IN ARMENIAN INSURANCE CASE, LAWYERS TO ASK FOR REHEARING
by Emil Sanamyan

http://www.reporter.am/index.cfm?objecti d=7AA36EAB-9427-11DE-8CE10003FF3452C2&pg=2
Fri day August 28, 2009

Appeals panel ruling misinformed, lawyer involved argues

Washington - On August 20, a panel of the U.S. Court of Appeals
for the Ninth Circuit struck down a California law that allows the
descendants of Armenian Genocide victims to sue in state courts for
unpaid insurance benefits, as we reported last week. The majority in
the 2-1 ruling argued that the statute interfered with the president's
prerogative to conduct U.S. foreign policy.

Vartkes Yeghiayan, a lawyer based in Glendale, Calif., has spearheaded
lawsuits against major U.S. and European insurance companies that did
business in Ottoman Turkey. These efforts led to settlements with New
York Life for $20 million and with the French AXA insurance company
for $17 million in 2004-2005.

On August 27 Mr. Yeghiayan discussed last week's court ruling with
Washington Editor Emil Sanamyan.

Armenian Reporter: What is the meaning and what are the ramifications
of the ruling of the Appeals Court panel on August 20?

Vartkes Yeghiayan: We were surprised by this decision. The District
Court had previously ruled that this [lawsuit against German insurance
companies] is valid and that our clients have a right to continue
with the lawsuit.

When we got to the Ninth Circuit court [to which the insurance
companies had appealed], three judges listened to us, and two out of
three decided that there is a conflict between state and federal power.

This decision basically rested on the fact that the [California]
statute . . . said that the killings that took place [in Ottoman
Turkey] are called the Armenian Genocide; because the words "Armenian
Genocide" were used, [the majority found that] they were in conflict
with federal policy. . . .

We disagree with that. The federal government has never taken a stand
against the Armenian Genocide. And [as part of its decision making,]
the court did not [cite] any statute, executive order, or statement
saying that this [state law] interferes with the foreign policy of
the United States.

They are just speculating, and their speculation is drawn from the
fact that in the last decade there were three resolutions placed before
Congress and these resolutions didn't pass because of opposition from
the administration.

But the administration did not dispute the validity of what resolutions
said. Rather they spoke of bad timing and impact on the war in Iraq
or whatever other developments were taking place at the time.

The arguments the court cited were only half-true. For example,
President Ronald Reagan used the term "Armenian Genocide," as did the
Congress in two resolutions that passed in the 1970s and 80s. And they
did not cite those facts at all, focusing on the last decade alone.

But our issue here is not with Turkey. We are suing private
insurance companies that owe money to Armenians and are in breach
of contract. But everything [in the court decision] seems to turn
around the words "Armenian Genocide." Had those "toxic" words not
been used in California legislation, the court would have no problem
with the statute.

AR: Has the federal government ever expressed opposition to the
California law?

VY: Absolutely not. In fact they have never objected to any of the
resolutions passed in the 40-odd states.

They have never formally made a statement. Apparently, they did
not feel those resolutions interfered with the conduct of foreign
policy. And it seems obvious to me [that they did not].

In making its decision the [Appeals] court cited past decisions in the
Jewish Holocaust cases [to deny the victims' rights to sue]. But that
situation is different because there was a formal agreement between the
United States and Germany that said that [following German agreement to
pay reparations,] no additional lawsuits could be filed in U.S. courts.

[There is no such agreement in the Armenian case.]

AR: What could be the immediate consequences of this ruling? Do you
plan to appeal? Could there be new legislation passed in California?

VY: The first thing we will do is petition for a rehearing. And because
we only had 14 days to do that, we just requested an extension and we
were granted an additional seven days. So, our brief for a rehearing
will be filed on September 10.

Basically, we are asking for a larger panel of judges to listen and
review our arguments. It could be up to ten judges hearing the case.

If, for some reason, the judgment is not reversed, we will appeal to
the Supreme Court.

And, of course, we can amend our lawsuit and remove the words "Armenian
Genocide," while describing all of the killings, deprivations,
deportations, etc.

But first we will be appealing, because "Armenian Genocide" is the
appropriate term for the events that occurred and the U.S. government
does not have the policy that says that Armenian Genocide did not
take place.

In fact, I would like the U.S. government to come out and declare
its policy once and for all.

AR: As part of your petition do you plan to invite testimonies and
briefings from the state of California and other interested parties?

VY: Yes. We don't want to make announcements yet, but we have asked
three organizations to file amicus briefs [as "friends of the court"]
and [we expect that] they will do it.

AR: What has been the immediate repercussion of the ruling so far?

VY: We have a separate case with the British insurance company Aviva
and the judge has just given us until September 12 to dismiss the
case because of the Ninth Circuit Court ruling. Now we are talking
with attorneys to see if we can stipulate the continuance of the case
or if we have to do a dismissal, make sure it is a dismissal without
prejudice, so that we could re-file the minute there is a new statute.

AR: Are you receiving public feedback following the ruling?

VY: Yes, we are hearing from a lot of lawyers and law-school professors
at some of the top universities, who see this ruling as part of a
pattern of continuous infringement by the federal government in powers
of the states. On most domestic issues, such as insurance, family law,
property, and tort, it is up to the states to regulate, and these
issues must not be affected by the rhetoric of federal officials.

I read the Turkish press and I noticed they are celebrating [this
ruling] and reading things into it that don't exist. I don't think
it's a victory [for Turkey].

It's an issue of balancing powers of the state and federal
governments. If necessary, we Armenians will be ready to pursue it
all the way to the Supreme Court.