AMENDMENT IN THE NATURE OF A SUBSTITUTE TO H.R. 1746

OFFERED BY MR. FRANK OF MASSACHUSETTS
Strike all after the enacting clause and insert the following:

SECTION 1. SHORT TITLE.
This Act may be cited as the ‘‘Holocaust Insurance Accountability Act of 2008’’.
SEC. 2. FINDINGS.
Congress finds the following:
(1) The Holocaust was one of the most heinous crimes in history, causing the suffering of millions of people through torture and other violence, including the murder of 6,000,000 Jews and millions of others, the destruction of families and communities, and the theft of their assets.

(2) After World War II, many Holocaust survivors and heirs of Holocaust victims presenting claims to insurance companies lacked policy information and vital records needed to satisfy the burden of proof required to bring an insurance claim because such documentation was confiscated by the Nazis or lost in the devastation of World War II.

(3) Following the end of the Cold War, efforts to address open issues concerning restitution and compensation to the victims of Nazi persecution were renewed. International talks involving the United States, Germany, Austria, France, Israel, and other nations occurred and agreements were reached to enable restitution for a variety of claims, including claims based on Holocaust-era insurance policies.

(4) In response to the unique difficulties faced by those seeking to bring claims based on Holocaust era insurance policies, Insurance Commissioners of the several States, the National Association of Insurance Commissioners (NAIC), major Jewish organizations and various European insurance companies established the International Commission on Holocaust Era Insurance Claims to provide a forum in which claimants could bring claims based on Holocaust-era insurance policies.

(5) In recognition of the preeminence of the States in protecting consumers in the insurance marketplace, Congress and the executive branch have a limited role in facilitating and assisting the Holocaust-era insurance restitution efforts of the several States as embodied principally in the ICHEIC process.

(6) After ICHEIC and its partner entities paid approximately $300 million to more than 47,000 claimants and approximately $200 million to Holocaust-related humanitarian organizations, ICHEIC formally concluded its operation in March 2007.

(7) Experts agree that, by the conclusion of the ICHEIC process, claims based on a substantial portion of Holocaust-era insurance policies issued to Holocaust victims in Western Europe had been addressed.

(8) Due to the political and economic conditions in Eastern Europe until the end of the Cold War, compensation efforts there have been more limited. The ICHEIC process did provide compensation for policies issued by the Eastern European branches and subsidiaries of Western European companies as well as for policies issued by nationalized or liquidated Eastern European insurers, drawing from ICHEIC’s humanitarian funds. However, the Eastern European companies and countries did not participate in ICHEIC or any of the related compensation processes. Now that the nations of Eastern Europe have joined the community of free and modern nations, it is imperative that the nations of Eastern Europe proactively seek to identify and provide restitution for Holocaust-era insurance policies issued within their borders.

(9) All insurers that participated in ICHEIC re now willing to address all inquiries made by Holocaust victims and victims’ heirs, check their archives, and settle legitimate claims based on relaxed standards of proof. To facilitate the ongoing monitoring of claims based on Holocaust-era insurance policies, the Insurance Commissioners of the several States have agreed to coordinate their Holocaust-era insurance restitution efforts through the NAIC and the Holocaust Claims Processing Office. Similarly, entities that worked in partnership with ICHEIC,such as the Dutch Sjoa Foundation, have agreed to maintain their claims processing facilities and cooperate with the HCPO in the resolution of Holocaust-era insurance claims.

(10) It has been the policy of the executive branch to support the resolution of Holocaust-era insurance claims through an alternative to litigation. To that end, the executive branch has filed statements of interest in court seeking the dismissal of cases involving claims for non-payment of Holocaust-era insurance policies where there have been independent legal grounds to support such dismissal.

(11) This Act does not endorse any State law cause of action and does not alter any applicable law, legal precedent or principle in effect at the time of its enactment that may be applicable to the resolution of Holocaust-era insurance claims. Nor does this Act alter the binding effect of any class action settlement involving Holocaust-era insurance claims.

10 SEC. 3. INSURER RESPONSE TO INQUIRIES ABOUT COVERED POLICIES.
(a) REQUIREMENT.— (1) IN GENERAL.—Subject to paragraph (2), an insurer receiving a written inquiry from an eligible person regarding a covered policy for which the person may be a beneficiary shall—

(A) not later than 90 days after such insurer receives such written inquiry, acknowledge the inquiry in writing and indicate whether such insurer is in possession of information specifically relating to such covered policy;

(B) within a reasonable period of time, provide to such eligible person all information in the possession of such insurer regarding whether such person is a potential beneficiaryof such policy; and

(C) immediately notify the Holocaust Claims Processing Office in writing of the inquiry and provide a copy of all acknowledgments and information provided to such eligible
person under subparagraph (A) or (B) to the HCPO.

(2) TERMINATION OF REQUIREMENT.—An insurer receiving a written inquiry under paragraph (1) is not required to comply with the requirements of such paragraph for any written inquiry received on or after the date that is 10 years after the date of the enactment of this Act.

(b) AGREEMENTS WITH EUROPEAN COUNTRIES.—

(1) AGREEMENTS.—The Secretary of State shall seek to enter into an agreement with each European country with which no appropriate agreement exists to facilitate the response requirements of subsection (a).

(2) REPORT.—Not later than 180 days after the date of the enactment of this Act, and annually thereafter, the Secretary of State shall submit to Congress a report on efforts to carry out this subsection.

SEC. 4. MONITORING BY THE HOLOCAUST CLAIMS PROCESSING OFFICE.

The Secretary of the Treasury is authorized and encouraged to enter into an agreement with the Holocaust Claims Processing Office to provide for—

(1) the HCPO to monitor compliance with the requirements of section 3(a);

(2) the HCPO to notify the Secretary of the Treasury of the identity of any insurer that the HCPO is aware of that is not in compliance with the requirements of section 3(a) not later than 30 days after the failure of such insurer to comply with such requirements;

3) the HCPO to annually notify the Committee on Financial Services of the House of Representatives, the Committee on Banking, Housing, and Urban Affairs of the Senate, the Secretary of the Treasury, and the Secretary of State of the identity of each insurer that fails to comply with the requirement of section 3(a);

(4) subject to appropriations, the transfer to the HCPO of amounts equal to the amounts received by the Government under section 5 for use in carrying out paragraphs (1) and (2); and (5) the issuance of such guidelines and regulations as are necessary to carry out this section and sections 3 and 5.

SEC. 5. PENALTY.
The Secretary of the Treasury shall assess a civil penalty of not less than $5,000 for each day that an insurer fails to comply with the requirements of section 3(a) for an inquiry referred to in such section, as determined by the Secretary after consideration of information provided by the Holocaust Claims Processing Office. Each failure to comply with the requirements of section 3(a) for an inquiry under such section shall be considered a separate offense.

SEC. 6. FEDERAL CAUSES OF ACTION.

(a) FEDERAL CAUSE OF ACTION.—

(1) IN GENERAL.—There shall exist a Federal cause of action for any claim arising out of or related to a covered policy against any insurer.

(2) STANDING.—A claim under paragraph (1) may be brought by an eligible person.

(3) STATUTE OF LIMITATIONS.—Any action brought under this Act shall be filed not later than 10 years after the effective date of this Act.

(b) RIGHT TO OPT OUT OF CLASS ACTION PROCEEDINGS.—

(1) SENSE OF CONGRESS.—It is the sense of Congress that claimants have the right to opt out of new or ongoing class action proceedings relating to claims based on Holocaust-era insurance policies in accordance with Rule 23 of the Federal Rules of Civil Procedure.

(2) CLARIFICATION.—Nothing in this Act shall be construed to affect any class action settlement
agreement, or releases given therein, made before the date of the enactment of this Act.

SEC. 7. LIMITATION ON FEDERAL CAUSE OF ACTION AND REQUIREMENT TO RESPOND TO INQUIRY.

(a) IN GENERAL.—No cause of action shall exist for a claim against an insurer relating to, and an insurer is not required to comply with the requirements of section 3(a) for a written inquiry regarding, a covered policy for which—
(1) payment has been made or release has been granted;

(2) payment has been received or denied under the process of the International Commission on Holocaust Era Insurance Claims, any similar process that was conducted in partnership with ICHEIC,
any government sponsored Holocaust claims process,the Holocaust Claims Processing Office, or any process for the resolution of Holocaust-era insurance claims established pursuant to a class action settlement; or (3) the claimant previously filed an action against such insurer.

(b) CLARIFICATION OF APPLICABILITY.—Subsection (a) shall not apply to a claim for which a humanitarian payment has been received from ICHEIC and that is being asserted— (1) against an insurer that did not participate in ICHEIC; or (2) based on information not reasonably available before the conclusion of the ICHEIC process.

SEC. 8. EUROPEAN BANK FOR RECONSTRUCTION AND DEVELOPMENT.

(a) IN GENERAL.—The Secretary of the Treasury shall instruct the United States Executive Director at the European Bank for Reconstruction and Development to use the voice and vote of the United States to create and advocate the policies of the Bank to encourage Eastern European countries to engage in and pursue restitution programs in compliance with this Act.

(b) REPORT.—Not later than one year after the date of the enactment of this Act, and three years thereafter, the Secretary of the Treasury shall submit to Congress a report on the progress of carrying out subsection (a).

SEC. 9. DEFINITIONS.
In this Act:

(1) COMMISSIONER OF INSURANCE.—The term ‘‘commissioner of insurance’’ means the highest ranking officer of a State responsible for regulating insurance.

(2) COVERED POLICY.—The term ‘‘covered policy’’ means any insurance policy that was—(A) in effect at any time after January 30, 1933, and before December 31, 1945; and (B) issued to a policyholder or named a beneficiary who was deprived of their life, suffered damage to their mental or physical health, suffered loss or deprivation of financial or other assets, or suffered any other loss or damage to their property as a result of racial, religious, political, or ideological persecution by organs of the National Socialist Government of Germany or by other Governmental authorities or entities controlled by such Governmental authorities in the territories occupied by the National Socialist Government of Germany or its European allies during the period described in subparagraph (A).

(3) ELIGIBLE PERSON.—The term ‘‘eligible person’’ means a person who purchased a covered policy, a beneficiary of such person with respect to such policy, an heir of such person or such beneficiary with respect to such policy, or an assignee of such person, such beneficiary, or such heir with respect to such policy.

(4) HOLOCAUST CLAIMS PROCESSING OFFICE;
HCPO.—The terms ‘‘Holocaust Claims Processing Office’’ and ‘‘HCPO’’ mean the Holocaust Claims Processing Office of the New York State Banking Department.

(5) INTERNATIONAL COMMISSION ON HOLOCAUST ERA INSURANCE CLAIMS; ICHEIC—The terms ‘‘International Commission on Holocaust Era Insurance Claims’’ and ‘‘ICHEIC’’ mean the International Commission on Holocaust Era Insurance Claims established through the memorandum of understanding and bilateral or multilateral agreements between the Commission, relevant foreign governments, and the following insurers and their successors in interest:

(A) The Dutch Association of Insurers and the members of the Association.
(B) The AXA Group.
(C) Generali.
(D) Zurich.
(E) Allianz.
(F) Winterthur.
(G) All insurers participating in the process of the Commission through bilateral or multilateral agreements.

(6) INSURER.—The term ‘‘insurer’’ means any person engaged in the business of insurance in interstate or foreign commerce, if the person issued a covered policy, or a successor in interest to such person. Amend the title so as to read: ‘‘A bill to further facilitate payment of Holocaust-era insurance claims.’’.