In a recent decision, In re Assicurazioni Generali, 592 F.3d 113 (2d Cir. 2010) (“Generali”), the United States Court of Appeals for the Second Circuit affirmed the dismissal of plaintiffs’ claims on the ground that they were preempted by an Executive Branch foreign policy favoring the resolution of such claims solely through the International Commission on Holocaust Era Insurance Claims (“ICHEIC”). For a complete copy of the Generali decision please click here.
In Generali, the plaintiffs — victims of the Holocaust and their heirs — sought to recover on unpaid World War II-era insurance policies issued by Generali, an Italian insurer, founded by Jewish merchants in 1831. In its decision, the Second Circuit relied heavily on the Supreme Court’s holding in American Insurance Association v. Garamendi, which dismissed plaintiff’s state law claims for failure to pay benefits on the ground that they were preempted by the “foreign policy” of the United States and that Holocaust-era insurance claims should be resolved instead through the ICHEIC. 539 U.S. 396 (2003) (California’s Holocaust Victim Insurance Relief Act interferes with the President’s conduct of the Nation’s foreign policy and is therefore preempted). For a complete copy of the Garamendi decision please click here.
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On May 26, 2010, U.S. Senator Arlen Specter (D-Pa.), member of the Senate Judiciary Committee, made public a letter to Supreme Court nominee Elena Kagan in which he outlined the line of questioning he intends to pursue during her June 28, 2010 confirmation hearings. Senator Specter in his letter writes:
Just a few months ago, the United States Court of Appeals for the Second Circuit affirmed the dismissal of the plaintiffs’ claims on the ground that they were preempted by an Executive-branch foreign policy favoring the resolution of such claims through an international commission … The Court [in Generali] relied on cases addressing the preemptive effect of executive agreements purporting to settle claims of private litigants in federal courts.
I intend to ask you, among other questions:
(1) whether you understand the Supreme Court’s case law to require a finding of Congressional acquiescence as a condition of giving preemptive effect to an executive agreement;
(2) whether you agree with Justice Ginsburg’s dissenting opinion in Garamendi (joined by Justices Stevens, Scalia and Thomas) that an Executive-branch foreign policy not formalized in a treaty or an executive agreement cannot preempt state law; and
(3) what considerations you would bring to bear in deciding whether to vote to grant certiorari in this case, if confirmed. (My office has been advised that a petition for certiorari will be filed soon in this matter).