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A federal judge Monday dismissed a class action suit brought by Holocaust victims and their relatives, who were seeking restitution for property seized by the Polish government after World War II. Chief Judge Edward R. Korman of the Eastern District of New York said that United States courts had no jurisdiction to hear the claims because the Foreign Sovereign Immunities Act (FSIA), established in 1976, could not be applied retroactively to actions taken by the Polish government in the 1940s and 1950s. The judge also said that even if jurisdiction could be established, the victims were unlikely to show that Poland’s actions fell within exceptions of the act that would allow a suit against the country to proceed. Nonetheless, Korman indicated that he was dismissing the case reluctantly, saying he was “compelled” to do so “not because of a determination that the conduct here is lawful.” The judge added that “the conduct alleged may very well violate the evolving standards of the law of nations,” and said further that private individuals who held property expropriated from the victims would not be immune from lawsuits. “I feel that the judge dismissed this case with a heavy heart,” said Mel Urbach, a New Jersey attorney who was one of the plaintiffs’ lead representatives. He said his clients, who include 12 named plaintiffs and perhaps thousands of class members, would appeal the ruling to the 2nd U.S. Circuit Court of Appeals. Urbach added that he and other lawyers associated with the claims have been working on filing suits against individual owners of expropriated land, such as Polish corporations, for possible suits to be filed in federal courts. Owen C. Pell of New York-based White & Case, who represented Poland and its Ministry of Treasury, said Korman’s ruling was an important validation of the FSIA as interpreted by the 2nd Circuit. He said the ruling effectively shut down a suit that, if successful, may have led to similar claims against other Eastern European countries such as Hungary and Romania. Pell said he did not see how claims against individuals could be successfully brought in U.S. federal courts, citing complications made by treaties between Poland and the United States, as well as remedies available in Poland. He said some victims whose land was taken have successfully brought claims in Polish courts. Monday’s 40-page ruling came 18 months after Korman heard oral arguments in Garb, et al. v. Republic of Poland, 99 Civ. 3487. Korman also presided over the historic suit by Holocaust victims against two Swiss banks. The judge approved a $1.25 billion settlement in November 2000, which was later upheld by the 2nd Circuit. The suit against Poland, which sought money damages and restitution, stemmed from land seized beginning in the late 1940s by Poland’s Communist government. The land taking followed a renewal of violence against Jews who had returned to Poland after World War II. More than 1,000 Jews in Poland were murdered during the first two years following the war. The plaintiffs in this suit argued that the “nationalization” of land was part of a scheme to deprive Jewish Holocaust victims and their heirs of property. Poland countered that its land-taking laws affected all Poles and did not “target or discriminate against Polish Jews specifically,” according to Korman’s ruling. POLAND’S INTENTIONS In dismissing the suit on the basis of jurisdiction, Korman did not have to reach a decision regarding the intent of Poland’s actions. Still, the judge discussed at length the difficulties the plaintiffs would have in stating a viable claim under the takings exception of the FSIA “in order to frame the issue should the Court of Appeals conclude that my retroactivity analysis is flawed.” Citing several 2nd Circuit rulings, including Filartiga v. Pena-Irala, 630 F.2d 876 (1980), Korman noted that no consensus existed on whether the right to “be free from the discriminatory and uncompensated taking of property” was a fundamental right under international law. Korman concluded by emphasizing language found in one of his previous rulings: “strong moral claims are [not] easily converted into successful legal causes of action.” He added: “The dismissal places on the Republic of Poland the obligation to resolve equitably the claims raised here.” Edward E. Klein of New York’s Klein & Solomon was another lead attorney for the plaintiffs. The plaintiffs were also represented by Stephen A. Whinston of Berger & Montague in Philadelphia and numerous other attorneys.

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