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Attorneys for Armenian heirs of life insurance policyholders filed a powerful response last month to the petition of German companies seeking a rehearing by a federal appeals court. The majority of a three-member panel of the 9th Circuit Court of Appeals had ruled in favor of the Armenians’ right to pursue their demand for unpaid claims, reversing an earlier ruling by the majority of the same panel of judges.

The response of the Armenian lawyers dealt a devastating blow not only to the German insurance companies, but also to the Republic of Turkey which had shamelessly filed a “friend of the court” petition in support of the German defendants. It is ironic that instead of Germany, the Turkish government is the one objecting to the lawsuit against the German firms!

The Armenian claimants asked the Court of Appeals to deny the German petition for a rehearing. The German defendants had based their appeal on the contention that the California State statute extending the deadline for filing claims against insurance companies was unconstitutional because the law’s endorsement of the Armenian Genocide contradicts the federal government’s foreign policy.

The Armenian attorneys contested the German defendants’ claim by asserting that “there have been no negative foreign policy repercussions from statutes and/or enactments promulgated” by more than 40 U.S. states on the Armenian Genocide. The attorneys further stated that while several U.S. Presidents have objected to congressional resolutions on the Armenian Genocide, there have been many other statements by the federal executive and legislative branches in favor of such recognition. The attorneys specifically mentioned the two congressional resolutions on the Armenian Genocide adopted by the U.S. House of Representatives in 1975 and 1984, as well as Pres. Reagan’s reference to the Armenian Genocide in his Presidential Proclamation of 1981.

The attorneys asserted that previous U.S. Administrations maintained a “deafening silence” while more than 40 U.S. states recognized the Armenian Genocide, without constituting any threat to U.S. foreign policy. Furthermore, even if past Administrations were opposed to congressional resolutions on the Genocide issue, there would be no reason to object to local and state resolutions, as they would have no impact on U.S. foreign policy.

The Armenian attorneys cited previous court decisions asserting that State statutes could be challenged on the basis of the foreign affairs doctrine only if they conflicted with “an expressed unmistakable executive treaty, Congressional enactment or executive policy.” The attorneys reasoned that the courts had ruled a similar California statute on the Holocaust to be invalid because the federal government had created a Presidential Advisory Commission on Holocaust Assets in the United States, obviating the need for separate Holocaust-related lawsuits. No federal commission has been established to regulate lawsuits related to the Armenian Genocide. Another key difference in the two cases is that the Armenian plaintiffs are not seeking restitution, but only the recovery of insurance benefits owed to them.

The Armenian attorneys also made the convincing argument that even if previous Administrations have had contradictory stands on the Armenian Genocide, “there is no evidence of an express federal policy banning the term ‘Armenian Genocide’ in legislative enactments by the States.”

The Armenian lawyers proceeded to slam the “friend of the court” petition filed by the Republic of Turkey, which claimed that the California statute conflicted with federal foreign policy on the Armenian Genocide. The Armenian attorneys asserted that “Turkey does not create or dictate United States foreign policy; only the United States government can do that.” Turkey’s allegation that “the current Administration opposes recognition of the Armenian Genocide are flatly contradicted by President Barack Obama’s own statements. As Senator and presidential candidate, he spoke forcefully on the Armenian Genocide. As President, he reasserted: “I have consistently stated my own view of what occurred in 1915, and my view of that history has not changed.”

Finally, the Armenian legal team pointed out that this case also safeguards the right of the State of California to regulate insurance companies operating within its borders. Thus, overturning the California statute on Armenian insurance policyholders would “impair California’s interest in providing individuals with access to its courts to resolve disputes concerning insurance policies held by them and issued by companies doing business in the State.”

Based on these powerful arguments -- and the “friend of the court” briefs filed by several major law firms and organizations to be discussed in a future column -- it is hoped that the federal Court of Appeals will rule against the German insurance companies’ petition for a rehearing. Should the German firms lose the appeal, they have the final recourse of petitioning the U.S. Supreme Court.

It is critical for Armenians to win these appeals in order to protect not only the interests of the heirs of insurance policyholders, but also to prevent Turkish denialists from exploiting this lawsuit to invalidate decades of efforts in support of Genocide recognition in the United States.
By Harut Sassounian
Publisher, The California Courier