OPINION AND ORDER
In twelve different actions currently before the court, plaintiffs sue European insurance companies that issued policies in about a dozen countries from 1920 to 1945.
1
It is alleged that those companies
Assicurazioni Generali S.p.A. (“Genera-li”), a defendant in all actions, moves- to dismiss on the grounds of forum non con-veniens and contractual forum selection. Zurich Life Insurance Company and Zü-rich Versicherungs-Gesellschaft (collectively “Zurich”), defendants only in the Schenker action, also move to dismiss on the ground of forum non conveniens. Both Generali and Zurich argue' that the balance of conveniences requires litigation in either: 1) the International Commission on Holocaust Era Insurance Claims (“ICHEIC”), a private commission set up by several European insurance companies, governmental entities, and nongovernmental organizations to resolve unpaid Holocaust-era insurance claims; or 2) the courts of the European countries in which the relevant insurance policies were issued. Generali additionally argues that applicable forum selection clauses mandate litigation of plaintiffs’ claims in Europe. For the reasons set forth below, Generali’s and Zurich’s motions to dismiss are denied with respect to all plaintiffs.
I.
In considering a motion to dismiss on the ground of
forum non conveniens,
a court must first determine the level of deference to be given plaintiffs choice of forum.
Iragorri v. United Techs. Corp.,
The level of deference to be afforded a plaintiffs choice of forum is a question that has been the subject of much recent jurisprudence in the Second Circuit.
See DiRienzo v. Philip Servs. Corp.,
In order to elucidate the principles established in those recent opinions, the Second Circuit in
Iragorri v. United Technologies Corp.,
the convenience of the plaintiffs residence in relation to the chosen forum, the availability of witnesses or evidence to the forum district, the defendant’s amenability to suit in the forum district, the availability of appropriate legal assistance, and other reasons relating to convenience or expense.
Id. On the other hand, the Court stated that forum non conveniens dismissal will be most appropriate where:
plaintiffs choice of a U.S. forum was motivated by forum-shopping reasons— such as attempts to win a tactical advantage resulting from local laws that favor the plaintiffs case, the habitual generosity of juries in the United States or in the forum district, the plaintiffs popularity or the defendant’s unpopularity in the region, or the inconvenience and expense to the defendant resulting from litigation in that forum.
Id.
In the actions currently before the court, three distinct plaintiff groups are present. See swpra note 1. The first plaintiff group consists of the plaintiffs in the Cornell and Schenker class actions, who filed their class-action complaints in this court in the first instance. Of the named Cornell plaintiffs, two live in New York, one lives in Texas, and one lives in California. (Cornell Second Am. Compl.) Of the named Schenker plaintiffs, two are residents of New Jersey, two are residents of Florida, and one is a resident of California. (Schenker Corrected Am. Compl.) Both the Cornell and Schenker class action complaints were recently amended to exclude all claims against German Corporations in accordance with the German Foundation settlement between the German and American governments. See infra p. 11-12 & n. 6. Prior to those amendments, 22 of the 39 named plaintiffs in the Cornell and Schenker actions were residents of New York. (Cornell Am. Compl.; Winters Compl.)
There appears to be no reason to doubt the bona fides of the
Cornell
and
Schenker
plaintiffs’ choice of a U.S. forum: every single named plaintiff is a U.S. resident, and litigation abroad would likely raise costs and necessitate the retention of for
It does not appear that the
Cornell
and
Schenker
plaintiffs have brought suit in this forum merely to inconvenience defendants. Although the parties have not presented evidence as to where else Generali and Winterthur might be subject to suit, plaintiffs, having chosen a U.S. forum, have chosen a convenient one. Generali itself concedes as much, stating in its motion before the MDL panel to consolidate the present actions in this district: “New York is the most convenient forum to litigate the issues in the United States, as it is the home of Generali’s United States Branch, Generali’s counsel, and several of the firms representing plaintiffs.” (Swift Decl. Ex. E (Generali Mot. for Transfer of 8/11/00 at 6)) The fact that defendants currently do extensive business in New York and in this country belies any argument that defendants would be litigating in an unduly hostile or unfamiliar environment. Given plaintiffs’ legitimate reasons for bringing suit in this forum, and given defendants’ representations to the MDL panel, plaintiffs’ choice of forum is entitled to strong deference under the Circuit’s sliding-scale approach in
Iragorri. See DiRienzo II,
The second plaintiff group present in this action consists of the
Brauns, Mandil, Weiss, David, Szekeres, Lightner,
and
Sladek
plaintiffs and the named and unnamed plaintiffs in the
Haberfeld
and
Smetana
class actions — all of whom originally filed their lawsuits in their home forums, but whose cases have since been transferred to this district after Generali’s successful motion before the MDL panel.
3
These plain
The third and last plaintiff group present in this action consists solely of plaintiff Tabaksman, a British citizen living in Britain who filed suit in New York State Supreme Court. His ease was subsequently removed to this district. Tabaksman’s asserted justification for bringing his suit in New York is that his claim is “substantially the same as those asserted in the putative class action also pending in this Court.” (Tabaksman Mem. at 1) He claims that “[i]f the Court denies the motions to dismiss the other Generali cases, there will be no additional burden to Gen-erali in defending against Tabaksman’s claim in this Court.” (Id. at 4) However, the fact that other related actions are pending in a given district court in the United States is not a factor in the forum non conveniens analysis used to determine the appropriate level of deference in Ira-gorri. Tabaksman does not live in the United States, he is not a U.S. citizen, and if he testifies as a witness, it will be inconvenient for him to travel here from Britain. In short, he has no bona fide connection to the forum. His decision to file his own individual lawsuit in this district is therefore entitled to little deference.
The court thus accords great deference to all plaintiffs’ choices of forum, except for plaintiff Tabaksman. As for those plaintiffs entitled to strong deference, defendants must make a strong showing of inconvenience in order to prevail.
See Ira-gorri,
A. Forum Non Conveniens Dismissal in Favor of ICHEIC
Both Generali and Zurich first argue that this court should dismiss plaintiffs’ claims on the ground of forum non conveniens in favor of the International Commission on Holocaust Era Insurance Claims (“ICHEIC”). Because ICHEIC is not an adequate alternative forum for the litigation of plaintiffs’ claims, defendants’ forum non conveniens motions are denied with respect to ICHEIC.
1. Background
ICHEIC is a privately funded, non-profit entity that was created pursuant to an August 25, 1998 Memorandum of Understanding (“MOU”) among six European insurance companies — Alianz Lebensversi-cherungs-AG of Germany; AXA of France; Basler Lebens-Versicherungs-Gesellschaft,
5
Winterthur, and Zurich of Switzerland; and Generali of Italy — along
It is anticipated that the ICHEIC claims and valuation process will ultimately be used to process not only claims against its current member companies, but also claims against various German insurers in connection with the July 17, 2000 executive agreement between the United States and the Federal Republic of Germany creating the Foundation for Remembrance, Responsibility and the Future (“the German Foundation”). (Velie Rep. Decl. of 1/8/02 Ex. F at 8-9) In that agreement, the German government and representatives of German industry agreed to fund the German Foundation in the amount of DM 10 billion (roughly $5 billion) in exchange for “legal closure” with respect to all Holocaust-related claims, including insurance claims, against German companies in the United States legal system. 6 (Velie Decl. Exs. G, U; Velie Rep. Decl. Ex. F at 8-9) The agreement calls for the German Foundation to allocate up to DM 650 million (roughly $325 million) to ICHEIC for the resolution of unpaid insurance claims against German companies, and states that all insurance payments are to be made in accordance with ICHEIC’s claims and valuation procedures. (Id.) The German Foundation has not yet delivered the promised funding because the Foundation and ICHEIC are currently at loggerheads over various administrative matters. (Weiss Mem. Ex. Q; Swift Decl. Exs. B, C)
ICHEIC, defendants point out, offers several advantages to plaintiffs that make it preferable to litigation in the U.S. courts. First, ICHEIC uses a currency formula that values all relevant currencies at the exchange rate in effect at the end of 1938, before hyperinflation destroyed many European currencies. (Velie Decl. ¶ 5, Ex. B) In addition, ICHEIC’s procedural rules incorporate relaxed standards of proof, which make it easier for plaintiffs to introduce evidence relating to insurance policies that were issued many years ago. (Velie Decl. ¶ 4, Ex. Z) Furthermore, the member insurance companies of ICHEIC have waived many of their legal defenses to plaintiffs’ claims, eliminating many of the obstacles that plaintiffs would face in ordinary litigation. (Velie Rep. Decl. of 1/8/02 Ex. P at 2; Generali Mem. of 5/25/01 at 3, 27) Finally, ICHEIC features a global advertising and outreach program
2. ICHEIC is Not an Adequate Alternative Forum
In order to establish that an alternative forum is adequate, defendants ordinarily must demonstrate only that the they are amenable to service of process in that forum.
See Piper Aircraft,
In a more traditional
forum non conve-niens
motion, the court would be asked to dismiss in favor of another nation’s courts and would have to determine whether that nation’s courts provide an adequate alternative forum. In such cases, American courts have understandably been quite reluctant to declare another forum inadequate.
See, e.g., PT United Can Co. Ltd. v. Crown Cork & Seal Co.,
Such deference to the legal processes of foreign nations extends even to nonjudicial forums that are part of the administrative apparatus of sovereign states. For example, two Courts in this Circuit have dismissed actions in favor of nonjudicial liquidation proceedings in foreign countries on the basis of comity.
See Finanz AG Zubrich v. Banco Economico S.A.,
However, ICHEIC — an ad-hoc, nonjudicial, private international claims tribunal— is not entitled to the same deference as the courts or an administrative arm of a foreign sovereign nation. No comity concerns are implicated by a rigorous analysis of ICHEIC’s adequacy; in fact, greater scrutiny of ICHEIC is warranted because the commission, as a nongovernmental entity, comes with fewer indicia of reliability than the courts of a sovereign nation. That several United States state insurance commissioners and the State of Israel are founding members of ICHEIC, and that the insurance departments of several states have endorsed ICHEIC (Generali Rep. Mem. of 1/9/02 at 10-11), does not make ICHEIC a “governmental” forum. To the contrary, ICHEIC — in its own publications- — describes itself as “a private, non-profit entity organized as an Association ... under the Swiss Civil Code” (Velie Rep. Decl. of 1/8/02 Ex. F at 1 (emphasis added)). A private, nonprofit association is not entitled to the deference that is accorded a public adjudicative or administrative organ of a sovereign state.
Because of its private status, it is not clear that a nongovernmental forum such as ICHEIC can ever constitute an adequate alternative forum for the purposes of forum non conveniens. When a plaintiff .brings a claim before a governmental body, that plaintiff has chosen to litigate his or her claim in a public forum rather than before a private arbitrator or private international commission. I am skeptical that the doctrine of forum non conveniens can be used to undo that decision. The doctrine of forum non conve-niens is appropriately used as a tool to force plaintiffs to litigate in a more convenient public forum, but it cannot be used to throw a plaintiff out of court and into a private dispute-resolution mechanism. Although a defendant may properly move to compel arbitration based on a contract, or to dismiss in favor of an international commission pursuant to a statute or executive agreement, 7 it is a radical departure from usual forum non conveniens analysis to suggest that a defendant could move to compel plaintiffs’ appearance before some private forum merely because the balance of conveniences might favor it. It is fundamentally plaintiffs’ prerogative to choose either litigation in a public forum, or private dispute resolution. For that reason alone, defendants’ motion to dismiss should hot be granted.
. However, even if a private, nongovernmental forum could under certain circumstances be an adequate alternative forum for the purposes of
forum non conveniens
— a possibility that I do not entirely foreclose — ICHEIC is manifestly inadequate because it lacks sufficient independence and permanence. ICHEIC is entirely a creature of, the six founding insurance companies that formed the Commission, two of which are defendants
Not only is the commission financially dependent on Zurich and Generali, as well as its other founding members, but there are also indications that ICHEIC’s decision-making processes are and can be controlled by the defendants in this case— Generali and Zurich — as well as the other ICHEIC member-insurance companies. Chairman Eagleburger has explained that ICHEIC operates only on the basis of “consensus” among its member companies. (Weiss Mem. Ex. Q at 1, 12-13) Indeed, Generali itself has echoed the view that the organization acts only by consensus, stating:
[W]e regard ICHEIC as a creature of consensus. Participation in ICHEIC is voluntary by all concerned and none of its members, certainly not Generali, at any rate, has relinquished the right to acquiesce to, or dissent from, the views and positions taken by others, including a majority.
[W]e are not prepared to relinquish our right to reject any imposed solution which we might regard as unfair or unjust ....
(Weiss Mem. Ex. S) In a case in which a Court feared that the Chilean judiciary, after a miliary junta, might not be able to render an impartial decision in a case involving a state-owned corporation, the Court refused to dismiss on the ground of
forum non conveniens
and held that Chile was an inadequate alternative forum.
See Canadian Overseas Ores Ltd. v. Compania de Acero Del Pacifico S.A.,
Finally, there are questions about ICHEIC’s continued viability as a forum. First, there seems to be nothing preventing ICHEIC’s member corporations from leaving at any time; one corporation, Bas-ler, has already withdrawn from the organization. (Weiss Mem. Ex. Q) In addition, many claimants who have participated in the ICHEIC claims resolution process have expressed dissatisfaction with that process. The Weiss plaintiffs point out that as of November 8, 2001, ICHEIC had made a total of only 797 offers for payment in response to over 77,000 claims (.35%), and that only 273 of those offers were accepted. (Weiss Mem. at 27, Ex. X) Plaintiffs point to several newspaper articles (Swift Decl. Exs. B, C) as well as letters and reports from public officials (Weiss Decl. Exs. N, R, T) decrying ICHEIC’s excessive administrative expenses and failure to make sufficient progress in resolving Holocaust insurance claims. One newspaper article has de
Because ICHEIC is an inadequate alternative forum for the litigation of plaintiffs’ claims, it is unnecessary to consider whether the balance of conveniences favors litigation of plaintiffs’ claims in ICHEIC. Indeed, because the Gilbert convenience factors need not be reached, Generali’s observation that the United States government has several times expressed its view that ICHEIC “should be considered the exclusive remedy for resolving insurance claims from the World War II era” (Velie Decl. Exs. O, U, W, Y; Generali Mem. of 5/25/01 at 13) is irrelevant. Absent a statute or executive agreement suspending plaintiffs’ claims or an executive agreement that gives rise to specific foreign relations concerns, see supra note 7, the government’s position is not controlling and speaks at most to the convenience of ICHEIC as a forum. 8 Similarly, Genera-li’s $100 million settlement with ICHEIC is not .dispositive because it is not a binding settlement between the parties and does not implicate the foreign policy interests of the United States.
In holding that ICHEIC is not an adequate forum for the purposes of defendants’
forum non conveniens
motions, the court does not intend to denigrate the work that defendants, Secretary Eaglebur-ger, and the state insurance commissioners have put into crafting ICHEIC. I am mindful of the size of their task and the challenges they face. ICHEIC ultimately may be the most expeditious forum for the resolution of plaintiffs’ Holocaust-era insurance claims.
See In re Austrian and German Bank Holocaust Litig.,
Generali and Zurich argue also that plaintiffs’ claims should be dismissed, if not in favor of ICHEIC, then in favor of several more convenient European forums in the countries where the material events with respect to each plaintiff occurred. In support of their motions, defendants have submitted the affidavits of several foreign law experts who have expressed their view that each of Italy, Poland, the Czech Republic, Hungary, Austria, Slovakia, and Switzerland is an adequate alternative forum. (Fumagalli Deck; Wisniewski Decís, of 5/23/01, 10/19/01, 12/21/01; Sodomka Deck; Hajdu Deck; Kodek Deck; Havlat Deck; Vischer Decís, of 11/20/97, 12/13/99, 7/15/99, 4/23/01; Velie Rep. Deck of 1/8/02 Exs. K, L).
Given Generali’s presence in all seven countries (Catalanotti Deck of 5/23/01 ¶¶ 7, 16), and given the deference generally accorded the courts of foreign nations,
see
pp. 14-15, I assume without deciding that each of the above seven countries would offer an adequate alternative forum for the litigation of plaintiffs’ claims. However, because defendants have not demonstrated that the balance of conveniences under the public and private interest factors weighs heavily in their favor, defendants have not overcome the strong presumption in favor of plaintiffs’ choice of this forum.
See Alfadda v. Fenn,
1. The Private Interest Factors in Cases Other than Tabaksman
The private interest factors in this case favor retention of jurisdiction in this court. 10 Litigation in this forum does present a number of legitimate obstacles for defendants arising from lack of access to documents and witnesses located in Europe and inability to implead third parties located abroad. However, forcing litigation of plaintiffs’ claims in at least seven different European countries would likely increase the costs to both sides and impose such a great inconvenience on plaintiffs that it is doubtful they could continue to prosecute their claims.
a.
Evidentiary Concerns■
— Defendants assert that most documents relevant to plaintiffs’ claims are located in Europe, where the material events regarding plaintiffs’ claims occurred. However, defendants’ concerns are overstated, given the unavoidable need for transnational evi
Only plaintiffs Marc Rubinstein and Henry Shery 11 have made claims against Zurich; those plaintiffs allege that family members living in Poland were denied insurance benefits. (Schenker Corrected Am. Compl. ¶¶ 9-10) Zurich states that to the extent that any documentary or testimonial evidence exists with respect to plaintiffs Rubinstein and Shery’s claims, that evidence is located either at the company’s headquarters in Switzerland or in the unspecified country where Rubinstein and Shery’s policies were sold. (Landolt Decl. of 6/7/01 ¶¶ 7-11)
Most other plaintiffs have sued Generali with respect to policies that were sold in the following countries: Italy, Poland, Czechoslovakia, Hungary, Austria, Yugoslavia, and Latvia. (Catalanotti Decl. of 5/23/02 ¶ 135; Carnicelli Decl. of 1/9/02 ¶ 11; Velie Rep. Decl. of 1/8/02 Ex. K) Generali states that all original policies were held locally at branch offices throughout Europe. (Catalanotti Decl. of 5/23/02 ¶ 17) To the extent that those documents still exist, they are now “in the archives of the state-run insurance companies which took over Generali’s branch offices after World War II.” (Id. ¶ 21) Gen-erali’s headquarters office in Trieste, Italy also contains an abundance of relevant documents such as: 1) water copies (similar to a carbon copies) of the original insurance policies; 2) policy “abstracts” (typically in German) reproducing the key terms and conditions of the original policy; 3) copies of the General Terms and Conditions in effect when the relevant policies were issued; and 4)a statistical ledger called “stato fine,’’"detailing the policies in force at the end of each year after 1936. (Id. ¶¶ 18-19) Generali speculates that any witnesses who might have knowledge of the insurance claims at issue — -mainly former or current employees of Generali or the state-run companies that took over its Eastern European branches — are located in Europe and do not speak English as their first language. (Id. ¶¶ 154-56)
Generali and Zurich contend that transfer of this evidence from Europe to this forum will be impossible because compulsory process here cannot compel the production of documents or witnesses under the control of Eastern European governments and state-run insurance agencies in those countries, ’ and in any event, inconvenient and expensive, even were such process available. (Defs.’
Cornell
Mem. of 11/21/97 at 20-22; Defs.’
Winters
Mem. of 7/30/99 at 10; Defs.’
Winters
Rep. Mem. of 12/15/99 at 13) Furthermore, because the relevant documents will be written in — and the relevant witnesses will speak — European languages, defendants assert that the translation expenses associated with trial in this forum would be exorbitant.
(Id.)
Defendants note that even where witnesses can be deposed abroad through the Hague Convention on the Taking of Evidence Abroad, Mar. 18, 1970, 28 U.S.C. § 1781 (2000), 847 U.N.T.S. 231, this Circuit has expressed a preference for live witness testimony where possible.
See Alfadda,
Defendants’ evidentiary concerns are not without merit.
See Fustok v. Banque Populaire Suisse,
First, it is not uncommon in international litigation for documents or witnesses to be located abroad. As Judge Sterling Johnson recently observed in a case involving similar claims arising from the retention of Jewish assets by French banks during Holocaust era:
[T]he advances of modern technology and the development of a global economy with instant access to information worldwide severely undercut defendants’ claim of forum non conveniens.... The costs involved to defendants in defending this action in New York are significantly mitigated by the time-and money-saving tools including e-mail, fax, scanners, digital photography, and global access to the internet.
Bodner v. Banque Paribas,
Second, the need to tap international sources of evidence is plainly unavoidable in this litigation. Evidence in this case exists primarily in three locations: in the Eastern European countries where Gener-ali’s branch offices were located; at Gener-ali and Zurich’s headquarters in Trieste, Italy and Switzerland respectively; and in the hands of the named American plaintiffs in this action and the rest of the presumed plaintiff class. There is no reason to believe that any more of the evidence in this case will be located in Eastern Europe— where defendants seek to litigate — than anywhere else. In fact, the existence of any evidence at all in Eastern Europe is highly uncertain. Generali has expressed the belief that “the documents stored -at certain of Generali’s former European offices were completely destroyed or lost either as a result of the devastation of World War II or from the events following the war.” (Catalanotti Decl. of 5/23/01 ¶21 & n. 3) It is also unclear who, if anyone, in Eastern Europe might have personal knowledge relevant to plaintiffs’ claims, 70 years after most of the policies in question were issued. On the other hand, Generali is currently aware of millions of potentially relevant documents located in a warehouse in Trieste, and the evidence that has been produced from Generali thus far has come from Trieste. (Id. ¶¶ 152-53) Significant evidence is also located in this country, much of it in English, as many of the plaintiffs will likely proffer documents and testimony to buttress their claims.
To the extent that the millions of documents from Trieste are sought in European countries outside Italy, they will have to be transported and perhaps even compelled through international processes. Documents from Trieste that are relevant as a general matter to all actions would have to be reproduced six different times and translated into the various languages of each of the other European forums if this case were dismissed. Similarly, any European witness with information relating to all actions, such as Catalanotti of Generali, who has made a declaration in this case, would have to testify seven different times in seven different forums. Even if litigation were to occur in Italy or Switzerland, where the companies’ headquarters are located, the parties still would
The international implications of this litigation are unavoidable and, therefore, the Hague Convention on the Taking of Evidence Abroad, to which Italy, Poland, the Czech Republic, Slovakia, Switzerland, and the United States are signatories (Fuma-galli Decl. ¶¶ 25-27; Wisniewski Decl. of 5/28/01 ¶¶ 28-31; Sodomka Decl. ¶¶ 25-30; Havlat Decl. ¶¶ 20-24; Vischer Decl. of 11/20/97 ¶¶ 39^10), is an adequate means to compel documents and witness testimony from abroad in this country and elsewhere. Numerous courts have held that the use of international letters rogatory is a viable alternative to
forum, non conveniens
dismissal.
See R. Maganlal,
Finally, that witnesses reached through the Hague evidence-gathering process cannot be forced to give live testimony before this court is not compelling. First, defendants have not even established that those witnesses will be unwilling to travel voluntarily to this district.
See Bravo Co. v. Chum, Ltd.,
b.
Ability to Implead Third
Parties— In addition to evidentiary concerns, defendants allege that they will be prejudiced by not being able to implead crucial third-party defendants located in Europe because of personal jurisdiction problems and the Foreign Sovereign Immunities Act. (Defs.’
Cornell
Mem. of 11/21/97 at 25-26; Defs.’
Winters
Rep. Mem. of 12/15/99 at 17-18) Although this obstacle
Impleader is not a great concern in this case because, even if defendants are forced to litigate here and could not implead various Eastern European governments and state-run insurance agencies, they could still offer nationalization as a defense to plaintiffs’ claims and could bring a subsequent action for contribution or indemnification against third parties in Europe.
See Derensis v. Coopers & Lybrand Chartered Accountants,
c.
Enforceability of a Class Action Judgment Abroad
— -Defendants are also concerned, with respect to the -
Cornell, Schenker, Smetana,
and
Haberfeld
class actions, that any class-action judgment -in the United States will -not be given preclu-sive effect in European courts.
13
(Fuma-galli Decl. ¶ 39; Wisniewski Decl. of 5/23/01 ¶¶ 40-41; Sodomka Decl. ¶¶ 37-38; Hajdu Decl. ¶¶ 42-43; Kodek Decl. ¶¶ 45-48; Vischer Decl. of 11/20/97 ¶¶ 49-50) Defendants fear that even if they litigate and win a judgment in this forum, the unnamed members of the losing class could simply relitigate their claims in various European courts.
Cf. Bersch v. Drexel Firestone, Inc.,
To the extent that the putative class in each of these four class actions encompasses only U.S. residents, defendants’ concerns are unpersuasive.
14
It is neither
To the extent that the plaintiff classes in this action, particularly in
Cornell
and
Schenker,
may include foreign plaintiffs, defendants’ concerns are well-founded. However, it would be imprudent to give weight to those concerns until the named plaintiffs, particularly in the
Cornell
and
Schenker
actions, define more precisely which “persons similarly situated” they intend to include, and how many of these persons, if any, are expected to be foreign nationals. Should it turn out that the
Cornell
and
Schenker
plaintiffs intend their classes to include a sizable number of foreign residents, then that is a factor that may have to be addressed, and can be addressed in subsequent proceedings regarding class certification. In two past cases, I have found that it would be unfair to certify a class with a significant European membership, in part because that class would not be precluded from litigating abroad in their home countries should they lose in this forum.
See Ansari,
d. Other Practical Problems — At the same time that defendants have described several mildly inconvenient aspects of litigating in this forum, plaintiffs have made a strong showing that refiling their claims in seven different, mostly Eastern European forums would drive up costs to both parties and seriously endanger their ability to press their claims.
Plaintiffs have already spent time and money fighting Generali’s motions to remove cases to federal court and to consoli
Given defendants’ inconsistent representations, I am skeptical that dismissal would really be more convenient for their purposes.
See DiRienzo II,
Defendants’ motions to dismiss may not be based so much on the increased convenience dismissal would offer to them, but rather based on the severe inconvenience that it would work upon plaintiffs in this case. While defendants have offices in the United States, and are therefore quite familiar with this forum, plaintiffs have no connection to the various relevant European jurisdictions.
See Bodner,
Plaintiffs would also have to hire new lawyers to refile each of their claims in seven different separate European countries. The argument that plaintiffs would have to hire only one new lawyer to appear in each action as local counsel (Defs.’
Winters
Rep. Mem. of 12/15/99 at 8) is ridiculous. Plaintiffs’ current lawyers are not qualified to make trial decisions in a Slovakian court or in any of the other civil-law jurisdictions that defendants suggest.
See Massaquoi v. Virgin Atl.
Airways,
The need to rely on local counsel is also significant because plaintiffs have presented evidence that they would be barred from making a contingency fee arrangement with lawyers in Switzerland and Italy. (Mattei Decl. ¶ 5.a; Siehr Decl. ¶ 9) Although plaintiffs have not submitted evidence with respect to the other European forums presently under consideration, “contingency fees are not found in most foreign jurisdictions.”
In re Union Carbide Corp. Gas Plant Disaster,
In light of all the above factors, plaintiffs’ contention that being forced to litigate in Europe would be the death knell for their claims may not be an exaggeration.
See Irish Nat’l Ins. Co. v. Aer Lingus Teoranta,
The public interest factors in this case weigh slightly in plaintiffs’ favor. 15 This forum has a stronger localized interest in deciding this controversy, a factor which is only partially diminished by the probable need to apply foreign law.
With respect to the first of the public interest factors — congestion in the courts — this phenomenon is encountered the world over. Plaintiffs have submitted evidence indicating that the courts of at least one European forum (Italy) are congested. (Mattei Decl. ¶¶ 6-8) At the same time, this court has noted that congestion is a “persistent affliction.”
See In re Philip Services Corp.,
As far as the local interest in these cases, all potential forums in this case have some interest in the subject matter. The seven European forums under consideration all have an interest because the material events that gave rise to plaintiffs’ claims occurred in those countries. Those forums also have an interest in redressing the harms inflicted by the Holocaust, which occurred on European soil. On the other hand, the United States and New York have a strong localized interest in providing relief to their residents, who allegedly have been injured by defendants’ wrongful acts during the Holocaust era. “Public Policy favors a forum in which United States citizens may seek to redress an alleged wrong.”
Bodner,
However, the interest of this forum in plaintiffs’ claims is stronger because New York State has expressed a public policy interest in those claims through the New York Holocaust Victims Insurance Act of 1998 (“HVIA”), N.Y. Ins. L. § 2701 et. seq. (McKinney 2000), whereas the connection between those claims and the relevant European forums relates primarily to 70-year old insurance transactions between deceased emigrants and a multinational insurance conglomerate. The New York HVIA explicitly states that no action concerning Holocaust-era insurance claims arising between 1929 and 1945 shall be dismissed from the New York State courts on the ground of
forum non conveniens
(under N.Y. C.P.L.R. § 327), N.Y. Ins. L. § 2704(b), and it extends the state’s statute of limitations on Holocaust-era insurance claims, N.Y. Ins. Law § 2704(a). The statute also imposes reporting requirements on New-York-licensed insurance companies regarding their payment of Holocaust-era insurance claims. N.Y. Ins. Law § 2705.
16
Although the forum-non-
That this forum has the greater interest in the litigation of plaintiffs’ claims is only somewhat diminished by the probable need to apply foreign law. Under New York choice-of-law rules, which govern in a federal diversity case,
Klaxon Co. v. Stentor Elec. Mfg. Co.,
Assuming for the purposes of this motion that foreign law applies, that factor still does not outweigh this forum’s public interest in the litigation of plaintiffs’ claims. Although it is well established that the need to apply foreign law weighs in favor of dismissal,
Piper Aircraft,
Defendants argue, dramatically, that “the relevant [foreign] laws arise in many different nations ..., cover a period of many decades, concern an industry highly regulated under local law, and embrace highly sensitive issues of public policy (such as the impact of claims and payments made under post-war restitution programs).” (Defs.’
Winters
Mem. of 7/30/99 at 9) However, we are dealing here with a lawsuit to enforce insurance policies, not a proceeding to regulate the insurance business in foreign countries. These policies are governed by law in effect at a particular time, to be determined, not by laws over decades. Further, five of the seven countries at issue in this motion have changed regimes at least twice since the 1930s, and it is not clear that even a foreign court examining plaintiffs’ claims would be entirely “at home with the ... law that must govern.”
Gilbert,
Because the public interest factors in this case weigh slightly in plaintiffs’ favor, and because, as discussed above, the private interest factors weigh more heavily in plaintiffs’ favor, the balancing of the conveniences in this case does not require dismissal, particularly in light of the strong deference due plaintiffs’ choice of forum. Generali and Zurich’s motions to dismiss are therefore denied with respect to all plaintiffs. Plaintiff Tabaksman’s case is analyzed immediately below.
3. Plaintiff Tabaksman
Plaintiff Tabaksman is entitled to considerably less deference in his choice of
With respect to the private interest factors, Tabaksman’s position is weaker than that of the other 11 plaintiffs in this consolidated motion because his case will include no evidence from the United States, and because it is less inconvenient for him to travel to Poland (where his family’s insurance policy was issued) than it would be for the other 11 plaintiffs. However, because Generali already will be litigating 11 other consolidated cases in this district, most of the evidence necessary to try Ta-baksman’s case will already be located here. For example, all evidence relating to Generali’s European operations during the Holocaust era as well as any information regarding Generali’s branch offices in Poland will already be located in this country because of the Haberfeld and Cornell actions. The only additional evidence that might be found only in Poland is any evidence specifically related to the Ta-baksman policy, which is not likely to be substantial. Litigation in Poland would, however, require both parties to retain new counsel and to operate in an unfamiliar legal system in a foreign language, with all of the attendant inconveniences discussed above. In light of the mass of evidence to be located in this forum with respect to Tabaksman’s claims, the private convenience factors weigh at least somewhat in his favor.
The public interest factors do not weigh in Tabaksman’s favor. Because Tabaks-man is not a U.S. citizen, there is little localized interest in his case in this forum, except perhaps for a generalized interest in Holocaust-era insurance litigation expressed by the New York State legislature in the HVIA.
See supra
note 17. Furthermore, as discussed above, it is likely that foreign law will apply to his claims. However, among thq public interest factors to be considered is the administrative burden on the court and the unfairness of burdening the citizens of the forum state with jury duty.
Gilbert,
Because of the convenience of trying Tabaksman’s claims in conjunction with the other related cases in this consolidated proceeding, and because of the slight burden associated with such an action, defendants’ motions to dismiss are denied with respect to plaintiff Tabaksman.
II.
In addition to Generali’s and Zurich’s motions to dismiss on the ground of
forum non conveniens,
Generali has moved to dismiss in favor of several alternative European forums on the ground that forum selection clauses applicable to plaintiffs’ insurance contracts require adjudication of their claims in those forums.
20
Generali cannot locate several of the relevant policies and thus does not assert that a bind
The enforceability or validity of a forum selection clause is a matter of federal procedural law.
Cronin v. Family Educ. Co.,
(I) if their incorporation into the agreement was the result of fraud or overreaching [citing Carnival Cruise Lines, Inc. v. Shute,499 U.S. 585 , 595,111 S.Ct. 1522 ,113 L.Ed.2d 622 (1991) ]; (2) if the complaining party “will for all practical purposes be deprived of his day in court,” due to the grave inconvenience or unfairness of the selected forum [citing M/S Bremen,407 U.S. at 18 ,92 S.Ct. 1907 ]; (3) if the fundamental unfairness of the chosen law may deprive the plaintiff of a remedy [citing Shute,499 U.S. at 595 ,111 S.Ct. 1522 ]; or (4) if the clauses contravene a strong public policy of the forum state [citing M/S Bremen,407 U.S. at 15 ,92 S.Ct. 1907 ].
Id.
Plaintiffs have not demonstrated that the forum selection clauses produced by Generali are the product of fraud or overreaching
23
or that the relevant Euro
Plaintiffs have made a strong showing that they would be greatly inconvenienced by being forced to litigate their claims in several different European countries, and that it might be impossible to prosecute their claims.
See supra
pp. 364-66. Plaintiffs note their lack of connection to the European forums defendants advocate, the difficulty of travel for elderly plaintiffs, the need to hire at least seven new foreign lawyers, their inability to pay for such representation through a contingency fee arrangement, and the loss of economies of scale associated with their inability to consolidate their cases or utilize the. class action procedure.
See id.
Equally important, the extent of plaintiffs’ present-day inconvenience was not foreseeable to the parties at the time of contracting. These inconveniences were caused by the Holocaust. This factor cannot be said to have been reflected in the relevant insurance agreements.
Cf. M/S Bremen,
Although “mere inconvenience and expense of traveling are not themselves adequate reasons to disturb the parties’ contractual choice of forum,”
Strategic Mktg. & Communications, Inc. v. Kmart Corp.,
In á similar cáse in California, a Court refused to give effect to a forum selection clause in a Generali policy, in part because of the, California Holocaust Victims Insurance Recovery Act (“HVIRA”).
See Stern, et al. v. Assicurazioni Generali, et al.,
No. BC 185376,
The
Stem
case is analogous to several federal civil rights cases that have held that public policy, as expressed in a statute, may require invalidation of a forum selection clause. In
Red Bull Associates v. Best Western International, Inc.,
The result generated by conventional
forum non conveniens
analysis appears more appropriate here than it might be in other eases because it is impossible to conclude in many instances in this case that enforcing a forum selection clause would accurately reflect the expectations of the parties to the original insurance agreements. A forum selection clause allows parties to eliminate uncertainties “by agreeing in advance on a forum acceptable to both parties,”
M/S Bremen,
As indicated above, the Generali insurance policies relevant to plaintiffs’ claims were all issued sometime between 1912 and 1941, with forum selection clauses mandating litigation in the courts of Austria, Czechoslovakia, Italy, Poland, Hungary, or Yugoslavia. See supra note 22. The one thing that each of those countries has in common is that each, even ignoring the chaos of World War I, has changed regimes at least once, and some several times, since 1935.
Many of the forum selection clauses at issue in this case make clear that the parties did not contemplate the impending turmoil in Europe when they entered into the insurance policies at issue in this case. For example, Drucker Policy 124637, issued in 1931, states that “[c]omplaints ... shall be filed with the competent court at the domicile of the corporation’s directorate for the Czechoslovakian Republic in Prague.” (Catalanotti Decl. of 5/23/01 ¶¶ 34-35, Ex. F) The parties seem clearly not to have provided for the contingency in which Czechoslovakia would no longer be a republic, Generali would no longer have a directorate in Czechoslovakia because all of its assets were nationalized, Drucker’s heirs would no longer be living in the country due to a systematic campaign of extermination, and the country would choose to divide itself into the separate Czech and Slovak Republics. Similarly, Szekeres Policy 84984, issued in 1938,
Nonetheless, there is little case law in support of the proposition that a change in regime may render a forum selection clause unenforceable, at least where the adequacy of the courts of the new regime is not in question. Several Courts have held that forum selection clauses dictating litigation in Iran would not be enforced after Iran’s Islamic revolution in 1979; however, those Courts were heavily influenced by the inadequacy of Iran as a fair and impartial forum.
See McDonnell Douglas Corp. v. Islamic Republic of Iran,
;ji # if; # íJí
For the reasons explained above, Gener-ali’s and Zurich’s motions to dismiss on the ground of
forum non conveniens
are denied with respect to all plaintiffs, and with respect to both ICHEIC and the relevant European forums where plaintiffs’ claims arose. In addition, Generali’s motion to dismiss on the ground of contractual forum selection is denied because the applicable forum selection clauses are not enforceable. The court will contact the parties to set a conference to schedule further proceedings in this consolidated action, including but not limited to discovery. Counsel are directed to confer prior to that conference, with respect to a schedule for discovery and other pretrial procedures, and to
SO ORDERED.
Notes
. Two actions were initially filed in this court:
Cornell, et al. v. Assicurazioni Generali S.p.A., 97
Civ. 2262 (class action); and
Schenker, et al. v. Assicurazioni Generali S.p.A., et al.
(formerly
Winters, et al. v. Assicurazioni Generali, et al.),
98 Civ. 9186 (class action). Nine actions were transferred to this court by the
. In a dissent in
DiRienzo I,
Judge Cabranes suggested that plaintiffs suing in a representative capacity should be entitled to lesser deference because there is no true “home forum” in such a scenario.
DiRienzo I,
. The plaintiffs in Brauns, Mandil, Szekeres, Lightner, Sladek, Smetana, and Haberfeld originally brought suit in California Superior Court. Their cases were subsequently removed to the United States District Courts for the Northern, Central, and Southern Districts of California, and then transferred to this district by the MDL panel. In David, plaintiff originally filed suit in the United States District Court for the Eastern District of Wisconsin; his case was also transferred to this district by the MDL panel. In Weiss, plaintiffs originally filed suit in Florida state court; the case was removed to the United .States District Court for the Southern District of Florida and then transferred to this district by the MDL panel.
. There axe two minor caveats to this statement. In the Szekeres action, one plaintiff is a resident of California (where the action was brought), but the other plaintiff is a resident of New York. In Weiss, one plaintiff (Weiss) is a resident of Florida (where the action was brought), but the other two plaintiffs — for whom Weiss has the power of attorney — are residents of New York and Ohio respectively.
. Basler withdrew from ICHEIC in January 1999.
. To effect legal closure, the U.S. Department of Justice is obligated 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 with the foreign policy interests of the United States. (Velie Decl. Ex. U at 3-4) For a more detailed description of the genesis and operation of the German Foundation, see
In re Nazi Era Cases Against German Defendants Litig.,
. A plaintiff may constitutionally be compelled to try his claims in an international tribunal pursuant to an executive agreement between the United States and a foreign nation.
See Dames & Moore v. Regan,
. Generali acknowledges that it is not seeking "dismissal by reason of a Government Statement of Interest,” but rather "seeks dismissal based on this Court's sound discretion to dismiss in favor of a more convenient forum.” (Generali Rep. Mem. at 6).
. Because eleven of the twelve consolidated cases in this action involve named U.S. plaintiffs suing Generali or Zurich regarding policies issued in Europe, the balancing of the conveniences with respect to those plaintiffs, whose choice of forum is entitled to great deference, can be considered together. However, because plaintiff Tabaksman is a British citizen, the balancing of conveniences with respect to his case is analyzed separately in subsection (3) below.
. The private interest factors to be examined in a fonim non conveniens motion are as follows:
the relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; possibility of view of premises, if view would be appropriate to the action; and all other practical problems that make trial of a case easy, expeditious and inexpensive.
Gilbert,
. Plaintiff Sheiy does not mention Zurich by name, but does assert a claim against "defendants” generally.
. Although Generali’s expert states that an Austrian court would have no ability to compel production of those documents (Kodek Decl. ¶ 42), he seems also to indicate that these documents could not be compelled in an Austrian court either (Kodek Decl. ¶¶ 35-36).
. Defendants make this argument only with respect to the .four class action lawsuits. (Defs.' Cornell Mem. of 11/21/97 at 22-23; Defs.’ Winters Rep. Mem. of 12/15/99 at 15-17; Generali Mem. of 5/25/01 at 34).
., Every named plaintiff in the four class actions is a U.S. resident. The
Smetana
com- . plaint expressly limits its putative class to either American or California residents.
{Smetana
Compl. ¶ 9 — 10) The
Haberfeld
com
. The public interest factors to be considered in a forum non conveniens motion are:
the administrative difficulties flowing from court congestion; the "local interest in having localized controversies decided at home”; the interest in having the trial of a diversity case in a forum that is at home with the law that must govern the action; the avoidance of unnecessary problems in conflict of laws, or in the application of foreign law; and the unfairness of burdening citizens in an unrelated forum with jury duty.
Piper Aircraft,
. Defendants argue that the HVIA is unconstitutional. (Generali Rep. Mem. of 1/9/02 at 32-33; Zurich Rep. Mem. of 11/30/01 at 11) Defendants cite
Gerling Global Reinsurance Corp. v. Gallagher,
. The language of this provision is not limited to New York residents. It applies to “any action ... brought by a Holocaust victim,” N.Y. Ins. L. § 2704(b), with a “Holocaust victim” being defined as “any person ... or other such successor-in-interest of such person, who lost his or her life or property as a result of [the Holocaust],” N.Y. Ins. L. § 2701 (emphasis added).
. It is at best inconsistent for plaintiffs to argue that the laws of New York and Europe are not in conflict
(Winters
Pls.' Mem. of 10/18/99 at 58-59), when much of the basis for their opposition to defendants' motion derives from the absence of any guarantee that their common law claims “would actually apply to Holocaust-related claims” in Europe and the unavailability of punitive damages, which makes European forums "grossly inadequate”
{id.
at 12-13, 20).
See PT United,
. See Matter of Allstate,
. Zurich has not moved to dismiss on this ground because the company has no evidence that any plaintiff in the Schenker action was a Zurich policyholder and, therefore, is "not able to determine whether any relevant policy contained a forum selection clause.” (Zurich Mem. of 6/7/01 at 4 n. 3)
. Generali has not been able to locate the following policies. In Schenker: Sterngast policies, Kunz policies, Gonsher policies, Neuman policies. (Catalanotti Decl. of 5/23/01 ¶¶ 55-58) In Smetana: Friedman policy, Oreffice Policies; Oreffice Cavaglieri Polices; Sullam Policies; Maroni Policies. (Id. ¶¶ 77-79) In Lightner: Goldstein policies 188.543, 11006377. (Id. ¶ 90)
. Generali has located the following 45 policies; any forum selection clauses contained within those policies are noted parenthetically. In
Cornell:
Drucker Policy 108526 (“[cjomplaints ... shall be filed with the competent court in Prague”); Drucker Policy 110899 (same); Drucker Policy 114004 (same); Drucker Policy 115356 (same); Drucker Policy 118339 (same); Drucker Policy 124637 (‘‘[c]omplaints ... shall be filed with the competent court at the domicile of the corporation's directorate for the Czechoslovakian Republic in Prague”); Drucker Policy 126959 (same); Herszlilciewicz Policy 619074 (“[a]s the exclusively competent court ... there is appointed the court in Cracow”); Fekete Policy 56583 ("Any legal questions ... shall be decided exclusively by the Royal Commercial and Exchange Court of Budapest.”) (sample terms); Solti Policy 62940 ("Any legal claims ... shall be adjudicated exclusively by the competent Budapest Court.”) (sample terms); Solti Policy 64135 (same); Solti Policy 86847 ("Any legal cases ... shall be adjudicated by the Central Royal District Court of Budapest [or] the Budapest Royal Court of Justice.") (sample terms). In
Smetana:
Smetana Policy 570967 ("Any disputes ... shall be heard by the competent court in [Prague, as amended].”) (sample terms); Smetana Policy 105297 (“All disputes ... shall be properly brought before the court in Prague with subject matter jurisdiction.”) (sample terms); Smetana Policy 154817 ("Complaints ... shall be filed with the,competent court in Vienna.”) (sample terms); Smetana Policy 121240 ("Complaints ... shall be filed with the competent court in Prague.”); Smetana Policy 131522 ("Complaints ... shall be filed with the competent court at the domicile of the corporation’s directorate for the Czechoslovakian Republic in Prague.”); Smetana Policy 138613 (no forum selection clause); Cavaglieri Policy 113801 ("The judiciary of Venice shall have jurisdiction over all disputes arising under this contract.”) (sample terms); Cavaglieri Policy 28906 (same); Cavaglieri Policy 60922 (same). In
David:
Schapira Policy 529060 (“All disputes ... shall be properly brought before the court in Triest[e] with subject matter jurisdiction.”). In
Lightner:
Goldstein Policy 132424 (“Complaints ... shall be filed with the competent court at the domicile of the corporation's directorate for the Czechoslovakian Republic in Prague.”). In
Weiss:
Weiss Policy 136371 (same); Birnbaum Policy 140569 (no forum selection clause); Birn-baum Fire Policy ("In any legal disputes ... the parties hereby assign exclusive jurisdiction to the Royal Central District Court of Budapest or the Royal Court of Justice of Budapest ....”); Moldavia Fire Policy ("In any legal disputes ... the parties hereby assign exclusive jurisdiction to the District Court of Bratislava [or] the Bratislava Municipal Court .... ”). In
Szekeres:
Szekeres Policy 563052 ("all legal cases ... shall be adjudicated by the Central Royal District Court of Budapest [or] the Budapest Royal Court of Justice”) (sample terms); Szekeres Policy 50008 (same); Szekeres Policy 58777 ("Any legal questions ... shall be decided exclusively by the royal Commercial and Exchange Court of Budapest.”) (sample terms); Szek-eres Policy 65335 ("Any legal claims shall be adjudicated exclusively by the competent court in Budapest”) (sample terms); Szekeres Policy 79435 (“Any legal case ... shall be adjudicated by the Central Royal District Court of Budapest [or] the Budapest Royal Court of Justice.”) (sample terms); Szekeres Policy 84984 ("Any legal cases ... shall be adjudicated by the Central Royal District Court of Budapest [or] the Budapest Royal Court of Justice”). In
Mandil:
Mandil Policy 720.301 ("Claims ... shall be filed with a proper court of law in Zagreb.”); Mandil Policy 753.575 ("All disputes ... shall fall under the jurisdiction of a proper court of law in Belgrade”) (sample terms); Mandil Policy 753.596 '(same); Mandil Policy 754.677 ("Claims ... shall be filed with a proper court of law in Zagreb.”) (sample terms); Mandil Policy 920.111 (same). . In
Brauns:
Brauns Policy (no forum selection clause). In
Haber-feld:
Spierer Policy 577056 ("All disputes ... ' must be filed with the appropriate court having jurisdiction over the matter in Warsaw.”);
. Plaintiffs argue that the clauses should be unenforceable as the product of overreaching because defendants "specifically induced persecuted individuals ... to purchase insurance policies,” and then were "partly responsible for the persecutees1 post-war flight, due to their refusal to honor policies that could have permitted the persecutees to re-build their lives in Europe after the War.” (Winters Pls.’ Mem. of 10/18/99 at 49-50) I am not unsympathetic to this argument, but plaintiffs have not, at this stage of the litigation, presented the evidence necessary to prove these allegations.
The Weiss plaintiffs also argue that their policies contain clauses allowing payment of benefits anywhere in the world, and that it is overreaching for Generali now to assert that those policies cannot be enforced in this forum. (Weiss Mem. at 9-11, 13-14)
See Buxbaum v. Assicurazioni Generali,