‐1‐ UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS ---------------------------------------------------------------------------------------------- HOLOCAUST VICTIMS ) OF BANK THEFT, ) ) ) Plaintiffs, ) Case No.: 10 CV ____ ) v. ) CLASS ACTION ) COMPLAINT MAGYAR NEMZETI BANK, ) ERSTE GROUP BANK, ) MKB BAYERISCHE LANDESBANK, ) OTP BANK, and ) CREDIT ANSTALT BANK, ) JURY DEMANDED ) RE: PRIVATE BANKS Defendants. ) ________________________________________ )_________________________________ COMPLAINT This Complaint is related and connected to Civil Action 1:10-cv-00868, The Victims of the Hungarian Holocaust v. The Hungarian State Railways (MAV). This action is currently pending in the United States District Court, Northern District of Illinois, Eastern Division, before the Honorable Judge Samuel Der-Yeghiayan. Case: 1:10-cv-01884 Document #: 1 Filed: 03/25/10 Page 1 of 34 PageID #:1
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UNITED STATES DISTRICT COURT HOLOCAUST VICTIMS ... Victims of... · Plaintiffs, ) Case No.: 10 CV ____ ) v. ) CLASS ACTION ) COMPLAINT MAGYAR NEMZETI BANK, ) ERSTE GROUP BANK, ) MKB
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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS
Vienna Dictate of November 1938 , followed by the Hungarian advance in to the Ukraine via the Carpathians in mid -March 1939; b) Northern Transylvania, returned to Hungary by the Second Vienna Dictate of 30 August 1940; c) Vojvodina (Bacska), part of the Serbo-Croatian Kingdom. When Yugoslavia was dismantled, Bacska was returned to Hungary in April 1941.
3. Although Hungarian Jews constituted only 10% of the population of
Greater Hungary, according to the census of 1930 for the Trianon, and later in
1941 for Greater Hungary, the census in Greater Hungary:
a) they owned 20% to 25% of the assets in that area prior to the Holocaust;
b) on the eve of the Holocaust in 1944, according to the Randolph Braham, author of the definitive history of the Hungarian Holocaust, Jewish assets in Trianon Hungary had market value between 7 and 9 billion gold Pengos; c) this amount is to be doubled as the number of Jews is doubled to encompass all of Hungary. At the time, 5 Pengos were convertible into one U.S. dollar.
4. Based on the nature of their business or profession, Jews in Greater Hungary
were at least as likely to use banking facilities as were non-Jews. In the professions
as of the 1930 census for the Trianon , and again in the census in 1941 including
the annexed areas, Jews made up 49% of the practicing attorneys; 55% of the
physicians; 30% of the engineers; 60% of bank officials; and 46% of salespersons.
Jews owned 49% of metallurgical works; 42% of machine manufacturing; 73% of
claims against the aggregate defendant banks is clear and a matter of historical
record.
Jurisdiction and Venue
23. The list of plaintiffs class representatives is given in Paragraph 29. As to all
plaintiffs, this Court has subject-matter jurisdiction over this action pursuant to 28
U.S.C. § 1331, because the plaintiffs’ claims involve treaties to which the United
States is party, international law, and federal questions generally. In particular,
jurisdiction is based upon:
a) Convention on the Prevention and Punishment of the Crime of Genocide, 78 U.N.T.S. 277 (1948); entered into force for the United States Feb. 23, 1989; b) Convention (IV) Respecting the Laws and Customs of War on Land, Oct. 18, 1907, entered into force for the United States, 36 Stat. 2277 (1911) (Article 46: “Private property cannot be confiscated”); c) International Covenant on Civil and Political Rights, 993 U.N.T.S. 171 (December 16, 1976), entered into force for the United States June 8, 1992; d) Convention (IV) Relative to the Protection of Civilian Persons in Time of War, 75 U.N.T.S. 287, entered into force for the United States Feb. 2, 1956,
24. As to plaintiffs who are aliens, this Court has additional jurisdiction
pursuant to the Alien Tort Claims Act, 28 U.S.C. § 1350. These plaintiffs are
claiming their right under that Act to obtain redress in federal court for serious
injuries wherever committed in violation of the law of nations.
25. Defendant Magyar Nemziti Bank (hereinafter “MAG”) is the national bank
of Hungary. It is a wholly-owned subsidiary of the Hungarian government and thus
is an instrumentality of a foreign sovereign under the Foreign Sovereign
Immunities Act. Jurisdiction over MAG is based upon 28 U.S.C. § 1605(a) which
provides that
A foreign state shall not be immune from the jurisdiction of courts of the United States or of the States . . . in any case . . . (3) in which rights in property taken in violation of international law are in issue and . . . that property or any property exchanged for such property is owned or operated by an agency or instrumentality of the foreign state and that agency or instrumentality is engaged in a commercial activity in the United States . . .
Defendant MAG looted the plaintiffs’ rights in property in violation of the
international-law prohibition against aiding and abetting genocide. It kept the
Jewish property or any property in exchange for such property. Under 28 U.S.C.
1605(a) just quoted, there is no statutory requirement that the property itself must
be present in the United States. All that is required is that defendant MAG is
engaged in commercial activity in the United States, which is satisfied by the fact
that MAG engages in ordinary and electronic banking transactions throughout the
United States.
26. Defendant MAG has served as the banking instrumentality of all Hungarian
governments and their successors from pre-1940 to today. It either kept all looted
property or operated on that property in fractional reserve banking transactions, or
59. Plaintiffs specifically reserve the right to add to the defendants in this case
any of the banks named in the preceding paragraph 58 or any of their successor
banks.
Class Action Allegations
60. This action is brought and may properly be maintained as a class action
pursuant to Fed. R. Civ. P. Rule 23(a):
a) The class is at least 600,000 persons, which is so numerous that joinder of all members is impracticable;
b) There are questions of law and fact common to the class;
c) the claims or defenses of the representative parties are typical of the claims or defenses of the class, including violations of customary international law and the right to own private property, and d) the representative parties will fairly and adequately protect the interests of the class.
61. In addition:
a) the defendant banks opposing the class have acted or refused to act on grounds generally applicable to the class, thereby making appropriate final
injunctive relief or corresponding declaratory relief with respect to the class as a whole; b) questions of law or fact common to the members of the class predominate over any questions affecting only individual members; c) a class action is superior to other available methods for the fair and efficient adjudication of the controversy.
62, Other interests include::
a) the interest of the members of the class in individually controlling the prosecution of separate actions; b) the desirability of concentrating the litigation of the claims in the particular forum; c) the difficulties likely to be encountered in the management of a class action.
63. The Class of Plaintiffs includes all members of Greater Hungarian Jewry
whose assets were taken by the defendant banks during or immediately following
or in connection with the Hungarian Holocaust of March-October 1944.
64. Among the questions of law and fact common to the class are whether:
a) Defendant banks looted the plaintiffs’ assets in connection with mass deportations of plaintiffs to Auschwitz and continuing until the end of 1944; b) Defendant banks or their predecessors were aware or should have been aware that plaintiffs and class members were taken from their homes and deported against their will out of Greater Hungary; c) Defendant banks or their predecessors were aware or should have been aware that the plaintiffs would not be returning from Auschwitz to reclaim the property they had entrusted to the banks, and hence the banks
had a duty of custodianship over the property to be held in trust for the rightful heirs; d) Defendant banks or their predecessors willfully seized and converted to their own use the plaintiffs’ assets, including commercial and personal bank accounts, titles to real estate, and the contents of safe deposit boxes; e) Defendant banks or their predecessors engaged in activities in conjunction with various Hungarian governmental proclamations to encourage Jews to deposit all their valuables in safe deposit boxes; f) Defendant banks violated the right of private property guaranteed by Hungarian law and customary international law; g) Defendant banks or their predecessors acted to deny the plaintiffs’ inquiries and claims, to deny falsely that they or their predecessors had taken any of the plaintiffs’ assets, to stonewall every initiative begun by individual plaintiffs to recover their own property, and to send persons with inquiries to one official after another, to one bureaucrat after another, and back to the original bank.
65. Plaintiffs are committed to the vigorous prosecution of their claims and
have retained competent counsel experienced in complex litigation, class action
litigation, international law, and litigation related to wrongful conduct during
World War II.
Causes of Action
Count 1: Participation in Genocide By Looting
66. Plaintiffs repeat and incorporate each and every allegation set forth in
paragraphs 1 through 59 above as if fully set forth herein.
67. Under 18 U.S.C. § 1091, genocide is defined in pertinent part as:
Whoever, whether in time of peace or in time of war and with the specific intent to destroy, in whole or in substantial part, a national, ethnic, racial, or religious group as such . . . (4) subjects the group to conditions of life that are intended to cause the physical destruction of the group in whole or in part.
68. Defendant banks in 1944 engaged in a conspiracy to complete the
genocide the Nazis had begun by looting the assets and selling the properties the
plaintiffs had entrusted to them for safekeeping under custodial duty, thus
ensuring the physical destruction of Jewish communities in whole or in part by
making it impossible for survivors and heirs of the Holocaust ever to return to
their homes and businesses in Greater Hungary.
69. Defendant banks and their successors have continued the genocidal
destruction of the Jewish group down through the present day by:
a) unlawfully refusing to return the looted assets to the plaintiffs;
b) lying to the plaintiffs that they had not taken the assets;
c) intentionally and wrongfully concealing books and records of the custodial assets;
d) enriching themselves with the derivative profits of such assets;
e) investing and otherwise profiting from the looted assets on a continuing basis;
f) denying that they knew the amounts or existence of the looted assets.
g) failing to provide an accounting of their custodial accounts to the plaintiffs;
A. Award to the plaintiff class in its entirety compensatory damages in the
amount of $2,000,000,000 plus interest compounded annually since 1944. In
addition. and separately and distinctly, award punitive damages in an amount later
to be specified.
B. Hold the defendant banks jointly and severally liable for the total of
compensatory and punitive damages specified in paragraph (A); or in the
alternative,
C. Hold the defendant banks in the aggregate liable for unjust enrichment under
either the General Average theory or the Market Share theory for the full amount
of compensatory damages in the sum of $2,000,000,000 plus interest compounded
annually since 1944.
D. Grant such other relief as the Court deems just and proper.
Respectfully submitted,
/s/ ANTHONY D’AMATO RICHARD H. WEISBERG Leighton Professor of Law Walter Floersheimer Professor Northwestern University School of Law Of Constitutional Law 375 E. Chicago Avenue Cardozo Law School Chicago, Illinois 60611 55 Fifth Avenue, Suite 520 (312) 503-8474 New York, NY 10003 (312) 587-9969 (FAX) (212) 790-0299 [email protected][email protected]
ROBERT JAMES PAVICH ELLIOT M. SAMUELS Monico Pavich & Spevack 333 West Wacker Drive, Suite 2000 20 South Clark Street, Suite 700 Chicago, Illinois 60606 Chicago, Illinois 60603 (312) 357-0590 (312) 782-8500 (312) 236-6706 (FAX) (312) 853-2187 (FAX) [email protected][email protected] AGNES GROSSMAN JOHN J. PAVICH Law Offices of Richard D. Grossman Monico Pavich & Spevack 225 West Wacker Drive, Suite 2000 20 South Clark Street, Suite 700 Chicago, Illinois 60606 Chicago, Illinois 60603 (312) 750-9308 (312) 782-8500 (312) 263-4680 (FAX) (312) 853-2187 (FAX) [email protected][email protected]