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Miami federal Judge Ursula Ungaro-Benages cannot use U.S. courts to pursue her $1 billion lawsuit against two German banks that she claims conspired with the Nazis to steal her family’s corporate empire shortly before World War II, the 11th U.S. Circuit Court of Appeals has ruled. Instead, Ungaro-Benages must resolve her claim through a foundation established by an agreement President Clinton signed with the German government in 2000 to hear claims brought by victims of the Nazi regime. The Remembrance, Responsibility and the Future Foundation is funded by contributions from the German government and German companies. “We are sympathetic to the plaintiff and only too cognizant of the horrors suffered by her grandparents and thousands of others under the Nazi regime,” Senior Judge Phyllis Kravitch wrote. “Although it may not be her forum of choice, the plaintiff should pursue her claim through the foundation, which was established by the American and German governments to address exactly these types of claims from the Nazi era.” Judges Stanley Birch Jr. and James Oakes concurred. The 11th Circuit’s Wednesday ruling upholds U.S. District Judge William Terrell Hodges’ dismissal of Ungaro-Benages’ suit against Dresdner Bank AG and Deutsche Bank AG. In June 2003, Hodges dismissed the suit on summary judgment on the basis of the political question doctrine, international comity, statute of limitations and failure to state a claim. The 11th Circuit disagreed with Hodges’ application of the political question doctrine, in which he said Ungaro-Benages’ claim was not “justiciable” because the court would be interfering with U.S. foreign relations and the president’s authority to broker international agreements with other countries. The appellate panel said that there was no interference in foreign relations because the foundation agreement did not require dismissal of these claims or automatic transfer to the foundation. Instead, the U.S. government promised only to intervene in any domestic lawsuit dealing with World War II restitution to argue in favor of referral to the foundation for public policy reasons. Therefore, the agreement didn’t bar U.S. courts from hearing these cases, the 11th Circuit said. But it upheld the dismissal on the basis of international comity, a doctrine of courtesy by which a federal court has jurisdiction but defers to a foreign tribunal. The 11th Circuit ruled that the foundation was an adequate alternative forum and that it was in the best interest of the U.S. to defer to the German foundation for resolution of these claims. In 1876, Ungaro-Benages’ great-grandfather co-founded Orenstein & Koppel, a company that became the sixth-largest equipment manufacturer in Germany. Until the Nazis came to power, the judge’s family continued to maintain a significant stake in the company. But because the Orensteins were Jewish, the judge claims, the banks ousted her family from their positions on the board and stole their stock. By 1943, the judge’s family had lost all of their interests in the company, she claims. Ungaro-Benages and her brother, Peter, were raised as Protestants. In 1993 they learned by chance that their maternal grandmother, Lili, was the daughter of a Jewish couple, Benno and Rosa Orenstein. It wasn’t until 2001 that they learned that Benno Orenstein had co-founded Orenstein & Koppel.

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