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A Portrait of a Case That Settled Too Soon


A Review of Inside a Class Action: The Holocaust and the Swiss Banks

By MATT HERRINGTON


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Friday, Nov. 21, 2003

Perhaps only memory can achieve justice in any real sense for the victims of the Holocaust. But many have hoped that the law could produce a measure of justice, or at least of compensation, for the subset of Holocaust victims who were abused by the Swiss banking system.

Based on this hope, plaintiffs' lawyers sought to bring the Swiss banks to account through a class action lawsuit in the American courts. Jane Schapiro's recent book Inside a Class Action: The Holocaust and the Swiss Banks tells the story of that lawsuit.

In the end, though, the book ends up illustrating not law's possibilities, but its limits -- and, particularly, the limits of the peculiarly American device of the class action lawsuit, in achieving justice.

The book's narrative ends -- and this was a mistake, I think -- before the remedies stage of the legal process was complete. Because it cuts short its examination of the case too early, the book fails to give any meaningful answer to the large questions it, and the lawsuit itself, have raised. Had the book gone on to chronicle the remedies stage, it could have explored the troubling questions it has raised about not only the efficacy of the law in such an arena, but also about the tactics of those who championed the cause.

Contrasting Two Very Different Lawyers

Schapiro tells the story of the lawsuit through the lawyers, and the government officials who played a part. The principal characters are Michael Hausfield, a Washington-based plaintiffs' lawyer who was working pro bono, and Ed Fagan, a press-loving New York plaintiffs' lawyer who was working on a contingency fee. The surrounding cast is formidable, including Senator Alphonse D'Amato, class action king Melvyn Weiss, former Federal Reserve Chairman Paul Volcker, and a host of others.

Hausfield and Fagan are cut from different cloth, and have fundamentally different approaches. Hausfield prepares a scholarly complaint based on considerable research conducted in newly-opened U.S. archives. His ambitions are sweeping, encompassing not only claims related to "lost" Swiss bank accounts, but also the wrongs visited against slave laborers, would-be refugees turned away at the Swiss border, and those victimized by the laundering of looted assets through Swiss entities. In contrast, Fagan's instincts are to take a rifle-shot approach, concentrating on the sounder legal footing of the bank claims.

In the end, Hausfield's broader complaint takes precedence. At the urging of Judge Edward R. Korman of the Eastern District of New York, who presided over both the suit and the settlement, the two camps proceeded together, with their efforts overseen by the rickety mechanism of a steering committee. Unfortunately, however, their nominally joint effort was beset with factionalism, skullduggery and distrust.

The Splits Within the Plaintiffs' Camp

Most of Schapiro's attention in the book is devoted to the dysfunctions within the steering committee, and the back and forth of the settlement negotiations with the Swiss banks. This tale is ably recounted and makes for interesting reading.

But, in the end, this story is not, in my view at least, the most interesting thing about the Swiss bank case. To me, the most interesting questions are these: Why settle, rather than going to trial? And, especially, why settle before the court even rules on a motion to dismiss, much less allows for any substantial discovery?

Why the Plaintiffs' Attorneys Settled: Some Claims Seemed Weak

So, why did the plaintiffs settle?

One reason is simple: The plaintiffs were elderly, and the hope was to give them their damages before they died. This was an honorable wish, but as it turned out, not one that has been achieved.

Another is more subtle: It appears that all parties -- plaintiffs and defendants alike were aware that the slave labor and refugee claims (the claims Hausfield brought into the case) would probably be dismissed for failing to state a claim against the banks. (And indeed, that is what Judge Korman and the U.S. Court of Appeals for the Second Circuit subsequently ruled -- in the context of a post-settlement challenge to the remedial scheme.)

This gave the defendants' a reason to push a resolution of the case before Judge Korman ruled on the motion to dismiss. It likely also gave the Hausfield camp a strong incentive to settle their weaker claims. And they did settle them -- for the unquestionably large figure of $1.25 billion, $800 million of which was eventually allocated to the Swiss bank claims in what was referred to at the time as "rough justice."

Why Class Actions Have Advantages for Defendants, As Well as Plaintiffs

As Schapiro notes, a distinct feature of the class action device is that it is both an extraordinarily powerful sword for the plaintiff and an extraordinarily powerful shield for the defendant. Thus, the collectivization of claims is equally entrancing to the plaintiffs and defense bars alike.

In this case, a settlement with the plaintiffs promised the major Swiss banks a sum certain settlement forever, against all claimants, for all claims (as standard release language reads) "known and unknown."

Here the plaintiffs settled their clients' claim with the benefit of almost no independent confirmatory discovery. But the terms of the settlement, of course, were that no later-discovered facts could break the agreement: It was set in stone. This was a huge step and a huge risk for the plaintiffs' lawyers to take and it is fair to ask whether it was the right course, and whether the settlement struck was sufficiently robust to achieve the august ends of the lawsuit.

Questions About The Settlement's Timing: The Pending Bergier Commission Report

It turned out, though, that later-discovered facts were extremely important. Thus, the settlement was a big, big step, and --as history has shown -- one could question whether the timing was wise.

Already underway at the time the settlement was struck, was the Bergier Commission, a Swiss-sponsored truth-finding commission. In March 2002, one year after the settlement took legal effect, the Commission's report was released.

Its conclusions concerning the Swiss Banks were devastating, especially as they emanated from a Swiss organ. As recounted in the Special Master's report filed in October of this year with Judge Korman, the Bergier Commission concluded that the conduct of the Swiss banks in the war years was reprehensible, and their conduct in the post-war years was downright obscene. Judge Korman himself later ruled that the Commission's findings were so significant that they warranted a shift in the presumptions applicable to the remedial scheme.

Questions About the Settlement's Terms: The SFBC and Small Banks' Noncooperation

Subsequent events also undermined one of the main reasons for the settlement, which I noted above: To allow elderly Holocaust victims to recover something, before it was too late.

Despite the very best efforts of the Special Master, the plaintiffs' lawyers, and the court, now -- four years after the settlement was struck -- only a little more than 1/8th of the settlement set aside for the bank account claims has been distributed. Why?

Three Swiss banks agreed to the settlement, as part of which the Swiss National Bank also obtained a release. But the Swiss Federal Banking Commission ("SFBC") and the numerous smaller Swiss banks were not parties to either the litigation or the settlement. That meant that potentially vast troves of documents -- including a 4 million account database that dwarfed the lists otherwise available -- were beyond the reach of the court and the agents it appointed to administer the settlement. These documents were within the ultimate control of the SFBC, but the SFBC -- not being a party -- was not compelled to turn them over.

Years later, Judge Korman commented that "the unwillingness of the SFBC to mandate compliance with the recommendations of the Volcker Committee is inexplicable." He also noted that "the failure of the [smaller] private and cantonal banks to voluntarily comply is inconsistent with the spirit of the Settlement Agreement." Korman's harshest comment was that this conduct "amounts to nothing less than a replay of the conduct that created the problems addressed in this case."

But was the SFBC's noncompliance really "inexplicable"? The SFBC and the smaller banks had been in bare-knuckle mode for more than fifty years on this issue. And why would the small Swiss banks comply with the "spirit" of a settlement they disdained?

One can question, then, whether the plaintiffs' attorneys should have settled with the big banks over which they had leverage (and jurisdiction) without forcing them to bring the SFBC and the small banks to heel.

What If the Case Had Proceeded to Discovery, Rather than Settling?

This is hindsight and all I can offer is a series of what-ifs: What if the court had been allowed to proceed, what if discovery had been conducted, what if the record had been laid bare? Could the plaintiffs have procured a massive settlement, the proceeds of which would have been timely distributed to them?

As it is, the Special Master has exhibited some cautious optimism about a potentially quickening pace of distributions to the plaintiffs. And in the end, it appears, money not paid to individual claimants will be distributed through charitable mechanisms.

Surely, none of this is a bad thing. Indeed, it is a good thing, but a "rough justice" indeed. The book's Epilogue recounts that several of the plaintiffs' lawyers got together to make direct payments (out of their fees, and with the approval of the court) to the class representatives. In theory, this might seem a moving, symbolic moment. But the whole point of the class action device is to benefit the class members as a class and not to especially favor the named class representatives.

As Schapiro recounts, one class member, in the tradition of a Johnny Cash song, remarked to the effect that she did not know who got the justice, but she got the rough. It may be that only litigation held the potential for forcing the Swiss banks to act, and thus that the rough and imperfect justice produced by litigation was the best anyone could hope for. The Holocaust is singular, but the issues surrounding the efficacy of the law to resolve mass injuries (think of Bhopal, think of the victims of 9/11) is a topic that endures, and the study of which will be improved by this volume.


Matthew Herrington practices law in Washington, D.C. His email address is mherrington@wc.com.

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