Holocaust-era Insurance Claims: Federal Court Decisions and State Statutes and Federal Legislative Proposals

Holocaust-era Insurance Claims: Federal Court Decisions and State Statutes and Federal Legislative Proposals

Order Code RL32448
CRS Report for Congress
Received through the CRS Web
Holocaust-era Insurance Claims:
Federal Court Decisions and State Statutes and
Federal Legislative Proposals
June 21, 2004
-name redacted-
Legislative Attorney
American Law Division
-name redacted-
Legislative Attorney
American Law Division
Congressional Research Service ˜ The Library of Congress

Holocaust-Era Insurance Claims: Federal Court
Decisions and State Statutes and Federal Legislative
Proposals
Summary
In American Insurance Association v. Garamendi, the United States Supreme
Court struck down California’s Holocaust Victim Insurance Relief Act (HVIRA),
finding that it impermissibly interfered with the President’s conduct of foreign
affairs. The challenged statute required insurance companies wishing to do business
in California to disclose specified information concerning their policy-writing
activities in Europe during the Holocaust era, and those of their related, European
insurance companies; it was enacted by the state, one of many state statutes enacted
to expedite the handling of the Holocaust-era insurance claims, in an attempt to
address perceived (and in many cases, documented) injustices in the (non)payment
of certain Holocaust-era insurance claims. All were enacted about the same time as
the conclusion of several international agreements that (1) addressed problems
involved in the settlement of Holocaust-era insurance claims and (2) created
mechanisms for resolving those claims. These state laws, which vary greatly in their
scope and coverage, are summarized in an Appendix to this report.
Prior to the Supreme Court decision, there had been a split between two U.S.
Courts of Appeals in which state Holocaust-related insurance statutes had been
litigated. The Ninth Circuit, whose decision was reversed in Garamendi, had upheld
the California statute’s disclosure provisions; the Eleventh Circuit had earlier struck
down a similar Florida statute, reasoning that the requirement that U.S. insurance
companies disclose information about the activities of their German affiliates
violated the Due Process rights of the U.S. companies. The status of similar
provisions in other states’ insurance statutes is, as the result of the Garamendi
decision, in question; either in anticipation of, or as a result of, the Court’s 5-4
decision, several pieces of legislation have been introduced in the 108th Congress to
clarify that the state laws are permissible. The legislation is intended to (1) expedite
the settlement of Holocaust-era insurance claims and/or (2) provide greater structure
and uniformity in the claims settlement process.
This report will discuss in detail the Supreme Court case and the lower court
decisions that preceded it, providing only so much information on the background
and history of the issue as is necessary to an appreciation of the litigation. For further
historical information is presented in detail, see CRS Report RL30262 and CRS
Report RL30396. Pertinent, pending congressional measures are summarized. As
noted above, an appendix to this report provides, in chart form, summaries of
currently existing state laws, including those containing provisions that are similar
or identical to those in HVIRA that were struck down.
This report will be updated upon further congressional action.

Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Brief Historical Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Litigation in the Lower Federal Courts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Gerling Global Reinsurance Corp. v. Nelson . . . . . . . . . . . . . . . . . . . . . . . . 4
Gerling Global Reinsurance Corp. v. Quackenbush/Low . . . . . . . . . . . . . . . 5
Litigation in the Supreme Court: American Insurance Association v.
Garamendi . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Federal Legislative Response . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
H.R. 1210 — Holocaust Victims Insurance Relief Act of 2003 . . . . . . . . . 10
H.R. 1905 — Comprehensive Holocaust Accountability in
Insurance Measure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
S. 972 — Comprehensive Holocaust Accountability in Insurance Act . . . . 11
S. 1184 — Holocaust Victims’ Assets, Restitution Policy, and
Remembrance Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
H.R. 3129 — Holocaust Victims Insurance Fairness Act . . . . . . . . . . . . . . 12
Appendix: State Laws Concerning Holocaust-Era Insurance Assets . . . . . . . . . 14

Holocaust-Era Insurance Claims: Federal
Court Decisions and State Statutes and
Federal Legislative Proposals
Introduction
In American Insurance Association v. Garamendi, the United States Supreme
Court struck down California’s Holocaust Victim Insurance Relief Act (HVIRA),1
finding that it impermissibly interfered with the President’s conduct of foreign
affairs.2 The challenged statute required insurance companies wishing to do business
in California to disclose specified information concerning their policy-writing
activities in Europe during the Holocaust era, and those of their related, European
insurance companies. It was enacted by the state — one of many similar state
statutes — in an attempt to address perceived (and in many cases, documented)
injustices in the (non)payment of certain Holocaust-era insurance claims. These state
laws were enacted about the same time as the conclusion of several international
agreements that (1) addressed problems involved in the settlement of Holocaust-era
insurance claims and (2) created mechanisms for resolving those claims. The state
laws, which vary greatly in their scope and coverage, are summarized in an Appendix
to this report.
Prior to the Supreme Court decision, there had been a split between two circuit
courts before which state Holocaust-related insurance statutes had been litigated.
The Ninth Circuit, whose decision was reversed in Garamendi, had upheld the
California statute’s disclosure provisions;3 the Eleventh Circuit had earlier struck
down a similar Florida statute, reasoning that the requirement that U.S. insurance
companies disclose information about the activities of their German affiliates
violated the Due Process rights of the U.S. companies.4 The status of similar
provisions in other states’ insurance statutes is, as the result of the Garamendi
decision, in question; either in anticipation of, or as a result of, the Court’s 5-4
decision, several bills have been introduced in the 108th Congress to support state
authority.5
1 Cal. Civ. Proc. §§ 354.5, 354.6 (West 2003).
2 123 S.Ct. 2374 (2003).
3 Gerling Global Reinsurance Corp. of America v. Low, 296 F.3d 832 (9th Cir. 2002), rev’g
186 F.Supp. 2d 1099 (E.D. Cal. 2001).
4 Gerling Global Reinsurance Corp. of America v. Gallagher, 267 F.3d 1228 (11th Cir. 2001),
aff’g Gerling Global Reinsurance Corp. v. Nelson, 123 F.Supp.2d 1298 (N.D. Fla. 2000).
5 E.g., H.R. 1210 (requiring disclosure of certain information to the Secretary of Commerce,
(continued...)

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This report will discuss in detail the Supreme Court case and the lower court
decisions that preceded it, providing only so much information on the background
and history of the issue as is necessary to an appreciation of the litigation. Further
historical information is presented in detail in other CRS Reports.6 The Appendix
to this report provides, in chart form, summaries of currently existing state laws,
including those containing provisions that are similar or identical to those in
California’s HVIRA that were struck down.
Brief Historical Background
Several factors have led insurers to refuse payment of life insurance claims
resulting from the Holocaust. Factors cited by insurers have included the following:
1) socialization/nationalization of insurance-company assets in Central and Eastern
European countries after the war transferred to certain governments and successor
entities the responsibilities for unpaid and unclaimed insurance policies; 2) Nazi-era
regulations and decrees forced some insurers to pay insurance proceeds and cash
values of insurance policies to the Nazi government, and Germany’s postwar
restitution program compensated some Holocaust victims for specific claims arising
from those transactions; 3) many named beneficiaries lack death certificates for the
insureds; 4) many policies had lapsed for nonpayment of premiums; and 5) many
claims have been considered invalidated by the passage of time.
These and similar representations have not always been sympathetically
received, especially after the end of the Cold War. The public disclosure of certain
secret documents by the former Soviet Union revealed collusion between certain
European insurance officials and Nazi leaders. Further materials documented lack
of good faith on the part of some insurers.7
5 (...continued)
but also declaring that H.R. 1210 does not preempt state laws requiring disclosure of similar
information); H.R. 1905/S. 972 (affirming the right of any state to establish, as a condition
of doing business in the state, certain disclosure requirements for insurance companies);
H.R. 3129 (allowing “states to require insurance companies to disclose Holocaust-era
insurance information”). All of the bills remain in committee. It is worth noting that the
fate of any legislation that has the effect of permitting states to require U.S. insurance
companies to disclose information concerning their non-U.S. affiliates is itself not assured:
the lower courts’ grounds for their findings of unconstitutionality were Due Process
infirmities not addressed in the Supreme Court decision. The measures are more fully
described infra, at pp. 9-13.
6 See, e.g., CRS Report RL30262, The Holocaust — Recovery of Assets from World War II:
A Chronology (May 1995 to Present), by Barbara A. Salazar (July 31, 2000); and CRS
Report RL30396, Holocaust-Era Assets: A Guide for Filing Claims and a List of
Compensation Programs, by Barbara A. Salazar (August 15, 2000).
7 Documentation of the confiscation of the German-Jewish insurance assets was presented
at the Washington Conference on Holocaust-Era Assets held at the U.S. State Department
from November 30 to December 3, 1998. At the time of the conference, dissension occurred
among the members on the International Commission on Holocaust Era Insurance Claims
(continued...)

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While international bodies and individual governments attempted to resolve the
Holocaust-era insurance claims,8 several state legislatures passed laws to facilitate
resolution.9 The focus of the more comprehensive legislation, such as that enacted
in Florida and California, was to restrict the ability of certain insurers to engage in
business in those states if the insurer (or a “related” insurer, frequently a European
affiliate) did not provide policy information relating to, or had not settled,
outstanding Holocaust-era insurance claims. Generally, state laws also contained a
policy statement, an extension of the state’s statute of limitations, and definitions to
clarify (1) who is a target “insurance company” and (2) the term “related company.”
Some statutes also established helplines and/or registries, allowed for monetary
damages, provided for loss of state certification to do business, and allowed private
rights of action. The European insurance companies have, in challenging the statutes,
argued Due Process, federal preemption of the state legislation under the Commerce
Clause, and the “nationalization defense,” i.e., that individual Holocaust victims and
their heirs had already received compensation from the government of the Federal
Republic of Germany.10
Litigation in the Lower Federal Courts
The focus of the Florida litigation in the district court and the court of appeals
was the allegation that the Due Process rights of the insurance-company plaintiffs
were unconstitutionally abridged by the challenged statutes. The California
litigation, which eventually reached the Supreme Court as American Insurance
Association v. Garamendi,11 addressed, in the first instance, the impact of that state’s
insurance statute on the conduct of foreign policy by the United States; Due Process
and Commerce Clause arguments were considered by the district court on remand
from the United States Court of Appeals for the Ninth Circuit.
7 (...continued)
(ICHEIC) (see, infra,note 8) concerning the use of sanctions to encourage European insurers
to join the ICHEIC.
8 Following German reunification, class action suits for restitution were filed in the United
States against companies that had done business in Germany during the Nazi era and now
have branches or affiliates here. The dissent in Garamendi observes that the 1990s litigation
“propelled” certain European insurance companies to create ICHEIC, a voluntary
organization whose mission is to negotiate with European insurers to provide information
about unpaid insurance policies and to attempt to provide individual settlements to such
claims (123 S.Ct. at 2396). Subsequent negotiations between the United States and the
German government resulted in the 2000 German Foundation Agreement, under which
terms the German government and certain German companies contributed to a foundation
established to oversee and administer the compensation of victims with claims against
German companies dating back to the Nazi era. Concerning insurance claims, Germany and
the United States agreed that the foundation would work with ICHEIC.
9 See Appendix.
10 See, e.g.,[http://www.icheic.org/], the extensive website maintained by ICHEIC, which
contains statistics concerning the settlement offers which have been made to claimants.
11 123 S.Ct. 2374 (2003).

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Gerling Global Reinsurance Corp. v. Nelson
The authority of the Florida Commissioner of Insurance to compel certain
information pursuant to the state’s Holocaust Victims Insurance Act (Act),12 which
contains various provisions affecting the rights of German insurers and their German
insureds under policies issued in Germany between 1920 and 1945, was challenged
and found constitutionally infirm on Due Process grounds by the United States
District Court for the Northern District of Florida.13 Under the terms of the act, any
insurer doing business in Florida was required to report to the Florida Commissioner
of Insurance 1) any legal relationship with a foreign insurer that issued policies to
Holocaust victims during the Holocaust-era; 2) the number and value of such
policies; 3) claims filed by such victims that have been paid or denied payment, or
are pending; and 4) attempts to locate the beneficiaries of the policies. In other
words, the act required that the Florida insurers, in addition to reporting about their
own Holocaust-era policies, report about the policies of companies with which they
(the Florida insurers) have any “legal relationship,” as, e.g., a parent, subsidiary, or
affiliated company. Given those facts, the district court granted the plaintiff insurers’
motion for summary judgment, notwithstanding the undisputed fact that some
Holocaust-era policy holders or their beneficiaries might currently reside in Florida:
The jurisdictional limitations mandated by the Due Process Clause
[minimum contacts with the forum state] are applicable not only to a state’s
judiciary but also to a state’s executive and legislative branches.
* * *
Applying the Due Process Clause’s jurisdictional principles to these facts
does not present a difficult issue. The insurance contracts at issue were entered
in Germany between German parties under German law. They addressed German
events. Any breach of the contracts occurred in Germany. The parties to the
contracts had no connection with Florida. The events governed by the contracts
had no connection with Florida. The grounds for exercising jurisdiction over
these parties or these events in Florida are exactly none. ... The law is clear that
the movement into a state of a party to a contract entered elsewhere does not
standing alone establish jurisdiction over claims arising under that contract.14
When the Florida insurance commissioner appealed the district court ruling, the
insurance companies maintained their Due Process challenge, and also argued that
the act violated (1) the dormant commerce clause by regulating out-of-state
commerce; (2) Congress’ power to control international commerce; and (3) the
national government’s foreign affairs power. The appeals court addressed only the
validity of the act’s reporting provisions as they related to the subpoenas served on
the U.S. companies’ non-U.S. affiliates; reviewing the district court’s grant of
summary judgment, it applied the same legal standard as had the lower court,
affirming the district court decision that the act’s reporting requirement did, in fact,
12 Fla. Stat. Ann. § 626.9543 (West Cum. Supp. 2003).
13 Gerling Global Reinsurance Corp. v. Nelson, 123 F.Supp.2d 1298 (N.D. Fla. 2000).
14 Id. at 1301-1302.

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violate the plaintiff’s Due Process rights because it effectively regulated transactions
that have insufficient connection to Florida to provide the requisite jurisdictional
foundation.15
Gerling Global Reinsurance Corp. v. Quackenbush/Low16
At the initial stage of this litigation, plaintiff insurance companies sought an
injunction against the enforcement of California’s Holocaust Victim Insurance Relief
Act (HVIRA). The United States District Court for the Eastern District of California
granted a preliminary injunction based on the state statute’s constitutionally
impermissible interference (actual or potential) with both interstate and international
commerce, and the national conduct of foreign affairs — the arguments raised but not
addressed in the Florida litigation.17 First,
... defendant’s argument that plaintiffs [‘have not demonstrated that the
Holocaust Statutes have an actual direct impact on foreign relations’] confuses
the preemption doctrine with the foreign affairs power. A state cannot pass
statutes that interfere with foreign affairs whether or not the national government
has a stated policy. [In this instance, however, the President’s foreign affairs
powers are evident in the extensive national-government-level negotiations
concerning Holocaust insurance payments and the existence of the International
Commission on Holocaust Era Insurance Claims (ICHEIC), and underscore that
the matter has been and is being addressed at the foreign relations level.].18
Nor was the court persuaded by the commissioner’s argument that the state law
could not be challenged as an abrogation of federal commerce power because the
1945 McCarran-Ferguson Act exempts state regulation of insurance from the general
ban on state interference with Commerce Clause activity.19 It cited a case
successfully brought by the Federal Trade Commission to enforce a cease-and-desist
order against a Nebraska-based insurance company engaged in an interstate mail-
order insurance business.20 The court also noted, favorably, plaintiffs’ argument
15 Gerling Global Reinsurance Corp. v. Gallagher, 267 F.3d 1228 (11th Cir. 2001).
16 The history of this case, before it reached the Supreme Court, 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 was
California’s insurance commissioner by 2001), 240 F.3d 739 (9th Cir. 2001), but remanded
for further proceedings, on remand, 186 F.Supp. 2d 1099 (E.D. Cal. 2001), rev’d and
remanded by 296 F.3d 832 (9th Cir. 2002).
17 2000 WL 777978 (E.D. Cal. 2000).
18 Id. at*9.
19 Id. at *10-*11. The McCarran-Ferguson Act states:”Congress hereby declares that the
continued regulation and taxation by the several States of the business of insurance is in the
public interest ...” and that “[n]o Act of Congress shall be construed to invalidate ... or
supersede any law enacted by any State for the purpose of regulating the business of
insurance ....” 15 U.S.C. §§ 1011, 1012.
20 Federal Trade Commission v. Travelers Insurance Association, 362 U.S. 293, 300
(1960)(“There was no indication of any thought [by the Congress that enacted McCarran-
(continued...)

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(made but not discussed in the Florida litigation) that disclosure of the required
HVIRA information would likely violate certain European privacy laws.
Although the United States Court of Appeals for the Ninth Circuit disagreed
with the district court’s conclusions concerning the unconstitutionality of the
California insurance law on foreign affairs grounds, it affirmed the preliminary
injunction, at the same time remanding the case to the district court for its
consideration of the plaintiffs’ Due Process arguments.21 On remand, the district
court permanently enjoined revocation of the insurance companies’ licenses to do
business in California for refusing to make HVIRA’s required disclosures: while
there was no Due Process violation inherent in the disclosure requirement itself,22 the
court said, the fact that the companies were denied the opportunity to challenge a
revocation (automatic unless the nondisclosure was based on the nonexistence of
pertinent documents) constituted a violation of their Fourteenth Amendment Due
Process rights.23
The second time around, the appeals court did reverse the district court decision,
finding that HVIRA was not unconstitutional on any of the asserted grounds, and
directing that the injunction be dissolved.24 The insurance companies appealed, and
the Supreme Court granted certiorari25 to address the differing conclusions of the
Eleventh (Florida law unconstitutional) and Ninth Circuit (California law not
unconstitutional) opinions.
20 (...continued)
Ferguson] that a State could regulate activities carried on beyond its own borders”).
Discussed and quoted at 2000 LW 777978 at *11.
21 Gerling Global Reinsurance Corp. v. Low, 240 F.3d 739 (9th Cir. 2001).
22 The district court compared the Florida statute invalidated on Due Process grounds in
Nelson (see notes 11 and 12, supra, and associated text) with the California statute, noting
that a primary difference between them was that the Florida’s disclosure requirements were
coupled with the mandate that all “reasonably established” claims be paid by the Florida
insurers. 186 F.Supp. 2d 1099, 1108 (E.D. Cal. 2001); see note 14, supra, and associated
quote.
23 186 F.Supp. 2d at 1110, 1111.
24 296 F.3d 832 (9th Cir. 2002).
25 American Insurance Association v. Garamendi, 537 U.S. 1100 (2003).

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Litigation in the Supreme Court: American
Insurance Association v. Garamendi
As framed by the Court, the issue before it was “whether HVIRA interferes with
the National Government’s conduct of foreign relations.” A five-Justice majority
concluded that it did so interfere, and the California statute was therefore preempted
by the Executive’s negotiated agreements with foreign governments. The ruling of
the Ninth Circuit was, accordingly, reversed.26
After recounting the history behind most Holocaust-era insurance claims, and
the international negotiations directed at securing reparations based on those claims,
the Court emphasized the negotiations between the United States and the German
governments that resulted in, inter alia, the German Foundation Agreement
(“Agreement”).27 Under its terms, the German government and certain German
companies contributed to a foundation established to oversee and administer the
compensation of victims with claims against German companies dating back to the
Nazi era.
Pursuant to the Agreement, President Clinton had committed to a procedure that
obligated the United States government, when a German company was sued in an
American court over a Holocaust-era claim, to 1) submit a statement indicating that
it would be in the United States’ foreign policy interests for the foundation
established by the Agreement to be the exclusive forum and source of remedy for
such claims; and 2) attempt to get state and local governments to respect the
foundation as the exclusive remedial mechanism for such claims. In other words, the
Agreement represented a sort of “quid pro quo” pursuant to which
[t]he willingness of the Germans to create a voluntary compensation fund
was conditioned on some expectation of security from lawsuits in United States
courts.28
Further, Germany and the United States agreed that the foundation would work with
the International Commission on Holocaust Era Insurance Claims (ICHEIC), whose
mission is to negotiate with European insurers to provide information about unpaid
insurance policies and to attempt to provide individual settlements of such claims.
ICHEIC has set up procedures to implement this joint claims/settlement procedure.29
26 123 S.Ct. 2374, 2379, 2394 (2003), rev’g, 296 F.3d 832. The majority opinion was
delivered by Justice Souter, joined by Justices Rehnquist, O’Connor, Kennedy, and Breyer.
The dissenting opinion was filed by Justice Ginsburg, joined by Justices Stevens, Scalia and
Thomas.
27 Agreement Concerning the Foundation “Remembrance, Responsibility and the Future,”
39 Int’l Legal Materials 1298 (2000).
28 123 S.Ct. at 2382.
29 See, e.g., CRS Report RL30396, Holocaust-Era Assets: A Guide for Filing Claims and
a List of Compensation Programs, by Barbara A. Salazar (August 15, 2000).

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The Court noted that the executive agreements at issue lacked express
preemption clauses, but emphasized that there was a sufficiently “clear conflict”
between the foreign policy embodied in the agreements and the California statute to
require its finding of preemption: the President’s policy, as embodied in his
executive agreements and government officials’ interpretation of them, was to
encourage European governments and companies to volunteer settlement funds in
preference to litigation or coercive sanctions; HVIRA imposed regulatory sanctions
to compel disclosure and payment of claims, and created “a new cause of action for
Holocaust survivors if the other sanctions” failed:30
The express federal policy and the clear conflict raised by the state statute
are alone enough to require state law to yield. If any doubt about the clarity of
the conflict remained, however, it would have to be resolved in the National
Government’s favor, given the weakness of the State’s interest, against the
backdrop of traditional state legislative subject matter ....31
And, although the President had acted without express congressional authority on the
subject, the Court found it noteworthy that Congress neither disapproved of the
President’s policy nor expressly authorized state statutes of the HVIRA type.32
California’s Commerce Clause argument relying on the McCarran-Ferguson
Act, rejected in the district court,33 was no more successful in the Supreme Court:
... a federal statute directed to implied preemption by domestic commerce
legislation cannot sensibly be construed to address preemption by executive
conduct in foreign affairs.34
The four dissenting Justices were less willing than was the majority to find a
preemption-inducing conflict, “[a]bsent a clear statement aimed at disclosure
requirements by ‘one voice’ to which courts properly defer in matters of foreign
affairs”.35 As does the majority, the dissent acknowledges the U.S. obligation under
the German Foundation Agreement to advise litigation forums of the government’s
determination that the foreign policy interests of the United States would be served
by having the foundation serve as “the exclusive forum and remedy for all asserted
claims against German companies arising from their involvement in the national
30 Id. at 2390, 2391, 2392.
31 Id. at 2392. In that respect, the Court noted the similarities to those of Massachusetts’ so-
called “Burma Law” at issue in Crosby v. National Foreign Trade Council (530 U.S. 63
(2000)). There, the state law, which restricted the ability of Massachusetts and its agencies
to purchase goods or services from companies that did business with Burma (Myanmar),
was unanimously held to violate the Supremacy Clause of the Constitution, and declared
invalid.
32 123 S.Ct. at 2394. Legislation that would provide congressional authorization for the state
statutes is summarized briefly in note 5, supra, and more fully, infra, at pp. 9-13.
33 Cf. notes 19, 20, and accompanying text.
34 123 S.Ct. at 2394.
35 Id. at 2395.

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Socialist era and World War II.”36 Moreover, there is a further U.S. obligation to
“recommend dismissal on any valid legal ground (which, under the U.S. system of
jurisprudence, will be for the U.S. courts to determine).”37 But the dissent also notes
that
[t]he 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.’38
Justice Ginsburg reviewed prior Supreme Court case law in which certain state
laws were found to impermissibly conflict with either the express terms of executive
agreements,39 or required U.S. courts to inquire into the nature of foreign
governments, possibly criticizing those “more authoritarian than our own.”40 Based
on that review, the dissent concluded that HVIRA, which addressed only public
disclosure — a subject neither mentioned nor alluded to in the German Foundation
Agreement or similar agreements concluded with Austria and France — should be
“left in place” because implementing HVIRA “would not compromise the President’s
ability to speak with one voice for the Nation.”41
Federal Legislative Response
Over the past few years, Congress has considered certain aspects of the
Holocaust-era insurance issues. The House Committee on Government Reform held
a series of hearings on the entire Holocaust-era insurance topic which included, in the
108th Congress, “Holocaust Era Insurance Restitution After AIA v. Garamendi:
Where Do We Go From Here?” (September 16, 2003) and, in the 107th Congress,
“Holocaust Victims Insurance Relief Act of 2001,” (September 21, 2002) and “The
Status of Insurance Restitution for Holocaust Victims and Their Heirs” (November
8, 2001).
Several bills introduced in the 108th Congress address issues associated with the
Holocaust-era insurance claims.42 These bills and the legislative activity associated
with them are summarized below:
36 123 S.Ct. at 2398, quoting from the Agreement.
37 Id.
38 Id. (emphasis added).
39 Id. at 2398-2399, discussing United States v. Belmont, 301 U.S. 324 (1937); United States
v. Pink, 315 U.S. 203 (1942); Dames & Moore v. Regan, 453 U.S. 654 (1981).
40 Id. at 2399, quoting from Zschernig v. Miller (389 U.S. 429, 440 (1968), cited approvingly
by the majority (123 S.Ct. at 2388-2389). Zschernig nullified an Oregon escheat statute that
had resulted in denying an inheritance to a resident of a Communist-bloc country.
41 Id. at 2401.
42 All relevant bills were introduced during the 1st Session of the 108th Congress. As of April
27, 2004, no bills on Holocaust-era insurance issues had been introduced in the 2nd Session.

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H.R. 1210 — Holocaust Victims Insurance Relief Act of 2003
Introduced by Representative Waxman on March 11, 2003, H.R. 1210 would
provide for the establishment of the Holocaust Insurance Registry by the Archivist
of the United States and require certain disclosures by insurers to the Secretary of
Commerce. The bill sets out findings on the events of the Holocaust, the theft of
assets, the difficulties of processing insurance claims, the establishment of the
ICHEIC, the Executive Agreement, and the alleged lack of progress of the ICHEIC
in processing claims. The purpose of the bill is to provide information about
Holocaust-era insurance policies to Holocaust victims and their heirs and
beneficiaries in order to enable them to expeditiously file their rightful claims.
The Archivist is authorized to establish a Holocaust Insurance Registry, with
information to be publicly available. An insurer is required to file with the Secretary
certain information regarding the policy holder and the policy. The bill defines
insurer as “any person engaged in the business of insurance in United States interstate
or foreign commerce, if the person or a related company of the person issued a
covered policy, regardless of when the related company became a related company
of the insurer.”43 A related company means “an affiliate, as that term is defined in
section 104(g) of the Gramm-Leach-Bliley Act.”44 This information is to be
forwarded by the Secretary to the Archivist. Time limits and penalties for
noncompliance are established. Notification procedures between the Secretary and
various state insurance commissioners are established. The bill expressly does not
preempt the right of any state to adopt/enforce any state law requiring an insurer to
disclose information regarding Holocaust-era policies.45
The bill was referred to the Committee on Financial Services and to the
Committee on Government Reform on March 11, 2003. In the House Financial
Services Committee, it was referred to the Subcommittee on Capital Markets,
Insurance and Government Sponsored Enterprises on March 28, 2003. In the House
Committee on Government Reform, it was referred to the Subcommittee on
Technology, Information Policy, Intergovernmental Relations and the Census on
March 25, 2003. No hearings have been held.
H.R. 1905 — Comprehensive Holocaust Accountability in
Insurance Measure
This bill, the Comprehensive Holocaust Accountability in Insurance Measure,
was introduced by Representative Foley on May 1, 2003. The bill would clarify the
authority of a state to condition the ability to conduct the business of insurance within
43 H.R. 1210, 108th Cong., 1st Sess., Sec. 10(3) (2003).
44 Id. Defined in Sec. 10(4) through specific reference to the Gramm-Leach-Bliley Act, Pub.
L. 106-102, 113 Stat. 1338, Nov. 12, 1999: “AFFILIATE. — The term “affiliate” means any
company that controls, is controlled by, or is under common control with another company.”
45 Id. Sec. 9(a). PREEMPTION-Nothing in this act preempts the right of any State to adopt
or enforce any State law requiring an insurer to disclose information regarding insurance
policies that may have been confiscated or stolen from victims of Nazi persecution.

CRS-11
the state on the provision of information regarding the Holocaust-era insurance
policies of the insurer. The bill also would establish a Federal cause of action to
obtain payment of claims. It sets out the factual and legal background surrounding
the Holocaust-era insurance controversy, noting the ICHEIC’s alleged lack of success
in settling claims.46 The bill provides that a state may establish requirements for
insurers as a condition of doing insurance business, including the collection of
insurance information from foreign-based insurance companies, to the extent that
such requirements are consistent with constitutional due process guarantees. Specific
information requirements are set out. A state may also require the disposition of the
proceeds of the policies.47
The bill establishes a ten-year statute of limitations for causes of action under
it. Matters of jurisdiction are covered.48 There is an extensive definitional section,
which includes a listing of specific foreign insurance companies that have had
financial dealings with any Holocaust victim, as well as provision for designation by
the states or the Attorney General of additional such companies.49 The bill also
provides guidelines for determining who is a “listed Holocaust victim”covered by the
legislation.50
The bill was referred to the House Committee on Financial Services on May 1,
2003, and was referred to the Subcommittee on Capital Markets, Insurance and
Government Sponsored Enterprises on May 12, 2003. It has not emerged from
committee.
S. 972 — Comprehensive Holocaust Accountability in
Insurance Act
This bill, introduced by Senator Coleman on May 1, 2003, is the companion bill
to H.R. 1905, the “Foley bill.” Although the bills are nearly identical, S. 972 would
establish its “listed Holocaust victims”51 without specific reference to a victim list
held by the International Red Cross or other regularly accessed source of information
concerning Holocaust victims.52
After its introduction on May 1, 2003, the bill was read twice and referred to the
Senate Committee on the Judiciary. It has not emerged from committee.
46 H.R. 1905, 108th Cong., 1st Sess. Sec. 2 (2003).
47 Id. Sec. 3
48 Id. Sec. 4.
49 Id. Sec. 4(d).
50 Id.. Sec. 5.
51 S. 972, 108th Cong., 1st Sess. Sec.5 (2003).
52 See, e.g., H.R. 1905, 108th Cong., 1st Sess. Sec. 5(3)(B) (2003).

CRS-12
S. 1184 — Holocaust Victims’ Assets, Restitution Policy, and
Remembrance Act
Introduced by Senator Smith, the bill would establish a National Foundation for
the Study of Holocaust Assets, which assets would appear to include the proceeds of
insurance policies.53 Extensive findings outline the Holocaust-era theft of many
assets. The bill contains language to encourage the ICHEIC to prepare a report on
the results of its claims process. Provisions are made for the establishment of the
Foundation, its board, officers, and employees.
This bill is limited to encouraging the ICHEIC to prepare a report54 and it is not
involved with state activity to deal with Holocaust-era insurance claims.
Following its introduction on June 4, 2003, the bill was referred to the Senate
Committee on Banking, Housing, and Urban Affairs. It has not emerged from
committee.
H.R. 3129 — Holocaust Victims Insurance Fairness Act

This bill, introduced by Congressman Schiff following the Garamendi decision,
would permit the states to require insurance companies to disclose Holocaust-era
insurance information. The bill has a comprehensive section of congressional
findings concerning the Holocaust, the loss of insurance policies, and the attempts
to have the insureds or their heirs recover the policy proceeds.55
Significant provisions of the bill would permit a state to implement a law that
would require insurance companies conducting business in the state to provide (and
make publicly available) details regarding some or all covered policies that were
issued by that company or by any related company.56 The states would also be
permitted to impose penalties and sanctions for noncompliance.
The bill explicitly disapproves of any executive branch policy or agreement that
preempts state efforts to collect Holocaust-era insurance information to resolve
outstanding claims.
53 S. 1184, 108th Cong., 1st Sess. Sec. 3 (2003).
54 Id. Sec. 7.
55 H.R. 3129, 108th Cong., 1st Sess. (2003).
56 Id. A “covered policy” is defined in Sec. 3(b)(1) as “a property, liability, health, annuity,
dowry, educational, or casualty insurance policy that was issued to a policyholder domiciled
in the area of the European Continent that was occupied or controlled by Nazi Germany or
by any ally or sympathizer of Nazi Germany and that was in effect at any time during the
period between 1933 and 1945.” “Related company” is defined as including with respect
to an insurance company, any parent, subsidiary, reinsurer, successor in interest, managing
general agent, or affiliate company, whether or not the company was related during the time
when a covered policy was sold” in Sec. 3(b)(2).

CRS-13
Following the introduction of the bill on September 17, 2003, it was referred to
the House Committee on Financial Services and the Subcommittee on Capital
Markets, Insurance and Government Sponsored Enterprises. It has not been reported.

CRS-14
Appendix: State Laws Concerning Holocaust-Era
Insurance Assets
In holding that California’s regime for resolving Holocaust-era claims
unconstitutionally conflicted with the President’s power over foreign affairs, and
thereby was pre-empted by it, the Court noted that several other states had passed
laws “similar” to California’s.57 Statutes in four states — Arizona, Florida, New
York and Washington — appear very similar to California’s statute. Statutes in
Maryland, Minnesota and Texas have less jurisdictional reach and may be less
vulnerable to challenge on due process grounds (an issue found significant by at least
one Court of Appeals); nevertheless, these laws still may be vulnerable on foreign
affairs preemption grounds. State statutes that grant favorable tax treatment to
proceeds of certain types of claims would not appear to have been affected by
Garamendi.
STATE
CITATION
SUMMARY OF
POSSIBLE LEGAL
PROVISIONS
IMPACT OF
GARAMENDI
DECISION
ARIZONA
Ariz.Rev.Stat. Ann.
Enforcement of
Statute appears to be
§§20-490 to 490.2
Insurance Policies
similar to HVIRA
(West Cum. Supp.
Affecting Certain
and may be
2003)
Holocaust Victims —
vulnerable to
Provides
constitutional
definitions. Extends
challenge based on
deadline for filing
Garamendi
claims to Dec. 31,
preemption grounds.
2012. Provides a
civil penalty against
a noncomplying
insurer of not more
than $1,000 for each
act or violation, with
the aggregate civil
penalty not to exceed
$10,000.
CALIFORNIA
Cal.Civ.Proc. §§
Holocaust Victim
The Court in
354.5, 354.6 (West
Insurance Relief Act
Garamendi
2003); Cal. Ins. Code
of 1999 (HVIRA) —
determined that the
§§ 790.15, 12967,
Extends statute of
claims process under
13800-13807 (West
limitations to Dec.
HVIRA had been
2003)
31, 2010. Suspends
pre-empted by
certificate of
presidential action
authority for insurer
under his foreign
failing to pay
affairs powers.
Holocaust-survivor’s
57 123 S.Ct. 2385, note 6.

CRS-15
STATE
CITATION
SUMMARY OF
POSSIBLE LEGAL
PROVISIONS
IMPACT OF
GARAMENDI
DECISION
claim. Provides
definitions.
Establishes a registry
of information
related to insurance
policies and
Holocaust victims.
Requires insurance
companies to file
information on
policies issued by
any “related”
companies in Europe
between 1920-1945.
Imposes civil
penalties. Suspends
certificate of
authority to conduct
business for failure
to comply.
CONNECTICUT
Conn. Gen. Stat.
Provides special tax
Statute deals with tax
Ann. § 12-701 (West
treatment of
issues and
2003)
Holocaust victim
Garamendi concerns
settlement payments.
are not present.
FLORIDA
Fla. Stat. Ann. §
Holocaust Victims
Statute appears to be
626.9543 (West
Insurance Act —
similar to HVIRA
Cum. Supp. 2003)
Provides definitions.
and may be
Extends statute of
vulnerable to
limitations to July 1,
constitutional
2009. Requires
challenge based on
insurance companies
Garamendi
to report information
preemption grounds.
about any company
with which they had
Certain disclosure
“any legal
provisions found to
relationship”
be unconstitutional
between 1920 and
on the basis of due
1945. Provides for
process in Gerling
private right of
Global Reinsurance
action, civil
Corp. v. Gallagher,
penalties.
267 F.3d 1228 (11th
Cir. 2001), discussed
supra.
INDIANA
Ind. Code § 6-3-1-30
Provides special tax
Statute deals with tax
(Lexis 2000)
treatment for
issues and
proceeds received
Garamendi concerns
from Holocaust-era
are not present.

CRS-16
STATE
CITATION
SUMMARY OF
POSSIBLE LEGAL
PROVISIONS
IMPACT OF
GARAMENDI
DECISION
insurance
settlements.
MAINE
Me. Rev. Stat. Ann.
Provides special tax
Statute deals with tax
tit 36, § 5122 1.O
treatment for
issues and
(West 2002)
proceeds received
Garamendi concerns
from Holocaust-era
are not present.
insurance
settlements.
MARYLAND
Md. Ins. Code §§ 28-
Holocaust Victims
Statute is more
101 to 110 (2002);
Insurance Act —
narrowly drafted than
Md. Tax-General
Provides definitions.
HVIRA. Covers “an
Code § 10-207
Authorizes
insurer authorized to
(2002)
investigation of
do insurance
claims. Sets a ten-
business in the
year period for filing
State.” (§ 28-1-5).
claims. Requires
annual filings by
However,
insurers regarding
Garamendi
Holocaust-era
preemption issues
policies. Authorizes
remain, and the
fines and debarment
statute may be
for non-compliance.
vulnerable to a
Provides special tax
constitutional
treatment for
challenge.
proceeds of
Holocaust-era
claims.
MINNESOTA
Minn. Stat. Ann. §
Holocaust Victims
Statute is more
60A.053 (West Cum.
Insurance Relief Act
narrowly drafted than
Supp. 2003)
of 2000 —
HVIRA. Coverage is
Establishes a
limited to “any
Holocaust insurance
insurer that sold
company registry.
Holocaust related
Covers any insurer
policies” and has
that sold Holocaust-
certain exemptions.
related insurance
policies; exempts
However,
“related companies.”
Garamendi
Authorizes
preemption issues
suspension of
remain, and the
certificate of
statute may be
authority for
vulnerable to a
noncompliance;
constitutional
Allows private right
challenge.
of action and extends
of statute of
limitations.

CRS-17
STATE
CITATION
SUMMARY OF
POSSIBLE LEGAL
PROVISIONS
IMPACT OF
GARAMENDI
DECISION
NEW YORK
N.Y. Ins. Law §§
Holocaust Victims
Statute appears to be
2701-2711
Insurance Act of
similar to HVIRA
(McKinney 2003)
1998 — Provides
and may be
claims assistance
vulnerable to a
(including toll free
constitutional
number). Covers
challenge based on
“any insurer
Garamendi
organized, registered,
preemption grounds.
licensed or
accredited to do an
insurance business in
this state.” Imposes
reporting
requirements on
insurers and related
companies;
Authorizes civil
fines. Extends
statute of limitations.
TEXAS
Tex. Rev. Civ. Stat.
Provides definitions,
Statute is more
(Ins.) Art. 21.74
defining “insurer” as
narrowly drafted than
(Vernon 2003)
an “insurance
HVIRA.
company or other
entity engaged in the
However,
business or insurance
Garamendi
or reinsurance in this
preemption issues
state” and includes
remain, and the
“any parent,
statute may be
subsidiary, or
vulnerable to a
affiliated company,
constitutional
at least 50 percent of
challenge.
the stock of which in
common ownership
with an insurer
engaged in the
business of insurance
in this state.”
Establishes
enforcement
mechanisms. Extends
statute of limitations.
Authorizes sanctions.

CRS-18
STATE
CITATION
SUMMARY OF
POSSIBLE LEGAL
PROVISIONS
IMPACT OF
GARAMENDI
DECISION
WASHINGTON
Wash. Rev. Code
Holocaust Victims
Statute appears to be
Ann. §§ 48104.010
Insurance Relief Act
similar to HVIRA
to 48104.903 (West
— Provides policy
and may be
2003)
declarations,
vulnerable to a
expiration date,
constitutional
definitions (the terms
challenge based on
“insurer” and
Garamendi
“related company”
preemption grounds.
seem to be narrowly
defined), an
assistance office, a
Holocaust insurance
company registry,
and exemptions to
the registration
requirements.
Authorizes monetary
fines and suspension
of the certificate of
authority for non-
compliance.
Preserves private
right of action.

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