Pink Triangle Coalition v. Union Bank of Switzerland

424 F.3d 158, 2005 WL 2175954
CourtCourt of Appeals for the Second Circuit
DecidedSeptember 9, 2005
DocketDocket No. 04-2511-CV
StatusPublished
Cited by1 cases

This text of 424 F.3d 158 (Pink Triangle Coalition v. Union Bank of Switzerland) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Pink Triangle Coalition v. Union Bank of Switzerland, 424 F.3d 158, 2005 WL 2175954 (2d Cir. 2005).

Opinion

JOSÉ A. CABRANES, Circuit Judge.

Two named individuals and the Pink Triangle Coalition (“PTC”), a consortium of international gay and lesbian organizations, appeal from the orders of the United States District Court for the Eastern District of New York (Edward R. Korman, Chief Judge) entered on April 2, 2004 and May 20, 2004. In its orders, the District Court declined to adopt the PTC’s proposal for the allocation of the historic settlement of Holocaust victims’ class actions against Swiss banks. The PTC objected to the District Court’s allocation of certain settlement funds for the benefit of destitute Holocaust survivors on the ground that, for a series of historical reasons, extremely few victims of Nazi persecution of homosexuals can be identified.1 As an alternative, the PTC proposed that 1% of the settlement fund be set aside for, inter alia, scholarly, educational, and outreach efforts related to Nazi persecution of homosexuals. The District Court overruled the PTC’s objection and declined to adopt its accompanying proposal on the ground that priority in settlement fund distributions should be accorded to identifiable needy Holocaust survivors. We now hold that, in doing so, the District Court acted well within its discretion, and we affirm the Court’s orders.

Background

This appeal arises from the District Court’s allocation and distribution of the historic settlement fund in the Holocaust Victim Assets Litigation, which consolidated several class actions by Nazi persecution victims against Swiss banks. Three other appeals from the District Court’s allocation and distribution orders were argued in tandem with appellants’' — one brought by, inter alia, organizations representing persons with disabilities (No. 04-2466), represented here by the Disability Rights Associates (“DRA”); another brought by, inter alia, the Holocaust Survivors Foundation-U.S.A., Inc. (“HSF”) (No. 04-1898); and a third brought by Samuel J. Dubbin (No. 04-1899). We adjudicate these appeals in separate opinions filed today. See In re Holocaust Victim Assets Litig., 424 F.3d 169 (2d Cir.2005) (DRA appeal); In re Holocaust Victim Assets Litig., 424 F.3d 132 (2d Cir.2005) (HSF appeal); In re Holocaust Victim Assets Litig., 424 F.3d 150 (2d Cir.2005) (Dubbin appeal). In the opinion addressing the HSF’s appeal, we summarize the claims underlying the Holocaust Victim Assets Litigation and its procedural history. See In re Holocaust Victim Assets Litig., 424 F.3d at 135-45. We assume familiarity with that summary and highlight here only those background events directly relevant to this appeal.

In August 1998, the parties to the Holocaust Victim Assets Litigation agreed in principle to release defendant banks and certain other Swiss entities from liability [161]*161in exchange for the creation of a $1.25 billion settlement fund “explicitly designed to benefit Jews, homosexuals, Jehovah’s Witnesses, the disabled and Romani— groups recognized by the United Nations as having been the targets of systematic Nazi persecution on the basis of race, religion or personal status.” In re Holocaust Victim Assets Litig., 105 F.Supp.2d 139, 142 (E.D.N.Y.2000). Four of the five classes designated in the settlement agreement and certified by the District Court— Deposited Assets Class, Looted Assets Class, Slave Labor Class I, and Refugee Class — consist of members of these persecuted groups and their heirs.2 Id. at 143-44. On August 9, 2000, the District Court entered a final order and judgment approving the settlement agreement. In re Holocaust Victim Assets Litig., No. CV 96-4849 (E.D.N.Y Aug. 9, 2000).

On November 22, 2000, the District Court also approved a plan for the allocation and distribution of settlement funds developed by Special Master Judah Gribetz. See In re Holocaust Victim Assets Litig., 2000 WL 33241660 (E.D.N.Y. Nov. 22, 2000), 2000 U.S. Dist. LEXIS 20817. Of the $1.25 billion fund, $800 million was allocated to “the Deposited Assets Class, which is composed largely of heirs of victims of Nazi persecution who deposited funds in Swiss banks.” In re Holocaust Victim Assets Litig., 302 F.Supp.2d 89, 91 (E.D.N.Y.2004). Under the plan, the remainder of the fund is to be shared principally by the other four settlement classes. Because the distribution of $100 million allocated to the Looted Assets Class was not susceptible to individualized claims or to a meaningful pro rata distribution, the Court adopted “a cy pres remedy targeting the neediest survivors in the Looted Assets Class.”3 Id. at 96 (emphasis added). Ninety percent of this cy pres remedy was earmarked for needy Jewish survivors, and ten percent for needy Roma, Jehovah’s Witness, disabled, and homosexual survivors. Id. at 97.

In 2001, the PTC submitted to the Special Master a proposal for “a cy pres allo[162]*162cation of one percent (1%) of the total settlement as an appropriate means of publicly acknowledging the suffering of homosexuals as a class under the Nazis and as an instrument to advance the prevention of human rights abuses based on sexual orientation from happening again.” Pink Triangle Coalition, Proposal for a Cy Pres Allocation for Homosexual Victims of the Nazis 5 (Nov. 7, 2001) (submitted to Special Master Judah Gribetz). The proposal included a detailed account of the persecution suffered by members of the gay and lesbian community at the hands of the Nazi regime. Id. at 9-23. The following is but a brief summary of the facts recounted in the PTC’s proposal:

From their early public statements about homosexuality in the late 1920s, through their assumption of power in 1933, and until their defeat in 1945, the Nazis attempted to systematically eradicate homosexuality from the German nation by outlawing, stigmatizing, and persecuting expressions of homosexuality. The Nazi regime’s campaign to eradicate homosexuality began with the destruction of research centers, cultural resources, business establishments, communications media, and community organizations throughout Germany. It led to the arrest and imprisonment of approximately 50,000 homosexual men, the deportation of 5,000 to 15,000 homosexual men to slave labor and concentration camps, the subjection of an undetermined number of homosexual male internees to heinous medical experiments, and finally the outright murder of an estimated 3,000 to 9,000 homosexual men identified and interned as such.

Id. at 10 (footnote omitted).

The PTC’s proposal also underscored the challenges of locating gay and lesbian Holocaust survivors, as well as the historical roots of these challenges:

After 1945, the circumstances encountered by homosexual survivors of Nazi persecution are unique because homosexual men continued to be singularly and intensively pursued, imprisoned, and persecuted in West Germany and Austria under the same legal codes used by the Nazis until as late as 1969 and 1971, respectively.

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