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A bid by six Holocaust survivors and their heirs in California to have their cases against an Italian insurance company returned from New York to their state’s speedier courts has been denied. The denial makes it unlikely that the elderly survivors will live to see a resolution of the snail-paced litigation, said their attorney, William M. Shernoff of Shernoff Bidart & Darras in Los Angeles. Shernoff’s efforts to restore the cases to the Southern California courts where they were filed in 2000 had the support of California Gov. Gray Davis, the state’s attorney general and its insurance commissioner. The suits seek unspecified damages from Assicurazioni Generali, an Italian insurance company, for alleged unfair business practices, breach of contract and unjust enrichment in connection with policies held by the survivors’ Eastern European ancestors. Generali had opposed moving the cases from Judge Michael B. Mukasey of the Southern District of New York, saying multidistrict litigation is the most efficient way to handle them. The insurance company’s motion led to the transfer and consolidation of the California cases. Twelve survivors’ insurance cases, four of them class actions, are pending before Mukasey, according to one of Generali’s attorneys, Peter Simshauser of New York-based Skadden, Arps, Slate, Meagher & Flom’s Los Angeles office. In a brief, he dubbed the plaintiffs’ efforts to return the cases to California courts “a thinly-veiled attempt to forum-shop.” The Washington, D.C.-based Judicial Panel on Multidistrict Litigation transferred the California survivors’ cases to Mukasey in 2000, months after they were filed, saying he had developed expertise in handling similar litigation. A seven-judge panel recently denied Shernoff’s motion for remand as “not appropriate at this time.” Mukasey had not requested the remand and was “thoroughly familiar with the issues in this complex docket,” wrote the panel’s chairman, William Terrell Hodges, a U.S. district court judge in Florida. But Shernoff contends Mukasey moves excruciatingly slowly. Discovery has been stayed, he said, and he has no scheduling order, pretrial or trial date. In contrast, within 90 days of other Holocaust-era cases against Generali being returned to California superior courts, the insurance company agreed to settle. The plaintiffs, whose average age is 80, fear the lawsuits will outlive them, said David A. Lash, executive director of Bet Tzedek (Hebrew for “house of justice”). The Los Angeles-based agency represents indigent Holocaust survivors. Bet Tzedek’s 1999 class action against Holocaust-era insurers was among those consolidated in New York. WHAT IS EQUITABLE? The defendants have attempted to settle thousands of claims, but they and survivors have very different views about what is equitable. Generali has sent form letters to a number of survivors offering $500 to plaintiffs who drop their claims. But Shernoff said his experts have valued Holocaust-era policies at $300,000 to $1 million, including 50 years of compounded interest. His suits also seek unspecified punitive damages and attorney fees. One of his clients agreed to $5,000, he said. Another, an 82-year-old man, withdrew his suit this year and accepted a settlement from Generali because he was exhausted by efforts to collect on his father’s 1928 insurance policy of $2,000. Simshauser said Generali is committed to making good on the old policies, noting that it has distributed $14 million of the $100 million it paid to the International Commission on Holocaust Era Insurance Claims for survivors and their kin. European insurance companies have promised $350 million to pay claims, with the balance going to charity. The commission’s formula for payment is higher than Generali had proposed, he said. The commission is a voluntary private organization funded by insurance companies. Commission efforts led to settlements on just 1.2 percent of nearly 86,000 claims filed by survivors since 1999, according to the Baltimore Sun. Many elderly plaintiffs represented by Bet Tzedek received no response to the claims they filed with the commission, Lash alleged, leaving them to pin their dimming hopes on the legal system.

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