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U.S. Court of Appeals Ruling: Major Setback for German Companies and Turkish Denialists

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In a stunning development, a federal appeals court handed last week a major setback to German companies and Turkish denialists of the Armenian Genocide. It reversed its earlier ruling and decided that a California law extending the deadline for lawsuits against life insurance companies was constitutional, after all!

The new ruling did much more than assist heirs of Armenian Genocide victims to file lawsuits against insurance companies for unpaid claims. It also blocked possible legal action by Turkish organizations which could have undone the recognition of the Armenian Genocide by local and state governments.

In 2009, the U.S. 9th Circuit Court of Appeals decided that a law adopted by the California Legislature in 2000 -- extending to December 31, 2010 the statute of limitations on insurance claims -- was unconstitutional, because it included a reference to the Armenian Genocide. In a 2-1 decision, the court ruled that the State of California had infringed on the foreign affairs power reserved by the U.S. Constitution to the federal government. Two of the three federal judges asserted that the state had contravened the federal government's policy of not acknowledging the Armenian Genocide.

I pointed out in a column I wrote in response to the 2009 appeals court decision that Judges David Thomson and Dorothy Nelson were mistaken in claiming that Congress and states were prohibited from adopting resolutions on the Armenian Genocide. In their majority opinion, the two Judges selectively mentioned only those resolutions that were not approved, ignoring that the U.S. House of Representatives twice adopted Armenian Genocide resolutions in 1975 and 1984, and Pres. Reagan issued a Presidential Proclamation in 1981, acknowledging the Armenian Genocide. I also wrote that the U.S. government did not have an official policy of denying the Armenian Genocide. I also wondered why the California Attorney General was not asked to file a friend of the court brief to defend the state from unwarranted accusations that it had adopted a statute that supposedly violated the U.S. Constitution.

After the appeals court ruled agaisnt the lawsuit filed by the Law offices of Geragos & Geragos; Kabatek, Brown, Kellner LLP; and Yeghiayan Law Firm, attorneys David Balabanian, David Salmons, and Erin Conroy from Bingham McCutchen sought a rehearing of the case. Friend of the court briefs in support of the rehearing were filed by the Armenian National Committee of America, Armenian Bar Association, Zoryan Institute, International Association of Genocide Scholars, EarthRights International, Center for Constitutional Rights, Cong. Adam Schiff, and California Attorney General Jerry Brown.

On December 10, the same appeals court with the same judicial panel as last year's ruled 2 to 1 that the California law referring to the Armenian Genocide did not conflict with U.S. foreign policy. Judge Nelson, switching sides, joined Judge Harry Pregerson in ruling in favor of the Armenian plaintiffs. "We conclude that there is no express federal policy forbidding states to use the term Armenian Genocide," Judge Pregerson wrote for the majority. He quoted from "various statements from the federal executive and legislative branches in favor of genocide recognition." He specifically cited the Armenian Genocide resolutions adopted by the House of Representatives in 1975 and 1984, and Pres. Reagan's Presidential Proclamation of 1981. Judge Pregerson also stated that "the federal government has never expressed any opposition" to the recognition of the Armenian Genocide by any of the 43 states!

Following this ruling, the lawsuit against the three German insurance companies can resume, opening the door for more lawsuits against other insurance companies, subject to a possible rehearing by a full 11-judge panel of the appeals court.

In addition, the appeals court's ruling could persuade those members of Congress who may be reluctant to support a pending Genocide resolution out of an unfounded concern that it may contradict U.S. foreign policy. The court's ruling makes it clear that the federal government has never denied the Armenian Genocide and never objected to the plethora of U.S. cities, counties, and states recognizing it. Members of Congress, State Department officials, and the White House should be made aware of the appeals court's critical decision.

Neil Soltman, attorney for the three German insurance companies being sued, stated that he was baffled by the appeals court's decision. Meanwhile, Gunay Evinch, President of the Assembly of Turkish American Associations, called the ruling "unprecedented," "politically motivated" and "shameful."

It is noteworthy that Armenians are suing German insurance companies in California, and a Turkish lobbying group is squirming -- for good reason!