# Gross v. German Foundation Industrial Initiative

> District Court, D. New Jersey · August 15, 2007 · 499 F. Supp. 2d 606

URL: https://www.frixlaw.com/law-library/cases/1871552

## Case

- **Full name:** Elly GROSS, Et. Al., Plaintiffs, v. THE GERMAN FOUNDATION INDUSTRIAL INITIATIVE; And Allianz AG; Basf AG; Bayer AG; BMW AG; Commerzbank AG; DaimlerChrysler AG; Degussa-Huls AG; Deutsche Bank AG; Deutz AG; Dresdner Bank AG; Hoechst AG; Rag AG; Robert Bosch GmbH; Siemens AG; Veba AG; ThyssenKrupp AG; And Volkswagen AG, Jointly and Severally in Their Respective Capacities as Principals, Founders, and Alter Egos of the German Foundation Industrial Initiative, Defendants; Barbara Schwartz Lee and Bernard Lee, Plaintiffs, v. Deutsche Bank, AG, and Dresdner Bank, AG, Defendants
- **Court:** District Court, D. New Jersey
- **Decided:** August 15, 2007
- **Citations:** 499 F. Supp. 2d 606; 2007 U.S. Dist. LEXIS 60225; 2007 WL 2326861
- **Precedential status:** Published
- **Opinion:** Opinion by Debevoise
- **Judges:** Debevoise
- **Cited by:** 2 later opinions in the Frix Law Library

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## Opinion text

OPINION
DEBEVOISE, Senior District Judge.
Table of Contents
Page
I. Introduction .:.608
II. Background.'....610
III. Procedural History ...617
IV. Gross Plaintiffs’ Summary Judgment Motion.620
A.
Gross
Plaintiffs’ Contentions .,.620
B. Evidence upon which
Gross
Plaintiffs Rely .622
V.
Schwartz Lee
Summary Judgment Motion. OO CO
A.
Schwartz Lee
Plaintiffs’ Contentions. CO CO
B. Evidence upon which
Schwartz Lee
Plaintiffs Rely Os CO
VI. Defendants’ Motions. CO to
A. Defendants’ Motion to Dismiss Both CO CO
B. Banks’ Motion to Dismiss
Schwartz Lee
Complaint ^ so
*608
C.Evidence upon which Defendants’ Rely.641
VIL Federal Republic of Germany, Amicus. CO io 0
A. Contentions of Federal Republic of Germany CO io ÍO
B. Evidence upon which Germany Relies. LQ io CD
VIII. Discussion.656
A. Status of Joint Statement.656
B.
Gross
Case Motions.:.661
1. Summary Judgment Standards.662
2. Joint Statement Ambiguity .662
3. ■ December, 1999, Understanding.664
4. March, 2000, “Interest” Agreement.667
5. Post March, 2000, Negotiations.670
C.
Schwartz Lee
Case Motions. .675
IX. Conclusion. .677
Appendix — Para. 11-15 Roger M. Witten Declaration .678
I.
Introduction
July 17, 2000, was the occasion of one of the most remarkable diplomatic achievements since the end of World War II. The efforts of two extraordinary diplomats, Secretary Stuart E. Eizenstat, representing the United States, and Count Otto Lambsdorff, representing the Federal Republic of Germany, had, after approximately 19 months of negotiations, secured the signing of two documents that would lead to the creation of the Foundation, “Remembrance, Responsibility and Future” (the “Foundation”), to compensate the victims for wrongs against them committed by German companies during the Nazi-era and to provide an exclusive forum in which the victims could assert their claims.
The documents were i) the Joint Statement on Occasion of the Final Plenary Meeting Concluding International Talks on the Preparation of the Foundation, “Remembrance, Responsibility, and the Future” (the “Joint Statement”) and ii) Agreement between the Government of the Federal Republic of Germany and the Government of the United States of America concerning the Foundation “Remembrance, Responsibility and the Future” (the “Executive Agreement”). Shortly thereafter, the' German Bundestag enacted a Law on the Creation of a Foundation “Remembrance, Responsibility and Future” (the “Foundation Law”) that, among other things, established the Foundation as a German sovereign instrumentality and as the “exclusive remedy and forum” for resolution of claims against German companies arising out of the Nazi-era and World War II. Collectively those instruments were called the “Berlin Accords.”
These- two diplomats had mediated so successfully that the Joint Statement was signed by six eastern European countries, Israel, Germany, the United States, seventeen German companies that had established the German Economy Foundation Initiative (“GEFI” or the “Initiative”), the Conference on Jewish Material Claims Against Germany, Inc., and class-action attorneys representing plaintiffs in some of the then pending United States lawsuits against German companies on account of Nazi-era depredations. The Joint Statement provided, among other significant provisions, that DM 10 billion contributed by the German Government and German companies was to be distributed to former National Socialist slave and forced laborers, for other personal injury, for damages
*609
to property and for a Future Fund to fund ongoing projects to prevent religious and ethnic intolerance in Germany.
The Joint Statement provided that the DM 5 billion contribution of the German companies “shall be due and payable to the Foundation and payments from the Foundation shall begin once all lawsuits against German companies arising out of the National Socialist era and World War II pending in U.S. courts ... are finally dismissed with prejudice by the courts.” The initial portion of the DM 5 billion German Government contribution was to be made available to the Foundation by October 31, 2000. The remainder of the German Government contribution was to be made available to the Foundation by December 31, 2000. Para. 4(d) of the Joint Statement concluded: “German company funds will continue to be collected on a schedule and in a manner that will ensure that the interest earned thereon before and after their delivery to the Foundation will reach at least 100 million DM.”
There was an unexpected delay in obtaining dismissal with prejudice of all the pertinent lawsuits against German companies in the United States courts, and it was not until May 30, 2001, that the Bundestag announced that adequate legal security had been achieved, purporting thereby to trigger the time for the German companies’ payment called for by Para. 4(d) of the Joint Statement.
The German Government made its payments in a timely manner. On various occasions after the May 30, 2001 Bundestag announcement, the German companies paid, according to GEFI (but disputed by Plaintiffs), DM 5.1 billion to the Foundation. The Foundation is fully organized and is carrying out its important humanitarian work compensating victims and is pursuing the functions of the Future Fund.
Notwithstanding this felicitous state of affairs, a dispute has arisen between the Plaintiffs in the two cases pending before the Court, who are victims entitled to compensation from the Foundation, and the German companies that were the members of GEFI. Plaintiffs contend that the German companies have failed to comply with their obligations under Para. 4, and, in particular, to pay to the Foundation the interest specified in that paragraph. It is the Plaintiffs’ contention that this language contains no ceiling and requires the companies to pay interest on all funds the Initiative collected from the time of their receipt of those funds until payment to the Foundation, or in the alternative, to pay interest on the companies’ share from December, 1999.
The
Gross
Plaintiffs differ from the
Schwartz Lee
Plaintiffs about the period for which interest is owing, and the
Gross
Plaintiffs take different positions at different times and places as to the period for which interest is owing. The
Schwartz Lee
Plaintiffs argue that this obligation to pay interest is on the entire DM 10 billion (or at least the companies’ DM 5 billion), running from December 14, 1999, when agreement was reached on the DM 10 billion, or from December 17, 1999, when the participants in the negotiations announced their agreement upon the DM 10 billion figure. Occasionally the
Gross
Plaintiffs seem to adopt the
Schwartz Lee
position, but on the present motions they argue primarily (but not exclusively) that the obligation to pay interest commenced on July 17, 2000, the date of signing the Joint Statement.
The German companies contend that the additional DM 100 million was a fixed amount to be added to the DM 10 billion cap to enable the representatives of the victims to reach agreement on the allocation of the DM 10 billion capped amount.
*610
Having reviewed the full record submitted in connection with the pending motions as well as the briefs and arguments of counsel, the court concludes as follows:
1. The Joint Statement is a political document that does not confer upon the signatories, or any portion of them, contractual rights which can be enforced in United States courts. Consequently, Defendants’ motion to dismiss each of these cases should be granted.
2. In the alternative, were the Joint Statement found to create contractual obligations between Plaintiffs and the Defendants, enforceable in United States courts, Para. 4(d) concerning interest is ambiguous, requiring resort to the history of the negotiations to determine its meaning.
3. The history of the negotiations of the Berlin Accords establishes, as the Defendants contend, i) in December, 1999, the negotiating parties reached an understanding that the German Government and the German companies would pay into the Foundation a capped amount of DM 10 billion in exchange for “legal peace” with no agreement to pay interest; ii) in March, 2000, the negotiating parties reached an understanding that GEFI would pay an additional DM 100 billion denominated as “interest” in order to enable the victim groups to reach agreement on the allocation of the DM 10 billion, but there was no other commitment on the part of the German companies to pay interest in addition to the DM 100 million; between March, 2000, and July 17, 2000, when the Joint Statement was executed, Secretary Eiz-enstat and the Plaintiffs’ attorneys made repeated demands that the German companies pay interest on their DM 5 billion share of the DM 10 billion total sum. All of these demands were rejected, and as a consequence Para. 4(d) of the Joint Statement cannot be construed as requiring the German companies to pay to the Foundation more than DM 5.1 billion.
4.If this court has authority under the Joint Statement to do so, it would construe the Joint Statement as not requiring the German companies to pay the Foundation more than DM 5.1 million and deny the summary judgment motions of the
Gross
and
Schwartz Lee
Plaintiffs and grant summary judgment to the Defendants, dismissing both complaints on the merits.
II.
Background
A.
Litigation:
On March 13, 1996, the German Federal Constitutional Court decided
Krakauer v. Federal Republic of Germany,
Federal Constitutional Court, Bul 33/93 (March 13, 1996), a decision that was widely interpreted to lift the bar on World War II era claims against German industry imposed by the London Debt Agreement of 1953. In March, 1998, plaintiffs in the
Gross
case filed
Iwanowa v. Ford Motor Co.,
67 F.Supp.2d 424 .(D.N.J.1999), seeking redress for the widespread use of slave labor by German industry during the Nazi period.
Iwanowa
was followed by the filing of
Burger-Fischer v. Degussa AG,
65 F.Supp.2d 248 (D.N.J.1999), and more than 60 additional cases throughout the United States. These cases took different forms, including class actions and single plaintiff cases, and dealt with issues other than slave and forced labor, including insurance policies and bank deposits.
In August, 1998, twelve German companies (later joined by five other founding members) formed GEFI. Dr. Manfred Gentz, then CFO of Daimler/Chrysler, and Dr. Michael Jansen, then Executive Vice-President of Degussa, played leading roles in the establishment of GEFI. GEFI was German industry’s response to the proliferation of class actions and other lawsuits in the United States against German companies. It sought to obtain all-embracing
*611
and enduring legal peace for German companies by establishing and funding a German Foundation for making payments to certain victims of the National Socialist era and World War II that would be an instrumentality of the Federal Republic of Germany, governed by German institutions and not subject to oversight or review by United States courts.
On or about September 8, 1998, members of GEFI met with Chancellor-elect Gerhard Schroeder to seek support of the German Government for GEFI’s objectives, including resolution of the World War II related litigation against German industry pending in the United States. After that meeting, representatives of GEFI and the German government met with Secretary Stuart E. Eizenstat, then United States Assistant Secretary of State, and sought the assistance of the United States government in resolving the litigation. Secretary Eizenstat entered into discussions with German officials concerning the establishment of one or more funds and helping the German companies obtain legal peace from lawsuits in the United States courts.
On December 14, 1998, Bodo Holmbach, Chancellor Schroeder’s chief of staff, and the German ambassador to the United States met with Secretary Eizenstat. They stated that Germany wanted to settle not only the slave labor claims but all other claims against German companies, including those against the banks and insurance companies. Mr. Holmbach officially asked Secretary Eizenstat to work with the German government and industry to resolve the class actions. Secretary Eiz-enstat agreed to do so as long as the class action lawyers also agreed. He persuaded the Germans that, in addition, the negotiations should include the Eastern European countries, whose forced workers had never been paid, the State of Israel, and the Conference on Jewish Material Claims Against Germany (the “Claims Conference”). During the negotiations that followed, Mr. Holmbach first represented the German government and was succeeded by Count Otto Lambsdorff.
On or about February 8, 1999, the first negotiating session between GEFI and certain plaintiffs’ counsel took place at the State Department. Plaintiffs’ counsel urged the use of the Federal Rules of Civil Procedure to resolve the pending litigation. GEFI rejected the use of Rule 23, refusing to accept continued involvement of the United States courts and insisting that the institutions established to provide recompense had to be German and not subject to American oversight. On February 16, 1999, Chancellor Schroeder and twelve German companies released a statement confirming the German companies’ intention to fund a private foundation that would make payments to former forced and slave laborers and other victims of National Socialism.
On or about May 12, 1999, the first plenary negotiating session was held in Washington, D.C., involving: i) numerous private lawyers (including Melvyn I. Weiss, Esq., Michael D. Hausfeld, Esq., Morris Ratner, Esq., and Professor Burt Neuborne, who acted as spokesmen for the victims); ii) the German defendants acting through GEFI; iii) the Claims Conference; and representatives of six nations with large victim populations — Belarus, Czech Republic, Israel, Poland, Russia, and Ukraine. The session was co-chaired by Mr. Holmbach and Secretary Eizenstat. GEFI and the German government ruled out a United States-style court supervised class action settlement.
As recounted by Secretary Eizenstat: “The first plenary session like the dozen or so that followed over more than a year, were occasions to make set speeches with
*612
maximum demands. The real negotiations took place in small meetings outside the formal sessions, with the plenaries nevertheless bestowing on all parties a sense of involvement.” Stuart E. Eizenstat,
Imperfect Justice
229 (Public Affairs Press 2003).
On or about June 22, 1999, the second plenary negotiating session took place in Bonn. The participants discussed the use of a German Foundation and the use of an Executive Agreement between Germany and the United States as a means of achieving legal peace. On or about July 23, 1999, the third plenary negotiating session took place in Washington, D.C., at which Count Lambsdorff replaced Mr. Holmbach. Agreement in principle was reached on the use of a German Foundation and an Executive Agreement.
The Fourth Plenary session took place on or about August 22-24, 1999, and discussions commenced concerning the size of the Foundation. Various plaintiffs attorneys had been voicing different, but uniformly high, demands, e.g., DM 60 billion, and GEFI was suggesting a dramatically lower amount — DM 1.7 billion.
(Id.
at 240-41). This put Secretary Eizenstat’s negotiating skills to a supreme test.
On or about September 6, 1999, the CEOs of the then-16 companies constituting GEFI met with Chancellor Schroeder and agreed to increase GEFI’s offer and the German Government agreed to partici-paté. Secretary Eizenstat had persuaded President Clinton to communicate personally with Chancellor Schroeder in an effort to obtain a more substantial commitment by the German companies and the German Government. He had been thinking in terms of a total commitment of DM 10 billion. As a result, two weeks after GEFI’s September 6 meeting with the Chancellor, GEFI raised its offer from DM 1.7 billion to DM 4 billion, and the Chancellor
1
proposed a DM 2 billion in government funds for a total of DM 6 billion.
(Imperfect Justice
at 242-43).
This has been a somewhat bloodless account of the discussions and controversies that took place between the various participants. Secretary Eizenstat’s
Imperfect Justic'e
portrays the charged nature of these interchanges and relates how his and Count Lambsdorff s crucial and continuing interventions prevented the negotiations from collapsing. After the October offer of DM 6 billion from the German side, Secretary Eizenstat’s primary efforts were devoted to seeking an increase in this amount and persuading the representatives of the victims to reduce their demands. He concluded that the principal source of additional funds would have to be the German Government and turned once again to President Clinton. In a November 13, 1999, letter to the Chancellor, the President stated that Secretary Eizenstat was acting as his personal representative in insisting that the Germans contribute a total of at least DM 10 billion and that there needed to be “ ‘a significant increase in the contributions from German companies beyond their opening offer of four billion D-marks’ and a willingness by the German Government to increase its two billion D-mark contribution, even if spread over two fiscal years.’ ” At that point, Count Lambsdorff informed Secretary Eizenstat that the best that could be achieved was a total of DM 8 billion.
(Imperfect Justice
at 248-49).
Various of the victims’ lawyers made impossibly high demands and feelings ran high on all sides. Secretary Eizenstat succeeded in obtaining a range of DM 6 billion to DM 10 billion from the German side and DM 10 billion to DM 15 billion from the victims and their lawyers.
(Id.,
at 250-51). He was, however, confronted by the German Government’s refusal to move from its “absolute maximum” of DM 3 billion by
*613
another DM 2 billion. Thus, the German position remained fixed at DM 8 billion. As Secretary Eizenstat expressed it, “[t]he Germans suspected that even if they agreed to settle at 10 billion, it would be only a temporary way station to some higher demand.”
(Id.
at 252-53).
Secretary Eizenstat then turned to the class action attorneys and ultimately persuaded them to drop their range to DM 10 billion to DM 11 billion. He then broached his “creative accounting” approach, upon which the
Schwartz Lee
and
Gross
plaintiffs rely so heavily.
I then engaged in what I could only call creative accounting. I persuaded Lambsdorff and Gentz to add interest that would be earned on the money while we were getting the cases dismissed and setting up the foundation, that would now be one joint private section-federal government organization. They ended up agreeing to pay at least 100 million DM in interest. But the most ambitious was my idea to create a “mirror image” fund for the dozens of American companies whose big German subsidiaries had employed slave labor. According to a 1943 Treasury Department list, the most celebrated names included Ford, General Motors, Gillette, IBM, and Kodak, among many others.
(Id.
at 254).
This plan did not come to fruition. Not surprisingly, the American companies were not interested in participating and, as Secretary Eizenstat stated, “[a]ll my creative accounting still could not bridge the gap, with the Germans stuck at 8 billion and the lawyers at 11 billion.”
(Imperfect Justice
at 255). In early December, the lawyers were backtracking, raising their demands. However, Count Lambsdorff approached Secretary Eizenstat and told him that “whatever Schroeder might be saying about sticking to 8 billion marks, if [Eiz-enstat] could organize a unified front from the victims for a settlement of 10 billion marks, the chancellor would rethink his position.”
(Id.
at 255-56).
Secretary Eizenstat described what happened next:
[Obtaining an organized front from the victims] would be no easy task with that fractious coalition. Singer [of the Jewish Claims conference] said that he, Weiss, Neuborne, Swift, and Fagan could accept 10 billion, but Hausfeld was the holdout.
I went back to Hausfeld and urged him to be a statesman. He now held the agreement in his hands, I said. After a long pause he said, “Okay.” But getting to 10 billion marks was not so simple. A few days later, Hausfeld, Weiss, and Neuborne marched into my office and announced they had reached a consensus. Hausfeld crowed proudly that they all would settle at 10.5 billion DM plus the additional costs of administering the foundation. I blew up at them, practically shouting, “You’re going to screw it all up over 500 million.” They asked to rethink the matter and marched out.
Neuborne and Hausfeld called later in the day to explain that they needed the extra 500 million DM to satisfy all the competing demands. I told them to forget it. Here again, Neuborne was a constructive influence, convincing Haus-feld to give in. Hausfeld then backed away, agreeing to 10 billion if I could raise an additional fund from American corporations. I foolishly said I hoped I could raise the equivalent of another 1 billion DM, or a half billion U.S. dollars, the figure Rintamaki had given me.
They took this as a commitment but agreed to settle with the Germans now
*614
and hope I could raise the next later. ...
(Id.
at 256)
Secretary Eizenstat telephoned Count Lambsdorff at 9:00 a.m. on Sunday, December 12, 1999, stating that he had a firm figure of DM 10 billion from the lawyers that the Count could take to Chancellor Schroeder. At 5:00 p.m. Count Lambs-dorff telephoned Secretary Eizenstat, informing him that the Chancellor wanted a letter from President Clinton confirming the lawyers agreement accepting the DM 10 billion and guaranteeing to end all legal action.
(Imperfect Justice
at 256).
The agreement for a capped fund of DM 10 billion and for providing legal peace was memorialized in President Clinton’s December 13 letter to Chancellor Schroeder and in Chancellor Schroeder’s December 14 response. A formal signing ceremony took place on December 17, 1999.
(Imperfect Justice
at 258-59).
After the amount to be paid to the Foundation had been agreed upon, the German companies had to go about the difficult task of raising the DM 5 billion; the German government had to draft the legislation establishing and governing the Foundation; an agreement between the United States and the Federal Republic of Germany had to be drafted; and the various groups of victims had to agree upon allocation of the DM 10 billion. Secretary Eizenstat described the allocation process:
But the problems with the draft legislation paled by comparison with the three-month torment of deciding how to allocate the 10 billion DM. Whatever semblance of unity
there had been
among the Eastern Europeans, plaintiffs’ attorneys, and Claims Conference in persuading the Germans to pay the maximum possible broke into open warfare as they tried to divide the pie. The process brought out the worst in everyone.
There were essentially three categories of claims that had to be satisfied. First were those of conscripted workers. The issue of how much should be allocated to each pitted Eastern Europeans against the Claims Conference. Second was banking and insurance. Here the principal battle engaged the class-action lawyers, who fought for individual claimants seeking damages for Aryanized assets and unpaid life insurance policies, and the Claims Conference, which sought a large humanitarian fund to help Holocaust victims in general, since most of the claimant families had been killed by the Nazis. And third was the Future Fund, so important to the German companies because it would identify them with project of tolerance and help them raise funds from German companies not implicated in World War II.
(Imperfect Justice
at 261-62).
Count Lambsdorff and Secretary Eiz-enstat had hoped to remain uninvolved in these disputes. However, it developed that their intervention was required to help resolve the differences between the various groups. The differences were so vast and the parties so intransigent that, as Secretary Eizenstat put it, “My job was clear. The only way to bring everyone together was for me to persuade Lambs-dorff to forge a joint proposal and ram it down everyone’s throat. Even the lawyers were ready. ‘Someone needs to break the tie, and we trust you to do it,’ Neuborne told me. So Lambsdorff and I set a ‘make or break’ session for Berlin for March 22-23. We had to put an end to the haggling or let everyone know the entire enterprise would collapse.”
(Id.
at 264).
Before the “make or break” session, Count Lambsdorff and Secretary Eizens-
*615
tat agreed on what they called the “Joint Chairman’s Proposal.” There followed furious further discussions and secret understandings. At the end of the day, as Secretary Eizenstat, stated, “[w]e had the 10 billion DM. We had agreed on how to divide it down to the last pfennig.” There remained the question of the mechanics of establishing legal peace, but the allocation was agreed upon.
(Id.
at 268).
There was one aspect of the contentious efforts to reach agreement on the allocation of the DM 10 billion that Secretary Eizenstat did not refer to in
Imperfect Justice.
It became apparent during the bitter negotiations that agreement could not be reached within the DM 10 billion and that DM 100 million more would be needed to fund the amounts allocated to the various categories of participants. In March, 2000, rather than have the whole process break down, GEFI and the German Government agreed that an additional DM 100 million would be paid, but, in order to avoid affecting the agreed upon DM 10 billion cap and thus weaken GEFI’s fund raising efforts, and breaching the Government’s and GEFI’s commitment to the legislature and public, the additional funds would be designated “interest.” This amount appears in Annex B of the Joint Statement, which allocates' the DM 10 billion plus precisely DM 100 million in “interest.”
Secretary Eizenstat’s counterpart, Count Lambsdorff, described the process as follows:
When it became clear that my American counterpart had incurred certain verbal obligations with the two leading partners, the Polish Government and the World Jewish Congress, which could be only matched by raising the Foundation Initiative’s contribution by 100 Mio. DM, after long and arduous talks the Foundation Initiative agreed under the proviso that this additional amount did not enter into the principal of the promised amount in public. This was the genesis of the word “interest”, in reality covering the fact that so far the total does not preclude the fact that once the sum was deposited in the Foundation’s Account, it generated a much higher interest than this sum and, as a matter of fact, the Future Fund of the Foundation is meant to be financed perpetually from interest earned.
In regard to that issue, on April 19, 2000, I wrote the following in a letter to Deputy Secretary Eizenstat: “In December 1999 the companies of the German Foundation Initiative agreed to do everything to contribute the amount of 5 billion DM to the Foundation capital, and in March this year they agreed to a specific allocation of further 100 Mio. DM generated by interest. -Although the Initiative’s difficulties raising this substantial amount are well known and have been deplored by the German Chancellor and myself publicly, I have no doubt that the Initiative will finally succeed”.
(Lambsdorff Decl. at Para. 12,13).
Even though in December, 1999, all the participants had agreed, in accordance with the Clinton-Schroeder correspondence, that the obligation of the German Government and the German companies was limited to DM 10 billion, Secretary Eizenstat pressed for an agreement to accelerate payment of this sum or to pay interest on it in addition to the DM 100 million pending the attaining of legal peace through the dismissal of the American lawsuits. For the laudable purpose of achieving greater compensation for the victims, Secretary Eizenstat vigorously pursued this objective, repeatedly submitting drafts of a Joint Statement that included provisions that the German company contribu
*616
tion of DM 5 billion would be a “present value” as of a specified date, or would be deposited in an interest — -bearing account as of a specified date, or would earn interest from a specified date. The German side uniformly rejected these proposals except that the German Government agreed that the initial portion of its DM 5 billion contribution would be made available to the Foundation by October 31, 2000, and the remainder of its contribution would be made available to the Foundation by December 31, 2000.
This strenuous, March to July, 2000, negotiating process over what was the equivalent of interest, is referred to in only a passing comment in
Imperfect Justice:
But Gentz’s greatest concern was over timing of German industry’s requirement to pay its 5 billion DM share of the 10 billion DM settlement. To avoid delay, I had suggested a certain date, like January 1, 2001. The Germans had rejected my suggestion, and in a major concession to them, I had reluctantly agreed that no payments would be required until all cases were dismissed.
(Id.
at 276).
The participants continued negotiating the terms of the Joint Statement, reaching agreement on July 12, 2000, on the language that appeared in the final version of the Joint Statement signed on July 17, 2000. Representatives of the United States and Germany signed the Executive Agreement, which, among other things, obligated the United States Government to file an agreed-upon Statement of Interest in support of dismissal of any pending or future Nazi-era litigation. On or about October 19, 2000, an exchange of diplomatic notes brought the Executive Agreement into full force and effect.
On August 12, 2000, the German Bundestag enacted the Foundation Law establishing the German Foundation “Remembrance, Responsibility and the Future.” On August 22, 2000, Professor Neuborne was designated by the United States as a trustee of the Foundation to occupy the vacancy set aside for a lawyer representing the victims. He joined Ambassador J.J. Bindenagel, the other United States designated trustee of the Foundation.
On or about August 30, the first meeting of the Board of Trustees of the Foundation took place in Berlin. On or about September 22, the second meeting of the Board of Trustees was held, at which the trustees elected three Directors to manage the day-to-day affairs of the Foundation and adopted a notice to victims and other programs.
On or about October 1, 2000, the German government transferred DM 2.5 billion to the Foundation. On or about December 1, 2000, the German government transferred an additional DM 2.5 billion to the Foundation.
The attorneys for the plaintiffs and for the defendants in the United States Nazi-era cases- proceeded to seek their dismissal with prejudice in order to fulfill one of the provisions of the Joint Statement. On November 13, 2000, Judge Bassler permitted voluntary dismissal with prejudice of forty World War II — related cases against German industrial defendants, including eleven members of the Initiative
1
. Defendants’ attorneys assured the court that the financial commitments contained in the Joint Statement would be honored.
See In re Nazi Era Cases Against German Defendants Litig.,
198 F.R.D. 429 (D.N.J. 2000).
*617
On or about December 8, 2000, and December 14, 2000, Chief Judge Mukasey of the Southern District of New York permitted dismissal with prejudice of German insurance cases.
The parties incurred a snag when they sought dismissal of the German banking cases pending before Judge Kram in the Southern District of New York. Although on December 28, 2000, Special Master Charles Stillman recommended dismissal of these cases, on January 20, 2001, Judge Kram denied dismissal. On March 28, Judge Kram denied a motion to reconsider her refusal to permit dismissal despite the fact that the Initiative’s founding members issued press statements that they had volunteered to make up any shortfall in the German company contribution.
On May 12, 2001, the Court of Appeals for the Second Circuit issued a writ', of mandamus directing Judge Kram to permit dismissal of the German banking-cases. On May 18 and 21, 2001, Judge Kram dismissed the German banking cases.
On May 30, 2001, the German Bundestag announced that “adequate legal security” had been achieved. As of that date at least seven lawsuits against German companies arising out of the Nazi-era and World War II remained pending before United States courts.
On or about August 21, 2000, German companies had advanced DM 2.7 million to the Foundation for start-up costs, particularly for notice to potential claimants. The German companies transferred additional funds to the Foundation beginning in June, 2001.
Controversy arose concerning GEFI’s obligation to pay interest, on what Plaintiffs have referred to as “6000 independent contributions during the deferral period,” and concerning a credit Allianz and other companies received for contributions they madé to the International Commission on Holocaust Era Insurance Claims.
Professor Neuborne, acting in his capacity as a trustee of the Foundation, filed litigation in the Eastern District of New York challenging the insurance credit and seeking to enforce his claim that additional interest was owing. In December, 2001, the German insurance companies made' an additional payment to the Foundation of DM 63 million. The lawsuit was withdrawn without prejudice.
III.
Procedural History
In June, 2002, Elly Gross and others filed their Complaint as third-party beneficiaries seeking recovery for breach of contract against the Initiative (GEFI) and against its founding companies. They allege that Defendants are obligated to pay intérest at the rate of at least 4 % per annum on the unpaid balance of the Initiative’s DM 5 billion obligation from and after July 17, 2000, the date of signing the Joint Statement, and that Defendants are obligated to pay to the Foundation all interest earned on approximately 6000 corn tributions the Initiative received from nonmembers of the Initiative.
In July, 2003, Bernard and Barbara Schwartz Lee brought a similar breach of contract action as third-party beneficiaries against Deutsch Bank AG and Dresdner Bank AG. They allege that in December, 1999, the German companies agreed to pay interest earned on their DM 5 billion from December 14, 1999. The Schwartz Lee complaint also includes a count alleging misrepresentation.
These complaints. were assigned to Judge Bassler. The Initiative and the Defendant corporations moved to dismiss the complaints pursuant to Fed.R.Civ.P. 12(b)(6) and argued, in the alternative, that the claims were nonjusticiable, i.e., that
*618
the political question and act of state doctrines as well as principles of international comity necessitated dismissal. In addition, the Defendants argued that Plaintiffs’ complaints were barred by the doctrine of
res judicata
as well as Plaintiffs’ inability to establish Article III standing.
In re Nazi Era Cases Against German Defendants Litig.,
320 F.Supp.2d 235 (D.N.J.2004),
rev’d sub nom. Gross v. German Foundation Indus. Initiative,
456 F.3d 363 (3d Cir.2006).
Judge Bassler held that the court had diversity jurisdiction but did not have federal question or supplemental jurisdiction. He found that venue was proper and that Plaintiffs adequately demonstrated that they had standing.
Judge Bassler addressed Defendants’
res judicata
argument. In 2002, a California citizen filed a similar action in
Widerynski v. Deutsche Bank AG,
No. BC 274449 (Cal.Sup.Ct.), alleging,
inter alia,
that the same defendants named in the
Schwartz
complaint failed to timely contribute the agreed sum of DM 5 billion, thereby misappropriating interest due to the survivors of Nazi atrocities. Among the grounds on which the California Court dismissed the complaint with prejudice was international comity, concluding “that the German Government has ‘exclusive supervision of the Foundation and on the exclusive postwar intergovernmental resolution of matters arising out of the Nazi era’.”
Gross,
320 F.Supp.2d at 244 . Judge Bassler held that the Plaintiffs were not bound by this decision under the doctrine of
res judicata
and observed in a footnote that “[t]he Court notes that the Foundation’s responsibility lies primarily in its efforts to distribute compensation to surviving Holocaust victims, not in how monies, including interest, owed it are calculated. Therefore, Defendants’ position that the German Government, specifically via the Ministry of Finance, has exclusive jurisdiction over the interest issue is debatable.”
Id.
at 244, n. 9 .
Judge Bassler also addressed and rejected Plaintiffs’ contention that Defendants’ promise to make “appropriate” interest payments (including the disputed payments) induced the court to dismiss the class actions against the German companies. He noted that Plaintiffs’ counsel recognized that the interest issue is ambiguous, and Professor Neuborne acknowledged that “reasonable people can disagree” over the interest issue embodied in Para. 4(d) of the Joint Statement. Judge Bassler concluded that “[cjlearly German Industry made no misrepresentation to this Court as to any definable interest obligation.”
Gross,
320 F.Supp.2d at 248 .
Judge Bassler turned to Plaintiffs’ argument that the Joint Statement was a classic bilateral contract that the court should enforce. He noted that “[t]he Joint Statement places the Foundation ‘as the exclusive remedy and forum for the resolution of all claims that have been or may be asserted against German companies arising out of the National Socialist era and World War II’.”
Id.
He also noted that the Joint Statement did not delegate similar jurisdictional authority over Para. 4 obligations of governmental and other parties under the Joint Statement, including the obligations of the German Government and German industry to pay principal and interest contributions under Para. 4(d). He concluded, “[a]s such, Defendants’ interpretation that the Joint Statement itself provides that the interest obligations are properly decided by the Foundation appears incorrect. Otherwise, the other directives listed in Para. 4 of the Joint Statement should also rest in the Foundation’s ‘exclusive remedy and forum[.]’. However, that conclusion is tenuous at best from a
*619
review of the other directives.”
Id.
at 248-9 .
Having expressed the foregoing opinions, however, Judge Bassler ultimately concluded that “Notwithstanding this Court’s reservations over whether the Ministry of Finance does in fact maintain exclusive jurisdiction over the interest issues, the Court is convinced that the political question doctrine precludes adjudication of whether additional interest is owed. That both Germany and the United States have committed the resolution of this issue to diplomacy over litigation is supported not only by the above correspondence but, more importantly, by history.”
Id.
at 253 . Accordingly, Defendants’ motion to dismiss on the ground of nonjusticiability was granted.
Plaintiffs appealed, and the Court of Appeals reversed.
Gross v. German Foundation Industrial Initiative,
456 F.3d 363 (3d Cir.2006). The Court held “that adjudicating the ‘interest’ dispute would not present a nonjusticiable political question.”
Id.
at 378 . The Court observed that “the ‘interest’ dispute is distinct from the underlying reparations claims, which led to the creation of the Foundation.”
Id.
at 381 . It further observed that “[t]he language [of the Berlin Agreements] supports the view that the claims for which the Foundation is the exclusive forum and remedy, and for which the United States is required to file a Statement of Interest, are reparations and restitution cases, and not the present ‘interest’ dispute.”
Id.
at 383 .
As a part of its discussion of the political question doctrine the Court noted that “there is much to support the view of the German Foundation Industrial Initiative that the Joint Statement is a political document” and not a contract,
id.
at 385 , but that “the parties’ characterizations of the Joint Statement bear primarily on the merits of the ‘interest’ dispute and not the question of justiciability.”
Id.
at 386 .
The Court also rejected Defendants’ arguments that the District Court should have restrained from adjudicating the claim under the act of state or international comity doctrines. The Court reversed and remanded the case for further proceedings, observing:
In adjudicating the case a court would have to interpret the Berlin Accords— specifically, Section 4(d) of the Joint Statement — to determine whether there is a binding, contractual “interest” obligation. A court would face at least two questions on the merits of this dispute: (1) is the Joint Statement, or part of the Joint Statement, enforceable as a private contract, and (2) if so, what “interest” obligation, if any, did the parties intend for the German Foundation Industrial Initiative?
Gross,
456 F.3d at 387 .
The case was remanded and, upon Judge Bassler’s retirement, reassigned. The parties in each of the cases conferred with the Court and filed four dispositive motions: i) the
Gross
Plaintiffs’ motion for summary judgment; ii) the
Schwartz Lee
Plaintiffs’ motion for partial summary judgment; iii) the
Gross
Defendants’ motion to dismiss the
Gross
complaint for failure to state a claim; and iv) the
Schwartz Lee
Defendants’ motion to dismiss the
Schwartz Lee
Complaint.
There were renewed pending motions to dismiss for lack of jurisdiction over the person filed on behalf of Defendants Al-lianz AG, Bayer AG, DaimlerChrysler AG, Degussa AG (sued as “Degussa-Huells AG”), Deutz AG, RAG AG, Robert Bosch GmbH, ThyssenKrupp AG (sued as “Friedr, Krupp AG Hoesch Krupp”), Siemens AG and Volkswagen AG.
*620
The Federal Republic of Germany moved in each case for leave to appear amicus curiae.
IV.
Gross Plaintiffs’ Summary Judgment Motion
The
Gross
Plaintiffs have moved for summary judgment. The reasons they advance to support their interest claims differ somewhat from those of the
Schwartz Lee
Plaintiffs, and, although they rely upon substantially the same evidence to support their respective claims, they interpret the evidence somewhat differently. Basically, however, their claims will rise or fall together.
A.
The Gross Plaintiffs’ Contentions:
The
Gross
Plaintiffs allege that Paras. 4(a) and 4(d) of the Joint Statement constitute a legally binding contract obligating Defendants to pay interest on the DM 5 billion from July 17, 2000, the date of signing the Joint Statement, until payment of that sum to the Foundation, at the rate of 4% per annum. According to Plaintiffs, Para. 4(d) provides for a guaranteed DM 100 million interest on the DM 5 billion obligation in connection with a deferral period estimated by the parties on July 17, 2000, to be approximately six months, which translates into annual interest at 4%. Because the deferral period extended much longer than the parties anticipated, interest for that period, according to Plaintiffs, is owed in an amount far greater than DM 100 million. Further, Plaintiffs contend that, because Defendants failed to make full payment on or shortly after May 30, 2001, when they claim the DM 5 billion payment was due, under Section 288(2) of the German Civil Code, interest is owing on the amounts in breach at 8% above the German market rate as calculated under Section 247 of the German Civil Code.
In addition, Plaintiffs assert that, during the deferral period, more than 6,000 small businesses, individuals, and institutions having no connection with Defendants’ unlawful World War II activities contributed funds to the Foundation and that the Initiative used interest on the 6,000 contributions to defray a portion of its DM 5 billion financial obligation to the Foundation. Plaintiffs seek summary judgment ordering Defendants to account for that interest and to pay it to the Foundation.
The Joint Statement is unique in that it is an undertaking signed by 36 private entities
2
, as well as by eight nations, and, if fully implemented, would result in dismissal with prejudice of pending litigation between private parties, in return for the payment of governmental and private funds. The specific obligations of the German companies are set forth in Para. 4(a) (to contribute DM 5 billion to the Foundation), and Para. 4(d) (to make the contribution “once all [designated] lawsuits against German companies ... pending in U.S. Courts ... are finally dismissed with prejudice by the courts,” and “to make available reasonable advanced funding to provide appropriate publicity ...” and to continue to collect funds “on a schedule and in a manner that will ensure that the interest thereon before and after their delivery to the Foundation will reach at least 100 million DM.”) Para. 4(g) sets forth the obligation of the Plaintiffs to file motions or stipulations to dismiss with prejudice all lawsuits they have filed currently pending in United States courts against German companies arising out-of the National Socialist era and World War II.
Other paragraphs of the Joint Statement contain the undertakings of Germa
*621
ny, the United States, the participating Central and Eastern European states, and Israel. Plaintiffs contend that, even though the obligations of the government parties cannot be enforced in a court of law, the mutual undertakings of the private parties are enforceable as a binding contract, with the state undertakings constituting conditions precedent, all of which have been performed.
In support of their position Plaintiffs cite
Sosa v. Alvarez-Machain,
542 U.S. 692 , 124 S.Ct. 2739 , 159 L.Ed.2d 718 (2004), for the proposition that there can be privately enforceable claims based on firmly established provisions of customary international law similar to Plaintiffs’ slave labor claims against German industry. It must be noted that the Alien Tort Claims Act, 28 U.S.C. § 1350 , with which
Sosa
was concerned, bears no resemblance whatsoever to the Joint Statement.
Despite the uniqueness of the Joint Statement, Plaintiffs point to the London Debt Agreement of 1953 as the closest international law analogy. The Agreement on German External Debts, Feb. 27, 1953, 4 U.S.T. 443, 333 U.N.T.S. 3. That Agreement involved close cooperation between governments and private creditors in restructuring post-war Germany’s external debt. It was not formally signed by any private parties. Nevertheless, the private rights acquired by German companies under the London Debt Agreement have been judicially enforced. By the same token, Plaintiffs contend, the obligations of the private parties who did sign the Joint Statement should be enforced.
In
Am. Ins. Ass’n v. Garamendi,
539 U.S. 396 , 123 S.Ct. 2374 , 156 L.Ed.2d 376 (2003), defendants enforced the Joint Statement against the State of California, successfully arguing that the terms of the financial agreement in Para. 4(a) established a “hard law” judicially enforceable ceiling that invalidated California’s attempt to provide additional relief to victims.
In
Winters v. Assicurazioni Generali S.p.A.,
No. 98-9186, 2000 WL 1858482 , 2000 U.S. Dist. LEXIS 18193 (S.D.N.Y. Dec. 18, 2000), Defendants, including counsel for GEFI, argued before Chief Judge Mukasey that plaintiffs’ promises in Para. 4(g) and Annex A of the Joint Statement generated judicially enforceable “hard law,” entitling the Swiss parent of German insurers to dismissal of World War II-related insurance cases. At defendants’ request, Chief Judge Mukasey agreed to construe the terms of Para. 4(g), holding that “[a]s applied to this case, the Berlin Agreements constitute, collectively, a settlement agreement” that would bind the plaintiffs.
Id.
The Plaintiffs’ position is well summarized in the following statement:
In fact, the Joint Statement, a unique public/private hybrid, contains
both
a private settlement agreement between and among 36 private signatories,
and
a series of nonbinding political undertakings by eight sovereigns that function as conditions precedent to the enforceability of the private bargain.
See O’Leary v. Grace/Newark Hous. Ltd. P’ship.,
31 Fed.Appx. 784, 786 (3d Cir.2002) (“Under basic contract law, a condition precedent is ‘an event, not certain to occur, which must occur, unless its non-occurrence is excused, before performance under a contract becomes due.’ ”).
(PLs’ Br. at 51-52).
and
... Viewed
ex post
from May 30, 2001, the date the German Bundestag formally recognized that all conditions precedent had been satisfied no basis whatsoever exists to fail to recognize that the private financial bargain at the core of
*622
the Joint Statement is legally binding. Accordingly, given the performance of the conditions precedent set forth in paragraphs 1, 2, 4(b), 4(c) and 4(g), defendants’ financial promises in paragraphs 4(a) and 4(d) are contractually binding as a matter of law.
(Id.
at 58).
In further support of their contention that the financial undertakings recited in Para. 4 of the Joint Statement were intended by the private signatories to be legally binding, Plaintiffs rely on the definitiveness of the language of Para. 4 itself, the intensity with which the parties negotiated the reciprocal obligations of the parties (to pay a designated sum for complete “legal peace”) during a six-month period, multiple declarations of the parties, and the Post-Berlin Agreement activities of the parties, including Defendants’ representations to federal judges during proceedings when the parties were seeking dismissal with prejudice of the more than 60 cases pending against Defendants in United States courts.
To support their contention that Para. 4(d) does not constitute a DM 100 million fixed sum, but, rather, requires payment of interest at the rate of 4% per annum from July 17, 2000, Plaintiffs rely in the first instance on what they claim is the unambiguous language of the Joint Statement. They contend that “[cjourts in both Germany and the United States share a common approach to the construction of a contract. Each begins with the text. An unambiguous text with a ‘plain meaning’ cannot be altered by extrinsic evidence.”
(Id.
at 74-5). Applying this principle, Plaintiffs argue that “[t]he plain meaning of the term ‘at least’ as connoting a minimum makes it impossible for Defendants to argue persuasively that the term establishes a
ceiling
on interest, as opposed to a floor ... It is equally impossible to argue that the word ‘interest’ really means ‘additional principal’.”
(Id.
at 45). The language of the Joint Statement alone, Plaintiffs urge, entitles them to summary judgment.
B.
Evidence Upon which Gross Plaintiffs Rely:
Were the court to perceive an ambiguity in the meaning of “at least,” however, Plaintiffs contend “the massive extrinsic evidentiary showing by plaintiffs, including Secretary Eizenstat’s firm recollection that the terms ‘at least’ was designed to set an interest floor not a ceiling ... together with declarations from the principal negotiators for the victims attesting to a similar understanding of the text, renders it impossible to treat the term ‘at least’ as setting an interest ceiling.”
(Id.
at 86).
The extrinsic evidence upon which the Plaintiffs rely is set forth in a number of Declarations. Principal among these are the Declarations of Professor Neuborne, which identify and rely upon a large number of critical documents. In addition, Plaintiffs submit the Declarations of Professor Michael J. Bazyler, Melvyn I. Weiss, Esq., and Secretary Eizenstat. Secretary Eizenstat’s Declaration incorporates by reference chapters 10-13 of his book,
Imperfect Justice: Looted Assets, Slave Labor, and the Unfinished Business of World War II
(2003). These chapters describe the negotiations leading to the Berlin Agreements, and the court has relied upon them extensively in formulating the Background section of this opinion.
Professor Burt Neuborne, co-counsel for the
Gross
Plaintiffs, has been a leading champion of the slave and forced labor victims from the start of their pursuit of their claims in United States courts. He was co-counsel in numerous cases seeking recovery. He participated at the invitation of the United States in the complex negotiations with representatives of GEFI that
*623
led to the establishment of the Foundation. He is one of the signatories of the Joint Statement. He is the United States attorney-appointee to the German Foundation Board of Trustees with special responsibility for protecting the interests of victim beneficiaries.
In his Declaration, Professor Neuborne asserts that “representatives of victims believed that the text of the Joint Statement assumed that interest would be earned on the funds constituting the Initiative’s DM 5 billion principal obligation: (a) during the deferral period [the period between July 17, 2000 and the date of the Initiative’s payment to the Foundation]; and (b) subsequent to payment to the Foundation, but before substantial payments could be distributed by the Foundation.” (Neu-bome Dec. at Para. 79). This would provide the extra funds needed to meet the demands of the various representatives of the victims. It was estimated that the deferral period, the time required to dismiss the United States- lawsuits, which would trigger payment by GEFI, would be six months. At a 4% interest rate, interest on DM 5 billion would result in an additional payment of DM $100,000 million by GEFI. Because GEFI agreed to pay certain sums into the Foundation immediately upon the signing of the Joint Statement to permit notice and administrative programs to commence, “the parties agreed that DM 100 million interest minimum payable by the Initiative would include interest on both German Foundation funds retained by the Initiative during the deferral period pending transfer to the Foundation, and funds transferred to the Foundation prior to the expiration of the deferral period.”
(Id.
at Para. 84).
According to Professor Neuborne, “[t]he Initiative agreed that the DM 100 million interest guarantee would be payable to the Foundation even if the deferral period were shorter than the anticipated six months needed for the dismissal of the American eases. But the parties were careful to insert the phrase ‘at least’ into the interest provision to make- it clear that if the deferral period lasted longer than six months, additional appropriate interest would be payable.” (Neuborne Dec. at Para. 85, 86).
In a Supplemental Declaration, dated January 18, 2007, Professor Neuborne spelled out in more detail the rationale of the Plaintiffs’ position on interest. He states “aided by exhortations from President Clinton and Chancellor Schroeder, on December 17, 1999, the parties firmly agreed to the establishment of DM 10 billion Foundation plus interest, in return for the dismissal with prejudice of all pending litigation and the signing of an Executive Agreement providing protection against future litigation.” (Neuborne Supp. Dec. at Para. 16). Because potential claims upon the fund far exceeded DM 10 billion and many classes of victims and distribution agencies were to be recipients of the funds, “the allocation discussions [among representatives of the victims, agencies and nations] were extremely difficult, reaching a potential breaking point in mid-March, 2000.”
(Id.
at Para. 17). On March 22, 2000, “with Secretary Eizens-tat’s help, the negotiators agreed on a general allocation of DM 8.1 billion to slave and forced laborers; DM 1 billion to property and personal injury claimants; DM 700 million to the Future Fund; and DM 200 million to the administrative costs of operating the Foundation, including the payment of all attorneys’ fees. [A total of DM 10 billion]. The formula is set forth in
Appendix B
to the Joint Statement.” (Neuborne Supp. Decl. at Para. 20).
Attention then turned to interest and “focused on the likelihood that substantial interest would be earned on the Founda
*624
tion’s DM 10 billion principal during the time needed to dismiss the American cases and to verify and process claims.... Estimates of potential earned interest centered on DM 400 million in the first year of the Foundation, premised on a 4% return on the Foundation DM 10 billion principal.”
(Id.
at Para. 22).
Para. 4(d) of the Joint Statement was not in existence until after these discussions of the use of various sources of interest to fatten the DM 10 billion available to compensate victims. When the paragraph was agreed to, the representatives viewed “[t]he language of paragraph 4(d) contractually assuring an earned ‘interest’ floor of ‘at least DM 100 million’ during the period required to dismiss the United States cases permitted a formal allocation of DM 10.1 billion to be reflected in Annex B to the Joint Statement and the Foundation Law, satisfying concerns of Eastern European countries, the Claims Conference, and prospective insurance claimants.”
(Id.
at Para. 23). Further, “the prospect of substantial additional earned interest over and above the DM 100 million guaranteed interest floor was viewed by the negotiators as a crucial hedge against the unavoidable uncertainty surrounding the Neithamer demographic estimates of the number of eligible beneficiaries in various countries, especially surviving slave laborers.”
(Id.
at Para. 24).
The negotiators for the victims sought to ensure payment of interest by having the respective DM 5 billion principal obligations of both GEFI and the German government paid into the Foundation prior to dismissal of the United States cases “in order to maximize the earned interest for the victims during the time needed to achieve the dismissal of the cases pending in the United States.” (Neuborne Supp. Decl. at Para. 30).
The German government agreed to pay its DM 5 billion debt to the Foundation in two equal installments of DM 2.5 billion each, on October 31 and December 31, 2000. Each installment was paid a month in advance and, once paid, the Foundation commenced earning interest on the funds.
GEFI refused to pay its DM 5 billion until the United States lawsuits were dismissed with prejudice but agreed to pay “interest” of “at least DM 100 million” in addition to the DM 5 billion. Contrary to Defendants’ position that the DM 100 million “interest” in Para. 4(d) was a fixed figure, Plaintiffs’ position is:
The negotiators were hopeful that the deferral period needed to secure dismissal of the cases pending in the United States would approximate six months. It was believed that the Panel on Multi-district Litigation would consolidate the large number of pending cases before a single judge for orderly and expeditious dismissal. The negotiators fully understood, however, that the words “at least” were crucial to assuring that earned interest would continue to accrue during the deferral period if, despite the expectations of the parties, the deferral period extended beyond the estimated six month period.
(Id.
at Para. 33).
In addition to the Declaration of Professor Neuborne, Plaintiffs submitted in support of their position the Declarations of Professor Michael J. Bazyler, Melvyn I. Weiss, Esq., and, most importantly, former Assistant Secretary of State, Stuart E. Eizenstat. Further, Plaintiffs in the
Gross
case relied on the Declaration of Michael Hausfeld, Esq. The substance of that Declaration will be set forth in the summary of the evidence that the
Schwartz Lee
Plaintiffs rely upon.
Professor Bazyler is one of the foremost scholars studying and analyzing the efforts
*625
of Holocaust victims to secure redress against private defendants for Nazi-era economic losses. He has written widely on the subject, taught and testified about it. He has conducted vast research in the field, including interviewing participants in the negotiations culminating in the establishment of the Foundation and reviewing-public statements and publicly available papers of these participants.
Professor Bazyler concluded from his research that “[f]rom the beginning of the negotiations on February 8, 1999 through the signing of the Joint Statement in Berlin on July 17, 2000, the paramount aim of the Initiative was to secure: (i) dismissal with prejudice of all WWII-era litigation pending in the United States courts against German industrial defendants; and (ii) protection against future similar litigation, at the lowest possible cost to the defendant industrial corporations that constituted the Initiative.” (Bazyler Decl. at Para. 8(c)). He concluded that “[t]he Joint Statement signed by all parties was viewed as a private settlement agreement that would be legally and mutually binding on the Initiative and the class action victims once the Initiative had achieved its goal of ‘legal peace.’ ”
(Id.
at Para. 8(g)).
Concerning the role of interest, Professor Bazyler stated:
a.Beginning with the November 13, 1999 plenary negotiating session, the negotiators were intensely concerned with the prospect that earned interest could expand the capacity of the German Foundation to provide compensation to victims. Deputy Treasury Secretary Stuart Eizenstat has confirmed in his memoir
Imperfect Justice
(at pg. 254) that, at the November 13 plenary, he persuaded the Initiative to commit to paying “at least” DM 100 million in “interest” during the period needed to secure the dismissal of cases pending in the United States.
b. The negotiators’ concern with earned interest took on greater intensity once the. German Foundation’s principal was fixed at DM 10 billion at the December 17, 2006 [1999] plenary negotiating session. Since the negotiators for the victims understood that the victims’ valid claims on the German Foundation assets could very likely exceed DM 10 billion, the prospect of earned interest was an essential component of the final allocation agreement.
c. It would have been impossible for 'the negotiators to reach an allocation agreement on March 22, 2000 in the absence of calculations indicating that the Foundation’s DM 10 billion principal would be able to earn .an additional DM 400 million in its first year under the then-prevailing 4% interest rate. The estimated DM 400 million interest figure included the guaranteed DM 100 million in interest on the Initiative’s DM 5 billion obligation payable during the period needed to secure the dismissal of the United States cases, a process that the negotiators believed would take not more than six months.
(Bazyler Decl. at Para. 9).
Professor Bazyler then repeated Professor Neuborne’s analysis of the reasoning that resulted in the DM 100 million figure and his rationale supporting the Plaintiffs’ position that GEFI’s payment of interest at 4% was a continuing obligation until payment of the full DM 5 billion to the Foundation.
Mr. Weiss had served as counsel for the Plaintiffs in numerous cases against German industrial defendants seeking relief in connection with unlawful behavior by German industry during the Nazi era. In February, 1999, he was one of those invited by Secretary Eizenstat to participate in
*626
negotiations with GEFI and with representatives of the German government in an effort to resolve the pending litigation in the United States courts. He participated fully in the ensuing negotiations as one of the principal negotiators for the victims.
Mr. Weiss described how, at the first meeting with GEFI, which took place on February 8, 1999, he urged that the pending litigation be settled by negotiating a class action settlement pursuant to Fed. R.Civ.P. 23(e). GEFI firmly rejected the use of Rule 23 and insisted that no funds be paid until all pending World War II era litigation was dismissed with prejudice and adequate protection was provided against future litigation. Eventually agreement was reached on use of the Foundation as the settlement vehicle. Mr. Weiss states that “[sjince the negotiations were like any other settlement, discussions, we insisted that all of the contracting parties sign a binding agreement, resulting in the execution of the Joint Statement. I was adamant that any document memorializing the final bargain be legally binding. I would never have signed the Joint Statement if I believed that it committed me to dismiss my clients’ claims with prejudice in the absence of any legally binding obligation on the part of the Initiative.” (Weiss Deck Para. 8).
With respect to interest on the DM 10 billion, Mr. Weiss states, “[i]n connection with those negotiations, the parties discussed the prospect that the Foundation’s DM 10 billion would earn substantial interest at market rates during the period needed to dismiss cases pending in the United States and process the victims’ claims. Since the prevailing German market rate was 4% in 2000, the negotiators anticipated' that the Foundation would earn DM 400 million on its DM 10 billion principal during ■ its ■ first year of operation.”
(Id.
at Para. 11).
Mr. Weiss described the attempts of the victims’ negotiators to prevail upon the German government and GEFI to place their respective DM 5 billion obligations into the Foundation prior to dismissal of the actions pending in the United States “so that the funds could begin earning interest for the victims.”
(Id.
at Para. 13). The German Government agreed to pay its share on October 31 and December 31, 2000, but GEFI insisted upon waiting until dismissal with, prejudice of the United States cases. With respect to the DM 100 million “interest” payment GEFI agreed to pay, Mr. Weiss stated:
Thus, the parties assumed that within approximately six months of the execution of the Joint Statement, the Initiative would place its DM 5 billion obligation into the foundation, together with a guaranteed “interest” payment of “at least” DM 100 million accrued during the deferral period. The Foundation would then consolidate the combined total of DM 5.1 billion with the German government funds already in the Foundation, plus the interest that had accrued on those funds, and so that all of the funds held by the Foundation would earn interest for the victims at 4% during the period needed to process claims. In order to- assure that the DM 5 billion obligation would earn uninterrupted interest for the victims during any unexpected prolongation of the deferral period, negotiators for the victims, with the support of the United States, insisted -that the term “at least” modify the guaranteed figure of DM 100 million. It was clear to me that the promise to pay “at least” DM 100 million in “interest” during the deferral period established a DM 100 million floor on interest, not a ceiling. I would not have agreed to such a
*627
ceiling because it would have created a substantial risk of a “dead” period during which the Initiative’s DM 5 billion principal obligation would have ceased to earn interest for victims, thereby undermining the carefully negotiated allocation agreement which assumed the uninterrupted flow of earned interest.
(Id.
at Para. 16,17).
Secretary Eizenstat, along with his German counterpart, Count Lambsdorff, played a momentous role in bringing the governments, parties, and other agencies to agreement. During the period 1993-2000 he had served as United States Ambassador to the European Union, Assistant Secretary of Commerce, Assistant Secretary of State, and Deputy Secretary of the Treasury. With that vast range of experience he was well suited to serve as President Clinton’s Special Envoy for Holocaust Restitution. He proved to be a zealous negotiator and advocate for the victims during the period when the Berlin Agreements were being forged. Despite his pursuit of maximum compensation for the victims, all parties to the negotiations trusted Secretary Eizenstat totally. He described the negotiations in chapters 10-13 of
Imperfect Justice.
In his Declaration, submitted in support of Plaintiffs’ position in this case, Secretary Eizenstat reaffirms the description of the negotiations set forth in
Imperfect Justice.
In the present case, Professor Neuborne relies upon Secretary Eizenstat’s book, stating, not in his Declaration, but in Plaintiffs’ Brief (at 19-20):
At the November 13 plenary, Secretary Eizenstat, seeking to narrow the gap [concerning the size of the fund] raised the issue of interest for the first time. In his words:
“I then engaged in what I could only call creative accounting. I persuaded Lambsdorff and Gentz [the Initiative’s chief negotiator] to add the interest that would be earned on the money while we were getting the cases dismissed and setting up the Foundation ... They ended up agreeing to pay
at least
100 million in interest.”
3
In a footnote to this quotation, Plaintiffs add, “[t]hus, the agreement to pay interest during any deferral period was in place on December 17, 1999.” (Pl.s’ Br. at 19-20).
Nowhere in his one and one-half page Declaration does Secretary Eizenstat state that “the agreement to pay interest during any deferral period was in place on December 17,1999.” Rather, he states:
It is my firm recollection that sentence 7 of paragraph 4(d) of the Joint Statement of Principles, which reads:
German company funds will continue to be collected on a schedule and in a manner that will ensure that the interest earned thereon before and after their delivery to the Foundation will reach at least 100 million DM.
was intended to establish a minimum interest figure payable to the Foundation in connection with the deferral during the period needed to attain “legal peace” of the German Foundation Industrial Initiative’s obligation to pay DM 5 billion to the Foundation. The language, which was carefully negotiated, was not intended to establish an interest ceiling, or to describe an addition to principal. It was a highly contentious matter in negotiations and the understanding was carefully negotiated.
The foregoing is a summary of the
Gross
Plaintiffs’ contentions and of the evidence
*628
that they contend entitles them to summary judgment.
Y.
Schwartz Lee Summary Judgment Motion
A.
Schwartz Lee Plaintiffs’ Contentions:
Plaintiffs, Bernard and Barbara Schwartz Lee, allege that not only were they compelled to perform slave labor for German industry during World War II but also that they lost extensive family property and assets to Aryanizations by Defendants, Deutsche Bank and Dresdner Bank. The backdrop of the complaint is the same as that of the
Gross
complaint — the international talks that led to the Berlin Agreements and the creation of the Foundation. The Complaint asserts two causes of action — one for breach of contract and the other for fraudulent misrepresentation
4
.
The breach of contract claim starts with the undisputed allegation that in December, 1999, the German Government and German industry agreed that they would pay DM 10 billion to the Foundation for compensating victims. The consideration for this payment was resolution of existing and avoidance of future lawsuits in United States courts against German companies for wrongs arising during the Nazi-era. The dispute among the parties arises from Plaintiffs’ claim that in December, 1999, the German Initiative agreed to pay interest on the promised funds.
Plaintiffs allege that in December, 1999, an agreement was reached requiring the German Government and German industry to contribute DM 10 billion to the Foundation “to terminate litigation pending in American courts against German defendants.” (Compl. Para. 23-32). Plaintiffs further allege that in early December, 1999, the Germans made an offer of DM 8 billion, which Plaintiffs rejected.
(Id.
at Para. 23). On December 13, 1999, the Complaint alleges, Mr. Hausfeld wrote to Count Lambsdorff extending a counteroffer with the language, “[t]he German side agrees to a 10 billion DM present value settlement, excluding costs of administration, distribution, notice, and fees ...”
(Id.,
at Para. 24). The Complaint alleges that Secretary Eizenstat responded the next day by informing Mr. Hausfeld in a phone call that “[t]he Germans have accepted. You have a deal.”
(Id.,
at Para. 26). Plaintiffs claim that this interchange constituted the Agreement and that the Agreement committed the German companies to provide the Foundation with all interest earned on their DM 5 billion contribution as of December, 1999.
(Id.
at Para. 3, p. 83-86).
It is the Plaintiffs’ contention that the July 17 Joint Statement confirmed the Agreement reached in December, 1999, and provided for the timing of the payments and other steps to be taken by the signatories to the Joint Statement. Anticipated interest was the source of funds needed to satisfy the demands of all those representing victims. Unless the demands were satisfied they would not have signed the Joint Statement which permitted the settlement to proceed.
*629
Plaintiffs allege that legal peace was achieved on May 30, 2001, when the German Bundestag issued a Resolution declaring that “legal peace” had been achieved, thus triggering German industry’s obligations under Para. 4(d) of the Joint Statement. According to the Complaint, not only did German companies fail to remit to the Foundation the DM 5.1 billion they admitted they owed, they failed to pay over, or even acknowledge that they owed, interest in excess of DM 100 million on assets they had held for the Foundation.
Plaintiffs’ legal arguments parallel those of the
Gross
Plaintiffs. Their specific claims against Defendants are:
i) Defendants paid only DM 3.9 billion in principal immediately upon the achievement of legal peace, not completing payment of principal until at least 2002.
ii) Defendants’ use on account of their principal obligation of a) interest on amounts collected for ultimate distribution to the Foundation and b) interest on the 8,500 contributions (See
Schwartz Lee
Memo in Support of Motion for Partial Summary Judgment at p. 31 for this figure) by generous parties for ultimate distribution to this Foundation was improper.
iii) Defendants have failed to pay all interest earned on the principal collected for the Foundation.
Plaintiffs note that “[w]hether Defendants owe interest dating back to the date of the oral agreement, December 17, 1999, or only to the date of the Joint Statement, July 17, 2002, cannot be resolved on summary judgment prior to discovery. Plaintiffs are moving solely for summary judgment on the fact that, irrespective of which date interest began to accrue, Defendants have failed to pay that interest to the Foundation.”
(Id.
at 33).
B.
Evidence Upon which Schwartz Lee Plaintiffs Rely:
In support of their motion for partial summary judgment the
Schwartz Lee
Plaintiffs rely upon the Declaration of Michael D. Hausfeld, Esq., and documents accompanying the Declaration created during, or describing, the negotiations of the Berlin Agreements. The following portions of this opinion summarize Mr. Hausfeld’s Declaration and draw upon the documents he relies upon.
Mr. Hausfeld played a leading and critical role in the process that led to these Agreements. He served as counsel in a number of cases raising claims against German industry for its use of forced and slave labor during the Nazi era. He served as counsel for those Plaintiffs in negotiations to resolve the claims. He advised the Central and East European nations and their survivor associations that participated in the negotiations in order to support the claims of their nationals, who made up the largest proportion of forced and slave laborers.
In early October, 1998, Martin Mendel-sohn, Esq., and Mr. Hausfeld approached Secretary Eizenstat, then Under Secretary of State for Economic, Business, and Agricultural Affairs, with a detailed proposal for resolving the lawsuits through an international conference that would bring together the private sector and the German government, combining funds for global resolution. (Hausfeld Decl. at Para. 13). The proposal contemplated negotiations in three separate areas — Slave/Forced Labor, Banking, and Insurance — and that the agreed upon settlement fund would be under United States court supervision.
(Id.
at Exh. 4). Secretary Eizenstat reacted positively to the approaches of the Plaintiffs’ attorneys to him. He advised President Clinton, Vice President Gore, and Secretary Albright of the suggestion and communicated with the German government. He arranged with Minister Holm-
*630
bach for a second meeting with Plaintiffs’ attorneys in Germany.
(Id.
at Exh. 6).
In October, 1998, Gerhard Sehroeder was Chancellor-elect of Germany. His predecessor, Helmut Kohl, had rejected proposals for a Government fund to compensate- forced/slave laborers, contending that the German Government had already paid out tens of billions of dollars in various forms of compensation for Holocaust victims and did not want to pay more. Representatives of German industry approached Chancellor-elect Sehroeder urging that, in light of the serious direct and indirect consequences of the lawsuits upon German industry, the Government should take a lead in creating a fund to compensate former workers to which the industry representatives volunteered to contribute.
(Id.
at Exh. 7).
In February, 1999, Mr. Hausfeld met with Germany’s Minister of the German Chancellory, Bodo Holmbach, and Secretary Eizenstat for initial discussions. (Hausfeld Deck at Para. 16), and a February 17, 1999, New York Times article announced that “Chancellor Gerhard Schroeder today announced establishment of a fund, projected to amount to $1.7 billion financed by 12 German companies, to compensate victims of the Nazis era and end what he called ‘the campaign being led against German industry and our country.’ ”
(Id.
at Exh. 9).
On May 11 and 12, 1999, the United States Department of State hosted the first plenary session to explore the possibility of settling the litigation against German companies. Further plenary sessions took place in Bonn and Washington from June 22,1999, through July 17, 2000
(Id.
at Para. 19, 20). The plenary sessions were attended by Plaintiffs’ counsel; representatives of German industry; representatives of the governments of Belarus, the Czech Republic, Israel, Poland, Russia, and Ukraine; representatives of the Central and East European Reconciliation Foundations; officials of the Government of the Federal Republic of Germany; officials of the United States Government; and representatives from the Conference on Jewish Material Claims Against Germany.
(Id.
at Para. 21). Secretary Eizens-tat, on behalf of the United States, and Bodo Holmbach, on behalf of Germany, chaired the negotiations. Later, Count Otto Lambsdorff replaced Mr. Holmbach.
(Id.
at Para. 22).
During the plenary sessions and during working sessions dealing with specific problems, the participants had to address numerous complex issues such as the amounts of German Government and industry contributions, the categories of victims who would share in the fund, the method of terminating the lawsuits in the United States, how to ensure that German industry would have “legal peace,” i.e., not be subjected to future lawsuits, how the fund would be operated, establishment of a “future fund” for humanitarian and Holocaust-related projects, and dealing with issues of banks, Aryanized property, and insurance.
At the June 22, 1999 plenary session, among the agreed positions was:
The participants were unanimous that the call of the participating companies and the German government for a final and comprehensive legal settlement as a prerequisite for their financial commitment was legitimate. They should not be asked to pay twice. As concerns the class actions in the USA, the search for a third way should be accelerated, since the U.S. Government has rejected the idea of an Executive Agreement excluding law suits, and the companies do not want to accept a settlement in court. Under Secretary Eizenstat appealed to the creativity of the plaintiffs’ lawyers,
*631
who likewise accept the desirability of legal closure.
(Hausfeld Decl. at Exh. 19).
On June 30, 1999, Roger M. Witten, Esq., counsel for GEFI, submitted to Secretary Eizenstat a “Third Way” designed to assure the German companies that they would be protected from future litigation.
The essence of our proposal is that, simultaneous with the achievement of consensus on the structure, operation, and funding of the Foundation Initiative, the U.S. Government would commit itself in a bilateral executive agreement with Germany to seek dismissal of all current and any future lawsuits in view of the establishment of the Economy Foundation. The executive agreement would require the United States to fulfill this commitment by filing a Statement of Interest in each court where a current or future case is pending. That Statement of Interest would urge the court to dismiss — not on the ground that the executive agreement legally binds the court to dismiss under the
Dames & Moore
line of cases, but rather on the ground that the court should dismiss for the reasons set forth in the Statement. With respect to the currently pending cases, the United States would file this Statement of Interest in a context in which the participating parties had achieved consensus on the Foundation Initiative and, on that basis, would simultaneously ask the court to dismiss.
(Id.
at Exh. 20, p. 1-2). The Legal Closure Working Group concluded that the Witten proposal was a viable option.
Mr. Hausfeld hired economists to put together a framework for determining the total number of foreign forced laborers and to estimate the economic value of the forced labor (Hausfeld Decl. at Para. 42-44). During August, 1999, Mr. Hausfeld and Dr. Manfred Gentz, who represented German industry, exchanged correspondence in which they disagreed about a number of points and in which Mr. Haus-feld expressed exasperation about the pace of negotiations.
(Id.
at Exh. 27, 28).
In September, 1999, the participants in the negotiations sought resolution of the amount that would be paid into the fund. On September 13, 1999, Chancellor Schroeder wrote to President Clinton, agreeing that “this Initiative is an extremely important project concerning a matter of unique moral and human significance” but observing that “the conclusion of pending civil actions, as well as the prevention of future actions based on new facts in connection with the Nazi era are, in view of the German Government, further imperative prerequisites for the success of the Initiative.”
(Id.
at Exh. 33).
A memorandum to the President, cleared by Secretary Eizenstat, addressed a number of subjects, but got to the heart of the matter — money:
Deputy Secretary Eizenstat told Count Lambsdorff in late August that the German government and companies would need to provide the proposed German foundation with a combined contribution of 10 billion D-marks ($5.5 billion). We would need this amount so that we could argue publicly and in court that the German offer is a fair settlement. That amount is also critical because the Germans have also insisted on a settlement which would cover all injuries from World War II related to German companies: not only forced/slave labor cases, but bank cases involving the aryanization of property, insurance cases, and other matters, e.g., medical experimentation.
Our information is that the Germans may propose in this week’s round of talks an amount that will be no more than 6 billion D-marks. German industry
*632
would provide only 4 billion D-marks and the German government would provide only 2 billion. The German companies are disappointed that their government will fail to match fully their offer, as they had expected. Schroeder’s budget constraint is a factor. The expected low German offer is probably also based on the assumption that they have no legal liability and that Poland and the Czech Republic will not wish to create a public political dispute with Germany at this time. However, this position fails to take into account a negative public reaction if the offer is too low, and also fails to recognize that class action lawyers will be unwilling to settle for this amount. Moreover, there is a prospect that the judges erred and the lower court rulings will be reversed on appeal. We recommend that you praise the Chancellor for his leadership in this matter and argue for an opening German offer closer to 10 billion D-Marks, with an eventual willingness to go up to this level if necessary. We believe that an eventual settlement will not be possible if it is much below 10 billion D-Marks.
(Hausfeld Deck at Exh. 34, p. 4-5).
At a Fifth Plenary session held on October 7, 1999, the German side offered a total of DM 6 billion to resolve the lawsuits, which the Plaintiffs rejected
(Id.
at Para. 55, 56). Mr. Hausfeld engaged in discussions with Count Lambsdorff after he received an October 29, 1999, letter from Dr. Gentz. Dr. Gentz reported that Count Lambsdorff “is striving hard and not always to the applause of other German participants to bring the German offer closer to a point where he feels everybody should be, as Graf Lambsdorff puts it, ‘mildly dissatisfied.’ I have to assure you, however, that the figure he has in mind is nowhere near the 12 billion dollars you proposed and is not even 10 billion marks as ventilated elsewhere.” He added, “I think we also agree that there is no alternative to investing the Reconciliation foundations and similar organization with the execution of payment.”
(Id.
at Exh. 37).
On November 4, 1999, Reuters reported that mediators Eizenstat and Lambsdorff were to meet in Washington in “troubled talks on compensation.”
(Id.
at Exh. 38). On December 1, 1999, Count Lambsdorff wrote to Mr. Hausfeld stating that “[t]he German side agreed to a foundation capital of 8 billion DM,” of which German industry was to pay DM 5 billion and the German government was to pay DM 3 billion.
(Id.,
Para. 61, 62, Exh. 40).
Secretary Eizenstat communicated with Central and East European governments and urged them to accept a settlement of DM 8 billion. The Government of Poland on behalf of the group refused. (Hausfeld Decl. at Para. 63). Mr. Hausfeld, on December 2, 1999, wrote to Count Lambs-dorff rejecting the offer of the German side and stating Plaintiffs’ counsel “were told that you had a negotiating range between 6 and 10 billion DM. We responded that we were prepared to negotiate between 10 and 15 billion DM.”
(Id.
at Para. 64, Exh. 41).
In early December, 1999, Secretary Eiz-enstat urged the European delegations to accept the German offer, rather than hold out for the higher amounts sought by Plaintiffs’ lawyers.
(Id.
at Para. 66).
The Department of State sent two faxes to the Embassies of Poland and Belarus. The first included the following:
As Deputy Secretary Eizenstat made clear to your delegation in Bonn at the conclusion of the Nov. 16-17 negotiating round, enormous progress has been made. All of the elements are in place for a settlement, except agreement on
*633
the total funding level of the German Foundation that will pay former forced and slave laborers, and the allocation of funds among beneficiary groups and companies.
Since Bonn, Deputy Secretary Eizenstat has been focusing his attention on ways in which to bridge the remaining gap between what the German side is offering, DM 8 billion (DM 5 billion from German Industry and DM 3 billion from the German government), and what the Class Action Plaintiffs’ lawyers demanded in Bonn, a settlement of between DM 10 and DM 15 billion.
While how the money will be allocated between classes of beneficiaries and among countries remains a critically important issue to be resolved — and one on which Eizenstat has, and will continue to want to consult closely with your government — the focus now must be on negotiating a final capped amount, and to do so before the offer from German Industry expires on December 8.
(Id at Exh. 43).
The second fax that the State Department sent to the two Embassies contained substantially the same admonitions as the first. With success so close, “the focus must be on negotiating a final capped amount,” and Secretary Eizenstat “has instructed me to say that you have his personal assurance that once a capped amount for the German Foundation is agreed, he will accelerate his efforts to work-out a just distribution of those funds, both among classes of beneficiaries and participating countries.” (Hausfeld Deck at Exh. 44).
A December 13, 1999, letter to Count Lambsdorff is at the heart of the claim that interest is owing on DM 10 billion from December 14 or 17, 1999. The letter was signed by Mr. Hausfeld, several other attorneys, and on behalf of the Republic of Poland, the Czech Republic, the Republic of Belarus, and Ukraine. It read in its entirety:
At this point there must be no misunderstanding. The undersigned counsel, the governmental delegations, individuals and organizations they represent, have extended an offer to resolve the issues which have been the subject of the international conference on German offenses on the following terms.
1. The German side agrees to a 10 billion DM present value settlement, excluding costs of administration, distribution, notice and fees.
2. That there be firm commitment from non-German firms which used forced labor during World War II in an amount no less than 1 billion DM. (This would be a parallel mirror fund to be added to the 10 billion DM German commitment).
3. That reasonable administrative, distribution, notice costs and fees be paid by the German side over and above the 10 plus 1 billion DM commitment from German and non-German companies using forced labor during World War II.
4. That the German and non-German companies using forced labor commit to having their documents publicly archived at a reasonable expense to be determined in an appropriate historical repository.
(Id.
at Exh. 49).
On December 13, 1999, President Clinton wrote to Chancellor Schroeder. He reported to the Chancellor that “Deputy Secretary Eizenstat was intensively engaged this past week with the plaintiffs’ attorneys with whom he has dealt to move them closer to the German offer. On Sunday, he reported to Count Lambsdorff that they, the Conference for Jewish Material Claims Against Germany, the Central and
*634
Eastern European Governments, and the Government of Israel would agree to settle at DM 10 billion.... This counteroffer is a firm commitment for settlement of which we both could be proud.... ” President Clinton also described the mechanism for ensuring legal peace for the German companies (Hausfeld Decl. at Exh. 50).
In his Declaration Mr. Hausfeld states, “[t]he following day, December 14, 1999, Deputy Secretary Stuart Eizenstat telephoned me and told me that the German government and German Industry had accepted the December 13, 1999 offer. Mr. Eizenstat told me: ‘Congratulations. The Germans have accepted. You have a deal.’ ”
(Id.
at Para. 76).
Most curiously, Mr. Hausfeld’s Declaration next refers to, and provides a copy of, an April 3, 2000, letter from a Special Assistant to the President informing Mr. Hausfeld that the December, 1999, exchange of letters between President Clinton and Chancellor Schroeder concerning the amount of the German payment to the Foundation did not constitute “an international agreement or a statement of the existence of an international agreement. Rather, it is a political exchange discussing issues to be resolved by ongoing negotiations.”
(Id.
at Para. 77, Exh. 51). President Schroeder’s December 14,1999, letter is available. It is highly relevant to the issue of the validity of the claim that interest is owing on the DM 10 billion from December 14 or 17, 1999. It is extraordinary that Mr. Hausfeld did not include it in his Declaration. It will be the subject of further discussion.
After agreement on the DM 10 billion figure was reached, President Clinton, Secretary Albright and Secretary Eizens-tat made appropriate remarks. (Hausfeld Decl. at Exh. 52, 54). Secretary Eizens-tat’s December 17, 1999, statement at the Berlin Plenary Session included the following:
I am very pleased the German enterprises and the Government of the Federal Republic have agreed to raise their combined contribution to the Fund for Remembrance, Reconciliation and the Future to DM 10 billion ... [The other parties to the negotiations] have accepted DM 10 billion as the capped amount for the foundation and the sum that will resolve the lawsuits in the U.S. Courts. We have for the first time agreed on a capped amount — a ceiling — to resolve the lawsuits against German companies and to make dignified payments to former public and private sector Nazi-era slave and forced laborers and all those who suffered at the hands of German companies during this period.
In addition as a result of negotiations yesterday, all participants have agreed to use interest earned on contributions to the Foundation for the furtherance of the purposes of the Foundation.
This agreement is the keystone in the arch of this long and difficult negotiation. We shall now proceed to conclude matters necessary to implement the overall agreement so that payments can begin to be made as soon as possible. These include reaching agreement on the allocation of the DM 10 billion among the various categories under the German Foundation, and the relationship of insurance matters between the Foundation and the International Commission on Holocaust Era Insurance Claims chaired by former Secretary of State Larry Eagleburger.
We will act to resolve all of the outstanding issues as expeditiously as possi
*635
ble. But it is important not to raise unrealistic expectations on the timing of payments. It will take some time to implement the details of an agreement, to have lawsuits dismissed, to have the German Bundestag enact the necessary legislation; to have the German economy raise their share of the DM 10 billion, to provide notice to the potential recipients; and to file, process, and pay claims. Consequently, it may take up to a year before dignified payments can be made, although we will do all we can to shorten this time period.
(Id.
at Exh. 54).
A December 17, 1999, GEFI press release welcomed the agreement and stated that “[t]he DM 10 billion includes all associated costs of administration, legal fees and other expenses, and will not be increased in the future.” (Hausfeld Decl. at Exh. 55). A January 11, 2000, Agence Presse release reported that “[t]he spokesman for German industry in the matter, Wolfgang Gibowski, said last week that German industry was still far from having reached its pledged goal of collecting five billion marks. By Christmas, only 75 firms accounting for two billion marks had been gathered. However, Gibowski was optimistic the promised sum could be reached by summer. He said two or three more firms a day were now joining.”
(Id.
at Exh. 57).
Count Lambsdorffs February 9, 2000, testimony before the Committee on Banking and Financial Services of the United States House of Representatives gave a detailed summary of the status of negotiations as of December 17, 1999, the agreements that had been reached as of that date, proposals for allocating the DM 10 billion, and steps that remained to be taken
(Id.
at Exh. 58). He cited the exchange of letters dated December 13 and 14, 1999, between President Clinton and Chancellor Schroeder and verbal confirmation of the agreement between the heads of state on December 17 in the presence of Secretary Albright, German Foreign Minister Fischer, delegations from Israel, Belarus, the Czech Republic, Poland, Russia and Ukraine, as well the Claims Conference and groups of American plaintiffs’ lawyers. Count Lambsdorff reported that “... a capped capital of 10 billion marks has been established for the Foundation”
(Id.
at Exh. 58, p. 3), adding, “... believe me, I wish I had greater funds available for distribution, but 10 billion marks is what we got and what was agreed upon by all of the participating parties after long and arduous negotiations.”
(Id.
at Exh. 58, p. 5).
Count Lambsdorff stated that “[together with my respected colleague Stuart Eiz-enstat, I shall continue over the next few weeks to try to arrive at solutions regarding allocation.”
(Id.).
He proposed an allocation of the DM 10 billion which was not meant to be binding, but was to be the subject of future negotiation among the victims and their representatives:
DM 7.7 billion
— victims of slave and forced labor as well as victims of certain other personal injuries, medical tests, Kinderheim cases.
DM 1 billion
— property claims, including insurance and bank issues.
DM 1 billion
— a Future Fund to preserve the values and fund projects that will advance the values of the Foundation.
DM 300 million
— for administration costs, including lawyers’ fees.
Hausfeld Decl. at Exh. 58, p. 4, 4, 5.
Speaking before the Committee on Domestic Affairs of the German Bundestag on February 16, 2000, Secretary Eizenstat urged adoption of the legislation needed to implement the Foundation project. He, like Count Lambsdorff, described the De
*636
cember 17, 1999 agreement of the German government’s and the German companies’ “commitment to contribute a total of DM 10 billion to the Foundation.”
{Id.
at Exh. 59, p. 1). He noted that “[b]efore I begin discussing the legislation, however, I want to note that the DM 10 billion capped amount has been agreed to by all of the participants and nothing I will say would increase the obligation of either the German Government or German companies by one pfennig or reopen any issues closed over the years since the end of World War II.”
{Id.
at Exh. 59, p. 2).
Secretary Eizenstat referred to one of the “seminal elements” of this process, “that in return for their participation in funding a German Foundation, [the German companies] receive legal peace in U.S. Courts from pending and future law suits arising out of the Nazi era.”
{Id.).
Secretary Eizenstat discussed at length the complex problem of allocating the funds among victims and victim groups, a problem yet to be resolved. Secretary Eizens-tat advanced an observation on the subject of interest, a matter that was not the subject of the December 17, 1999, announcement and, in fact, conflicted with the agreement that administrative costs and attorneys’ fees would be paid from the DM 10 billion. This note was to the effect: “... it is critically important that the German companies deposit their DM 5 billion contribution as soon as possible in an interest bearing account. The interest should support the purposes of the Foundation and would be the source used to pay administrative expenses and negotiated legal fees.” (Hausfeld Decl. at Exh. 59, p. 9). Secretary Eizenstat repeated these remarks at a press conference held the same day and referred to the negotiations concerning the allocation of the DM 10 billion, stating “[t]hrough our discussions, we were able to further narrow our differences so that we are now within striking distances of an agreement on allocation.”
{Id.
at Exh. 60).
During the next few months talks proceeded on how the DM 10 billion should be allocated among the victims. The negotiations were very difficult and, according to Mr. Hausfeld, “were resolved only when the expected interest on the principal was factored in.”
{Id.
at Para. 89, 91).
On March 23, 2000, Secretary Eizenstat reported to the 11th Plenary Meeting a “consensus agreement” on the allocation of the DM 10 billion in the German Foundation to which all parties agreed. He stated that “Count Lambsdorff and I met with each group of participants. All vigorously defended their positions, but all recognized the larger imperative of reaching agreement now so that funds could promptly go to survivors. Count Lambsdorff and I introduced a joint proposal that sought to meet the basic needs of each participant.”
{Id.
at Exh. 62, p. 1). It is difficult to reconcile all the figures Secretary Eizens-tat sets forth so as to arrive at DM 10 billion or DM 10 billion with an additional DM 50 million in interest, but the report stated that “[tjhere will be DM 8.1 billion allocated to make payments to surviving slave forced laborers and to others for other personal injuries. The German Foundation will allocate the DM 8.1 billion from within the DM 10 billion to labor. The DM 8.1 billion will be increased by anticipated interest earnings of DM 50 million, for a total of DM 8.150. We also hope there will be a contribution from the Swiss settlement to the Foundation.”
{Hausfeld Decl. at Exh. 62, p.
1).
When reporting on negotiations to the Senate Foreign Relations Committee on April 5, 2000, Secretary Eizenstat recited an allocation summary that accounted for the full DM 10 billion:
*637
DM 8.1 billion— slave forced laborer and others for personal injuries
DM 1.0 billion— property claims, insurance claims, property and insurance humanitarian funds
DM .7 billion— Future Fund
DM .2 billion— Administration of Foundation
DM 10.00 billion— Total
Secretary Eizenstat stated that there would be added to the DM 8.1 billion, “50 million in anticipated interest earnings.” When recounting the individual payouts to the nations handling payments to their citizens, Secretary Eizenstat included “an amount of estimated earned interest.”
(Id.
at Exh. 63, p. 2-3). As in past reports, Secretary Eizenstat stated, “All the parties to these negotiations accepted the 10 billion DM offer as the capped amount for the German Foundation and the sum that will resolve the lawsuits.”
(Id.
at Exh. 63, p. 2).
On July 17, 2000, the Joint Statement was signed by Plaintiffs’ attorneys, a representative of German industry, and the Governments of Germany, the United States, Belarus, the Czech Republic, Israel, Poland, the Russian Federation, and Ukraine. (Hausfeld Decl. at Para. 97). As to his understanding when he signed the Joint Statement as one of the attorneys for the Plaintiffs, Mr. Hausfeld states:
I signed the Joint Statement. I believed at the time and I believe now that the commitments made in December 1999 and in the Joint Statement were binding agreements that were legally enforce-ably in a court of law in the United States.
Based on the history of the negotiations, it was clear that interest was expected to accrue on the funds, and would ultimately exceed DM 100 million. The term “at least” DM 100 million in the Joint Statement was not meant to be a ceiling.
I would not have advised my clients to sign the arguments or to dismiss their claims if I believed it was unenforceable.
(Id.
at Para. 98-100).
Mr. Hausfeld refers to a July 17, 2000, Declaration of the Central and Eastern European States that includes criticism of the negotiating process, makes several demands upon the Kuratorium of the Foundation, including:
that the Kuratorium supports the proposal that interest earned above 100 million DM, which is included in Annex B Distribution Plan to the Joint Statement, be used for direct payments to victims of slave and forced labor in Central and Eastern Europe and be allocated to partner organizations in Central and Eastern Europe according to the proportions adopted in that Annex.
(Id.
at Exh. 66, para. 3(j), p. 2).
At the 12th and Concluding Plenary on the German Foundation held in Berlin on July 17, 2000, on the occasion of the Joint Statement, Secretary Eizenstat recited the terrible history, ignored for 55 years, that led to the negotiations resulting in the agreement reached that day. He described the negotiations themselves and the roles played by the various participants. In one place he referred to “the capped 10 billion DM — plus interest fund.”
(Id.
at Exh. 68, p. 3). He added, “We all expect this money to be provided as soon as possible in an interest — bearing account so that any delay in settlement and dismissal of cases will not further disadvantage aging victims.” (Hausfeld Decl. at Exh. 68, p. 5).
A March 13, 2001, GEFI report announced that “[a]s of today the German Industry Foundation Initiative has raised the full required amount of 5 billion marks. In a large-scale campaign of letters and telephone calls the Foundation Initiative is calling on its members, now numbering
*638
around 6000 to increase their previous pledges. Non-members are also being approached and encouraged to join. The campaign is still underway ... As soon as sufficient legal security has been achieved for German' Companies in the United States, and that should be the case very soon, it will be possible to start making compensation payments to surviving forced laborers who were victims of the Nazi regime.”
(Id.
at Exh. 76).
On March 20, 2001, Judge Kram denied the motion to reconsider her March 7, 2001, order denying plaintiffs’ motion to dismiss the Consolidated Class Action Complaint.
(Id.
at Exh. 77). A May 22, 2001, German Industry Press release announced the May 17, 2001, Court of Appeals declaration that the conditions that Judge Kram imposed on the May 10 dismissal of ten consolidated class actions were inadmissible and ordered dismissal of the cases. Judge Kram complied with the Court of Appeals order the next day. On May 22, 2001, the companies that had started GEFI declared that in light of these developments a sufficient level of legal security had been achieved.
(Id.
at Exh. 78).
On May 30, 2001, the German Bundestag determined “that adequate legal security has been established pursuant to Section 17, Para. 2 of the Law on the Creation of a Foundation ‘Remembrance, Responsibility, and the Future.’ ” The Bundestag determination continued:
The German Bundestag takes note of the fact that the Foundation Initiative, according to number 4d of the “Joint Declaration” of July 17, 2000, will pay the contribution of the German enterprises in the amount of DM 5 billion plus at least DM 100 million to the Foundation “Remembrance, Responsibility, and the Future.” The German Bundestag understands that these funds will be transferred immediately to the Foundation “Remembrance, Responsibility, and the Future.”
(Hausfeld Deck at Exh. 80, p. 2).
On June 11, 2001, a GEFI press release announced that “[l]ast week the ... Initiative transferred the money accumulated in its accounts, in the amount of DM 3.9 billion, to the federal foundation. Accrued interest in the amount of DM 100 million will be transferred this week. The other sums of money, for which binding pledges were given, will also be made available to the federal foundation in the near future.”
(Id.
at Exh. 83).
On September 5 and 12, 2001, Mr. Haus-feld wrote to Ambassador Dieter Kastrup, Chairman of the Foundation challenging on many grounds whether the Foundation had been fully funded by the German Government and German industry and claiming that funds in addition to the DM 10.1 billion belonged to the Foundation.
(Id.
at Exh. 84, 85). It is unnecessary to detail all of Mr. Hausfeld’s claims, as those that survive are the subject of the present law suits.
In an October 5, 2001, press release the GEFI announced that on that date it had transferred just under DM 550 million to the Foundation, asserting that “[w]ith this payment, the financial obligation for German industry, as laid down in the law creating the foundation ... i.e. to pay the amount of DM 5 billion has been complied with in full. In addition, the German Industry Foundation Initiative has transferred DM 100 million in accrued interest to the Foundation.”
(Id.
at Exh. 87).
On March 22, 2002, Mr. Manfred Gentz, GEFI’s representative, wrote to Ambassador Kastrup, setting forth GEFI’s response to the contentions that it had not fulfilled all of its obligations towards the Foundation, noting that the Foundation’s
*639
Board of Directors and Federal Ministry of Finance agreed that GEFI had complied in full with its obligations. (Hausfeld Decl. at Exh. 89). It is unnecessary to provide a full summary of this communication, because the contentions sets forth are fully explored in the present action.
VI.
Defendants’ Motions
A.
Defendants’ Motion to Dismiss Both Complaints:
The Defendants in the
Gross
and
Schivartz Lee
cases cross-move to dismiss the complaints in accordance with Fed.R.Civ.P. 12(b)(6) on the grounds that i) neither the Joint Statement, nor any part of it, is enforceable as a private contract, but rather is a political document, leaving its participants to their remedies in Germany through the Foundation and the German Ministry of Finance, or through U.S.-German diplomacy, and ii) even if construed as a contract, the Joint Statement did not obligate GEFI or the present Defendants to pay any specific amount themselves, did not require that the German company funds earn more than DM 100 million in interest, and did not require that any particular fraction of this amount be earned before, rather than after, German company funds were transferred to the Foundation.
Defendants cite and rely on the three instruments constituting the Berlin Accords: i) The July 17, 2000, bilateral Executive Agreement between the United States and the Government of the Federal Republic of Germany Concerning the Foundation Remembrance, Responsibility and the Future; ii) the July 17, 2000, “Joint Statement on occasion of the final plenary meeting concluding international talks on the preparation of the ‘Foundation Remembrance, Responsibility and the Future,’ ” a document that the United States, Germany, six other nations and a number of private parties signed; and iii) legislation (the “Foundation Law”) that the German Bundestag enacted shortly thereafter that, among other things, established the Foundation as a German sovereign instrumentality and as the “exclusive remedy and forum” for resolution of asserted claims against German companies arising out of the Nazi-era and World War II.
The German companies have delivered DM 5.1 billion to the Foundation, which, according to Defendants, meets the requirements of Para. 4(d) of the Joint Statement. Defendants reject the Plaintiffs’ contention that the German companies owe more interest to the Foundation pursuant to the last sentence of Para. 4(d), noting that the competent German institutions specified in the Berlin Accords, namely, the Foundation’s Board of Directors and the German Ministry of Finance, concluded that no additional interest is owed.
Defendants’ initial contention is^ that the Complaint fails to state a claim because the Joint Statement does not create privately enforceable obligations, quoting the Court of Appeals’s ■ observation that “[t]here is much to support the view ... that the Joint Statement is a political document.”
Gross,
456 F.3d at 385 .
First, Defendants argue that the plain language of the Joint Statement, without recourse to parol evidence, compels the conclusion that the Joint Statement is not a departure from the general rule of international law that international diplomatic documents do not create privately enforceable rights. On its face, the Joint Statement is a declaration of mutual expectations, describing commitments between and among the nation-signatories and declaring broad principles. The language, according to Defendants, rejects the possibility of litigation: (i) “[t]he establishment of the Foundation does not create a basis for claims against the Federal Republic of Germany or its nationals.” (Joint Statement at Preamble ¶ 11) and- (ii) the
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Preamble expresses the objective of all signatories that there be “all embracing and enduring legal peace” for German companies.
(Id.
at ¶ 9).
The Joint Statement contains no language granting rights of private enforcement or specifying how a party should proceed if it wished to enforce the Joint Statement. According to Defendants, the title, structure and language of the Joint Statement are incompatible with the conclusion that, by silent implication, it created obligations that could be privately enforced in court, contrasting the very title of the Joint
Statement
with that of the Executive
Agreement.
The Defendants contrast the obligatory language of the Executive Agreement with that used in the Joint Statement. Further, eight sovereign nations which were immune from suit as well as non-governmental agencies, signed the Joint Statement. According to Defendants, the language regarding interest in Para. 4(d) is descriptive of when interest will start accruing ■ and imposes no obligation on the part of the German government or the German companies to pay interest starting at any particular time or at any particular rate.
Defendants further argue ;that the language and structure of the Berlin Accords in their totality demonstrate that the Joint Statement did not create legal privately enforceable obligations, noting in particular Article 1(3) of the Executive Agreement that provides that Germany, not the United States or its courts, is to supervise the Foundation:
The Federal Republic of Germany assures that the Foundation will be subject to legal supervision by a German governmental authority; any person may request that the German governmental authority take measures to ensure compliance with the legal requirements of the Foundation.
Defendants point to the Foundation Law and the detailed manner in which it provides for the governance of the Foundation, the amounts that the Federal Republic of Germany and the German companies were to contribute to the Foundation, and oversight by the German Federal Ministry of Finance, which has concluded that the German companies do not owe any additional interest to the Foundation. In these circumstances, Defendants argue, that “it is clear on the face of the documents constituting the Berlin Accords and Foundation Law that the participants did not intend the Joint Statement, or any part of it, to be a contract enforceable in a U.S. Court, but provided other institutions to govern and oversee the Foundation.” (Def.s’ Br. at 27).
Further, Defendants assert even if the Joint Statement were a contract binding on the German companies, in Para. 4(d) the Defendants did not undertake to pay interest in any amount or to collect contributions on a schedule that would earn any interest in excess of DM 100 million. The court will defer giving a synopsis of Defendants’ argument about the meaning of the interest provision in Para. 4(d) until it addresses the question whether that provision is ambiguous, requiring a review of extrinsic evidence.
B.
Banks’ Motion to Dismiss Schwartz Lee Complaint:
The only two Defendants named in the
Schwartz Lee
complaint are Deutsche Bank AG (“Deutsche Bank”) and Dresdner Bank AG (“Dresdner Bank”) (collectively “the Banks”). They are also Defendants in the
Gross
case and are parties to the motion to dismiss in that case. The
Schwartz Lee
complaint contains two causes of action: breach of contract and fraudulent misrepresentation.
Plaintiffs allege that in December, 1999, an Agreement was reached requiring the German Government and German industry
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to contribute DM 10 billion to the Foundation “to terminate litigation pending in American courts against German defendants.” (Compl. Para. 23-32). Plaintiffs further allege that in early December, 1999, the “Germans” made an offer of DM 8 billion, which was rejected by Plaintiffs.
(Id.
at Para. 23). On December 13, 1999, the Complaint alleges, Michael Hausfeld wrote to Count Lambsdorff, the lead negotiator for the German Government, extending a “counteroffer” with the language, “[t]he German side agrees to a 10 billion DM present value settlement, excluding costs of administration, distribution, notice, and fees ...”
(Id.
at Para. 24) (the “Hausfeld Letter”). Stuart Eizenstat, the lead negotiator for the U.S. Government, is alleged to have responded the next day by informing Mr. Hausfeld in a phone call that “[t]he Germans have accepted. You have a deal.” (Compl. at Para. 26). Plaintiffs claim that this correspondence and telephone call constituted the “Agreement”
(id.
at Para. 3) committing the German companies to provide to the Foundation all interest earned on their DM 5 billion contribution as of December, 1999.
(Id.
at Para. 3, pp. 83-86).
The Banks note that there is no allegation that any of the participants in the correspondence (Hausfeld, Eizenstat, and Lambsdorff) had authority to act on behalf of the Banks or that an offer was transmitted to, or accepted by, the Banks. Further, the Banks note that Chancellor Schroeder wrote to President Clinton the day after Mr. Hausfeld made his counteroffer and specifically rejected Mr. Haus-feld’s demand that the German contribution be DM 10 billion “present value” as of December, 1999. Finally, the Banks contend that documents post-dating December, 1999, that are attached to and cited throughout the Complaint, establish that no binding agreement was reached in December, 1999.
As to the fraudulent misrepresentation claim, the Banks seek dismissal on the ground that the Complaint fails to identify a single statement made by any representative of the Banks, any statement directly attributed to the Banks, or any misrepresentation of any kind relied on by Plaintiffs.
C.
Evidence wpon Which Defendants Rely:
Defendant Banks submitted the Declarations of four of the active participants in the negotiations leading to the Berlin Accords: Count Otto Lambsdorff, Chancellor Sehroeder’s special representative and lead negotiator for the Federal Republic of Germany during most of the negotiations; Roger M. Witten, Esq., a partner of the firm of Wilmer Cutler Pickering Hale and Dorr LLP which represented GEFI in connection with the negotiations; Dr. Manfred Gentz, who held the position of Chief Financial Officer of Daim-lerChrysler AG during the negotiations and who was de facto spokesman and negotiator for GEFI; Dr. Klaus Kohler, Group General Counsel of Deutsche Bank from 1995 through 2000 and who chaired the legal working group of GEFI.
Count Lambsdorff, representing the German government, was Secretary Eiz-enstat’s counterpart. The two worked closely and cooperatively together to achieve a final resolution of the victims’ claims. Opening his Declaration, Count Lambsdorff stated the continuing objective of the German side-Government and companies:
The principal aims of the German Government and German companies in establishing the Foundation, “Remembrance, Responsibility and the Future,” were: a) to establish and fund a German Foundation for making payments to certain victims of the National Socialist era and World War II that would be an
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instrumentality of the FRG governed entirely by German Laws and institutions and which would not be subject to oversight or review by U.S. courts; and b) to obtain all-embracing and enduring legal peace for German companies, not only in the U.S. but elsewhere.
(Lambsdorff Decl. Para. 2).
Count Lambsdorff views the Joint Statement as a political statement rather than a contract enforceable in a court:
5
The JS, which was signed by eight sovereign nations as well as by private parties (e.g. Conference on Jewish Claims in Germany), was a political statement describing the results of the talks leading to the establishment of the Foundation, through German legislation, as a German sovereign instrumentality. While I have no reason to doubt that all the participants who affixed their signatures to it expected that they themselves and the other signatories would in fact take the steps set forth therein, there was no agreement, express or implied, that a signatory to the JS (or any other person) could institute litigation in the U.S. or elsewhere to enforce the JS. To my knowledge, at no point in the negotiations that led to the BAs did anyone even propose to the German side

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/1871552. Public record. Not legal advice.