NEWS AND VIEWS
Re: Class action lawsuit filed by former forced/slave laborers
Following are frequently asked questions concerning the class action suit filed by Ukrainian forced and slave laborers seeking compensation from German industry. The questions and answers were provided by the attorney Myroslaw Smorodsky of Smorodsky and Stawnychy, one of the firms that filed the suit in U.S. federal court in New York.
Q: What is a class action?
A: A class action is a legal procedure whereby a single person or a small group may represent a larger group or class of persons sharing a common interest. This procedure is often used when the group of persons is too large for each member of the class to be joined in the lawsuit as a party.
Q: Which class do you represent?
A: The action was brought on behalf of all Ukrainians who were compelled to perform slave or forced labor for a German company any time from 1933 to 1945.
Q: Who decides whether a class action is proper?
A: During the course of the lawsuit, the court will decide whether the class action is proper taking into consideration the following: the number of persons involved, whether there are common factual issues, whether the representatives of the class have typical claims, and can the representative adequately represent the interests of the members of the class.
Q: Are Ukrainian forced laborers who migrated to the West after the war included in this class?
A: Yes, the litigation includes all Ukrainian forced laborers no matter where they reside.
Q: How large is the class?
A: An estimated 620,000 documented forced labor survivors reside in Ukraine, 280,000 of whom were employed by German industry. The number of forced laborers surviving in the West is unknown. That is why this survey of survivors was initiated.
Q: Who asked you to initiate this class action?
A: The attorneys for the class, Myroslaw Smorodsky, Pyotr Rabinovich, and Danylo Kourdelchouk of Ukriniurkoleguia, were petitioned by the Ukrainian Union of Prisoners/Victims of Nazi Persecution and the Ukrainian Association of the Antifascist Resistance to start this lawsuit. These organizations represent a substantial portion of the documented forced labor survivors in Ukraine.
Q: Do I have to do anything now be included in the class?
A: No, however, if you reside outside of Ukraine's borders, we request that you complete the survey prepared by the attorneys for the class. The data collected will help in resolving this lawsuit. When the case is over, by settlement or otherwise, the court will order a hearing after public notice to the entire class to determine whether the proposed settlement or resolution is fair. This notice will be worldwide. Thereafter, depending upon the structure of the settlement, a registration process will be set up whereby you may submit your claim for payment. Notices about the registration process will be publicized worldwide and all qualifying individuals will have the opportunity to submit a claim at that time.
Q: How do I prove that I was a forced laborer?
A: The courts realize that in the aftermath of the war and after the passage of over 55 years, the victims have lost many of their valuable papers. In light of this, strict evidence rules may be relaxed substantially. However, it would be very beneficial if you could produce (only when requested - not with your answers to the questionnaire) any papers such as work papers (arbeitskarte), passports, photos, letters etc. and other documentation of your experience as a forced laborer. You should also write down your impressions and memories, such as the names of the companies where you were employed and other details of your experience.
Q: Who will pay the attorneys' fees and how much?
A: If the class action suit is successful or receives a settlement, courts often award reasonable attorneys' fees to the lawyers. These fees are generally added to the sum awarded, and serve as an incentive to the instituting actions where no single class member could afford to hire a lawyer. The courts take into consideration the amount of time devoted to the case, the novelty of the issues, and the result. Attorneys' fees are never decided or negotiated until the amount that the class is to receive is determined. In this case, we are requesting that the German companies pay the lawyers fees and that these fees not be deducted from the amount awarded to the class, so you will not be required to pay out any part of your individual settlement in order to cover legal fees.
Q: Whom are you suing?
A: The litigation is against private corporations such as BMW, Volkswagen and others who used forced/slave labor during World War II. These companies have a presence in the United States and therefore are subject to American law and jurisdiction.
Q: Does the class action include farm workers or those forced laborers who worked for private persons or government corporations such as railroads?
A: No. However, these categories of forced laborers are taken into consideration during the settlement negotiations that are presently pending. The German government has indicated that it will not agree to compensate these forced laborers. However, the Ukrainian negotiators and the representatives of all of the other East European countries have insisted that such laborers be compensated.
Q: Why can't you sue on behalf of farm workers?
A: In order for the American courts to have jurisdiction, the individuals or individual entities must have a presence in the United States. The owners of the farms where the forced laborers worked are unlikely to have any contact with the United States and, in all probability, are no longer alive.
Q: Why don't you sue the German government?
A: In the American system of justice, governments are immune from suit.
Q: Why did you sue in the United States and not in Germany?
A: The United States is one of the very few jurisdictions that permits class actions. In most jurisdictions of Europe, only individuals can sue on these types of claims. Because of the large size of the class, it will be virtually impossible to sue on each person's behalf. Ukriniurkoleguia has instituted over 1,000 such cases in the past three years. A class action was determined to be a better alternative.
Q: Are there other similar cases pending in the United States?
A: Yes. There are approximately 30 such cases on behalf of the other classes of individuals from Eastern European countries such as Poland, the Czech Republic, Belarus, Russia, and various Jewish claims organizations here and in Israel. The first litigation was filed in October 1998. These cases involve not only forced/slave labor, but also bank claims, insurance claims, medical experimentation, as well as aryanization of property. The total number of survivors is estimated to be nearly 2 million.
Q: Recently two cases were dismissed by the courts for lack of jurisdiction. Will these decisions negate or affect your case?
A: The two cases were dismissed by the courts in New Jersey on jurisdictional grounds and will be appealed by the lawyers involved. Our case is in Brooklyn, N.Y. Needless to say, they are a precedent that may be taken into consideration by the courts in all the litigations nationwide. Ultimately, the Supreme Court of the United States may have to decide this issue. However, negotiations to settle all the cases are ongoing and are anticipated to be completed well before any appeal is heard.
Q: Why did German industry decide to settle these litigations?
A: The German companies have vigorously denied any legal responsibility for the war atrocities that occurred over 55 years ago. Despite their legal position, the German corporations state that they recognize their moral obligations to compensate in part for the wrongs committed by the Nazi regime. On February 16, German industry announced that it would undertake a voluntary initiative to settle all potential present and future claims that any party could have against the German industry as a result of any alleged actions committed by the German companies in World War II. In essence, German industry demands legal peace so that no further legal actions would be instituted in the future against it anywhere in the world.
Q: Who is participating in these negotiations?
A: All of the settlement conferences are hosted and moderated by high-level representatives of the governments of Germany and the United States. Presently, the German representative is Otto Graf Lamsdorff; the United States representative during all of the talks is Undersecretary Stuart Eizenstat. Other participants in these conferences are representatives of German industry, the attorneys for the claimants in the various class actions, representatives of Belarus, the Czech Republic, Israel, Poland, Russia, Ukraine and the Jewish Claims Conference.
Q: Who is participating in these negotiations on behalf of the Ukrainians?
A: The Ukrainian government delegation is headed by: Igor Lushnikow, chairman, Reconciliation Fund of the Cabinet of Ministers of Ukraine.
Other members of the government delegation are: Ihor Sharov, Office of the President of Ukraine; Serhiy Borshchevsky, Ministry of Foreign Affairs of Ukraine; Vladimir Litvinov, chairman, International Movement of Former Juvenile Prisoners of Fascism.
Attorneys for the Ukrainian forced labor class: Myroslaw Smorodsky, Esq., of Smorodsky & Stawnychy of New Jersey; Pyotr Rabinovich, Esq., of P. Rabinovich PA of New York; Danylo Kourdelchouk, Esq., of Ukriniurkoleguia, Kyiv, Ukraine; Oleksandr Storozhuk Esq., of Ukriniurkoleguia, Kyiv, Ukraine.
Q: Why are there various categories of forced laborers?
A: German industry clearly indicates that their obligations do not encompass the forced laborers who were employed by publicly owned entities such as the railroads or who were forcibly employed in the agricultural sector. In order to obtain an all-inclusive resolution, the German industry initiative envisions the participation of the German government, which would create a special fund to compensate these non-industrial workers. Such actions require German parliamentary funding and approval. For this reason, various categories are used for negotiation purposes.
Q: What are the present categories of forced laborers?
A: For negotiation purposes, the categories are:
Q: How much will be awarded?
A: The ultimate amount that will be awarded depends upon a variety of factors. These include the size of the class and the amount of categories of laborers that will be covered. German industry has stated that it will pay only for industrial workers. In negotiations the German government has indicated that it will fund the appropriate amount to pay for the other categories of forced workers. As such, the strength of the political will of the German government is a key element. For purposes of negotiation strategy, we will not disclose the amounts being discussed. However, any amount agreed upon must be significant.
Q: Will the heirs of the forced laborers receive any compensation?
A: Since most of the victims of forced/slave labor are dead and since their heirs are so numerous, meaningful compensation to each is not feasible. The German industry initiative includes plans to develop a "Future Fund" that will give some meaningful assistance to the forced labor heirs through various programs and also initiate permanently funded programs that will have as their goal the prevention of a repetition of the atrocities of World War II.
Q: If I received other compensation for my work as a forced laborer, will that amount be deducted from the amount I may receive as a result of this litigation?
A: At the present time, the unified position of the plaintiffs in these negotiations is that other payments will not be deducted from the amount received by any member of the class.
Q: I have filled out other forms for similar claims against Germany. How is this action related to those programs?
A: This action is completely independent of any other actions or programs. In order for us to accurately represent your experience during the war, we only ask that you complete the survey (published in The Weekly on September 19 and available on the Internet at http://www.smorodsky.com/forcedlabor/survey.html. Without your input, the collective, wartime suffering of Ukrainians cannot be adequately expressed.
Q: I have already signed a paper with a lawyer who said he would submit a claim on my behalf!
A: Any effort on the part of any other lawyers claiming to represent you is unrelated to this effort. The form you may have filled out previously will not be included in this survey. You must resubmit the information with this survey in order for your experience to be counted among those being represented by the Ukrainian delegation in this class action lawsuit.
If a settlement is reached, you will need only to fill out the appropriate documentation in accordance with the terms of the settlement - no legal representation will be necessary. Notice of any settlement will be given worldwide.
Copyright © The Ukrainian Weekly, November 21, 1999, No. 47, Vol. LXVII
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