FACTS COMMON TO ALL COUNTS
24. By 1933 Nazi Germany was implementing a program of genocide now known as the Holocaust. Chief among the persecuted groups were Jews, Gypsies, Homosexuals, communists, political dissidents and other non-Aryans. These groups were deemed racially or genetically inferior and were therefore targeted by the Nazis and their co-conspirators for suppression and extermination to cleanse the Aryan race. In addition, said racially and/or genetically inferior persons were subjected to enslavement, torture, physical and mental abuse, starvation, exploitation and execution in order to advance the interests of the German businesses, including defendants, which were co-conspirators with and benefitted financially from the activities of the Nazi regime.
25. As Nazi Germany declared war on and conquered other European Countries, the persecution became regimented and institutionalized and proceeded with assembly-line efficiency. Regimes in other European Countries, declared allegiance to Nazi Germany and carried out Nazi Persecution.
26. Part of the "Final Solution" was the gathering of Jews and other Nazi persecutees from all German-occupied Europe so as to place them in "concentration camps" . The physical condition of the prisoners determined whether they would live or die. Many who were fit to work were used as slave/forced laborers in the concentration camps; those who were not fit to work were exterminated in gas chambers and their bodies burnt.
27. As the Nazi Regime rose in power, from 1933 to 1939, and as Nazi Germany declared and waged war against other European countries from 1939 to 1945. And, and after 1938/9 the Defendants used and sought to profit from the slave/forced labor of concentration camp inmates and/or other persecutees of the Nazi regime.
28. From 1933 to 1945, Defendants actively cooperated with the Nazi Regime and its commercial enterprises in the manufacturing industry, including but not limited to armaments, electronics, automobiles, trucks, machinery and heavy equipment, as well as the construction industry, using the slave/forced labor of Plaintiff and members of the plaintiff class.
29. Defendants actively sought slave/forced labor and many Defendants appealed to the Nazi Regime for persons confined to concentration camp and/or ghettos to be used as slave/forced laborers. For example, of the two million Jews who were used as slave/forced laborers in the German war production, only 200,000 survived. Former SS Captain Karl Sommer testified at Nuremberg that he knew of the allocation of 500,000 to 600,000 concentration camp inmates who had been requested by various industries. Additional testimony by other SS Officials indicated that such workers were not assigned; it was impossible to get slave/forced labor without the company's specific request.
30. Each of the Defendants contributed to the Holocaust, and prolonged it and the War.
31. After the war, the white-collar industrialists who had used slave/forced labor came off well. Most of the company managers were never put on trial. No corporate director ever stood trial before the IMT (International Monetary Tribunal). Several of the convicted German corporate officials were sentenced to long prison terms, but by January 1951 not a single one was still in jail.
32. Since the Defendants have never revealed the true nature of their involvement with Holocaust slave/forced labor, nor the amount of profits wrongly earned as a direct result of the use of slave/forced labor, there are no presently available, definitive estimates (only reasonable projections) of the value of the Plaintiff's and the Plaintiff Class' slave/forced labor and services and profits derived therefrom. Nevertheless, Plaintiff and the Plaintiff class are entitled to full restitution and compensation.
COUNT I - HUMAN RIGHTS VIOLATIONS & VIOLATIONS OF INT'L LAW
33. Plaintiff on behalf of herself and all others similarly situated, including all Holocaust victims and their heirs, both alive and dead, re-alleges as if fully set forth, each and every allegation contained in the preceding paragraphs.
34. The Defendants participated in the activities of the Nazi regime in furtherance of the commission of war crimes, crimes against humanity, crimes against peace, slavery and slave/forced labor, torture, rape, starvation, physical and mental abuse, summary execution and genocide. Specifically, the actions and conduct for the Defendants, in addition to being profitable, actively assisted the war objectives of the Nazi Regime.
35. The Defendants knowingly used, enslaved, tortured, starved and exploited Holocaust victims to work for them so as to manufacture their products, work in their factories and/or at their facilities, and perform other labor for and on behalf of themselves and the Nazi Regime. In the process, Defendants subjected Plaintiff and the Plaintiff class to brutally inhumane conditions, physical abuse, torture, starvation and summary execution, thereby contributing to the Holocaust's genocidal goal and impact.
36. The above referenced actions by the Defendants were in violation of numerous international treaties, customary international laws, and the fundamental human rights laws prohibiting genocide, war crimes, crimes against humanity, crimes against peace, slavery, slave and forced labor, and slave trade including or as reflected by, the Genocide Convention; the United Nations Charter, the Universal Declaration of Human Rights; the Geneva Convention of 1929; the supplemental Geneva Convention of the Treatment of Non-Combatants During World War Time; the Nuremberg Principles; the Slavery Convention of 1926; the Supplementary Convention of the Abolition of Slavery; the Slave Trade, the Institutions and Practices similar to Slavery; the International Labor Conventions and Recommendations; the Covenant on Civil and Political Rights; and the Hague Convention of 1907.
37. As a result of the above referenced violations of international law, Plaintiff and members of the Plaintiff class have suffered injury and are entitled to compensatory damages in excess of $75,000.00 per person in an amount to be determined at trial.
COUNT II - CONVERSION
38. Plaintiff on behalf of herself and all others similarly situated, including all Holocaust victims, and their heirs both alive and dead, re-alleges as if fully set forth, each and every allegation contained in the preceding paragraphs.
39. As a result of Defendants' failure and refusal to account for, acknowledge and return to Plaintiffs and the members of the Plaintiff class, the value of their slave/forced labor, Defendants have wilfully and wrongfully misappropriated and converted the value of that labor and its derivative profits into Defendants own property.
40. Defendants have never accounted for or returned the value of Plaintiff and members of the Plaintiff class slave/forced labor and/or the profits Defendants derived from said slave/forced labor, either during World War II or since World War II ended.
41. As a result of the value of their slave/forced labor being withheld from them, Plaintiff and the plaintiff class have been unable to use or invest those assets.
42. On information and belief, the Defendants' profits from and their use of slave/forced labor approximate the losses suffered by Plaintiff and members of the Plaintiff class from being forcibly abused, enslaved, tortured, starved and exploited and as such have been unable to use or invest their assets.
43. As a result of Defendants' wrongful acts and omissions, Plaintiff and members of the Plaintiff class have been injured and demand judgment against the Defendants jointly, severally and/or in the alternative on this cause of action fro, amongst other things, (a) an accounting of the slave/forced labor monies, profits and/or benefits derived by Defendants, (b) that a constructive trust in the value of said monies, profits and/or benefits derived by Defendants use of slave/forced labor, (c) that full restitution be made in the value of all monies, profits, and/or benefits derived by Defendants use of slave/forced labor, (d) equitable disgorgement of all said monies, profits, and/or benefits derived by Defendants use of slave/forced labor and (e) other damages in an amount in excess of the jurisdictional limits of this Court and to be determined at the trial herein, together with interest, exemplary or punitive damages, attorneys fees and costs of this action.
COUNT III - UNJUST ENRICHMENT
44. Plaintiff on behalf of herself all others similarly situated, including all Holocaust victims and their heirs, both alive and dead, re-alleges as if fully set forth, each and every allegation contained in the preceding paragraphs.
45. From 1933 through 1945 Defendants abused, enslaved, exploited and profited from the slave/forced labor of Holocaust victims.
46. Defendants have failed to account for and/or return to Plaintiffs and the Plaintiff class the value of their slave/forced labor and/or the profits and benefits the Defendants derived therefrom and Defendants have concealed the nature and scope of their participation in Nazi regimes, slavery, abuse, torture, starvation and exploitation of Holocaust Victims, such as plaintiff CHMIELEWSKA.
47. As a result of the Defendants' wrongful acts and omissions as described above, Defendants have been unjustly enriched.
48. Defendants have been unjustly enriched at the expense of Plaintiff and the Plaintiff class. Plaintiff and the Plaintiff class therefore demand restitution and judgment against the Defendants jointly, severally and/or in the alternative, in an amount in excess of the jurisdictional limits of this Court and to be determined at the trial herein, together with interest, exemplary or punitive damages, attorneys fees, and the costs of this action.
COUNT IV - CONSPIRACY
49. Plaintiff on behalf of herself and all others similarly situated, including all Holocaust victims and their heirs both alive and dead, re-alleges as if fully set forth, each and every allegation contained in the preceding paragraphs.
50. Defendants agreed to participate with the Nazi regime and/or with individual Nazis and have continued to participate, in a wrongful common scheme and course of conduct, the object of which was to abuse, enslave, torture, starve and exploit Plaintiff and the Plaintiff class, profit from that slave/forced labor, commit genocide, and after the Holocaust, to conceal from Plaintiff and the plaintiff class members information about the value of their slave/forced labor, and prevent the return to Plaintiff and members of the Plaintiff class of the value of said slave/forced labor and/or the resulting profits therefrom.
51. The unlawful objects of the conspiracy were and are, among other things:
a. To violate international law by abusing, enslaving, torturing, starving and exploiting Plaintiff and the plaintiff class;
b. To systematically commit assault and battery upon Plaintiff and the Plaintiff class by enslaving, torturing, starving, abusing and otherwise forcing them to perform slave/forced labor;
c. To convert the value of slave/forced labor by selling and otherwise profiting from the sale proceeds of the products of slave/forced labor;
d. To use the slave/forced labor to engage in necessary and indispensable manufacturing, construction, military and/or other products and/or services for Defendants' business, other German industry and the Nazi War effort;
e. To intentionally and wrongfully conceal from Plaintiff and the Plaintiff class members information about the value of and profits from their slave/forced labor; and
f. To unjustly prevent the return, to Plaintiff and members of the Plaintiff class, the value of the slave/forced labor and the derivative profits.
52. Defendants have taken the following actions in furtherance of the conspiracy, inter alia:
a. Enslaving, torturing, starving, abusing and otherwise forcing Plaintiff and members of the plaintiff class to perform valuable services and labor;
b. Actively preventing access to and disclosure of defendants' and third party's relevant documents related to the slave/forced labor of Holocaust victims, such as plaintiff CHMIELEWSKA;
c. Opposing proposals for official or outsider investigations related to the slave/forced labor of Holocaust victims, such as plaintiff CHMIELEWSKA; and
d. Falsely denying liability regarding and/or related to the slave/forced labor of Holocaust victims, such as plaintiff CHMIELEWSKA.
53. As a result of Defendants' conspiracy, Plaintiffs and the Plaintiff class have been injured and demand restitution and judgment against the Defendants jointly, severally and/or in the alternative, in an amount to be determined at trial together with interest, exemplary or punitive damages, attorneys fees and the costs of this action.
PRAYER FOR RELIEF
WHEREFORE Plaintiffs and the Plaintiff class demand a jury trial and judgment and damages against the Defendants, jointly, severally and/or in the alternative, as follows:
(1) For an order certifying the Plaintiff class alleged herein;
(2) For an accounting;
(3) For restitution of the value of their slave/forced labor;
(4) For restitution of the value of their unjust enrichment based upon slave/forced labor;
(5) For disgorgement of illicit profits;
(6) For compensatory damages in an amount to be determined by trial together with interest compounded annually from May 8, 1945 to the present, arising out of, inter alia, Defendants liability for the labor, abuse, torture, starvation, enslavement and exploitation of Plaintiff and the Plaintiff class and the slave/forced labor, abuse, torture, starvation, exploitation and enslavement of their deceased family members, and the other misconduct alleged herein;
(7) For interest;
(8) For exemplary or punitive damages in an amount to be determined at trial;
(9) For attorneys fees; and
(10) For the cost of this action.
DATED: April 20, 1999, New York, NY
______________________________
Edward D. Fagan (EF-4125)
Carey D'Avino (CD-2973)
Fagan & D'Avino LLP
One World Trade Center, #5215,
New York, New York 10048
Tel: (212) 839-7120
Robert A. Swift (RS-8630)
Steven M. Steingard (SS-1132)
David J. Cohen (DC-2536)
Kohn Swift & Graf PC
1101 Market Street, Suite 2400
Pennsylvania, PA
Tel. (215) 238-1700
David Barrett
Nicholas Gravante
Harlan Levy
Barrett, Gravante, Carpinello& Stern LLP
1585 Broadway
New York, NY 10036
Tel. (212) 969-5600
Mary Boies
Boise & McInnes
Empire Building - Suite 5
Village Green - P.O. Drawer 67
Bedford, NY 10506
Tel. (914) 234-3700
Michael Witti Esq.
9 Posseartstrasse
D - 91079 Munchen, Bogenhausen
Germany
Tel. 011-49-89-419-66777
William Marks Esq.
5225 Wisconsin Ave NW, Ste 601
Washington, DC 20015
Tel. (202) 537-6758
Prof. Jon van Dyke
2515 Dole Street
Honolulu, Hawaii 96822
Tel. (808) 956-8509
______________
Australian Of-Counsel:
Henry S. Burstyner LL.B.
Glennen, Burstyner & Co.
Barristers & Solicitors
146a Acland Street
St. Kilda, Vic., 3182
AUSTRALIA
Tel: 011-61-3-9534-0428
