburger


    Question. Many of the insurance companies located in Central and 
Eastern European countries were nationalized, went bankrupt, or have, 
for other reasons, ceased to exist. Despite the fact that these 
companies issued thousands of insurance policies during the Holocaust-
era, neither the governments which took over these companies nor their 
successor governments have taken the steps necessary to implement a 
restitution process to repay survivors for their insurance claims.
    As former Secretary of State and Chairman of ICHEIC and former 
Special Representative to the President and Secretary of State on 
Holocaust-Era Issues, both of you have extensive experience in bringing 
together governments and companies to work toward a fair and 
appropriate process through which reparations could be made to 
survivors. Given your respective backgrounds, as we look toward the 
future and the next steps in the process, would you:


   First highlight some of the difficulties in working with the 
        Central and Eastern European governments, if you had the 
        opportunity to do so while in your former positions, and then;

   If litigation is not the best way to secure reparations from less 
        than forthcoming countries in Central and Eastern Europe, what 
        would you recommend as possible avenues toward bringing some of 
        these governments to the table and convincing them to develop 
        and implement into law a fair and effective reparations 
        process?

    Answer. First, I would remind that through ICHEIC we sought to 
address on the immediate level the needs of claimants, by setting up 
the humanitarian claims payment effort. Through this program, we used 
ICHEIC evaluation standards (and humanitarian funds from ICHEIC 
companies and the German Foundation and German insurance association) 
to pay claims on liquidated, nationalized, or no known successor 
companies on which we had identified documents of one form or another. 
A great number of these claims were necessarily for Eastern European 
companies, given the history of that region. Should those governments 
have provided some of the approximately $31 million in compensation 
that ICHEIC companies and the German Foundation/insurance association 
provided in their stead? Yes. Are there routes to go after it 
retroactively? ICHEIC designated the Claims Conference to try to do so, 
and to put whatever funds it succeeded in gaining toward broader 
humanitarian purposes for Holocaust survivors and their heirs.
    Why are so many of these companies from this part of Europe? In the 
newly Communist states of Eastern and Central Europe (Poland, 
Czechoslovakia, Romania, Hungary, Bulgaria) nationalization of private 
enterprises, including insurance companies, began almost simultaneously 
with liberation by the Red Army. As a result, insurance companies lost 
control of their assets and claimants were largely precluded from 
making claims on pre-war policies. The speed and mechanics of 
nationalization varied by location, but the effect for claimants was 
the same.
    After Joseph Stalin's death in 1953, some East European governments 
concluded agreements with the United States and other Western countries 
to compensate for losses suffered by former nationals now living in the 
West. These agreements provided for lump sum payments by the 
governments of these countries to the Western government in question; 
the former property-owners then applied to their own governments for 
redress. Although some Jewish insurance policy holders received 
payments through these plans, the lump sums provided by the East 
European governments were often not large enough to compensate 
adequately for the property lost.
    Certainly, the only viable route toward achieving the result we all 
desire is through negotiation at this point. Eastern Europe went 
through a period of nationalization and liquidation post-World War II 
not as a matter of choice for many of these governments or peoples. 
Litigation here is not a promising route as I see it--there is no 
company to sue because one no longer exists. Given conditions at the 
time, and for these countries, it makes it a greater challenge for us 
to argue this as a matter of black and white. So this is why I see a 
negotiated outcome as the only one available.


    Question. If litigation is not the best way to secure additional 
reparations for those who did not receive sufficient compensation or 
who were denied a claim through the ICHEIC process, what would you 
recommend?

    Answer. As ICHEIC member companies and members of the German 
Insurance Association have agreed to continue to review claims for 
Holocaust-era insurance policies, under ICHEIC's relaxed standards of 
proof, individuals who believe they have a claim for an unpaid 
insurance policy should submit a claim to the appropriate company for 
review and assessment.


    Question. Although ICHEIC has closed, some European insurers have 
said that they will continue to accept and honor legitimate claims. 
This implies to me that there are still survivors and families that 
have outstanding claims.


   In your opinion, why do you think these individuals were served 
        earlier through the ICHEIC process?

    Answer. I assume you meant to inquire about why these individuals 
who would apply now were not served through the ICHEIC process.
    First though, I would note that European insurers said they would 
continue to accept and honor legitimate claims as part of their 
commitment to the ICHEIC process at ICHEIC's concluding meeting in 
March 2007, a commitment they reaffirmed in writing for former ICHEIC 
Vice Chairman Diane Koken before her February testimony to the House 
Financial Services Committee. All ICHEIC members believed that through 
our process we had captured the vast bulk of outstanding claims, given 
our extensive global outreach efforts and the several years our process 
had been open. That said, companies decided in the end to leave their 
doors open to additional possible claimants to come to them directly, 
after ICHEIC closed.
    The additional claimants who have filed since might be those 
individuals who for one reason or another was out of reach of all 
previous communications and so failed to timely file. We also have 
situations, particularly with elderly claimants, because the ICHEIC 
process went on for several years, because some of the ICHEIC companies 
have been involved in litigation, and now, with this new legislation as 
well, where individuals who already have filed and been processed 
through ICHEIC may file a duplicate claim, not realizing that in fact 
they are likely to get the same answers they have received at an 
earlier time.


    Question. If some people did not receive notice of the ICHEIC 
process, why do you believe that happened?

    Answer. I cannot answer hypotheticals. I can only describe, again, 
the comprehensive nature of ICHEIC's outreach. From its inception, 
ICHEIC devoted great effort and significant resources to identifying as 
many potential claimants as possible and having them file a claim, even 
when these potential claimants lacked detailed information regarding 
their family's insurance coverage.
    To do this effectively, ICHEIC sought to define the target 
audience. The challenge was that potential claimants could be found in 
all parts of the world. Working closely with the same experts who had 
conducted outreach for the Swiss Bank Settlement's Claims Resolution 
Tribunal, ICHEIC made extensive use of free and paid media. These 
outreach initiatives included a call center and grassroots efforts 
through global Jewish communal and survivor organizations and 
representatives of other victim groups (e.g. the Jehovah's Witnesses 
and the Roma and Sinti communities in Central Europe).
    ICHEIC distributed packets to survivor communities and Jewish 
organizations that included press releases, posters, and guidance on 
how to request a claim form (through the 24-hour ICHEIC call center), 
and how best to complete the claim form. In addition to working with 
grassroots organizations, ICHEIC supported the U.S. insurance 
regulators' efforts to reach out to claimants and assisted claimants in 
filling out ICHEIC claim forms and understanding how their claim or 
claims would be handled.
    To supplement its work with survivor and Jewish groups and the 
regulatory community, ICHEIC launched a global press and media campaign 
to publicize the process. ICHEIC ran ads in major and parochial media 
markets and capitalized on as much free media as outside institutions 
were willing to provide. It did this not only at the launch, but also 
when announcing the last deadline extension, alerting potential 
claimants via all means available including a live webcast with 
Chairman Eagleburger.
    Thanks to the success of its outreach, ICHEIC received more than 
100,000 claim forms from more than 30 countries in more than 20 
languages in the five years that it accepted claims.


    Question. What could be done in the future to help make certain 
that people do receive notice of a restitution process?

    Answer. I would not add to ICHEIC's extensive efforts. We did 
everything we could have done.

                               __________

       Appendix II.--Additional Material Submitted for the Record

  Prepared Statement of Hon. David Vitter, U.S. Senator From Louisiana

    First, I would like to take a moment to thank the chairman and 
Senator Coleman for their work on this important issue. While I am 
normally ranking member on this subcommittee, given Senator Coleman's 
long time involvement and great work on this important issue, it is 
appropriate that he take the lead with Senator Nelson for this hearing.
    I am particularly interested in what the experienced and 
knowledgeable witnesses that are testifying today may have to suggest 
to us as we look at ways to ensure that all Holocaust survivors and 
their families are provided fair compensation and a measure of justice 
for the atrocities visited upon so many innocents during the Holocaust 
era in the post-ICHEIC period.
    There has been a great deal of work done by many dedicated people 
to get us to the point where we find ourselves today. Holocaust 
reparations, including compensation for unlawfully seized insurance 
policies, has transcended politics and national boundaries, bringing 
together governments, private companies, lawyers, and the organizations 
representing survivors of the Holocaust, and the families of those who 
no longer had a voice to speak out against the horrors committed 
against them. Their tireless work has helped restore millions in stolen 
and lost insurance funds to thousands of claimants.
    But past successes do not necessarily imply that all of the work is 
finished. Each effort to obtain compensation for survivors and their 
families--actions taken by Western European governments in the 
immediate aftermath of the war; renewed efforts after the fall of 
communism in Eastern Europe; the ICHEIC process--has resulted in new 
information, new names, new leads, even as any outstanding claims are 
settled. And, while the ICHEIC process has been very helpful, we cannot 
allow ourselves to become complacent. We must be certain that everyone 
is given a voice and that as many claims as possible are settled.
    As with all difficult issues, there are many views and opinions and 
proposals on how best to move forward. Working through archived policy 
records, particularly in light of destroyed and incomplete records and 
policies surrendered at the demand of the Nazis or cashed in as a last 
desperate measure, is a complicated matter that demands deliberate, 
careful consideration. We must be careful of unintended consequences, 
and we must ensure that any action taken here in Washington does not 
inadvertently limit progress or shut some individuals out of the 
reparations process at the expense of others.
    And finally, through all of this, it is most important that we not 
lose sight of the reason we are here today--the survivors of the 
Holocaust, the victims, and their families. This is not a discussion 
just about numbers, cash values, or meeting some legal standard of 
proof of ownership. This is about ensuring that justice is served. The 
survivors of the Holocaust must not only receive fair compensation for 
seized insurance claims, but it is also our responsibility to make 
certain that they are treated with the dignity, respect, and 
sensitivity that they deserve. Just as it is our duty to ensure that 
the restitution process preserves and honors the memory of those who 
are no longer with us.

          Material Submitted by Organizations and Individuals 
                         in Support of HR 1746

Letter From Members of the Florida Congressional Delegation to Attorney 
                           General Janet Reno

                             Congress of the United States,
                                  Washington, DC, October 25, 2000.
Hon. Janet Reno,
U.S. Attorney General,
Department of Justice, Washington, DC.
    Dear Madame Attorney General: We understand that the Department of 
Justice has filed a brief in the Ninth Circuit Court of Appeals arguing 
that the California Holocaust Victims Recovery Act (HVIRA) would 
interfere with the Federal Government's role in dealing with 
outstanding insurance policies held by European insurance companies 
doing business in the United States. We are concerned about the serious 
implications this action has for the interests of Holocaust survivors 
and their heirs under Florida's Holocaust Victims Insurance Act. We 
believe that congressional action will be required to ensure meaningful 
recovery of insurance policies for Holocaust victims and heirs if the 
Courts agree with the Department's position. Therefore, we are seeking 
your views on our legislative proposals to protect and advance 
Holocaust victims' insurance claims.
    We are concerned about the Department's position for several 
reasons. First, the U.S. Holocaust Asset Commission Act of 1998, Public 
Law 105-186, 112 Stat. 611 (1998), calls for the Commission to ``take 
note of the work of the National Association of Insurance Commissioners 
(NAIC) with regard to Holocaust-era insurance issues, and to report on 
precisely the kinds of information the California legislation asked to 
be reported by the insurers. If the Justice Department is correct that 
the states cannot elicit the information we have sought through the 
NAIC, then the United States has effectively lost all leverage in its 
efforts to account for one of the largest categories of theft from 
Holocaust victims.
    We are also concerned because, under present circumstances, various 
international efforts have not effectively advanced holocaust 
survivors' claims to unpaid insurance policies. Recent reports from 
NAIC members concerning the International Commission for Holocaust Era 
Insurance Claims (ICHEIC) reveal a very disturbing situation. Companies 
that are members of ICHEIC have approved fewer than 10% of the 
``strongest'' claims submitted by State Insurance Commissioners under 
the ``Fast Track'' process. Instead of applying ``relaxed'' standards 
of proof as called for in the founding Memorandum of Understanding 
(MOU) that established the commission, the companies (who, we are 
surprised to learn, make the initial decision themselves), are in fact, 
applying very stringent standards.
    Under the ``regular track,'' the ICHEIC has received approximately 
47,000 claims. As of August 31, only 10,700 of these had been 
distributed to the companies. The companies have made a total of 38 
offers under the regular track program so far, and have rejected over 
500 of these claims. Companies have paid out between $2 million and $3 
million in claims so far, a minuscule fraction of the billions owed. 
This figure is low even in comparison to the amount of money the 
companies and the ICHEIC have spent on staff, travel, and the like.
    The ICHEIC has also apparently failed to deliver so far on basic 
elements of a valid process. After 20 months and the expenditure of 
untold millions of dollars in administrative expenses, there is no 
appellate process in place and no information on how the ICHEIC 
auditing process is being used to insure a thorough and neutral review 
of the sweeping denials. Furthermore, the U.S.-German Executive 
Agreement establishing the German Foundation Fund has further 
endangered the viability of these claims by calling for the dismissal 
of class action insurance lawsuits before credible auditing and appeals 
processes are in effect.
    If States are limited in enforcing their own legislative acts 
requiring insurers doing business in their states to disclose 
information about Holocaust-era policies, and providing various avenues 
of relief for claimants in their courts, then tens of thousands of 
American Holocaust survivors and their heirs will not be able to obtain 
meaningful information about family policies, much less recover the 
funds improperly withheld by these companies for so many decades.
    ICHEIC does its work in secret so the public and even Congress are 
not aware of the status of its activities. We have also been very 
disturbed to learn that even the State Insurance commissioners who 
serve on the ICHEIC believe they do not participate in important ICHEIC 
decisions. We are concerned that the Justice Department is enabling a 
nontransparent process controlled by insurance conglomerates with huge 
exposure and influence to become the de facto substitute for effective 
state regulation of insurance claims, in the tradition of the McCarran-
Ferguson Act.
    Perhaps of greatest concern is that the disclosures of policyholder 
information, which was to be the central mission of the ICHEIC, and 
which the California and other state laws are designed to facilitate, 
has not occurred in a significant way. After nearly 2 years, an 
unacceptably small number of insurance policyholder names have been 
disclosed to facilitate the filing of claims. Yet the Department of 
Justice says, and we must face the possibility that the Courts may 
agree that States cannot require companies with business links in their 
states to disclose such crucial information which Holocaust victims and 
their heirs have virtually no other means to obtain.
    Consequently, we are planning to move ahead with legislation to 
ensure that insurers are held accountable, and that survivors and heirs 
are compensated for policies sold to individuals who became victims of 
the Holocaust. Enclosed are early versions of two bills many of us 
sponsored or supported, the Holocaust Victims Insurance Act (H.R. 126), 
and the Justice for Holocaust Survivor Act (H.R. 271), for which we 
would like your comments in light of current developments.
            Sincerely,

Signed by the following Members of Congress: Peter Deutsch, Ileana Ros-
Lehtinen, Robert Wexler, Lincoln Diaz-Balart, Carrie Meek, Mark Foley, 
Alcee Hastings, Clay Shaw.

                Statement Submitted by Sidney Zabludoff

    Thank you for allowing me to present this written testimony on 
Holocaust era insurance restitution after the International Commission 
of Holocaust Era Insurance Claims (ICHEIC). My basic conclusion after 
examining the issue for more than 10 years is that extraordinary events 
require extraordinary resolutions. Clearly, the murder of two-thirds of 
continental European Jewry and the confiscation of nearly all Jewish 
assets by the Nazis and their collaborators was such an event. Despite 
such extraordinary circumstances only about 20 of the stolen property 
and other assets has been returned through 2007.\1\
---------------------------------------------------------------------------
    \1\ For more details please see my articles from the Jewish 
Political Studies Review; ICHEIC: Excellent Concept but Inept 
Implementation (Spring 2005); Restitution of Holocaust-Era Assets: 
Promises and Reality (Spring 2007). Both articles can be found at the 
website of JCPA.org. On the home page and JCPA projects click on 
``Jewish Political Studies'' and look for the date and title of the 
article.
---------------------------------------------------------------------------
    In case of life insurance held by Holocaust victims the results are 
similar. Up to the start of ICHEIC in 1998 some 20 percent of the 
minimum fair value of policies was paid. During ICHEIC's 10 year effort 
only 3 percent was added. Shown below are the percentages of 
outstanding amount paid during the ICHEIC years by participating 
insurance companies and countries:



Allianz                                                              1
AXA                                                                  2
Generali                                                             6
Winterthur                                                           1
Zurich                                                               3
Austria                                                              3
Germany                                                              5




    Two bold actions could be taken to help rectify this sizable and 
unconscionable shortfall. They are passing HR 1746 and ensuring that 
the remaining unpaid stolen assets are used to assist needy Holocaust 
survivors.
    HR 1746 would help restore to Holocaust victims or their heirs the 
value of policies never paid by insurance companies or countries. 
Conservatively estimated, this amounts to $18 billion in 2007 values. 
It is conservative because it uses the 30 year U.S. Government bond 
yield to move from the pre-Holocaust dollar value to the 2007 value, 
whereas insurance company portfolios earn a much higher yield because 
they contain stocks, corporate bond, and real estate. It also should be 
noted that my estimates of pre-Holocaust policy values are consistent 
with the Pomeroy-Ferras Report published by ICHEIC. That report makes 
no attempt to determine the current value of unpaid life insurance.
    HR 1746's important first step is to ensure that the names of 
policyholders are published. ICHEIC started this process and some 
500,000 names of policyholders were placed on its website (now 
available on the Yad Vashem website). Germany provided about 80 percent 
of these policyholder names. Some 360,000 resulted from an ICHEIC 
agreement with the German Foundation and 42,000 were developed via 
ICHEIC archival research. In the ICHEIC context the published German 
Foundation list was of little use, since it was made public only a few 
months before ICHEIC's filing deadline. Even so, Germany has largely 
met its obligation to provide policyholder names under HR 1746.
    For the other countries, the number of Jewish policyholders 
published is minimal. The most notable shortcomings are in Hungary, 
Poland, and Rumania, all of which had large pre-Holocaust Jewish 
populations. Even in most west European countries the number of 
published names is extraordinarily small. To deal with this 
shortcoming, non-German archives need to be further examined and, most 
importantly, companies doing business outside of Germany should publish 
the names of their Holocaust era policyholders. HR 1746 has provisions 
to do both.
    The proposed legislation also provides victims and their heirs a 
means to receive a minimum fair value for policies taken out in the 
pre-Holocaust period. This recognizes that there is still a long way to 
go for life insurance companies to meet their Holocaust era 
obligations. Indeed, less than a quarter of the minimum fair value of 
outstanding policies was paid during the post-war and ICHEIC years.
    A welcomed first step toward increasing that percentage has been 
proposed. That is all ICHEIC companies and the German insurance 
association (GDV) presumably have agreed to accept further claims using 
the ICHEIC valuation undertaken by a NY State office. But as discussed 
on page 4 there remain many questions about the effectiveness and 
fairness of ICHEIC rules, valuation calculations, and its claims 
process. Given these shortfalls, why shouldn't claimants who have not 
signed a release when they settled their claims be able to take their 
cases to court? this is not a class action suit in which all claimants 
are paid a specified amount. Even in these cases, individuals are 
allowed to choose whether they join the class action suit or take 
separate actions. Most lawyers will not take cases in which the 
claimant lacks evidence. Even for those tat do so, the judge would 
dismiss the case as frivolous. The bottom line is why shouldn't 
claimants trying to recover Holocaust era insurance policies have the 
same judicial rights as most others. That's what HR 1746 provides.
A number of key issues also remain:
   Germany insisted upon a method to determine a policy's current 
        value that produces an amount that is only about 15 percent of 
        similar valued policies paid under ICHEIC guidelines for all 
        other west European countries. The extraordinarily low German 
        payments are caused mainly by the inclusion of the 1948 German 
        monetary reform in their asset restitution systems. At that 
        time, the Allied powers insisted on a monetary change in which 
        10 Reichsmarks were made equivalent to one Deutschmark. This 
        was done in order to save the post-war German economy from the 
        vast deluge of Reichsmarks the Nazi regime had dumped on the 
        market to pay for the war effort. Indeed, without this Allied 
        action, the German economic miracle that followed would not 
        have taken place or would have been much delayed. The problem 
        is that the Jews, who were not responsible for the Nazi war 
        effort, along with many non-Jewish Germans, had to suffer in 
        terms of reduced values of assets for the war-time economic 
        policies of the Nazi regime. The non-Jewish Germans, however, 
        benefited from the economic miracle while few Jews were left. 
        If the German companies were paying at the rate every other 
        European country was paying, it would have paid ICHEIC 
        claimants about $500 million rather than the $74 million it 
        actually paid.
          Calculating the current value of Holocaust era policies in 
        dollars is necessary since the dollar (along with Swiss franc) 
        is the only major currency that did not undergo substantial 
        turmoil in the post World War II years. Indeed, the Foreign 
        Claims Commission of the United States provides a strong 
        precedent to convert foreign currencies into dollars at the 
        time of confiscation. As such, it excludes currency changes 
        that occurred between the time of confiscation and claim 
        payment, such as the 1948 German monetary reform. An example is 
        Commission claim #CZ-2,832, which was decided during the year 
        ending June 1961. It involved a Jewish family who owned 
        property and financial assets (including life insurance 
        policies) in Czech Sudetenland which was occupied the Nazis in 
        1938. The assets were soon taken over by the Nazis. The 
        decision calls for paying the claims at a ``sum converted into 
        United States Dollars at the 1939 exchange rate of 2.4 
        Reichsmarks for 1 United States Dollar . . .'' \2\
---------------------------------------------------------------------------
    \2\ Foreign Claims Settlement Commission of the United States: 
Report to Congress for the period ending June 30, 1961; page 168.

   The east European valuation rate set by ICHEIC amounts to only 
        about one-third of the conservative realistic current value. 
        This rate reflects the companies' argument that they were 
        nationalized. They did, however, receive partial repayment from 
        east European governments. More importantly, many insurance 
        contracts indicated that payments to policyholders were backed 
        by company funds outside the country in which the policy was 
---------------------------------------------------------------------------
        written.

   Austria, which had by far the poorest post-war insurance 
        restitution record in western Europe, allocated $25 million in 
        2001 for repaying outstanding policies. The result is that it 
        reimbursed claimants only about 15 percent of the ICHEIC 
        valuation. ICHEIC discussed paying the difference but nothing 
        was resolved.

   Holland never paid for small-valued burial policies, a form of life 
        insurance. There were some 8.5 million such policies in a 
        country with a pre-war population of 10 million. In current 
        prices, the Jewish portion of these burial policies would be 
        valued at some $300 million.

   Switzerland has paid only 17 claims other than those from Germany 
        and Austria for some $90,000, according to ICHEIC statistics. 
        Swiss company sales of life insurance elsewhere to Jews in Nazi 
        occupied Europe amounted to some $440 million in 2007 prices. 
        In addition, Swiss companies played a major role in the 
        European reinsurance market and thus had a portfolio of Jewish 
        policies likely amount to $2 billion in 2007 prices.

   Belgium paid one policy worth $15,000 according to ICHEIC 
        statistics even though it had some $120 million (2007 prices) 
        still unpaid in the case of Jewish life insurance.

   AXA France--an ICHEIC company--paid 131 policies worth some $5 
        million according to ICHEIC statistics. Non-ICHEIC companies 
        operating in France were supposed to pay claims via the Drai 
        Commission. It is not known how much of the $172 million (2007 
        prices) still owed by non-ICHEIC French companies to Jewish 
        life insurance policyholders were paid by the Commission.

   In all, for Belgium, France, Holland and Switzerland there is a 
        lack of information of how much was paid in life insurance 
        claims between 1945 and 1997 and during the ICHEIC years.

   Generali states in court it had a total of 89,000 life insurance 
        policies held by both Jews and non-Jews in 1936. But based on 
        hard historical evidence, it had several hundred thousand and 
        more likely several million. this enormous undercounting raises 
        serious doubt about Generali's denying claims because it had a 
        full list of policyholders.

   The ICHEIC system rejected claims or paid too little because it 
        failed to deal with the many unforeseen issues that naturally 
        arise in any complex restitution process. For example, the only 
        known original value of numerous policies was at the cast 
        surrender value which is roughly 25 percent of the face or pay 
        off value. ICHEIC refused to develop a reasonable methodology 
        to get from the cash surrender value to the face value. Thus, 
        the lower cash surrender value was used. In addition, ICHEIC 
        never dealt with the vast number of non-life insurance policies 
        although it had pledged to do so in its charter.


    The chief reason for such ICHEIC problems were inept governance and 
poor management. Governance became akin to secret diplomacy, in which 
those who ran ICHEIC relied heavily on dealing only with those who 
favored their views while making promises to others that were never 
fulfilled or too long delayed. ICHEIC management mainly ignored the 
numerous studies pinpointing the serious problem with the claims 
process. Judge Michael Mukasey succinctly summed up the problem when he 
described ICHEIC as ``in a sense, the company store.'' \3\
---------------------------------------------------------------------------
    \3\ In re Assicurazioni Generali S.p.A. Holocaust Ins. Litigation, 
228 F. Supp. 2d 348, 356-57 (S.D.N.Y. 2002).
---------------------------------------------------------------------------
    But no matter what steps are taken to find claimants, many policies 
will remain unpaid. those working on ICHEIC and other restitution 
efforts recognized this outcome from the start. This is because whole 
families were wiped out by the horrific events of the Holocaust, 
leaving only distant relatives with little knowledge of the 
policyholders, especially when dealing with events that occurred more 
than a half century ago. It was also understood that many records no 
longer exist. An example is the extensive search for life insurance 
records in Germany. Only about 8 million or a quarter of the 31 million 
policies outstanding in the late 1930s was found.
    Recognizing this fact, ICHEIC attempted at one time to calculate 
the overall value of policies--called the ``top down approach.'' The 
companies would then pay the difference between this overall estimate 
and the amount actually paid to claimants to a fund that would support 
needy survivors and other causes. This approach, however, was forgotten 
as ICHEIC proceeded, and only relatively small amounts were provided 
for such a humanitarian fund, mostly under the accord with Germany. 
Insurance companies failed completely to deal with this issue.
    This brings me to my second point. Besides pressing individual 
claims, I would suggest an International Remembrance Fund to support 
needy Holocaust survivors who are in their autumn years. Currently 
there are approximately 600,000 Holocaust survivors worldwide and 
actuarial date indicate their number will diminish sharply during the 
next 10 years. A review of the available studies indicates that there 
are numerous survivors who lack adequate income to meet their daily 
living expenses and health requirements. For example, one study of the 
United States indicates that the income of more than half the survivors 
falls within the poverty or near poverty bracket. My first rough 
approximation is that between $20 and $40 billion will be required 
during the next 10 years to sustain needy survivors.
    Clearly, what is urgently required is an in-depth study to 
determine more precisely the likely financial requirements of needy 
survivors. This would take into consideration funds they are already 
receiving through various governments as well as private assistance. 
simultaneously, we must reach a global accord to establish an 
International Remembrance Fund. This will require an innovative 
financial structure. But again extraordinary measures are essential in 
dealing with and extraordinary event such as the Holocaust.

 Statement Submitted by The Organization of Forced Laborers Under the 
                   Nazi Occupation, Tel-Aviv, Israel

    Our organization unites and represents Holocaust survivors, 
children and grandchildren of survivors living in Israel. Wee have 
learned from our American peers and relatives about the initiative 
undertaken by the U.S. Congress to provide the help, which is 
desperately needed by our community 60 years after the end of WWII.
    The members of the U.S. Senate Foreign Relations Subcommittee on 
Democracy and Human Rights will take up shortly the issue of insurance 
policies that were sold to our families prior to WWII but which remain 
unpaid. Today, over $17 billion remains in the hands of global 
insurance companies who never paid our parents, grandparents, aunts, 
and uncles for policies they purchased in good faith at the time of 
terror in Europe.
    We are signing this petition because we believe that the U.S. 
Congress will rectify this injustice. Although we are not American 
citizens, we understand that the U.S.A. has always been the leading 
force to rely upon for the implementation of justice through all the 
years from the victory over the Nazis in WWII until today. It is our 
belief that the esteemed Senators and Representatives of the U.S. 
Congress will continue this course and support the case of the 
Holocaust survivors in time of need.
    HR 1746 would require insures who sold policies to European Jews 
before WWII that do business in the U.S. to open their records to 
survivors and heirs. It would also ensure that Holocaust survivors and 
heirs have the access to the United States courts to vindicate their 
insurance claims if the companies refuse to settle. The Holocaust 
survivor leaders who have testified in Congress have made a compelling 
case for this law.
    The time has come for us, the survivors and the next generations, 
to be heard.
    We know there is much discussion about ICHEIC in Congress. To us, 
this is irrelevant. ICHEIC helped some but was a bitter disappointment 
for thousands here in Israel. There is much sadness and even anger here 
among survivors because of the way the ICHEIC treated so many of us. We 
were in most cases blocked from information, given broken promises, and 
few of us had confidence we received the truth. We believe Congress 
should focus on the insurance companies and on the survivors and legal 
heirs.
    We respectfully request that the United States Congress side with 
us, the victims, and our families. We, and our children and 
grandchildren, as legal heirs, are entitled to a full accounting and 
compensation for the companies' financial crimes. No one who profited 
from the Holocaust should be allowed to be the heirs of our loved ones.
    Time is very much against us. Far too much time has elapsed 
already. Too many survivors have already passed away in frustration and 
anger.
    Please support the survivors and second generation in of search for 
justice. Please ask the Senate leadership to pass a counterpart to HR 
1746 so that this law will be obeyed by the insurance companies who are 
reluctant to part with the victims' monies. We are counting on you.
                                   David Grinstein,
                                           Chairman.
                                   Shochet Moshe,
                                           Member.
                                   Mordechai Hareli,
                                           Member.
                                   Hanna Hareli,
                                           Member.
                                   Zigmond Brill,
                                           Member.
                                   Mather Dagan,
                                           Member.

  Statement Submitted by Generations of the Shoah International (GSI)

                petition: holocaust era insurance claims
    Please support Holocaust survivors and their descendants search for 
justice.
    Soon members of the U.S. Senate Foreign Relations Subcommittee on 
Democracy and Human Rights will take up the issue of insurance policies 
that were sold to our families prior to WWII but which remain unpaid. 
Today, over $17 million remains in the hands of global insurance 
companies who never paid our parents, grandparents, aunts, and uncles 
for policies purchased in good faith at a time of terror in Europe.
    HR 1746 would require insurers who sold policies to European Jews 
before WWII that do business in the U.S. to open their records to 
Holocaust survivors and heirs and ensure access to United States courts 
should settlements not be achieved. The Holocaust survivor leaders who 
have testified in Congress have made a compelling case for this law.
    The International Commission for Holocaust Era Insurance Claims, or 
ICHEIC, was created by the insurance industry in 1998 to sidetrack 
legislation similar to HR 1746. When ICHEIC closed its doors in March 
of 2007, it had paid less than three percent (3%) of more than $17 
billion owed to Holocaust victims' families. this result cannot be 
acceptable.
    The time has come for the survivors and the next generations to be 
heard. We ask only for a full accounting of what was stolen from loved 
ones and are signing this petition because we believe it is now up to 
Congress to rectify this injustice. We implore you, our elected Senator 
and Representatives, to support survivors in their time of need.
    We ask that Congress require the companies to disclose their 
records to survivors and/or their legal heirs, and to disgorge their 
ill-gotten profits. Those who profited from the Holocaust should not be 
allowed to be the heirs of murdered loved ones.
    Time is very much against us; far too much time has elapsed 
already. Too many survivors have passed away while awaiting resolution.
    Please support survivors and their descendants in the search for 
justice. Please ask the Senate leadership to introduce and pass a 
counterpart to HR 1746 so we can make this the law of the land with no 
further delays. We are counting on you.


    [This petition was signed by 72 individuals from the New Jersey/New 
York area. The original signature pages have been retained in the 
committee's permanent files.]

    Statement Submitted on Behalf of The David Family, Milwaukee, WI

                Flanner, Stack, Fahl & Bagley, llp,
                           Attorneys and Counselors at Law,
                                                    Brookfield, WI.


                                                       May 1, 2008.
Hon. Russell Feingold,
506 Hart Senate Office Building,
Washington, DC 20510-4904.


    Dear Senator Feingold: I represent the Estate of David David whose 
family includes Holocaust survivors. Mr. David's widow and children are 
your constituents. Mr. David passed away in 2004. His great uncle, Aron 
Sanel Schapira, was his maternal grandmother's brother. Mr. Schapira 
lived in what at the time was Poland but is now a part of the Ukraine 
Republic. Mr. Schapira ran a business and so had purchased insurance to 
protect both his business and his family. The insurance was purchased 
from the Italian insurance company Assicurazioni Generali S.p.A. 
(``Generali''). Mr. David's children are the only known surviving 
members of this family. Many of the others perished in the Holocaust.
    In the mid 1990s, when the area where he grew up became safe for 
travel by Jews, Mr. David travelled to the area of his birth and the 
place where Mr. Schapira had lived. Through a person he knew in that 
area, Mr. David learned that his great uncle kept several valuables 
stored in the walls of the house where he had lived. Storage in this 
fashion was common at that time and place. The house was still standing 
and occupied when Mr. David visited and so, Mr. David asked his 
acquaintance to retrieve his great uncle's items. The items retrieved 
included a life insurance policy that Mr. Schapira had purchased in 
1920. The terms of the policy provide for the payment of benefits to 
the bearer of the policy and Mr. David and his family are in possession 
if it.
    Mr. David knows that his great uncle was alive at the outbreak of 
World War II.
    Efforts by Mr. David to file a claim for benefits proved futile 
even though every effort was made to collect what was due after the 
catastrophe suffered by his family. His contacts with Generali proved 
futile.
    Mr. David then filed a claim with the International Commission for 
Holocaust Era Insurance Claims (ICHEIC) on March 20, 2001. 
Notwithstanding ICHEIC's rules to respond within ninety (90) days, 
ICHEIC response was dated December 22, 2006 offering him $1,000.00. 
Generali also responded to him by letter dated May 25, 2005 and denied 
the claim because it claimed the policy left its portfolio prior to 
1936.
    Mr. David then decided to pursue his rights in court but the courts 
have said that non-official executive branch statement of interest 
revoked his access to U.S. Courts. As one who was personally touched by 
the Holocaust, he was mystified and hurt to witness how the American 
justice system came to such a confusing and illogical result. It is a 
sad day for American justice for Mr. David to have passed away during 
this fight of his for simple justice. We believe the District Court is 
wrong and are pursuing the claim of the David family in the Second 
Circuit Court of Appeals.
    There is now legislation pending in Congress that will remove all 
doubt and require that insurers who sold policies to Jews before WWII 
open their records and be accountable in U.S. Courts for failing to 
honor the policies of Holocaust victims. This is no small problem. Over 
800,000 life insurance policies of European Jews were in force at the 
beginning of WWII with an unpaid value today of $17 billion. In fact 
after nine years ICHEIC has only succeeded in paying a tiny fraction of 
the total. It paid fewer than 15,000 policies, and less than 3% of the 
value ($260 million). However well-intended the process, it failed.
    Next week the Senate Subcommittee on International Operations and 
Organizations, Democracy and Human Rights of the Senate Foreign 
Relations Committee will hold a hearing on the Holocaust insurance 
situation. I am writing to ask that you take an active role in 
assisting Holocaust survivors recover what the courts have inexplicably 
denied them - the basic right to sue an insurance company doing 
business in this country that failed to honor an insurance policy it 
indisputably sold to the victims of the Holocaust. Although Mr. David 
does not know when Aron Schapira died or the circumstances of his 
death, he does know that he was alive at the outbreak of World War II. 
This is when Mr. David left his home and began his journey to America.
    I also am asking that you sponsor and seek immediate passage of 
Senate legislation mirroring HR 1746, the Holocaust Insurance 
Accountability Act of 2007, introduced by Congresswoman Ileana Ros-
Lehtinen and Congressman Robert Wexler. There are several dozen co-
sponsors in the House, and it passed the House Foreign Affairs 
Committee on unanimous consent at the behest of the late Chairman Tom 
Lantos.
    The bill would allow survivors and heirs to bring an action in the 
U.S. Courts against insurers who fail to honor a policy issued before 
the Holocaust. The courts so far have held that Executive Branch 
statements supporting ICHEIC preclude U.S. citizens such as Mr. David 
from being able to sue an insurance company that took advantage of the 
Holocaust to keep money paid by Mr. David's family member in good faith 
prior to WWII. This is shocking enough, but the courts have also sited 
the fact that so far Congress has been silent on the question. So this 
is Congress's chance to define Holocaust survivors' rights to make 
claims in court against the insurers in question. We cannot believe 
that our elected representatives would accept such a denial of rights 
to a class of citizens--any citizens but certainly not Holocaust 
survivors - who only want the companies to pay what they owe.
    HR 1746 will also require insurers doing business in the U.S. who 
sold policies in pre-war Europe to publish its policyholders' names 
from that period. Unfortunately, ICHEIC's publication of names was 
voluntary, and woefully incomplete. As an example the name of Aron 
Sanel Shapira does not appear on any list of policy holders supplied by 
Generali. Only the name ``A Schapira'' appears notwithstanding that 
Generali has this man's full name. Less than 20% of the names of policy 
owners from Eastern Europe were published. Full disclosure, under a 
legal requirement, is a must so all families can learn about their 
families' rights.
    How can Congress stand by silently in the face of this result when 
we hear so much rhetoric about learning the lessons of the Holocaust? 
Why should the corporations who profited from that great crime, who do 
business in the U.S. today, be allowed to retain this unjust 
enrichment? It is time for all institutions including Congress to hold 
the insurers accountable for their profiteering in the Holocaust.
    The David family and I look forward to working with you and your 
office on this issue.
        Sincerely,
                                            Thomas R. Fahl.

          Material Submitted by Organizations and Individuals 
                        in Opposition to HR 1746

 Statement Submitted by the Anti-Defamation League, B'nai B'rith, and 
                                 Others

                                                       May 2, 2008.
Hon. Bill Nelson, Chairman,
Committee on Foreign Relations,
  Subcommittee on International Operations and
  Organizations, Democracy and Human Rights,
U.S. Senate, Washington, DC.


    Dear Mr. Chairman: The undersigned organizations have been active 
in efforts to secure a measure of justice for survivors of the 
Holocaust and appreciate the ongoing work of the United States Congress 
to highlight and defend the interests of Holocaust survivors.
    In advance of the May 6th Subcommittee on International Operations 
hearing on Holocaust-era insurance restitution, we write to express the 
opinion that House Resolution 1746, the Holocaust Insurance Claims 
Accountability Act, would not be helpful to these efforts. Passage of 
H.R. 1746 would also undermine the credibility of the broader effort by 
the U.S. Government and others to resolve these problems.
    The process established by the International Commission on 
Holocaust Era Insurance Claims (ICHEIC) identified and paid over $300 
million in insurance claims to tens of thousands of claimants and 
recovered additional funds for home care and other social services 
benefits for survivors worldwide.
    In addition to all the claims that have already been recognized and 
paid, the companies which participated in ICHEIC have made it clear 
that they will continue to process Holocaust-era claims received after 
the close of ICHEIC and they are currently doing so.
    Passage of the legislation would jeopardize critical ongoing 
negotiations that are of tremendous importance to thousands of needy 
Holocaust survivors in the U.S. and around the world.
    We welcome the commitment that Congress has demonstrated to this 
issue and we will be glad to work with the Congress on constructive 
ways to continue to help survivors and their families.
        Sincerely,
                                   Anti-Defamation League,
                                   B'nai B'rith International
                                   Conference on Jewish Material Claims 
                                       Against Germany,
                                   Religious Action Center of Reform 
                                       Judaism,
                                   World Jewish Congress.

   Statement Submitted by Rabbi Andrew Baker of the American Jewish 
         Committee, Department of International Jewish Affairs

                      Rabbi Andrew Baker, Director,
                      American Jewish Committee, Department
                           of International Jewish Affairs,
                                                    Washington, DC.


                                                       May 1, 2008.
Hon. Bill Nelson,
U.S. Senate, Washington, DC.


    Dear Senator Nelson: As an official observer of the International 
Commission for Holocaust Era Insurance claims, the American Jewish 
Committee is quite familiar with its efforts to identify policies and 
match them with claimants. The ICHEIC process was complicated and 
prolonged. It sought the records of participating insurance companies 
as well as other archival information and relied on victims' lists 
prepared by Yad Vashem in order to identify a large but likely list of 
policy holders that could then be shared via the internet. In the end, 
thousands of claims were found and paid by participating insurers. Many 
other claims against now defunct companies were also paid by ICHEIC. 
Its additional humanitarian funds have been used to make small payments 
to those with only anecdotal evidence of insurance policies and to 
support welfare projects designed to assist needy Holocaust survivors.
    No doubt some people believe that ICHEIC did not do everything it 
could to identify Holocaust-era policies, and a few even thing that 
some insurance companies willfully sought to hide documentation. But 
such views cannot be supported by our own observation of ICHEIC's 
operations.
    H.R. 1746 would require insurance companies to provide extensive 
lists of pre-war policies without any prior vetting to determine if 
they were held by Holocaust victims. It would also open the door to a 
new set of legal battles in American courts. As the American Gathering 
and the Claims Conference have noted, both these steps would actually 
be detrimental to the concerns of Holocaust survivors and their heirs. 
Such unvetted lists would only create false expectations among 
claimants. The new burdens imposed on the companies would effectively 
renege on the promise of ``legal peace'' that was instrumental in 
securing their participation in the first place. Such promises have 
also been a key to settling other Holocaust-era claims, and H.R. 1746 
could adversely affect similar negotiations in the future.
    Despite the fact that ICHEIC has closed its doors, participating 
insurance companies have agreed to continue to receive new claims. 
State insurance regulators should be vigilant to make sure that they 
live up to these promises. We understand that the State Department 
Office for Holocaust Issue is also prepared to intervene on behalf of 
individual claimants should that become necessary. Although not 
perfect, we believe these measures should be sufficient to address the 
concerns of individual survivors who may still have insurance claims to 
pursue.
        Respectfully,
                                              Andrew Baker,
                                                          Director.

  Statement Submitted by Rabbi Abba Cohen of Agudath Israel of America

            Rabbi Abba Cohen, Director and Counsel,
                                 Agudath Israel of America,
                                                    Washington, DC.


                                                       May 2, 2008.
Hon. Bill Nelson, Chairman,
Subcommittee on International Operations,
U.S. Senate, Washington, DC.


    Dear Chairman Nelson: We write on behalf of Agudath Israel of 
America to express our views on H.R. 1746, the ``Holocaust Insurance 
Accountability Act of 2007.'' The Subcommittee on International 
Operations is expected to take up the measure early next week.
    Founded 86 years ago, Agudath Israel is the national Orthodox 
Jewish organization affiliated with Agudath Israel World Organization 
(AIWO). Among our activities--both here and on the international 
scene--is to protect the rights of those who survived the Nazi horror 
and to promote efforts to obtain a measure of justice on their behalf. 
AIWO has been an active member of the Conference of Jewish Material 
Claims Against Germany and the World Jewish Restitution Organization, 
umbrella organizations that for decades have been in the forefront of 
advocacy for Holocaust survivors.
    Agudath Israel takes note of the steps already taken to address the 
matter of unpaid Holocaust era insurance policies. We are concerned 
that, while some claimants may benefit from the proposed legislation, 
many others will be hurt. The original agreements yielded commitments--
including by the U.S. Government--that subsequent, related lawsuits 
against the participating countries and companies would be discouraged. 
H.R. 1746, in effect, would reopen these previous agreements, putting 
at risk substantial funding which is critical for survivors in need 
around the world.
    We applaud Congress for its well-intentioned efforts. However, 
those efforts might be more productively channeled to areas which to 
date have not been adequately addressed--particularly regarding 
property restitution in Central and Eastern Europe--rather than risk 
undermining agreements that have benefited so many.
    Thank you for considering our views.
        Sincerely yours,
                                          Rabbi Abba Cohen.

 Statement Submitted by Robert A. Swift, Attorney, Kohn, Swift & Graf, 
                                  P.C.

                          Kohn, Swift & Graf, P.C.,
                                          Philadelphia, PA.


                                                    April 24, 2008.
Hon. Bill Nelson, Chairman,
Subcommittee on International Operations,
U.S. Senate, Washington, DC.


Hon. Barney Frank, Chairman,
Committee on Financial Services,
U.S. House of Representatives, Washington, DC.


    Dear Senator Nelson and Congressman Frank:  In connection with the 
upcoming May 6, 2008 hearing in the Senate on Holocaust Insurance 
Claims, I would like to offer my opinions regarding the efficacy of 
legislation. But for a previously scheduled business trip to Asia from 
May 2 through May 15, I would be willing to state my views at the 
hearing.
    Let me mention my background that qualifies me to state the views 
herein. I was a lead litigator of Holocaust claims beginning in 1996, 
and a principal negotiator of settlements with the Swiss banks, Germany 
and Austria, as well as several other settlements. I am a lead counsel 
in the Assicurazioni Generali S.p.A. Holocaust Insurance Litigation, 
MDL No. 1374 (SDNY) in which a global class of Holocaust claimants has 
settled with Generali. I have been practicing law for 35 years and am 
regarded by my peers as a significant contributor to the development of 
modern human rights jurisprudence. Last month I argued the first human 
rights case to be heard by the Supreme Court.
    I believe the proposed legislation will be detrimental, if not 
fatal, to the August 25, 2006 Settlement between the Class and 
Generali. That Settlement has been approved by the Federal Court 
although processing of the over 40,000 claims has been delayed by an 
appeal by six (6) claimants. On a daily basis I receive letters and e-
mails from claimants anxious to have their claims processed, including 
many elderly claimants. Attached is an e-mail from a Maryland claimant 
who mentioned that the prompt processing of his claim was critical to 
him since he may be unable to pay the mortgage on his farm. See, 
attached.
    The proposed legislation will vitiate the closure which is the quid 
pro quo for the compensation promised to the Class under the 
Settlement. To receive compensation, a victim of Nazi persecution (or 
heir) must be matched with an unpaid Holocaust era insurance policy 
that was in force after was started. The Class is defined as:


          All persons worldwide who (1) were (i) Holocaust Victims as 
        defined, infra, and (ii) during the Class Period were (a) named 
        in or were parties to any Insurance Policies as defined infra, 
        including, but not limited to, the insured, beneficiaries and 
        owners under such Insurance Policies, or (b) persons who 
        succeeded to their right by operation of law or otherwise, 
        including but not limited to heirs, distributees, legatees, and 
        the like, or (2) persons claiming by, through, or in the right 
        of any one or more of the foregoing persons (including but not 
        limited to heirs, distributees, legatees, and the like), 
        whether or not such claimants in this clause (2) are Holocaust 
        victims; provided however, that ``Generali Settlement Class'' 
        and ``Releasors'' shall not include persons (i) who have timely 
        elected to be excluded from the ``Generali Settlement Class,'' 
        or (ii) who for any reason previously released any one or more 
        of the Generali Group from liability in respect to the claims 
        being compromised (whether such previous release was provided 
        in connection with receiving compensation in respect of an 
        Insurance Policy or for any other reason). The Class Period is 
        January 1, 1920 through December 31, 1945. A ``Holocaust 
        Victim'' means any person who was persecuted by the Nazis (or 
        their allies or by persons acting in concert with them or 
        pursuant to their direction) at any time on account of 
        religion, sexual orientation, racial background, or political 
        views, including but not limited Jews, Romani, homosexuals, and 
        Jehovah's Witnesses.


    The Settlement with Generali allows anyone coming within the broad 
definition of a class member to file a claim even if a prior claim 
submitted to ICHEIC was rejected. Worldwide notice was given to the 
Class, and the response was resoundingly supportive of the Settlement. 
The claims will be processed by Generali under U.S. Court supervision 
using databases created by Generali from the totality of its archival 
records. I have personally inspected Generali's archival records, its 
databases and the office where claims will be processed. Generali's 
personnel have considerable experience in matching Holocaust Era 
policies gained from processing claims for ICHEIC.
    In consideration for the compensation, Generali expects, and is 
entitled to receive, a release from the entire Class for Holocaust 
Insurance Claims. In this respect, the Settlement is no different from 
other class actions. However, the proposed legislation would eliminate 
a release for anyone not receiving compensation even though the claim 
was reviewed and no matching policy or other reason for nonpayment 
found. A reason for nonpayment would include that the policy was paid, 
was cancelled, or was not in force at the time war broke out. Generali 
retains a right to rescind the Settlement if the terms of the 
Settlement are materially altered. One could understand Generali 
exercising this right if the legislation forces it to litigate 
meritless claims for a decade or longer. the impact of rescission would 
be devastating for the international Class of over 40,000 who pinned 
their hopes on a prompt claims review process. Most lack the ability to 
litigate in the United States, the evidence to satisfy a court, or the 
fortitude to endure a decade or more of litigation.
    The very elimination of releases for persons not receiving 
compensation from Generali is a central issue on appeal. Not 
surprisingly, the proponents of the legislation are also among the 
appellants. Congress should not intervene to resolve an issue which is 
pending in a federal appeals court. A decision on that issue is 
expected very soon since the Second Circuit Court of Appeals granted 
expedited status to the appeal, and briefing and oral argument are 
complete.
    On a broader level, I do not believe that legislation to require 
foreign insurance carriers to disclose archival information and to 
create a federal cause of action is necessary or appropriate at this 
time. During the Clinton Administration, the Executive Branch played a 
major role in fostering settlements of Holocaust era claims with Swiss 
Banks, Germany and Austria which resulted in $7.5 billion being 
distributed to over 2 million persons. Insurance claims were prominent 
among them. ICHEIC, whatever its flaws, played a role in establishing 
standards for payment of Holocaust era insurance claims and a practical 
process for reviewing claims. Under its authority hundreds of millions 
of dollars was distributed to claimants from settlements reached with 
Germany and Austria. The European community will be offended by 
Congress revisiting Holocaust era insurance claims and creating a new 
remedy with a new statute of limitations regulating European insurance 
carriers. It expected that the settlement concluded would bring closure 
and the end of litigation against European companies.
    Should you need me to elaborate on the opinions expressed herein I 
would be happy to do so.
        Respectfully yours,
                                           Robert A. Swift.
Enc:



 E-mail from Holocaust Insurance Claimant (addresses removed prior to 
                             publication).

 Statement Submitted by Waite, Schneider, Bayless & Chesley Co., L.P.A.

    Waite, Schneider, Bayless & Chesley Co., L.P.A.
                            Attorneys & Counsellors at Law,
                                                    Cincinnati, OH.


                                                       May 1, 2008.
Hon. Bill Nelson, Chairman,
Subcommittee on International Operations,
U.S. Senate, Washington, DC.


    Dear Senator Nelson: I am writing to express my serious reservation 
with H.R. 1746, the Holocaust Insurance Claims Accountability Act, 
which is presently pending before the Senate Subcommittee on 
International Operation and Organization, Democracy and Human Rights.
    Since 1998, I and my law firm, Waite, Schneider, Bayless & Chesley, 
have worked with and represented (pro bono) the organized Jewish 
world--the Conference on Jewish Material Claims Against Germany, the 
World Jewish Congress and the World Jewish Restitution Organization--
with respect to their unceasing efforts to obtain a measure of justice 
for Jewish victims of Nazi persecution. It has been our honor to 
represent those organizations, and to work with and on behalf of 
Holocaust survivors worldwide, in the In re: Holocaust Victims' Assets 
(Swiss Banks) Litigation, in the In re: German and Austrian Banks 
Holocaust Litigation,  in Rosner v. United States (Hungarian Gold Train 
Litigation), in conjunction with the DM 10 billion German Economic 
Foundation Initiative--``Remembrance, Responsibility and the Future,'' 
and in conjunction with the Austrian Funds--``Reconciliation, Peace and 
Cooperation'' and the General Settlement Fund. We have additionally 
served as a advisor to our clients with respect to the International 
Commission on Holocaust Era Insurance Claims (ICHEIC).
    Having carefully considered H.R. 1746, it is my considered opinion 
that the proposed legislation would not only jeopardize the many 
agreements that we worked so very hard to achieve, but would also 
impair ongoing and future negotiations for funding for Holocaust 
survivors around the world. The legislation is extremely problematic 
for several reasons.
    First, and perhaps most importantly, H.R. 1746 will generate 
unrealistic expectations among survivors that will not be met. In 
short, the expectation of survivors will be that creation of a legal 
``cause of action'' will guarantee a payment--a payment that will not 
be forthcoming, at least not without protracted and expensive 
litigation, rife with incomprehensible legal obstacles, and certainly 
not within their lifetimes. In short, while tens of thousands of 
survivors' expectations of a meaningful benefit will be raised, only a 
handful, if any, would actually benefit.
    Second, the legislation will undermine certain undertakings in 
previous agreements, particularly regarding the ``legal peace'' 
afforded those countries and companies participating in the process. 
The legislation would have the effect of reopening previous agreements, 
which will seriously jeopardize ongoing negotiations with Germany, 
among others, thereby putting at risk hundreds of millions of dollars 
in crucial funding that is required now for the neediest Holocaust 
survivors in their waning years.
    Third, the legislation will interfere with the continued processing 
of claims by ICHEIC, under which participating companies have already 
acknowledged their willingness to continue to process claims that they 
continue to receive.
    Finally, the legislation is overbroad in calling for the 
publication of all policies, paid and unpaid, without any system to 
determine if the policyholders are Holocaust victims. Such publication 
will likely produce lists of many millions of policies, including those 
belonging to non-Jewish policyholders in Europe during the relevant 
period. Needless to say, this too will create unrealistic expectations, 
in addition to yielding little new information beyond that which has 
already been developed and published by ICHEIC regarding Jewish 
policyholders who were victims of Nazi persecution.
    In light to the foregoing, I strongly urge you and your Committee 
to give serious consideration to and weigh the many adverse 
consequences of H.R. 1746.
        Very truly yours,
                                        Stanley M. Chesley,
                    Waite, Schneider, Bayless & Chesley Co., L.P.A.
Appendix III.--Material Submitted by Anna B. Rubin, Director, Holocaust 
      Claims Processing Office, New York State Banking Department

             Section 1.--New York State Banking Department 
                           HPCO Annual Report

























































             Section 2.--Overview of the Interwar Economy 
                  and the European Insurance Industry



















          Section 3.--Correspondence Between NAIC and New York







         Section 4.--Additional Material Submitted by Ms. Rubin





























































                                  
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