Rail act

According to documents filed with US authorities and reviewed by DW, Deutsche Bahn late last year hired a strategic communications group and a law firm to advise and represent the company in its dealings with members of Congress and US government agencies.

Deutsche Bahn’s lobbying efforts are related to the Holocaust Rail Justice Act which was introduced in the US Senate and the House of Representatives on March 17, 2011. The bills have prominent support: Senator Charles Schumer of New York sponsored the Senate version; co-sponsors include Senate majority leader Harry Reid and former vice presidential nominee Joe Lieberman.

Law applicable to SNCF alone

The goal of the two identical bills, which specifically mention France’s national railway SNCF, is to enable Holocaust victims to file suits regarding the deportation by trains to Nazi concentration camps before US courts.

Previous lawsuits by Holocaust victims in the US against SNCF failed because American courts don’t have jurisdiction over SNCF due to the Foreign Sovereign Immunities Act (FSIA). The FSIA limits suits in American courts against other countries or entities belonging to governments of other nations. The Holocaust Rail Justice Act would strip the company of this protection.

There is disagreement among experts as to the scope of the bill in question. A lawyer lobbying for the Holocaust Rail Justice Act argues that the bill would apply only to SNCF.

"We do not believe that this law, once it’s passed, will affect any other railroad in Europe," Harriet Tamen, a New York lawyer who says she represents some 600 Holocaust survivors in the case against SNCF told DW.

The language of the bill clearly excludes Deutsche Bahn or the Reichsbahn, as Germany’s national railway was called between 1937 and 1945, notes Tamen:

"It says that a railroad which is a separate corporate entity - which eliminates many rail companies in Europe which are true agencies and not separate corporations - that owned and operated trains in France and deported people from France to Nazi concentration camps during the period from June 1940 to December 1944. And to our knowledge there was only one entity that owned and operated trains in France and deported people to Nazi concentration camps."

Broader scope of the law

Richard Weisberg, a law professor and founding director of the Holocaust and Human Rights Studies program at Cardozo Law School at New York’s Yeshiva University disagrees:

"The bill seems to reference specifically the SNCF, but when you get to heart of it it’s fairly clear that it could apply to other European railroads," he told DW.

"The bill does not only have to do with the deportations from France," says Weisberg. "The bill on its terms applies and even references other deportations. In other words other countries, other railroads quite separately from the French situation could be covered by this bill if it became law."

Weisberg, who says he fully supports the bill, adds that if it became law he would be able to utilize it for his clients in a case he is currently pursuing with other lawyers against Hungary’s national railroad in Chicago.

While the language of the bill is broad enough to cover railways beyond SNCF, "there are distinctions that could be made and would be made as among the different national railroads in terms of their past history of restitution or facing up to their past history," notes Weisberg. "And the Hungarian national railroad is closer to the French national railroad than it is to Deutsche Bahn in that respect."

Deutsche Bahn protected by German Foundation agreement

Morris Ratner, an associate-professor elect at U.C. Hastings College of the Law in San Francisco, is one of the attorneys who prosecuted Holocaust-era claims against German entities, participated in the negotiation of and was a signatory to the agreements resulting in the creation of the German Foundation agreement.

He argues that the scope of the bill extends beyond SNCF, but that Deutsche Bahn wouldn’t be affected by it:

"The bill is not country-specific," Ratner told DW per e-mail. "So it is not limited to SNCF."

But, adds Ratner, "German entities are protected from Holocaust-era suits by the German Foundation Agreement, which recognizes that the German Foundation Agreement resolves all such claims involving German entities."

The German Foundation Agreement is an executive agreement between the US and the German governments signed in 2000. It was capitalized with 10 billion DM ($6.8 billion) at the time and covers payments to Holocaust victims.

This agreement, says Ratner, binds the US government "to file 'Statements of Interest' in any Holocaust case against a German entity seeking dismissal on political questions, or any other grounds, in deference to the Agreement."

The Holocaust Rail Justice Act, notes Ratner,"does not operate to rescind that agreement, either expressly or by implication."

His conclusion: "While the proposed bill possibly creates some confusion regarding its scope, I think its preamble (which clearly deals with French railroads), and its reference to legislation and to the common law (rather than to an Executive Agreement, which the German Foundation agreement constitutes), make it virtually impossible that any court in the United States would read it as an effort by Congress to do an end run around the German Foundation Executive Agreement."

In a nutshell: The Holocaust Rail Justice Act does not strictly apply to SNCF and could cover other European railways. But it wouldn’t strip Deutsche Bahn’s protection under the German Foundation agreement signed by the US and Germany thus making successful legal claims in US courts against Deutsche Bahn highly unlikely.

Still, Deutsche Bahn, it appears, doesn’t want to take any chances and has hired two New York firms to lobby on its behalf.

On December 13, 2011 Deutsche Bahn signed a three-month contract with New York-based communications group Strategy XXI Partners to "develop a Communications Plan related to Holocaust asset issues."

According to the official registration, the nature of the firm’s work for Deutsche Bahn is to "facilitate meetings and conversations with members of Congress and staff related to legislation that may affect the principal" (i.e. Deutsche Bahn - the ed.).

For its services Strategy XXI Partners was to be paid $45,000 (34,000 euros).

On December 19, 2011, New York-based White & Case law firm confirmed in an e-mail sent to Deutsche Bahn’s Berlin headquarters "that we have opened a separate billing number relating to potential meetings with members of the U.S. Congress and/or U.S. government agencies on potential legislation regarding World War II-related issues".

Law firm to lobby for Deutsche Bahn

In its official registration with US authorities, White & Case describes its role as to "represent Deutsche Bahn AG in discussions with members of Congress and/or US government agencies regarding pending US legislation to World War II-related issues for the purpose of bringing that legislation into harmony with existing Executive Agreements between the United States and foreign nations and/or existing US law."

There is no timetable and end date mentioned in the White & Case e-mail, but the law firm estimates that "this matter may entail fees of up to $35,000" unless "the scope of the engagement changes significantly."

Both companies referred questions about their work to Deutsche Bahn.

Goal is to monitor process, says Deutsche Bahn

A Deutsche Bahn spokesman confirmed that the company hired White & Case and Strategy XXI Partners and that both firms were continuing to work for Deutsche Bahn regarding the Holocaust Rail Justice Act.

"We are monitoring the legislative and decision-making process in Congress," a Deutsche Bahn spokesman told DW, declining to elaborate on the specifics of the lobbying efforts.

Instead he added that Deutsche Bahn had contributed a "significant amount" into the German Foundation and that as part of its continued support for Holocaust victims last year it had paid 5 million euros ($6.7 million) into the Foundation EVZ, the successor to the German Forced Labor Compensation Program, to be used for projects in Eastern Europe.

Asked about her take on Deutsche Bahn’s lobbying efforts, Harriet Tamen, who hopes the Holocaust Rail Justice Act will become law in the current session of Congress, believes the German railway company is simply overly worried:

"We are aware of that (i.e. Deutsche Bahn’s lobbying activities - the ed.) and we think that they are unduly concerned. There is no way it would affect them."

Author: Michael Knigge
Editor: Rob Mudge