December 11, 2010
Source: Los Angeles Times (California)

By Carol J. Williams

Descendants of Armenian victims of genocide at the hands of Ottoman Turks can sue insurance companies for unpaid claims over the atrocities, a federal appeals court ruled Friday in a rare reversal.

The same three-judge panel of the U.S. 9th Circuit Court of Appeals said in August 2009 that lawsuits were barred by a federal government policy against legal reference to the Armenian genocide despite laws in California and 41 other states recognizing the massacre of 1.2 million Armenians that began in 1915 amid the chaotic collapse of the Ottoman Empire.

"There is no clearly established, express federal policy forbidding state references to the Armenian genocide," the judges decided on reconsideration in a 2-1 ruling.

Brian S. Kabateck, an attorney for the Armenian American heirs from Glendale and elsewhere, said the decision was "extraordinarily unusual" and could open the door to other unsettled issues from the massacre.

The judges' ruling 16 months ago was also split 2 to 1, with Senior Judges David R. Thompson and Dorothy W. Nelson concluding that a California law passed in 2000 recognizing the genocide — and providing the legal basis for the insurance claims — was an attempt to undercut the president's authority in foreign affairs.

Congress has considered resolutions three times in the last decade that would have provided official recognition of the genocide. Each time, the White House stepped in to urge that the bills be scuttled out of fear that passage would damage relations with Turkey, whose government disputes that a genocide took place. Last year, Thompson and Nelson alluded to those thwarted resolutions as constituting a federal policy against reference to genocide.

Nelson apparently changed her mind. She sided in Friday's ruling with Judge Harry Pregerson, who had dissented from the majority last year, saying the state had a right to regulate its insurance industry.

The new ruling cited contradictions in federal policy regarding references to genocide, including moments of silence held in Congress to remember the Armenian victims and then-Sen. Barack Obama urging voters during his presidential campaign to "recognize the horrific acts carried out against the Armenian people as genocide."

The Armenian American plaintiffs had petitioned for rehearing and were notified that it was granted 14 months ago, Kabateck said. But they heard nothing from the appeals court to lead them to expect the stunning reversal, said the lawyer, whose grandparents were victims of the atrocities.
Neil Michael Soltman, who represented the German insurance companies that were sued, said he was baffled by the reversal.

"There is absolutely nothing in the opinion to indicate why there was a change from last year — no suggestion of a new law or new facts or a new federal policy that wasn't there when they issued their decision last year," he said.

Soltman said his clients were weighing their options, including a request for a rehearing by a full 11-judge panel of the appeals court.