Connecting Past and Present in Holocaust-Era Class Actions

It took roughly two decades, but earlier this spring the implementation of the settlement of Holocaust-era class actions against Swiss banks was completed.

The final step was the issuance of the special master’s final report on the settlement process. The voluminous document highlights the significant role UC Law SF Academic Dean and Professor of Law Morris Ratner played both during the historic litigation and in the ensuing settlement process. It also extensively cites Dean Ratner’s compelling scholarship about Nazi-era litigation.

Ratner began working on the Swiss banks cases in the mid-1990s as a young attorney at Lieff, Cabraser, Heimann & Bernstein, LLP of San Francisco.

Plaintiffs’ lawyers honed in on how the financial institutions, both during and after Hitler’s rise to power in Germany, acted as if they were a place where foreigners could safely store their funds. But for decades after World War II, the banks told heirs of victims of Nazi persecution and their families hoping to recoup dormant accounts that Swiss secrecy laws prevented them from disclosing account holder information. The banks also incorrectly claimed that such accounts did not exist.

In 1996 and 1997, Dean Ratner and his co-counsel filed a series of class action lawsuits against Swiss banks and other Swiss entities alleging they had collaborated with and aided the Nazi Regime by knowingly retaining and concealing assets of Holocaust victims. The cases were consolidated in U.S. District Court for the Eastern District of New York before Judge Edward R. Korman.

Lieff Cabraser was one the plaintiffs’ firms appointed lead counsel, and Ratner was the lead partner for the firm in terms of day-to-day case management and activity.

Judge Korman actively encouraged the parties to settle. Ratner says through working in loose coordination with a wide variety of government agencies, lawmakers and outside groups, the lawyers negotiated what at the time was the largest human rights class action settlement in U.S. history.

The deal called for two large Swiss banks, Credit Suisse and Union Bank of Switzerland (UBS), to pay $1.25 billion. Korman gave final approval to the settlement in 2000.

“We filed the right case, at the right time, in front of the right judge,” Ratner said.

Other Holocaust-era cases contemporaneously filed against other European private companies were mostly dismissed on statute of limitations and justiciability grounds. Judge Korman was able to lead the parties in the Swiss litigation to a class settlement, according to Ratner.

As one of several court-appointed settlement class counsel, Ratner advised the Court and Court-appointed Special Master Judah Gribetz on settlement notice, review, and implementation.

He said the claims process, though quite lengthy, produced powerful results. Not only did more than 458,400 Holocaust victims and their heirs receive compensation, but their stories were preserved and will remain part of the historical record of the Holocaust.

“When the underlying wrong involves private actors profiting from genocide, justice can feel elusive at best,” Ratner said. “But when we break down the mass wrongs into individual stories, when litigation becomes part of a process of building an historical record reconnecting the present and the past, justice feels personal and concrete.”

“People don’t normally think of litigation as an emotional process, but this one really was, and the special master’s final report was particularly moving,” he added.

The report cited scholarship Ratner produced in the years after the litigation, including his comparison of the Swiss banks settlement to other Holocaust-era settlements with executive branches of government. Ratner highlighted in the Berkeley Journal of International Law how the court-supervised process in the Swiss banks settlement provided greater transparency.

“[B]ecause of reporting requirements, settlements effected through the Judicial Branch are more likely to be the subject of continuing scrutiny by class members and the public,” read an excerpt quoted by the special master’s report.

Ratner’s work on the Swiss banks cases also played a major role in his later transition to teaching. Burt Neuborne, lead settlement class counsel in the Swiss banks case and a law professor at New York University, was one of the first to suggest Ratner consider a career in academia.

The first law school course Ratner taught was an advanced procedure seminar at Harvard Law School, his alma mater, in which he used Holocaust-era litigation as a case study. Before long, he was teaching full time.

“In many ways, my life today is a direct result of the work I started back in 1996, though I would never have guessed at the time that I was destined to teach,” Ratner said.

He joined UC Law SF’ faculty in 2012 and became academic dean in the summer of 2017.

Ratner, who teaches civil procedure and legal ethics, says he tries to pass along to his students some of the lessons he learned from his time working on the Swiss banks litigation. One of them is be open to taking on cases that seem like a long shot.

“Lawyers tend to be very cautious,” he said. “But sometimes the right answer is just a simple ‘yes.’”