Holocaust-Era Insurance Claims: Background and Proposed Legislation

Holocaust-Era Insurance Claims:
Background and Proposed Legislation
Updated July 21, 2008
Paul Belkin, Coordinator
Analyst in European Affairs
Foreign Affairs, Defense, and Trade Division
David H. Carpenter and Janice E. Rubin
Legislative Attorneys
American Law Division
Baird Webel
Analyst in Financial Economics and Risk Assessment
Government and Finance Division

Holocaust-Era Insurance Claims: Background and
Proposed Legislation
Summary
In November 1998, U.S. insurance regulators, six European insurers,
international Jewish organizations, and the State of Israel agreed to establish the
International Commission on Holocaust Era Insurance Claims (ICHEIC). ICHEIC
was tasked with identifying policyholders and administering payment of hundreds of
thousands of Holocaust-era insurance policies alleged never to have been honored by
European insurance companies. It ended its claims process in March 2007, having
facilitated the payment of just over $300 million to 47,353 claimants. An additional
$190 million was allocated to a “humanitarian fund” for Holocaust survivors and
Holocaust education and remembrance. Throughout its existence, ICHEIC was
criticized, including by some Members of Congress, for delays in its claims process,
for conducting its activities with a lack of transparency, and for allegedly honoring
an inadequate number of claims. Although they acknowledge initial delays in the
claims process, ICHEIC supporters — among them the Bush Administration and
European governments — argue that the process was fair and comprehensive,
especially given the unprecedented legal and historical complexities of the task.
Members of Congress have shown a long-standing interest in seeking to obtain
compensation for Holocaust survivors and their heirs for unpaid insurance policies.
Hearings before the House Committee on Government Reform between 2001 and

2003 exposed broad criticism of ICHEIC, and legislation proposed in the 107^th-109^th

Congresses sought to provide survivors alternative legal mechanisms to pursue
claims. These proposals were never enacted and were opposed by U.S.
Administrations, which considered ICHEIC the exclusive vehicle for resolving
Holocaust-era insurance claims.
ICHEIC’s closure, and growing concern about the well-being of aging survivors
— now predominantly over 75 years old — have reignited congressional interest in
Holocaust-era insurance and other compensation issues. House committees have held
hearings on these issues during both sessions of the 110^th Congress, and Members
have considered proposed legislation during the Congress’ second session. In March
2007, Representative Ileana Ros-Lehtinen introduced the Holocaust Insurance
Accountability Act of 2007 (H.R. 1746). The bill would require insurers to disclose
Holocaust-era policies, and would establish a federal cause of action allowing
individuals to pursue claims in U.S. courts. Critics of the bill, including the Bush
Administration, argue that the public disclosure requirement would violate individual
privacy rights statutorily mandated in European countries, and that a federal cause of
action would both preempt standing executive agreements between the United States
and some European countries, and enable costly, but likely fruitless, litigation.
This report aims to inform consideration of H.R. 1746 and possible alternatives
by providing: background on Holocaust-era compensation and restitution issues; an
overview of ICHEIC, including criticism and support of its claims process and
Administration policy on ICHEIC; and an overview of litigation on Holocaust-era
insurance claims and the proposed legislation. It will be updated as events warrant.

Contents
In troduction ......................................................1
General Background on Post-War Compensation.....................1
Background on Insurance Issues..................................3
The International Commission on Holocaust Era Insurance Claims (ICHEIC)..4
Administration Policy on ICHEIC.................................7
Key Points of Contention........................................8
The ICHEIC Claims Process: Management and Oversight Issues....8
ICHEIC Research and Publication of Names...................11
Policy Valuation..........................................12
Litigation of Holocaust-Era Insurance Claims...........................14
Congressional Concerns and Proposed Legislation.......................17
The Holocaust Insurance Accountability Act of 2007 (H.R. 1746):
Overvi ew ...............................................19
Appendix A: Detailed Summaries of H.R. 1746. ........................22
H.R. 1746 – As Introduced in the House...........................22
An Amendment in the Nature of a Substitute to H.R. 1746 – As Ordered
to Be Reported Favorably from the House Committee on
Financial Services........................................23
Appendix B. ICHEIC Timeline......................................26
List of Figures
Figure 1. The ICHEIC Claims Process at a Glance.......................10
List of Tables
Table 1. ICHEIC Claims Received and Amounts Paid.....................6
Table 2. Insurance Company Contributions to ICHEIC....................7

Holocaust-Era Insurance Claims:
Background and Proposed Legislation
Introduction
General Background on Post-War Compensation
The 1952 Luxembourg Reparations Agreement between the Federal Republic
of Germany (West Germany), Israel, and the Conference on Jewish Material Claims
against Germany (Claims Conference) marked the first and most significant of a
series of post-war West German initiatives which have resulted in total German
payments — both from the government and private sector — of an estimated $93
billion (63 billion euros) to Jewish and non-Jewish victims of Nazi crimes and their
heirs.¹ While most agree that Germany will never be able to adequately compensate
for Nazi atrocities, the compensation and restitution efforts of successive German
governments have been widely commended.²
The governments of other Western European countries known to have
collaborated with the Nazis also undertook compensation efforts in the years after the
Second World War. However, with the possible exception of those in the
Netherlands, these efforts are generally thought to have been less comprehensive than
West Germany’s. In the years following the war, these countries, whose economies
had been devastated, tended to argue that Germany should assume responsibility to
compensate for Nazi crimes. The communist governments of East Germany and
Central and Eastern Europe offered minimal restitution and/or compensation, if any.³
The fall of the Berlin Wall (1989) and collapse of the Soviet Union (1991) led
to renewed efforts by Jewish organizations, Holocaust survivors, and the U.S. and
Israeli governments to obtain compensation for survivors who had lived or continued
to live in Central and Eastern Europe.⁴ Initial efforts focused largely on property

¹ This figure represents the present-day value of all payments through the year 2005, as
reported by the German Finance Ministry. See German Ministry of Finance, “Compensation
for National Socialist Injustice, Indemnification Provisions,” 2006 edition, p. 44.
² For more information see CRS Report RL33808, Germany’s Relations with Israel:
Background and Implications for German Middle East Policy, by Paul Belkin.
³ See Stuart Eizenstat (former U.S. Undersecretary of State and Deputy Treasury Secretary,
and lead Clinton Administration negotiator on Holocaust compensation matters), “Imperfect
Justice: Looted Assets, Slave Labor, and the Unfinished Business of World War II.” New
York: Public Affairs. 2003.
⁴ For additional background information on these efforts see Ibid.; John Authers and Richard
(continued...)

restitution and compensating victims of forced and slave labor. Simultaneously, a
series of class-action lawsuits against European companies were filed in U.S. courts
on behalf of Jewish Holocaust survivors; these shed light on the fact that up to
billions of dollars worth of assets seized by the Nazis from individual citizens and
deposited in private and national banks throughout Western Europe had never been
returned. In March 1997, the first class-action lawsuits focused exclusively on the
issue of unpaid Holocaust-era life insurance policies were filed in New York (the so-
called “Cornell Class Action” against 16 European insurers).
The mid-to-late 1990s’ class-action lawsuits against Swiss, German, Austrian,
Italian, and French companies brought widespread international attention to the issue
of looted Holocaust-era assets, unpaid insurance policies, and dormant bank
accounts. Given the immense significance and sensitivity of the issues, and the
unprecedented nature of the legal cases before U.S. judges, the U.S. government
sought to facilitate settlement of the lawsuits through a series of complex agreements
involving national and state governments, class-action lawyers, private industry, and
a variety of Jewish and other victims’ groups.
Most agree that U.S. Administration efforts to facilitate resolution of these
claims by involving a range of interested parties, including national governments,
victims, and private industry, played an important role both in securing support for,
and impeding subsequent legal challenges to the government-negotiated settlements.
The Clinton Administration took the lead in facilitating broad compensation
agreements — each with insurance-related components — with German, Austrian,
and French companies and their governments. The Clinton Administration was also
involved in negotiating a settlement with Swiss banks, although U.S. officials
contend that a lack of Swiss government involvement weakened that agreement, and
led to heightened international criticism of Switzerland. According to Stuart
Eizenstat, the Clinton Administration’s lead official in the negotiations, the damaging
effects of a wave of international criticism of Switzerland arising from its perceived
poor handling of the “Swiss bank affair” led the German, Austrian, and French
governments to proactively seek to resolve pending lawsuits against companies in
their countries and stem the possibility of future lawsuits.⁵ Each of these governments
established broad settlement funds to compensate victims of forced and slave labor,
looted assets, and insurance policy theft, among other crimes; each also reportedly

⁴ (...continued)
Wolffe, “The Victim’s Fortune: Inside the Epic Battle over the Debts of the Holocaust,”
New York: Harper Collins. 2002; Michael Bazyler, “Holocaust Justice: The Battle for
Restitution in America’s Courts.” New York: NYU Press. 2003; for U.S. government
documents and a report on the 1998 Washington Conference on Holocaust-era Assets see
the electronic archive at [http://www.state.gov/www/regions/eur/holocausthp.html].
⁵ With regard to the importance of national government involvement, Eizenstat says, “My
bitter experience with the Swiss negotiations, in which the Swiss government refused to be
a negotiating partner, taught me a lesson that I never forgot in joining the German, Austrian,
and French talks. I would never again risk the prestige of the U.S. government in trying to
settle class-action lawsuits against foreign companies, unless their governments were willing
to become directly engaged...Fortunately, Germany, Austria, and France...recognized that
the reputation of their private companies reflected on their nations’ reputations.” Eizenstat,
op. cit., p. 341.

viewed U.S. government approval of their compensation programs as a top priority.
Official U.S. endorsement, it was believed, could ensure that future lawsuits or
challenges to the settlements would have difficulty standing up in U.S. courts.⁶
Background on Insurance Issues
Insurance markets in pre-World War II Europe were well developed with many
policies going further than simply compensating for property damage or providing
benefits to a family in the case of the policyholders’ death. In addition to providing
death benefits, these policies often acted as savings vehicles, similar in some ways
to what are known as whole life insurance policies in the United States today. For
example, life insurance policies were often purchased intending to provide for a son’s
education, or to provide for a dowry upon the marriage of a daughter. Such a policy
might have run for 20 years, with the policyholder committing to make periodic
payments and the insurance company committing to pay a certain sum, known
generally as the “face value” of the policy, at the end of the 20 years, or in the case
of the death of the policyholder. Such a policy generally would have cancellation
provisions, that would allow a policyholder to obtain a “surrender value” prior to the
policy’s intended end, or, if a policyholder wished to keep the contract but not pay
further premiums, it could be converted to “paid up” status which would result in a
smaller face value at the end of the policy.
In the run-up to, and during the conduct of, World War II, the Nazi government
made a concerted effort to confiscate assets belonging to Jews in Germany and in
various occupied countries.⁷ At first, these efforts were largely indirect, such as
placing high taxes or fees on those emigrating, which necessitated the liquidation of
many insurance policies. Later, the confiscation was more direct, with, for example,
insurance companies being required to pay insurance proceeds from claims⁸ or the
cash values directly to the government.
Initial post-war efforts in Western Europe to honor unpaid insurance policies —
primarily life insurance — belonging to Holocaust victims are widely considered to
have been far less comprehensive than other compensation and restitution programs.
Several of the countries home to companies known to have sold such policies,
including Germany, Austria, Switzerland, and the Netherlands, passed laws in the
1950s and 1960s attempting at least partially to honor these policies. However, a
variety of factors led these efforts to fall short. These included uncertainty regarding
the present value of the policies; difficulties with verification of policy ownership;
disagreement over how to compensate the many Jews who were forced to either cash

⁶ Ibid.
⁷ An historian at the University of California, Berkeley, Professor Gerald D. Feldman,
conducted extensive research into the Nazi seizure of insurance assets. See, for one account,
Chapter 6 of his work Allianz and the German Insurance Business, 1933-1945, (Cambridge,
UK: Cambridge University Press, 2001).
⁸ This was the case, for example, with regard to property damage claims from the anti-
Jewish riots on Krystallnacht, November 9, 1938 as well as with life insurance policies.

in their policies, or simply surrender them to the Nazis; and an insurance industry in
dire economic straits.
As has generally been the case with post-war settlement issues, German and
Dutch companies are thought to have done more than others in addressing unpaid
insurance policies after the war. In the late 1990s, German insurance giant Allianz
went so far as to claim it had honored approximately 70% of its wartime policies sold
in Germany — either before the war ended, or through its participation in other post-
war compensation programs.⁹ Critics dispute Allianz’s claim, arguing that
policyholders were often grossly undercompensated, both during the war and with
a greatly devalued currency in the war’s aftermath. Other countries home to
companies known to have sold insurance policies throughout the Nazi Reich, such
as France and Belgium, did not administer any insurance-related compensation
programs until the 1990s; and to this day, the Italian government appears to have
involved itself in the matter minimally, if at all.
Historians agree that of all Holocaust victims, Jews were most likely to have
owned substantial life and other insurance policies. Efforts to honor unpaid insurance
policies have focused almost exclusively on Jewish victims. The fact that many such
Jews lived and purchased policies in Central and Eastern European countries —
primarily Poland, Hungary and Czechoslovakia — which later became part of the
Soviet Bloc, proved to be an additional and significant complicating factor in post-
war efforts to have the policies honored. Many of the companies that sold insurance
in these countries no longer exist; however, several Western European companies
which accounted for a significant portion of the Central and Eastern European
markets continue to operate today. Specifically, the Italian company Generali is
known to have been very active in Central and Eastern Europe. However, Generali
and others have argued that responsibility to honor these policies was transferred to
state-run insurance entities by way of the state takeover and nationalization of the
industry under communist rule.¹⁰
The International Commission on Holocaust Era
Insurance Claims (ICHEIC)
In 1997, in response to increasing claims against European insurance companies
operating in the United States, the National Association of Insurance Commissioners
(NAIC) formed a Working Group on Holocaust Insurance Claims to reach out to
Holocaust victims and their heirs to better determine the scope of the problem, and
to initiate a dialogue with European insurers about how to resolve the issue of unpaid
claims. A series of often emotional and contentious meetings between Holocaust

⁹ Statement of Mr. Herbert Hansmeyer, member of the Board of Management of Allianz AG.
Washington Conference on Holocaust-era Assets (1998), op. cit., p. 594.
¹⁰ For a detailed account of Generali’s stand on the nationalization issue, see “The
Nationalization, Confiscation and Liquidation of Insurance Policies Issued by Generali’s
Former Offices in Eastern Europe,” May 24, 1999. Available from Generali offices, Trieste,
Italy.

survivors and their heirs, insurance regulators, and insurance companies over the
course of the next year resulted in a joint decision to form an independent
international commission to resolve unpaid claims.
In August 1998, the NAIC, six European insurers (Allianz, AXA, Basler¹¹,
Generali, Winterhur, and Zurich), the Claims Conference, the World Jewish
Restitution Organization (WJRO), and the State of Israel signed a Memorandum of
Understanding (MOU) establishing an international commission tasked both with
identifying Holocaust victims who had purchased insurance policies from 1920-1945,
and administering the repayment of these policies. Members of the International
Commission on Holocaust Era Insurance Claims (ICHEIC) — chaired by former U.S.
Secretary of State Lawrence Eagleburger — agreed that ICHEIC’s claims process
would adhere to the following principles: claimants would not be charged to file a
claim; ICHEIC would evaluate claims based on relaxed standards of proof — given
that a significant number of potential claimants did not possess policy
documentation, claimants would not be required to name a specific insurance
company or provide documentation of an insurance policy; and ICHEIC and
participating insurance companies would conduct archival research in order to
establish a database of potential policyholders against which to match submitted
cl ai m s .¹²
Although the U.S. government did not have a voting representative on
ICHEIC’s board, state insurance regulators were officially represented through the
NAIC, and a State Department representative was granted observer status. In all, the
board consisted of Chairman Eagleburger and 12 members: three NAIC
representatives; two representatives of Jewish organizations (the Claims Conference
and WJRO); a representative of the state of Israel; and six representatives of
European insurers and insurance regulators.
ICHEIC’s claims process opened in 2000 and closed in March 2007. In total, it
facilitated the payment of just over $300 million to 47,353 of about 90,000 claimants
(see Table 1 for detailed breakdown). Observers and others involved in the process
report that rejected claims were often determined to have been honored under
previous compensation agreements, or were determined to fall short of the relaxed
standards established by the Commission. Some critics contend that ICHEIC applied
these standards inconsistently, rejecting what were often valid claims.¹³
In addition to the funds paid to individual claimants, ICHEIC allocated $190
million to a “humanitarian fund” overseen by the Claims Conference. Following
Claims Conference guidelines, 80% of this fund was designated to be spent on

¹¹ Basler subsequently withdrew from ICHEIC. According to German Insurance Association
(GDV) representatives, claims against Basler were covered through the Association’s
participation in ICHEIC.
¹² For additional background information on ICHEIC, see the ICHEIC Final Report,
“Finding Claimants and Paying Them,” June 2007, available at [http://www.icheic.org/].
¹³ Such criticism was most recently expressed by former New York Superintendent of
Insurance and ICHEIC appeals arbitrator, Albert Lewis. See Stewart Ain, “Probe ‘Phantom
Rule,’ Says Congressman,” The New York Jewish Week, July 6, 2007.

assistance to Holocaust survivors, and 20% on Holocaust education and
remembrance.¹⁴ As discussed in more detail below, despite ICHEIC’s closure, some
European insurers, including members of the German Insurance Association
(Gesamtverband der Deutschen Versicherungswirtschaft, or GDV), have said that
they will continue to accept and honor legitimate claims based on ICHEIC’s relaxed
standards of proof.
Table 1. ICHEIC Claims Received and Amounts Paid
Claims ReceivedOffers MadeTotal Paid
Named company14,3515,448$136.29 million
No named company,16,2437,747$98.4 million
but company research
matches name to
company
No named company,60,11134,158$61.82 million
no match(31,284 rewards of
(“humanitarian $1,000)
claims”)
TOTAL90,70547,353$300.1 million
^Source:^I^C^HEI^C^Fin^a^l^R^e^p^o^r^{t, “}^Fⁱⁿ^dⁱⁿ^g^Claim^aⁿ^t^{s an}^d^P^a^yⁱⁿ^g^T^h^em^{;” in}^ter^v^iew^o^f^I^C^HEI^C
^repres^en^t^a^tⁱ^v^es^{, March}^2008.
^No^te:^T^h^{e $300.1 m}^illionⁱⁿ^{total pay}^m^en^tsⁱⁿ^clu^d^es^abou^{t $45}^m^illionⁱⁿ^pay^m^en^ts^m^a^de^directly^by
ⁱⁿ^s^u^ran^{ce com}^p^an^ies^{to claim}^aⁿ^t^s^u^sⁱⁿ^g^IC^HEIC^s^t^an^da^r^d^{s, b}^u^{t o}^u^tsid^{e th}^e^I^C^HEI^C^p^r^o^cess.^T^h^{e to}^tal
^alsoⁱⁿ^clu^d^{es j}^u^{st o}^v^er^$³^.⁵^m^illioⁿⁱⁿ^p^a^y^m^en^{ts m}^a^d^e^b^y^I^C^HEI^C^p^a^r^tⁿ^e^r^en^tities.
Ultimately, ICHEIC received a total of about $550 million from participating
insurers. Of this, $350 million was secured from German companies through a
watershed 2000 executive agreement between the United States and Germany, in
which German government and industry committed $5 billion to compensate former
forced and slave laborers and other victims of Nazi crimes.¹⁵ $100 million came from
Italian insurer Generali, and the remaining $100 million from a U.S.-Austrian
executive agreement, and bilateral agreements between ICHEIC and Swiss insurers,
and the Dutch, and Belgian insurance associations. In addition to the five insurers on
ICHEIC’s board, ICHEIC secured the participation of 75 other companies through
bilateral agreements with the German, Dutch, and Belgian insurance associations.

¹⁴ Some survivor organizations in the United States were reportedly dismayed that the bulk
of this humanitarian funding went to assist Holocaust survivors in the former Soviet Union.
¹⁵ See “U.S.-Germany Agreement on the German Foundation.” Available at
[ h t t p : / / www.st at e.go v/ www/ r e gi ons/ e ur / hol ocaust hp.ht ml ] .

Table 2. Insurance Company Contributions to ICHEIC
German Insurance Association$350 million
(about 70 companies)
Generali$100 million
Swiss Insurers$25 million
Austrian General Settlement Fund$25 million
Others$50 million
Total$550 million
^Source:^I^C^H^E^I^C^Fi^na^l^Re^p^o^r^t^,^“Fiⁿ^dⁱ^{ng Cl}^aⁱ^m^a^nt^{s a}ⁿ^d^P^a^yⁱ^{ng T}^h^e^m^.^”
^No^te:^IC^HEIC^r^e^p^r^e^s^eⁿ^t^a^tⁱ^v^e^s^{report th}^{at Gen}^e^{rali con}^t^ribu^{ted an}^addition^a^{l $30 m}^illionⁱⁿ^claim^s
^p^a^y^m^en^{ts o}^u^tsid^{e th}^{e I}^C^HEI^C^p^r^o^cess.
Administration Policy on ICHEIC
U.S. Administrations have consistently endorsed ICHEIC as an important and
unprecedented mechanism to provide support and compensation to individuals whose
insurance claims were believed unlikely to have been satisfactorily resolved through
existing legal channels. Accordingly, the Clinton Administration sought to secure
funding for ICHEIC and its claims process as part of the broader compensation
agreements it negotiated with the German, Austrian, and French governments in the
late 1990’s. In exchange for financial commitments made to ICHEIC by German and
Austrian companies by way of these agreements, the Clinton Administration agreed
to endorse ICHEIC as the exclusive mechanism for resolving unpaid Holocaust-era
insurance claims.
In addition, the Administration sought to grant participating German companies
so-called legal peace from further action against them in U.S. courts. Although the
U.S. federal government could not forbid U.S. citizens from pursuing legal action
against the companies, it did commit to file a statement of interest encouraging
dismissal of any future legal action against German companies in the United States.¹⁶
This commitment appears to have effectively impeded subsequent legal challenges
or the development of alternatives to ICHEIC. Most significantly, in 2003, the U.S.
Supreme Court struck down legislation in California that would have imposed
additional reporting requirements on European insurers. In American Insurance
Association v. Garamendi,¹⁷ the Court ruled that the California law ran counter to the
U.S. commitment to ICHEIC as enshrined in the executive agreements with

¹⁶ President Clinton’s National Security Advisor Samuel Berger summarized the U.S.
commitment to give German companies “enduring and all-embracing legal peace...” in a
June 2000 letter to his German counterpart. See June 16, 2000 letter from U.S. National
Security Advisor Samuel Berger to German Foreign Policy and Security Advisor Michael
Steiner; and “U.S.-Germany Agreement on the German Foundation.” Both available at
[ h t t p : / / www.st at e.go v/ www/ r e gi ons/ e ur / hol ocaust hp.ht ml ] .
¹⁷ 539 U.S. 396 (2003).

European governments (the legal implications of both the commitment to legal peace
and the Supreme Court decision are discussed in more detail below, in the section
entitled “Litigation of Holocaust-era Insurance Claims”).
Key Points of Contention
Despite receiving the support of U.S. Administrations, ICHEIC was broadly
criticized, including by Members of Congress.¹⁸ Critics put forward the following
charges: that ICHEIC’s administrative and claims processes suffered from a lack of
transparency and oversight; that ICHEIC often failed to live up to its commitment to
apply relaxed standards of proof in assessing claims; and that ICHEIC and
participating insurance companies failed to make comprehensive policyholder lists
available to the public.¹⁹ Since ICHEIC’s closure, critics have emphasized that the
roughly $300 million paid out to Holocaust survivors and their heirs falls far short
of estimates of the total value of unpaid Holocaust-era insurance policies, which
range from $17 to $200 billion.²⁰ ICHEIC proponents respond that ICHEIC
administered a claims-based process, giving all claims fair consideration. They argue
that the fact that the total amount paid by ICHEIC falls short of some estimates of the
value of unpaid policies suggests a lack of claimants rather than a flawed claims
process.
The ICHEIC Claims Process: Management and Oversight Issues.
Critics contend that ICHEIC’s claims process suffered from unnecessary and
prolonged delays, and that thousands of eligible claimants were ultimately excluded
from the process due to poor management and a lack of transparency and legitimate
oversight. Contention over ICHEIC management and oversight centers largely on
European insurance companies’ obligations under ICHEIC, and the extent to which
they were held accountable to meeting these obligations. Under the terms of the
ICHEIC MOU, ultimate responsibility for verifying, accepting, or rejecting submitted
claims rested with the insurance companies. As outlined in Figure 1 on page 10,
ICHEIC staff submitted claims it deemed legitimate to insurance companies, which
would, in turn, consult their records to verify whether a policy existed, and whether
it had been previously paid. Although participating insurers were required to
commission and publicize independent audits of this process, ICHEIC critics contend

¹⁸ Between 2001 and 2003, the House Committee on Government Reform held three
hearings on ICHEIC and Holocaust insurance issues. For information on the hearings held
and related legislative proposals see [http://oversight.house.gov/investigations.asp?id=237].
¹⁹ Eizenstat captures much of the criticism surrounding ICHEIC in his characterization of
ICHEIC Chairman Eagleburger’s own complaints about the ICHEIC process as follows:
“there was incessant internal bickering over every issue — how to value policies from
prewar days, which lists of policyholders should be opened, the costs to be borne in
processing claims, the ICHEIC claims process itself. Eagleburger had difficulty getting the
companies, particularly Allianz, to fulfill the terms of the MOU...And ICHEIC’s
administrative failings led to few claims paid and large costs.” Eizenstat, op. cit., p. 267.
²⁰ See, for example, Sidney Zabludoff, “The International Commission of Holocaust-Era
Insurance Claims: Excellent Concept but Inept Implementation,” Jewish Political Studies
Review, Spring 2005.

that these were often delayed, and that lack of an independent review process allowed
room for unfair insurer influence.
ICHEIC proponents argue that publicly available audits of insurance company
participation in the claims process and ICHEIC’s final results demonstrate that the
companies did indeed follow the agreed upon principles in honoring tens of
thousands of unpaid Holocaust-era insurance policies. Clinton and Bush
Administration officials and others involved in the process also argue that the
ICHEIC claims process, with its relaxed standards of proof and historical research,
gave potential claimants a far better opportunity to resolve claims than they would
have received in a U.S. court of law. In addressing criticism of insurers’ lack of
accountability, they emphasize that insurers would not have participated in ICHEIC
or any other restitution process without retaining full control over claims decisions.
Furthermore, the fact that ICHEIC was incorporated in Switzerland and
headquartered in London, England, insulated the organization’s decisions from
scrutiny under U.S. law.
Initial congressional concerns regarding problems with ICHEIC administration,
oversight, and its claims process were brought to light during a November 2001
hearing before the House Committee on Government Reform. During the hearing,
critics expressed dismay that ICHEIC had not launched its claims process until early
2000 — one and one-half years after the MOU was signed — and that a year-long
“pilot” claims process resulted in what some considered remarkably high rejection
rates.²¹ ICHEIC was also confronted with complaints of high administrative costs and
board secrecy. ICHEIC supporters generally acknowledge that the claims process got
off to a slow and problematic start, but argue that initial missteps were addressed and
the claims process was ultimately fair and comprehensive. In the year following the
2001 congressional hearing, an “Executive Monitoring Group” appointed by
Chairman Eagleburger to investigate claims handling found widespread
mismanagement in insurance company handling of documented claims. As a result,
ICHEIC implemented a verification system to “verify” company claims decisions,
and compelled participating insurance companies to undergo audits of their claims
decisions after 2002.²²

²¹ “The Status of Insurance Restitution for Holocaust Victims and their Heirs,” Hearing
before the Committee on Government Reform, November 8, 2001. Hearing transcript
available at [http://oversight.house.gov/story.asp?ID=597].
²² In June 2007, ICHEIC reported having “verified” 30,000 total claims. ICHEIC Final
Report, op. cit.

Figure 1. The ICHEIC Claims Process at a Glance

ⁱ^{ki/CRS-RL34348}
^g/w
^s^.or
^le^ak
^://wiki
^h^ttp
Information taken from ICHEIC Final Report, “Finding Claimants and Paying Them.”

ICHEIC Research and Publication of Names. One of ICHEIC’s most
contentious and challenging tasks was determining and disclosing lists of Jewish
Holocaust victims who had purchased insurance policies from 1920-1945. Although
estimates vary, some studies indicate that between 800,000 to 900,000 polices were²³
sold to eventual Jewish victims of the Holocaust. By 2003, ICHEIC’s published
policyholder lists comprised a total of approximately 520,000 Jewish individuals who²⁴
purchased insurance policies in Nazi occupied Europe. The German insurance
industry provided 363,232 policyholder names, over half of the total names
published. In addition to including records from non-German companies, ICHEIC
reports that it carried out extensive archival research in 15 countries that resulted in
the discovery of 55,079 Jewish policyholder names representing about 78,000
policies.
The German Insurance Association (GDV) and the German government express
confidence that the GDV’s published list of just over 360,000 Jewish policyholders
is comprehensive, representing all life insurance policies owned by Jewish residents²⁵
of Germany from 1933-1945. To generate the list, the GDV crossed a list of all
insurance policyholders in Germany from 1920-1945 (about 8.5 million policies),
with a list of Jews residing in Germany between 1933 and 1945 (an estimated
550,000 - 600,000 people). According to the GDV, the list of total policies
represented records of 70 insurance companies active in Germany during the time
period. The list of Jewish residents was the result of unprecedented archival research
in cooperation with The Holocaust Martyrs’ and Heroes’ Remembrance Authority,
Yad Vashem, in Israel, and over 100 German archives and sources.
While most observers praise the German industry’s disclosure of policyholder
names, some contend that Generali and other European insurers avoided disclosing
their records, often citing privacy concerns. For its part, Generali argues that its
contribution of about 45,000 names to the ICHEIC list was the product of
comprehensive research involving a match between records of all potentially unpaid
policies sold during the Nazi era and Jewish victims of the Holocaust available at
Yad Vashem.
European insurers uniformly oppose calls for companies to disclose lists of all
policies in force during the era of the Nazi Reich. In addition to citing privacy
concerns, they argue that compiling and publishing such lists would be costly and
would provide little clarity regarding potential Jewish policyholders. Company policy
lists contain no information as to a person’s religion, and numerous variations in
spellings could cause greater confusion and may unnecessarily raise expectations,
they contend.

²³ See Association of Jewish Refugees website [http://www.ajr.org.uk/insurance], and
Zabludoff, op. cit.
²⁴ ICHEIC’s list of potential policyholders is no longer available on the ICHEIC website, but
can be accessed through Yad Vashem’s website at [http://www1.yadvashem.org/pheip/].
²⁵ Interviews of German government and GDV officials, November 2007 - January 2008.

Policy Valuation. Another central critique of the ICHEIC process is that it
paid out a relatively low proportion of the value of the insurance assets in question.
The current House legislation on the issue (H.R. 1746, discussed below) finds that:
“(12) Experts estimate that the value in 2006 of unpaid life, annuity, endowment,
and dowry insurance theft from European Jewry from the Holocaust and its
aftermath ranges between $17,000,000,000 and $200,000,000,000.”
These estimates, $17 billion to $200 billion, generally have come from critics of the²⁶
ICHEIC process and advocates for Jewish survivors and their heirs. The insurance
companies involved, not unsurprisingly, have produced estimates that are
significantly less, in the range of $2 billion to $3 billion. ICHEIC itself
commissioned a task force led by Glenn Pomeroy (then Insurance Commissioner of
North Dakota) and Philippe Ferras (then Executive Vice-President of AXA
Insurance) to assess the value of Holocaust-era insurance markets.²⁷ The Pomeroy-
Ferras Report as it is usually known, lays out in great detail various facts and
assumptions around the issue of valuation including ranges of estimates for each
country in the home currency. It does not itself give a current day number for the
value of all unpaid claims although it would be possible to calculate such a value
using the ICHEIC valuation calculations applied to individual claims (these
guidelines are discussed below).
Despite the seemingly wide range of estimates, between $2 billion and $200
billion, the basic method for the competing calculations is largely the same —
estimate the total amount of insurance held by Jews in the relevant parts of Europe
prior to World War II, subtract the amounts that have been previously paid on these
policies, and adjust this amount for the intervening 70-odd years. While the figures
for total insurance amounts and the approximate Jewish population are generally
accepted, the figures used in most other steps of the calculation are often disputed.
These include the specific propensity for the Jewish population to purchase
insurance, and the method used to value assets denominated in historical foreign
currencies from the 1930s in current U.S. dollars. Unfortunately, there is often little
objective evidence upon which to base the choice of what figure to use.
Perhaps the single factor that can have the widest impact on the range of
estimates is the method used to translate the values of insurance policies from the
1930s denominated in European currencies to current day U.S. dollars. The first part
of this question is, what index does one use to adjust for the intervening six or seven
decades? The answer to this can change the final value dramatically. Using the U.S.
Consumer Price Index, $1 in 1938 would be worth approximately $14.70 in 2007;

²⁶ The $17 billion figures appears to come from the previously cited work of Mr. Sydney
Zabludoff. The $200 billion appears to come from the work of Professor Joseph Belth in The
Insurance Forum, “Life Insurance and the Holocaust,” Vol. 25, No 9, p. 81, September

1998.

²⁷ “Report to Lawrence Eagleburger, Chairman, by the Task Force Co-Chaired by Glenn
Pomeroy and Philippe Ferras On The Estimation of Unpaid Holocaust Era Insurance Claims
in Germany, Western and Eastern Europe,” available at [http://www.icheic.org/pdf
/Pomeroy-Ferras%20Report.pdf].

if that $1 from 1938 had been invested in 10-year U.S. Government bonds, it would
be worth approximately $38.80 in 2007; if it had been invested in the S&P 500, $1
in 1938 would be worth approximately $1,842. The corresponding figures for
Germany, for example, would be much lower, largely due to the post-war currency
reform. One unit of German currency adjusted from 1938-2008 using German
inflation would be multiplied by 7.00; adjusted using German bond returns, the figure
would be 7.30; and, using German stock returns, it would be 204.00.²⁸ In general, the
ICHEIC process used multipliers based on long-term bond rates, although there were
times when the multipliers were apparently arrived at through negotiation between
the parties involved.
The second part of the question is, when one chooses to exchange the policy
value from the original currency into U.S. dollars? This is particularly important for
German policies since, following World War II, West Germany reformed its currency
from Reichsmarks (RM) to Deutsche Marks (DM). This was done at a rate of 10 RM
to 1 DM for most currency and 5 RM to 1 DM for long-term financial assets. Thus,
if one chooses to change a RM policy into dollars prior to the currency reform, the
current day dollar value of that policy would be five or ten times larger than if one
chooses to change that policy into dollars after the currency reform. In general, for
Germany and Western Europe, values were kept in original currencies until the
current day. For Eastern Europe, currencies were converted to dollars in the past.
ICHEIC’s method of determining the present day value of individual policies
differed according to the country of origin and whether or not the policy specified a
particular currency. German policies were paid according to a formula in a general
German post-war restitution law that was then adjusted using German long-term
bond rates. Offers were made in euros or converted to dollars in the current day.
Other Western European policies were generally left in the original currencies,
brought forward in time using long-term bond rates in the country of origin. Offers
were made in the original currencies. Eastern European policies were first converted
into dollars, using 1938 exchange rates that were discounted 30%, and then
multiplied by 11.286 to bring the value to the year 2000.²⁹ After 2000, the values
were brought forward to the current day using a rate based on long-term bond rates.
Policies that specified a currency, such as British pounds or Swiss francs, were
generally left in those currencies and then brought to the current day using long-term
bond rates. ICHEIC also used minimum valuation thresholds for each individual
policy claimant. If the ICHEIC valuation standards resulted in a present-day value
that was below a certain minimum value, the actual offer given to the claimant was
raised. The minimum values ranged from $500 to $4,000 depending on the country

²⁸ The stock and bond yield calculations assume reinvestment of interest and dividends and
do not include the effect of taxes. Data series used were “United States of America BLS
Consumer Price Index,” “Germany Consumer Price Index,” “USA 10-year Government
Bond Total Return Index ,” “Germany 10-year Government Bond Return Index,” “S&P
500® Total Return Index,” and “Germany CDAX Total Return Index” from
[ h t t p : / / www.gl oba l f i n a n c i a l da t a .c om] .
²⁹ The 30% discount on the exchange rates and the multiplier value of 11.286 were the result
of negotiations by the ICHEIC participants and apparently included because of the post-war
nationalization of Eastern European insurance companies.

involved, and whether the policy was held by someone who survived the holocaust
or not.³⁰
Litigation of Holocaust-Era Insurance Claims
At or about the same time that international efforts to deal with reparations
and/or claims issues remaining after the conclusion of World War II were being
formalized — i.e., beginning in the late 1990’s — litigation involving Holocaust-era-
issued insurance began in earnest in the United States. The claims, brought by either
survivors of the Holocaust, or the relatives or estates of non-survivors, challenged the³¹

nonpayment or alleged erroneous payment of the proceeds of that insurance.
³⁰ See “Guide to Valuation Procedures: Edition Dated 22-10-02,” available at
[ h t t p : / / www.i c hei c .or g/ pdf / ICHEIC_V G.pdf ] .
³¹ At least 20 actions (both individual and class actions) were filed, primarily in California
and Florida state courts and in New York, and subsequently transferred to the United States
District Court for the Southern District of New York. A footnote in the federal case that
ultimately dismissed them all in light of the Supreme Court’s opinion in American Insurance
Association v. Garamendi, 539 U.S. 396 (2003) (discussed, infra at pp. 15-17) lists them:
Of the twenty actions, two were filed initially in this court: Cornell v.
Assicurazioni Generali S.p.A. (class action); and Schenker v. Assicurazioni
Generali S.p.A. (formerly Winters v. Assicurazioni Generali) (class action).
Sixteen were transferred to this court by the Panel on Multidistrict Litigation
(“MDL Panel”) under Docket No. 1374: Brauns v. Assicurazioni Generali
S.p.A.; Smetana v. Assicurazioni Generali S.p.A. (class action); Mandil v.
Assicurazioni Generali S.p.A.; Weiss v. Assicurazioni Generali S.p.A.; David v.
Assicurazioni Generali S.p.A.,; Szekeres v. Assicurazioni Generali S.p.A.;
Lightner v. Assicurazioni Generali S.p.A.; Sladek v. Assicurazioni Generali
S.p.A.; Haberfeld v. Assicurazioni Generali S.p.A. (class action); Lantos v.
Assicurazioni Generali S.p.A.; More v. Assicurazioni Generali S.p.A.; Pioro v.
Assicurazioni Generali S.p.A.; Sorter v. Assicurazioni Generali S.p.A.; Ungar v.
Assicurazioni Generali S.p.A.; Weiss/Friedman v. Assicurazioni Generali S.p.A.;
and Zada v. Assicurazioni Generali S.p.A. Anderman v. Federal Republic of
Austria(class action), was transferred by the MDL Panel to this court under
Docket No. 1337. Tabaksman v. Assicurazioni Generali S.p.A. was removed to
this court from New York State Supreme Court.
In re Assicurazioni Generali S.p.a. Holocaust Ins. Litigation, 340 F.Supp.2d 494, 497 n. 1
(S.D.N.Y. 2004) (case docket numbers omitted).
The dismissal was appealed to the United States Court of Appeals for the 2d Circuit,
but CRS is not yet aware that it has been scheduled for argument. The defendant insurance
companies have been engaged in settlement negotiations with the plaintiffs, and although
the settlement was approved (2007 WL 601864 (2007)), the approval was appealed to the
United States Court of Appeals for the Second Circuit by certain dissatisfied plaintiffs. The
settlement order was remanded by that court to the district court with instructions to remedy
what it considered “inadequate” notice to class members. On January 7, 2008, the district
court determined that the proper notice had been accomplished, and again approved the
settlement as “fair, reasonable and accurate” (2008 U.S. Dist. LEXIS 744, *5). That
approval was again appealed, and on June 6, 2008, the Second Circuit, “[h]aving considered
(continued...)

As has been discussed, there was a great deal of dissatisfaction both with the
intention to substitute an ICHEIC claims process for the rights of individuals to bring
their own actions in court, and with the operation of ICHEIC itself. Initially, the
plaintiffs in those cases fared well. For example, when the defendant insurers sought
to have the cases that had been transferred to and consolidated in the United States
District Court for Southern New York dismissed from that forum in favor of
adjudication before ICHEIC, the district court refused. “ICHEIC is not an adequate
alternative forum for the litigation of plaintiffs’ claims,” the court explained, pointing
out that despite ICHEIC’s inclusion of the State of Israel and “certain U.S. state
insurance regulators,” the Commission remained, at bottom, a “privately funded,
non-profit entity ... created ... among six European insurance companies ... with
certain nongovernmental Jewish organizations ....”³²
The court was persuaded neither by the fact that ICHEIC was assumed to be a
recognized agent for purposes of carrying out the obligations assumed in the German
Foundation Agreement,³³ nor by the presumption of both the German government
and the various German insurance companies against whom there were Holocaust-
era-related claims pending in U.S. courts that the conclusion of the Foundation
Agreement would bring “legal closure” to those claims. Nor, seemingly, was the
court convinced that the arrangement amounted to a valid U.S. foreign policy concern
— despite the obligation of the Department of Justice to:
file a “Statement of Interest” in all cases involving Holocaust-era claims against
German companies, expressing the view that the German Foundation is the
exclusive forum for those claims and that dismissal is required in keeping with³⁴
the foreign policy interests of the United States.
Currently, however, much of the litigation of Holocaust-era insurance claims is
in judicial limbo as a result of a 2003 Supreme Court decision. In American
Insurance Association v. Garamendi,³⁵ the Court struck down a California statute,
enacted to protect the rights of the state’s Holocaust-survivor or Holocaust-victim-
related citizens, as impermissibly impinging on the President’s conduct of foreign³⁶
affairs. As the note at the beginning of this section indicates, the same court that

³¹ (...continued)
all of plaintiffs-appellants’ arguments ... and found them to be without merit,” affirmed the
judgment of the district court (2008 WL 2329321, *2).
³² In re Assicurazioni Generali S.p.A. Holocaust Insurance Litigation, 228 F.Supp.2d 348,

353, 354 (S.D.N.Y. 2002).

³³ See, supra, p. 7.
³⁴ 228 F.Supp.2d at 354.
³⁵ 539 U.S. 396 (2003).
³⁶ California is but one of several states to have enacted statutes dealing with Holocaust-era
insurance issues. Provisions have included those in which states have created disclosure
obligations for insurance companies wishing to do business in them, extended the deadline
for the filing of claims by “Holocaust insurance victims,” or provided favorable tax
treatment for the proceeds of successful Holocaust-era insurance claims. See CRS Report
(continued...)

refused to dismiss the cases before it in favor of adjudication before ICHEIC,
believed it had no choice but to grant the insurers’ motion to dismiss all of them in
light of Garamendi;³⁷ there is not yet, to our knowledge, any indication of when the
appeal of that 2004 dismissal will be heard.
Among the statutory provisions most prominently litigated in the lower federal
courts were those from Florida and California creating disclosure obligations for
insurance companies wishing to do business in those states. The litigation produced
diametrically opposite results, resolved by the Court in Garamendi: the U.S. Court
of Appeals for the Eleventh Circuit struck down Florida’s Holocaust Victims’
Insurance Act³⁸ on the grounds that it violated the Due Process rights of insurers
because it effectively regulated transactions that had insufficient connection to
Florida to provide the requisite jurisdictional foundation;³⁹ on the other hand, the
U.S. Court of Appeals for the Ninth Circuit upheld California’s Holocaust Victim
Insurance Relief Act (HVIRA),⁴⁰ disagreeing with the district court’s reasoning that
the statute impermissibly interfered with the national conduct of foreign affairs, but
initially continuing the trial court’s injunction against enforcement of the provision.⁴¹

³⁶ (...continued)
RL32448, Holocaust-era Insurance Claims: Federal Court Decisions and State Statutes ...,
by Douglas Reid Weimer and Janice E. Rubin, for citations to the various state statutes and
some commentary on their likely continued viability.
³⁷ “I denied Generali’s motion by opinion and order dated September 25, 2002, finding, with
respect to the application to dismiss the actions in favor of ICHEIC, that that body is an
inadequate alternative forum for litigation of plaintiffs’ claims. See In re Assicurazioni
Generali S.p.A. Holocaust Insurance Litig., 228 F.Supp.2d [at] 355-58.... [Now, i]n light of
the Supreme Court’s decision in American Insurance Association v. Garamendi ... it appears
that the laws supporting litigation of plaintiffs’ benefits claims are preempted by a federal
Executive Branch policy favoring voluntary resolution of Holocaust-era insurance claims
through ICHEIC. Plaintiffs’ ancillary claims, in turn, are not actionable because it appears
that they do not allege any cognizable injury other than that caused by Generali’s
non-payment of benefits, redress for which is committed to ICHEIC. Accordingly,
Generali’s motion to dismiss is granted with respect to all actions.” 340 F.Supp.2d at 497.
³⁸ Fla. Stat. Ann. § 626.9543 (West Cum. Supp. 2004); an amended statute is now set out
in the 2007 Cum. Supp., with a note citing a 2004 session law that provides: “Nothing in this
act shall be construed to create or be the basis of a civil action.”
³⁹ Gerling Global Reinsurance Corp. v. Gallagher, 267 F.3d 1228 (11^th Cir. 2001), aff’g,
Gerling Global Reinsurance Corp. v. Nelson, 123 F.Supp.2d 1298 (N.D. Fla. 2000).
⁴⁰ Cal. Civ. Proc. §§ 354.5 (West 2004); the statute has since been invalidated by the
California state courts; see note 44, infra.
⁴¹ The history of this case, before it reached the Supreme Court as Garamendi, is as follows:
Gerling Global Reinsurance Corp. of America v. Quackenbush, 2000 WL 777978 (E.D. Cal.

2000), preliminary injunction aff’d sub nom. Gerling Global Reinsurance Corp. v. Low (who^th

was California’s insurance commissioner by 2001), 240 F.3d 749 (9 Cir. 2001), but
remanded for further proceedings; on remand, 186 F.Supp. 2d 1099 (E.D. Cal. 2001), rev’d^th
and remanded by 296 F.3d 832 (9 Cir. 2002).

In Garamendi, the issue before the Court was “whether HVIRA interferes with
the National Government’s conduct of foreign relations.”⁴² A five-Justice majority
concluded that the statute did so interfere, given the “‘concern for uniformity in this
country’s dealings with foreign nations’ that animated the Constitution’s allocation
of the foreign relations power to the National Government in the first place.”⁴³ The
California law was, therefore, held to be preempted by the Executive’s negotiated
agreements with foreign governments, and the ruling of the Ninth Circuit was,
accordingly, reversed.⁴⁴ The dissenters would have relied instead on the fact that the
German Foundation Agreement “makes clear ... that ‘the United States does not
suggest that its policy interests concerning the Foundation in themselves provide an
independent legal basis for dismissal.”⁴⁵
Ongoing litigation of Holocaust-era insurance claims presently includes
activities surrounding the aforementioned settlement of the consolidated class action
and individual lawsuits that were originally filed in the latter half of the 1990s; and
the appeal of the dismissal of that consolidated action.
Congressional Concerns and Proposed Legislation
Since the late 1990s, Members of Congress have taken a variety of steps seeking
to ensure that Holocaust survivors and their heirs receive fair compensation for
unpaid insurance policies. A series of three hearings before the House Committee on
Government Reform between 2001 and 2003 focused specifically on ICHEIC and on

⁴² 539 U.S. at 401.
⁴³ Id. at 413, quoting from Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 427, n. 25
(1964).
⁴⁴ In Steinberg v. International Commission on Holocaust-era Insurance Claims, the
California Court of Appeals for the 2d District applied Garamendi, saying:
... the Garamendi opinion not only sets forth the relevant test, but applies it. A
state may not enforce a statute which interferes with a specific interest of the
Federal Government. To have preemptive effect, the specific interest need not
be expressly set forth in an official agreement. An interest reflected in official
agreements and statements by Executive Branch officials is sufficient. Moreover,
the federal government’s “policy of repose for companies that pay through the
ICHEIC,” is sufficient to preempt a California statute imposing additional duties
on European insurers. Garamendi held that California insurance disclosure laws
which require greater disclosure than that required by the ICHEIC are preempted
by this foreign policy. Similarly, we must conclude that section 354.5, which
provides for private actions arising out of Holocaust era insurance policies, is
preempted by the same policy.^th

133 Cal.App.4 689, 699 (Cal.App. 2 Dist. 2005).

⁴⁵ 539 U.S. at 436 (emphasis added). The majority opinion, delivered by Justice Souter, was
joined by Justices Rehnquist, O’Connor, Kennedy, and Breyer. The dissenting opinion was
filed by Justice Ginsburg, joined by Justices Stevens, Scalia and Thomas. For a more
detailed presentation of Garamendi, including the cases at the district and court of appeals
levels, see CRS Report RL32448.

proposed legislation intended to create alternative and more effective means for
Holocaust survivors and their heirs to resolve unpaid insurance claims. As
highlighted above, the House Committee’s initial exposure of perceived problems
with ICHEIC appears to have played a significant role in spurring subsequent reforms
to ICHEIC’s claims process. However, the Supreme Court’s 2003 Garamendi ruling
effectively halted alternative initiatives in several U.S. states that were also supported
by some Members of Congress. These initiatives would have required European
insurers to disclose policyholder records, and provided Holocaust survivors and their
heirs a cause of action to pursue claims substantiated by these records.
In Garamendi, the Supreme Court cited an absence of congressional action to
counter or amend Administration support of ICHEIC. Specifically, the failure of
numerous legislative proposals aimed at amending Administration policy was
considered evidence that “Congress has done nothing to express disapproval of the
President’s policy...” and that furthermore, “Given the President’s independent
authority ‘in the areas of foreign policy and national security,. . . congressional
silence is not to be equated with congressional disapproval.’”⁴⁶
Four bills introduced in the 108^th Congress, one of which was introduced
following the Garamendi decision, would have altered U.S. policy by requiring
European insurers to disclose policyholder lists from the Holocaust-era, and by
strengthening survivors’ ability to bring cases against European insurers in U.S.
courts.⁴⁷ None of these bills was enacted, and each was opposed by the
Administration, which continued to consider ICHEIC the exclusive vehicle for
resolving Holocaust-era insurance claims.
ICHEIC’s closure, and growing concern about the well-being of aging survivors
of an average age of over 75, have reignited congressional interest in resolving
outstanding Holocaust-era insurance claims. Most observers agree, however, that
Congress may be limited in its ability to ensure increased compensation for
outstanding claims. Many of those involved in past efforts to resolve claims —
including representatives of the U.S. Administration, the NAIC, European
governments, the Claims Conference, and the State of Israel — appear to agree that
ICHEIC, in spite of its faults, offered individuals a better vehicle than previously
available. Given that European insurers’ participation in ICHEIC was based on the
condition that ICHEIC would be an exclusive mechanism to resolve claims, many
argue that it could be difficult to obtain additional financial commitments from these
companies. Furthermore, some argue that significant obstacles could prevent

⁴⁶ In its decision, the Supreme Court highlighted the failure of the following proposed
legislation to achieve enactment: H.R. 1210, 108^th Cong., 1^st Sess. (2003); S. 972, 108^th^st^th^st^th^st
Cong., 1 Sess. (2003); H.R. 2693, 107 Cong., 1 Sess. (2001); H.R. 126, 106 Cong., 1
Sess. (1999). 539 U.S. at 429, citing, Haig v. Agee, 543 U.S. 280, 291 (1981).
⁴⁷ See H.R. 1210, the Holocaust Victims Insurance Relief Act of 2003, introduced by Rep.
Henry Waxman on March 11, 2003; H.R. 1905, the Comprehensive Holocaust
Accountability in Insurance Measure, introduced by Rep. Mark Foley on May 1, 2003; S.

972, the Comprehensive Holocaust Accountability in Insurance Act, introduced by Sen.

Norm Coleman on May 1, 2003; and H.R. 3129, the Holocaust Victims Insurance Act,
introduced by Rep. Adam Schiff on September 17, 2003.

successful litigation against European insurers. These include difficulties in
establishing both the existence and present-day value of policies.
As has been the case with past congressional action in this area, some Members
of Congress have expressed a desire to compel European insurers doing business in
the United States to provide more complete policyholder lists than heretofore
available. Some Members would also like to provide a congressionally sanctioned
vehicle for the pursuit of claims by individuals who would otherwise have been
prevented from doing so by virtue of the Supreme Court’s 2003 Garamendi decision.
Two House committees have held hearings in the 110^th Congress on proposed
legislation that would both increase public disclosure requirements of European
insurers and create a cause of action enabling Holocaust survivors and their heirs to
pursue claims against European insurers in U.S. courts.⁴⁸ Critics of the proposed
legislation -- seeking to avoid what they believe could be costly and likely fruitless
legislation -- have explored alternative mechanisms to have European insurers
continue to honor unpaid policies. Specifically, they have focused on the GDV and
other insurers’ written commitments to continue to honor unpaid claims using
ICHEIC’s relaxed standards of proof. Those skeptical of the insurers’ offer doubt
that insurers are likely to stay true to their commitment absent adequate oversight.
Others have discussed institutionalizing a continuing claims process by empowering
the NAIC to submit claims to European insurers on behalf of survivors and their
heirs, and by requiring the GDV and others to report to the State Department on the
status of ongoing claims. The GDV has signaled its willingness to adhere to such
reporting requirements should proposed legislation not be enacted.⁴⁹
The Holocaust Insurance Accountability Act of 2007 (H.R.
1746): Overview
On March 28, 2007, Representative Ileana Ros-Lehtinen introduced the
Holocaust Insurance Accountability Act of 2007 (H.R. 1746). The bill would require
the public disclosure of Holocaust-era policies by European insurers and reinsurers
conducting business in the United States, and, in light of the Supreme Court’s 2003
decision in Garamendi, would create a federal cause of action, “for any claim arising
out of or related to a covered policy against insurer or related company.”⁵⁰ The bill
was referred to the Committee on Financial Services, in addition to the Committees
on Foreign Affairs, and Oversight and Government Reform. The bill was slightly
amended in markup and ordered to be reported out of the House Foreign Affairs
Committee on October 23, 2007.

⁴⁸ “America’s Role in Addressing Outstanding Holocaust Issues,” Hearing before the
Subcommittee on Europe of the Committee on Foreign Affairs, October 3, 2007. Serial No.
110-110. Available at [http://foreignaffairs.house.gov/110/38141.pdf]; and “Holocaust
Insurance Accountability Act of 2007,” Hearing before the House Committee on Financial
Services, February 7, 2008. Available at [http://www.house.gov/apps/list/hearing/
financialsvc s_dem/ press020708.shtml ]
⁴⁹ Interviews of German and U.S. officials, March - April 2008.
⁵⁰ H.R. 1746, 110^th Cong., 1^st Sess.

The Committee on Financial Services marked up the bill on June 25, 2008. At
this markup, Chairman Barney Frank began with an amendment in the nature of a
substitute significantly different than the original bill text. Chairman Frank’s
amendment would require insurers to respond to written inquiries regarding
Holocaust-era policies within 90 days and provide, within a reasonable amount of
time, all information regarding this request. It would provide for monitoring of
insurer compliance by the New York Holocaust Claims Processing Office and a
$5,000 per day civil penalty on insurers for non-compliance. The Frank amendment
retains a federal cause of action for Holocaust-era claims, but substantially limits this
cause of action. In the markup, the committee agreed to an amendment proposed by
Representative Brad Sherman relating to subsidiary liability, subject to modification
of the precise language. Another Sherman amendment establishing a registry of
insurance policies from the Holocaust-era was not agreed to. The committee ordered
the bill to be reported by voice vote.
H.R. 1746 is still pending in the Committee on Oversight and Government
Reform.
In general, those supportive of H.R. 1746 argue that both the ICHEIC process
and previous agreements between the United States and European governments failed
to compensate a significant number of Holocaust survivors and/or their heirs and
beneficiaries. Many of those critical of ICHEIC and supportive of the proposed
legislation highlight the reluctance of European insurers to disclose Holocaust-era
policy records, and contend that public disclosure of these records could provide
valuable evidence to individuals who were either unaware of existing policies, or
were unable to adequately substantiate a claim. H.R. 1746 supporters acknowledge
that the standards of proof placed on a claimant in a U.S. court of law would likely
be far more stringent than those exercised by ICHEIC. However, they argue that in
light of ICHEIC’s closure, the courts represent one of the few, if not the only,
remaining avenues by which to pursue claims. Furthermore, a strong sense of distrust
regarding ICHEIC’s application of its relaxed standards of proof, and of insurers’
thoroughness in searching their records, appear to have increased hope that public
disclosure of Holocaust-era records could lead to substantive claims.
Those opposed to the proposed legislation, including the Bush Administration,
European insurance companies, and several European governments, tend to argue
that the bill’s public disclosure requirement represents a violation of individual
privacy rights, especially those statutorily mandated in some European countries;
and, that the federal cause of action would both preempt foreign policy decisions of
the Executive, and enable an undesirable and costly stream of litigation. Some
express strong doubts about the usefulness of publicly disclosing comprehensive
policyholder lists, arguing both that names alone would provide little if any tangible
information on policies themselves, and that matching names to survivors may prove
difficult, inconclusive and contentious. For example, they point to the prevalence of
some names among the Jewish community, to examples of Jews and non-Jews
having the same names, and to sometimes radical changes of spelling from the time
names were originally recorded until today. Furthermore, European insurers estimate
that publishing and maintaining policyholder lists of tens-of-millions of names could
be a costly endeavor both for insurers and the U.S. government.

Opponents of H.R. 1746 often argue that by effectively reversing past
commitments made by the U.S. government — specifically, the granting of legal
peace to German companies — the federal cause of action requirement could damage
future cooperation with European governments on other Holocaust compensation and
restitution issues. In addition, some U.S. and German government representatives
suggest that the credibility of future U.S. and German commitments to European
companies in these areas could be called into question. Specifically, German
government officials have indicated that a federal cause of action would likely limit
their ability to gain future financial commitments from German companies in
Holocaust compensation and restitution cases.⁵¹ Critics of the cause of action
provision also argue that given the legal and historical complexities of substantiating
the existence and value of Holocaust-era insurance policies, it is unlikely that claims
would be satisfactorily settled in U.S. courts. They argue that it was precisely this fact
that drove U.S. insurance regulators, the Claims Conference, and others to back
ICHEIC. In addition, given the likelihood of legal challenges from European insurers,
some question whether claims could ever be resolved within a reasonable period of
time.
H.R. 1746 states that damages should be at least three times the amount of the
value of the policy in United States dollars as of December 31, 1938, and provides
for a 6% annually compounded interest rate.⁵² The bill also states that “a court shall
award a successful claimant reasonable attorneys fees and costs incurred in
investigation and prosecuting the claim.”⁵³ Given past difficulties in determining the
present-day value of Holocaust-era insurance policies, and some questions regarding
the motives of attorneys involved in litigation, these provisions may cause concern
for some.

⁵¹ Conversations with German government officials, November 2007.
⁵² § 10(a)(4).
⁵³ § 10(a)(5) (2007).

Appendix A: Detailed Summaries of H.R. 1746.
H.R. 1746 – As Introduced in the House
This bill seeks to impose certain disclosure requirements upon issuers of
insurance policies⁵⁴ “in effect at any time after January 30, 1933, and before
December 31, 1945” that were issued to persons living in an area that was either
controlled or occupied by Nazi Germany or one of her allies or sympathizers.⁵⁵
Section 3 of H.R. 1746 seeks to establish an internet-based Holocaust Insurance
Registry that would be accessible to and searchable by the public. Section 4 of the
bill would require that covered insurers provide for the registry, within 90 days of the
bill’s enactment, the following information: (1) the first and last name, date of birth,
and domicile of each covered policy holder; (2) the name of the issuer of the covered
policy; and (3) the name of the entity responsible for the liability under the covered
policy.⁵⁶ The bill would require the Secretary of Commerce to assess civil penalties
of a minimum of $5,000 each day that a covered insurer fails to comply with Section

4.⁵⁷ The proceeds from these civil penalties would be used to maintain the registry.⁵⁸

Section 3 would require the Secretary of State to enter agreements with foreign
countries to make information regarding covered policies that are stored in those
countries available to the Holocaust Insurance Registry. The Secretary of State
additionally would be required to provide to Congress a report of his or her progress
in reaching these agreements within six months of the bill’s enactment.⁵⁹
H.R. 1746 states that Holocaust survivors and their heirs and beneficiaries
should have the right to “obtain information from insurers and to bring actions in
United Sates courts to recover unpaid funds from entities that participated in the theft
of family insurance assets or the affiliates of such entities.”⁶⁰ To that end, section 10
of the bill would establish “a Federal cause of action for any claim concerning a
covered policy against any insurer or related company.” The federal cause of action
would be in addition to any other cause action available under the law. The bill

⁵⁴ “Insurer” is defined in § 11 of the bill as “any person engaged in the business of insurance
(including reinsurance) in interstate or foreign commerce, if the person or a related company
of the person issued or reinsured a covered policy, regardless of when the related company
became a related company of the insurer.”
⁵⁵ H.R. 1746, § 11.
⁵⁶ H.R. 1746, § 4. This information would have to be provided to the United States’
Archivist. H.R. 1746, § 5.
⁵⁷ H.R. 1746, § 6. Section 8 of the bill would require the Secretary of Commerce, within 180
days of enactment and from time-to-time thereafter, to inform a state’s insurance
commissioner of any insurer that has failed to comply with § 4 of the bill or failed to pay a
civil penalty pursuant to § 6. The Secretary of Commerce would also have to provide this
information upon the request of a state insurance commissioner. H.R. 1746, § 8.
⁵⁸ H.R. 1746, § 7.
⁵⁹ H.R. 1746, § 3.
⁶⁰ H.R. 1746, 110^th Cong., 1^st Sess., Sec. 2(19) (2007).

would allow any purchaser, beneficiary, or heir or assignee of a purchaser or
beneficiary of a covered policy to raise a federal claim. Damages under this federal
cause of action would be a minimum of three times “the claim under the covered
policy in United States dollars as of December 31, 1938” plus 6% annual interest
from the time in which an action exists until the judgment date. Successful claimants
of the federal action would be awarded the reasonable costs and attorneys fees of
bringing and investigating the claim. The bill would provide original subject matter
jurisdiction in the federal district courts for any civil action pertaining to a covered
policy, regardless of whether such a claim is raised under the federal cause of action
established by the bill or brought pursuant to some other law. H.R. 1746 would also
provide a district court with personal jurisdiction over and would allow “service of
process, summons, and subpoena be made on” a non-resident defendant to the fullest
extent allowed under the Constitution for any civil action concerning a covered
policy.⁶¹
The Holocaust Insurance Accountability Act of 2007 would “apply retroactively
to any claim arising out of or related to a covered policy to the fullest extent
permitted by the Constitution,” and would include claims that were dismissed “on the
ground of executive preemption”⁶² and class action settlements entered into before
enactment of H.R. 1746 that have not resulted in actual payment.⁶³ Claims raised
under the federal cause of action established by the bill would have to be filed within
10 years of the act’s effective date.⁶⁴ Finally, the bill would not preempt state laws
that require other disclosures regarding covered policies or state remedies related to
these policies.⁶⁵
An Amendment in the Nature of a Substitute to H.R. 1746 –
As Ordered to Be Reported Favorably from the House
Committee on Financial Services
Section 3(a) of the bill would require insurers⁶⁶ of “covered policies”⁶⁷ that
receive a written inquiry from a potential beneficiary of such a policy within 10 years

⁶¹ H.R. 1746, § 10.
⁶² This provision seems directed towards the executive agreements with Germany, Austria,
and France, which ultimately led to the creation of ICHEIC, as well as the claims dismissed
in Generali, all of which are discussed above.
⁶³ H.R. 1746, § 10.
⁶⁴ Ibid.
⁶⁵ H.R. 1746, § 9.
⁶⁶ An “insurer” is any one who issued a covered policy while “engaged in the business of
insurance” or one’s successor in interest. H.R. 1746, § 9.
⁶⁷ “The term ‘covered policy’ means any insurance policy that was (A) in effect at any time
after January 30, 1933, and before December 31, 1945; and (B) issued to a policy holder or
named beneficiary who was [harmed] ... as a result of racial, religious, political, or
ideological persecution by organs of the National Socialist Government of Germany or by
other Governmental authorities or entities controlled by the National Socialist Government
of Germany in territories occupied by [this government or its allies]....” H.R. 1746, § 9.

of the bill’s enactment to acknowledge receipt of the inquiry with 90 days and inform
the requester if the insurer has any information regarding the policy; provide the
requester with all of the information that would indicate if the person is a potential
beneficiary of a covered policy, within a reasonable amount of time; and provide all
of this information to the Holocaust Claims Processing Office of the New York State
Banking Office (HCPO).⁶⁸ The bill would require the Secretary of Treasury to assess
civil penalties of a minimum of $5,000 each day that a covered insurer fails to
comply with Section 3(a).⁶⁹
The bill also would authorize and encourage the Secretary of the Treasury to
enter into an agreement with the HCPO that would allow the HCPO to keep track of
compliance with the provisions of Section 3(a); inform the Secretary of the Treasury
of any non-compliant insurers within 30 days of such breach; provide the identities
of any non-compliant insurer to the House Committee on Financial Services, the
Senate Committee on Banking, Housing, and Urban Affairs, the Secretary of State,
and the Secretary of Treasury each year; and provide regulations and guidelines to
implement the act.
Further, the bill would create “a Federal cause of action for any claim arising out
of or related to a covered policy” that is filed by any “eligible person”⁷⁰ within 10
years of the act’s effective date.⁷¹
Neither the requirements of Section 3(a) nor the federal cause of action
provisions would apply to covered policies for which a release or payment had been
provided; payment had been obtained or denied through “ICHEIC, any government
sponsored Holocaust claims process, the HCPO, or any process for the resolution of
Holocaust-era insurance claims established pursuant to a class action settlement; or
the claimant previously filed an action against the insurer.”⁷²
The bill also would require that the Secretary of State attempt to reach an
agreement with any European country with which an arrangement that would help
meet the requirements established in Sec. 3(a) of the bill does not already exist.⁷³
Finally, “[t]he Secretary of the Treasury shall instruct the United States Executive at
the European Bank for Reconstruction and Development to use the voice and vote

⁶⁸ H.R. 1746, § 3(a).
⁶⁹ H.R. 1746, § 5. The Committee on Financial Services also agreed to an amendment,
subject to modification, that would allow for accepting payment for a penalty levied against
an insurer from a subsidiary of the insurer, in certain circumstances. H.R. 1746, Amend.

1(a).

⁷⁰ An “eligible person” is one who bought a covered policy, or a beneficiary, heir, or
assignee of the purchaser or policy. H.R. 1746, § 9.
⁷¹ H.R. 1746, § 6. The bill makes clear that it would not affect any existing class action
settlements or releases.
⁷² H.R. 1746, § 7.
⁷³ H.R. 1746, § 3(b). The Secretary of State additionally would be required to provide to
Congress a report of his or her progress in reaching these agreements within six months of
the bill’s enactment.

of the United States to create and advocate the policies of the Bank to encourage
Eastern European countries to engage in and pursue restitution programs in
compliance with this Act.”⁷⁴

⁷⁴ H.R. 1746, § 8.

Appendix B. ICHEIC Timeline
Aug. 1998⁷⁵ICHEIC MOU signed:
— 6 European Insurers (1 drops out)
— NAIC
— Claims Conference
— World Jewish Restitution Organization
— Israel
Oct. 1999California institutes Holocaust Victims Insurance Act
(HVIA)
Feb. 2000ICHEIC launches claims process with initial “pilot” of
“fast-track” claims previously gathered by U.S.
insurance commissioners.
Expects to end claims process by Feb. 2002.
Claims deadline ultimately extended to March 2004,
with decisions complete by June 2006.
Apr. 20001^st policy-holder list published (18,833 names from
archives and ICHEIC research).
June 2000$5 billion German Foundation Agreement includes $350
million German Insurance Industry commitment to
ICHEIC.
Nov. 2000Generali commits $100 million to ICHEIC.
Feb. 2001Austrian General Settlement Fund (GSF) includes $25
million commitment to ICHEIC.
Mar.-Apr. 2001About 24,000 additional policyholder names published
(none from company lists).
May 2001Press reports 80% of fast-track claims remain
unprocessed; 95% of those processed rejected.
Nov. 2001Members criticize ICHEIC during House Committee on
Government Reform hearing.
Eaglburger testifies and agrees to “policing commission”
to oversee company claims handling.
Early 2002Eagleburger appoints “Executive Monitoring Group”
(EMG) to investigate ICHEIC claims handling.

⁷⁵ Information from following sources: “Finding Claimants and Paying Them,” ICHEIC
Final Report, June 2007, available on ICHEIC website; ICHEIC Timeline from ICHEIC
website (no longer online); Michael J. Bazyler, “Holocaust Justice,” New York: New York
University Press, 2003.

May 2002EMG allegedly finds widespread mismanagement in
rejection of documented claims.
Eagleburger/ICHEIC hire Chief Operating Officer and
set-up process to “verify” company claims decisions. In
June 2007, ICHEIC reports having verified about 30,000
claims in total.
Sept. 2002House Government Reform Subcommittee on
Government Efficiency conducts Hearing on proposed
Holocaust Victims Insurance Relief Act (Waxman).
Oct. 2002German Insurance Industry gives previously committed
$350 million.
Nov. 2002ICHEIC finalizes valuation guidelines.
Apr. 2003Swiss Insurers agree to $17.5 million to ICHEIC.
Apr. 2003ICHEIC publishes 363,232 policy-holder names from
German Insurance Industry.
June 2003Supreme Court rules against California’s HVIA
(Garamendi). Primary argument that state law interferes
with foreign policy decisions of the Executive branch.
Sept. 2003House Committee on Government Reform holds hearing
on future of insurance-related bills in light of Garamendi
decision. Eagelburger testifies.
Mar. 2004Claims filing deadline.
June 2006Claims decisions finalized.
Mar. 2007ICHEIC closes.
June 2007ICHEIC final report released.