A CLOSER LOOK: THE SUPREME COURT’S DECISION ON GENOCIDE-ERA INSURANCE CLAIMS
By Lilly Torosyan
July 10, 2013
The upcoming centenary of the Armenian Genocide represents an important
milestone in the international movement for a truthful, just, and
comprehensive resolution of Turkey’s crime against the Armenian nation.
nahapetian torosyan A Closer Look: The Supreme Courts Decision on
Genocide Era Insurance Claims ANCA Governmental Affairs Director Kate
Nahapetian (L) and Lilly Torosyan.
A just resolution of the Armenian Genocide would include, first and
foremost, the realization of the national claims of Armenia and the
Armenian people to fair restitution and full reparations, as well as
the return of church and community assets, and, of course, unhindered
redress for the individual rights of genocide-era victims to their
properties and assets.
One particularly high-profile individual rights case involves the
efforts of genocide-era beneficiaries to secure unpaid insurance
payments for the death of their loved ones. This case has its roots
in a law passed by the California legislature and has reached all the
way to the U.S. Supreme Court. On June 10, the Supreme Court decided
it would not review the Ninth Circuit Court’s ruling that brought
down the California state law extending the statute of limitations
on insurance claims cases of the genocide era.
In an interview with the Armenian Weekly, Armenian National Committee
of America (ANCA) Governmental Affairs Director Kate Nahapetian
discusses the background of the case, and the implications of this
Supreme Court decision.
The Framework of the legislation
In 2000, the Legislature of the State of California passed a law that
extended the time period for filings against life insurance companies
for claims that were never paid out. Normally, one has two years to
file these claims, but because of the wartime dislocation and chaos
associated with this circumstance, the state prolonged the statute of
limitations for any Armenian Genocide-era victim. Nahapetian explains
that, despite common misunderstandings, descendants of non-Armenians
and non-genocide victims who are owed their insurance payments can
also file this claim, so long as they were citizens of the Ottoman
Empire in the years of 1915-1923.
The case began in the California Courts with pro-bono attorneys
Vartkes Yeghiayan, Brian Kabatak, and Mark Geragos, who brought claims
against several insurance companies, and were successful in several
rulings, leading to settlements between companies such as New York
Life and French carrier AXA. German insurer Munich Re (Munchener
Ruckversicherungs-Gesellschaft), however, litigated the claim. The
Ninth Circuit of the U.S. Court of Appeals filed three separate and
conflicting opinions, the most recent being in February 2012, which
invalidated the California statute of limitations for insurance claims
during the genocide period, based on an unprecedented expansion of
the rarely invoked doctrine of foreign affairs field preemption. This
principle states that the State of California improperly interfered
with foreign policy powers and the authority of the federal government.
After this ruling, plaintiffs appealed to the Supreme Court to reverse
the decision of the Ninth Circuit Courts. Plaintiffs’ lead attorney
Igor Timofeyev, Esq. of Paul Hastings, LLP, filed the petition and
a series of amicus briefs in support of the request, calling it a
“revolutionary proposition [by the U.S. government] that states lack
all authority to enact legislation concerning their citizens’ private
claims if they originate in events that occurred abroad.” Attorneys
Mary-Christine Sungaila and Seepan Parseghian of the Snell and Wilmer
firm, as well as the Armenian Bar Association also filed amicus briefs,
and were represented pro-bono by Bingham McCutchen, LLP, led by partner
David Balabanian, a world-renowned lawyer. Other advocates of the
plaintiffs include attorney David Salmons, chair of Appellate Practice
Group; and Marco Simons, legal director for EarthRights International.
The Supreme Court’s ruling two weeks ago upheld the decision by the
Ninth Circuit Court of Appeals. Prior to this ruling, the Court asked
the Obama Administration for its views on the legal dispute. The
solicitor general-the Executive Branch’s representative before the
Supreme Court-presented a long statement that was widely seen as
making selective use of relevant law and the U.S. historical record.
He, along with the State Department, indicated that they were concerned
about the implications of the law on foreign policy. They argued that
the issue of compensation for Armenian Genocide victims had been
resolved in the period between 1923 and 1937 through the Treaty of
Lausanne, which was never approved by the Senate and therefore had
no legal effect as an international treaty. Even if it were deemed
valid, the treaty made no mention of how to go about settling disputes
between private individuals and business entities.
The real issue: federalism
Nahapetian notes that, at its core, this case does not address the
fact of the Armenian Genocide, or whether Armenians and other genocide
victims have claims against Turkey; rather, it was considered primarily
on the grounds of federalism, and the question of giving preeminence
to the federal executive on matters that involve foreign affairs,
at the expense of state sovereignty.
There currently is another case in California that deals with claims
against Turkey for properties that were stolen during the genocide.
The Foreign Sovereign Immunity Act provides certain immunity to
foreign governments from lawsuits in the United States. Notably,
the District Court-the first level in the state court system-found
that Turkey was not immune from these lawsuits because of the human
rights violations of its government during the genocide period.
Nahapetian argues that just because the Supreme Court will not hear
the insurance law case, it does not necessarily reflect whether they
believe the decision was correct. “In order for [the Supreme Court] to
hear the case, its primary concern is to manage conflicts between the
other circuit courts around the country. In this case, because there
are not many Armenian Genocide-related cases all over the country,
there wasn’t a clear conflict,” she explains.
Similar lawsuits
When the California legislation was introduced in 2000, similar laws
dealing with the Holocaust were also passed. Many of these different
statutes were struck down and eventually went up to the Supreme
Court, which also decided against these laws. However, the plaintiffs’
argument was not based on the broad doctrine of field prevention that
the Armenian case advocates. Instead, they addressed the policy of
conflict preemption, where the federal government devises a plan that
resolves the issue, thereby preventing states from interfering with
that process. In this instance, the mechanism the federal government
created resolved Holocaust insurance claims by negotiating with foreign
Swiss and German insurance carriers, which led to the Supreme Court’s
ruling that states could not create other avenues to resolve the same
claims for which the federal government has created a specific process.
“In the Armenian case, they could not practice the policy of conflict
preemption because the federal government has not created a mechanism
to resolve these claims, so they remain outstanding,” says Nahapetian.
Timofeyev echoes a similar view regarding the outcome of the Armenian
Genocide-era insurance law case, but notes, confidently, that “the
proper scope of the foreign affairs preemption doctrine is an important
issue that the Court will end up examining in the future.”
The Supreme Court reviews less than 1 percent of the cases that are
brought to its attention every year, so both Timofeyev and Nahapetian
maintain that there is hope to continue with this process until
justice is achieved for these Armenian Genocide-era victims.
http://www.armenianweekly.com/2013/07/10/a-closer-look-the-supreme-courts-decision-on-genocide-era-insurance-claims/