v.
DAIMLER-CHRYSLER AG
FRIED KRUPP AG HOESCH-KRUPP;
HENKEL KGaA;
and its/their predecessors,
successors and/or assigns,
and CORPORATE DOES NOS. 1-100.
DEFENDANTS
___________________________________
99 CIV 2240 (ILG)
CLASS ACTION COMPLAINt
April 20, 1999
JURY TRIAL DEMANDED
Plaintiffs, on behalf of themselves and all other persons similarly situated, state as follows:
NATURE OF ACTION,
JURISDICTION AND VENUE
1. Defendants, including, but not limited to, DAIMLER-CHRYSLER AG, FRIED KRUPP AG HOESCH-KRUPP and HENKEL KGaA, conspired with the Nazi Regime and with certain other German Industrial entities and/or financial institutions (whose identities are not yet specifically identifies but which are described herein as CORPORATE DOES # 1 - 100) and other un-named German Industrial entities and/or financial institutions to use Holocaust victims as slave/forced laborers, and illicitly profited from such slave/forced labor. The use of slave/forced labor by the Nazis and Defendants was part and parcel of Nazi genocidal activities now referred to as the "HOLOCAUST". Plaintiffs and the plaintiff class are Holocaust victims who were forced into slave/forced labor by Defendants individually and/or as co-conspirators with other German business entities, financial institutions and/or the Nazis. Plaintiffs seek an accounting, constructive trust, restitution, disgorgement and compensatory and punitive damages arising out of the Defendants' continuing wrongful conduct as described below.
JURISDICTION AND VENUE
2. This Court has jurisdiction over this matter based on the following: (a) pursuant to 28 U.S.C. Sec. 1350, specifically the Alien Tort Claims Act, in that named Plaintiffs are not citizens of the United States who as aliens may bring an action against these defendant(s) which are citizens of Germany and/or the United States but which do business in the United States and where the plaintiffs' are asserting claims against these defendants under federal common law which incorporates customary international law and international treaties, as well as under the Torture Victim Protection Act; (b) pursuant to 28 U.S.C. Sec. 1331 in that the amount in controversy exceeds $75,000 per plaintiff exclusive of interest and costs; and (c) pursuant to 28 U.S.C. Sec. 1367, the Court has supplemental jurisdiction of claims by members of the Plaintiff class who are not citizens of the United States and whose claims do not exceed $75,000.00.
3. Venue is proper in this Court since the Defendants do business and may be found in this District within the meaning of 28 U.S.C. 1391(b), and, as aliens may be sued in any district pursuant to 28 U.S.C. 1391 (d).
4. Plaintiff ANTONI KOZIARSKI is a Polish citizen, born on the January 26, 1931. At the beginning of World War II, plaintiff KOZIARSKI was a schoolboy. In or about September 1944, when plaintiff KOZIARSKI was only 13, the Warsaw Ghetto Uprising occurred. During or as a result of the Warsaw Ghetto uprising, plaintiff KOZIARSKI was "arrested" and sent to the Auschwitz-Birkenau concentration camp. Shortly after his arrival at Auschwitz-Birkenau, plaintiff KOZIARSKI was transported to the Mauthausen concentration camp, where he was a slave/forced laborer working in a stone mill. On December 13, 1944, plaintiff KOZIARSKI was sent to the concentration camp at Gusen I, where upon his arrival he was immediately sent to work at an aircraft factory owned, operated and/or run by Messerschmitt (which company was later acquired by defendant DAIMLER-CHRYSLER f/k/a DAIMLER-BENZ). At the Messerchmitt factory, plaintiff KOZIARSKI was a slave/forced laborer as a machine locksmith. The workshift was 12 hours per day, 6 days per week. The conditions were very bad. There was not enough food. Plaintiff KOZIARSKI never received payment of any kind for his slave/forced labor. Plaintiff KOZIARSKI was a slave laborer at the Messerschmitt factory from December 1944 until May 1945. Plaintiff KOZIARSKI observed the guards, who were both in uniform and in civilian clothes, and who beat, tortured, threatened and executed workers for failure to work fast enough or just to set an example to scare other workers to work faster. Plaintiff KOZIARSKI was liberated on May 5, 1945 and returned to Poland where he has lived ever since.
5. Plaintiff HALINA WOZNIAK is a Polish citizen, born on March 7, 1929. On or about August 1944, when plaintiff WOZNIAK was only 15, plaintiff WOZNIAK was "arrested" sent to the Ravensbruck concentration camp. Plaintiff WOZNIAK was a slave/forced laborer while at the Ravensbruck concentration camp from August 1944 through December 1944. In early December 1944, plaintiff WOZNIAK was transferred from Ravensbruck to Flosenburek - Kommando Holiszew where she was a slave/forced laborer from December 1944 through May 1945. At the Flosenburek camp, plaintiff WOZNIAK worked as a slave/forced laborer at the KRUPP's ammunition factory. The workshift was 8 hours per day, 6 days per week. The conditions were very bad. There was not enough food. Plaintiff WOZNIAK never received payment of any kind for his slave/forced labor. Plaintiff WOZNIAK was a slave/forced laborer for defendant KRUPP for 6 months until she was transported to Amberg. Plaintiff WOZNIAK observed the guards, who were both in uniform and in civilian clothes, and who beat, tortured, threatened and executed workers for failure to work fast enough or just to set an example to scare other workers to work faster. Plaintiff WOZNIAK was liberated on May 5, 1945 and returned to Poland where she has lived ever since.
6. Plaintiff BLANKA LEWINSKA is a Polish citizen, born on November 11, 1930 in Krakow. In or about February 1944, when plaintiff LEWINSKA was only 14, she was "arrested" and sent to the Werl concentration camp. At the Werl camp, Plaintiff LEWINSKA was a slave/forced laborer at a KRUPP's ammunition factory from February 1944 until May 1945. The workshift was 12 hours per day, 7 days per week. The conditions were very bad. There was not enough food. Plaintiff LEWINSKA never received payment of any kind for his slave/forced labor. Plaintiff LEWINSKA observed the guards, who were both in uniform and in civilian clothes, and who beat, tortured, threatened and executed workers for failure to work fast enough or just to set an example to scare other workers to work faster. Plaintiff LEWINSKA was liberated in May 1945 and returned to Poland where she has lived ever since.
7. Plaintiff RYSZARD CZERSKI is a Polish citizen, born on the January 24, 1929. At the beginning of World War II, plaintiff CZERSKI was a schoolboy in a mechanical school in Warsaw. After the Nazis invaded Poland in 1939, the mechanical school was "taken over" by private German industry and became a part of Junkers Werke, which was producing equipment for the German war machine. From the end of 1939 until September 1944, Plaintiff CZERSKI was a slave/forced laborer at the Junkers Werke plant. On or about September 2, 1944, when plaintiff CZERSKI was only 15, the Warsaw Ghetto Uprising occurred. During or as a result of the Warsaw Ghetto uprising, plaintiff CZERSKI was transferred to the Sachsenhausen concentration camp. Either upon arrival at the Sachsenhausen concentration camp or when the decision was made to transfer him from the Junkers Werke factory, plaintiff CZERSKI was "selected" and/or assigned to work as a slave/forced laborer at an airplane factory belonging to and/or being run by defendant HENKEL. At defendant HENKEL's factory, plaintiff CZERSKI was a slave/forced laborer as a machine locksmith. The workshift was 13 hours per day, 6 days per week. The conditions were unbearable. There was not enough food. The slave/forced laborers had to sleep in an unheated basement of a destroyed building. Plaintiff CZERSKI never received payment of any kind for his slave/forced labor. Plaintiff CZERSKI was a salve laborer for defendant HENKEL for 8 months until he was forced onto a death march at the end of April 22, 1945. Plaintiff CZERSKI observed the guards, who were both in uniform and in civilian clothes, and who beat, tortured, threatened and executed workers for failure to work fast enough or just to set an example to scare other workers to work faster. Plaintiff CZERSKI was liberated on May 2 or 3, 1945 and returned to Poland where he has lived ever since.
DEFENDANTS
8. Defendants and the other known and unknown defendants, requisitioned, used and profited from slave/forced labor during World War II, including the labor of the named Plaintiff, and other members of the Plaintiff class, including prisoners of war, deceased family members and other Holocaust victims as described above. Defendants profited from the use of slave/forced labor and have retained the benefits and use of those profits and the products of that slave/forced labor since World War II. Defendants conspired with the Nazis to use the labor of the plaintiff and the plaintiff class and subject Plaintiff and the plaintiff class to physical and mental abuse. Defendants knew that the slave/forced labor system was a component of the Nazi genocidal program. Defendants were therefore active participants in the Holocaust.
9. Defendant Daimler-Chrysler AG ("Daimler-Chrysler") is a business organized and incorporated under the laws of Germany and Michigan, with its principal place of business in Stuttgart, Germany and Detroit Michigan. Daimler-Chrysler also is the successor-in-interest to, among others, Daimler-Benz and in turn to Allegemeiner Elektrik Gessellschaft AG ("AEG", Telefunken Electronic GmbH, Messerschmitt-Bolkow-Blohm, GmbH and Telefunken System-Technik AG. Daimler-Chrysler and its affiliates, subsidiaries and/or alter egos conduct extensive business in the United States, and have offices in New York, New Jersey, Connecticut, California, Oregon, Alabama, Michigan, Delaware and a Daimler-Chrysler Representative Office in Washington. Daimler-Chrysler derives at least 20 percent of its worldwide revenues from the United states and owns 22 manufacturing plants in the United States. On information and belief, Daimler-Chrysler has had continuous and systematic business transactions in New York.
10. Defendant Fried. KRUPP AG Hoesch-KRUPP ("KRUPP") is a business organized and incorporated under the laws of Germany and the United States with principal places of business in Essen, Germany and throughout the United States. Defendant KRUPP and its affiliates, subsidiaries and/or alter egos conduct extensive business in the United States and have offices in New York, New Jersey, Georgia, Texas, Michigan, Illinois, Indiana, Ohio, Wisconsin and Nevada, and elsewhere around the world. On information and belief, KRUPP has engaged in continuous and systematic business transactions in New York.
11. Defendant HENKEL KGaA ("HENKEL") is a business organized and incorporated under the laws of Germany with its principal place of business in Dusseldorf, Germany. HENKEL and its affiliates, subsidiaries and/or alter egos conduct extensive business in the United States, and have offices in California, Ohio, Michigan, Minnesota, Pennsylvania, Texas and Tennessee. HENKEL also trades American Depository Receipts, which are United States securities, at the American Over the Counter Market in New York. On information and belief, HENKEL has had continuous and systematic business transactions in New York.
12. Defendants Corporate Does Nos. 1-100 are other German Companies, both industrial, manufacturing, electronic, financial and other enterprises that, like the named Defendant, its/their predecessors, affiliates and/or assigns conspired with the Nazi Regime to use Holocaust victims as slave/forced laborers and illicitly profited from such forced labor. The designation Corporate Does Nos. 1-100 is used until such time as the specific identity of such additional companies, as they relate to this action, is ascertained through discovery and/or other means.
CLASS ALLEGATIONS
13. This action is brought and may properly be maintained as a class action pursuant to the provisions of the Federal Rules of Civil Procedure 23(1) (1) - (4) and 23 (b) (1), 23 (b) (2) and 23 (b) (3). Plaintiff seeks certification of the following class: all targets of Nazi persecution, and their heirs alive and dead, who were forced by Defendants to perform slave/forced labor during the Holocaust.
14. The exact number of Plaintiff class members is not known. Plaintiffs estimate that the class includes tens of thousands of Holocaust survivors, prisoners of war, and their heirs, alive and dead, and the Plaintiffs estimate that the class is so numerous that joinder of individual members is impracticable. The number and identities of the class members can only be ascertained through appropriate investigation and discovery.
15. Questions of fact and law are common with respect to each class member. Common questions of fact and law include:
a. Whether Defendants knowingly, intentionally and systematically requested used slave/forced labor;
b. Whether Defendants wrongly converted, to their own use and for their own benefit, the slave/forced labor and services of Plaintiffs and the Plaintiff class, as well as the products and profits for such slave/forced labor;
c. Whether Defendants knew or should have known that they were assisting and/or acting as accomplices and collaborating with the Nazis in implementing the Holocaust;
d. Whether Defendants knowingly assisted the Nazi Regime in prolonging and enhancing the Nazi war effort and systemic persecution, torture and extermination of Holocaust victims by enslaving Holocaust victims and profiting from slave/forced labor;
e. Whether Defendants conspired with the Nazi Regime and knowingly concealed information about the Defendants wrongdoing during and after the Holocaust, and/or knowingly retained slave/forced labor profits and/or benefits;
f. Whether Defendants have been unjustly enriched by their wrongful conduct; and
g. Whether, as a result of the horrific and wrongful conduct of Defendants, the Plaintiff class is entitled to restitution or other equitable relief, or to compensatory or punitive damages.
16. The claims of the individually named Plaintiffs are typical of the claims of the Plaintiff Class Members. Plaintiffs and all members of the Plaintiff Class have been similarly affected by the Defendants common course of conduct and the members of each class have identical claims against the Defendants which acted individually and/or in concert with one another and with the Nazi Regime. The claims of all class members depend on a showing of Defendants' common course of conduct, as described herein, which give Plaintiffs, individually and as class representatives, the right to the relief sought herein.
17. There is no conflict as between Plaintiffs and the other members of the class with respect to this action or the claims for relief. Plaintiffs know and understand his/her/their asserted rights and their roles as class representatives.
18. Plaintiffs and his/her/their attorneys are able to and will fairly and adequately protect the interest of the Class. Plaintiffs' attorneys are experienced class action litigators who are well able to conduct the proposed litigation. Plaintiffs' attorneys can vigorously prosecute the rights of the proposed class members.
19. Prosecution of separate actions by individual Plaintiffs will create the risk of inconsistent and varying adjudications and will establish incompatible standards of conduct for Defendants in that different Courts may order Defendants to provide different types of accounting or take other inconsistent actions.
20. Prosecutions of separate actions by individual plaintiffs will, as a practical matter, be dispositive of the interests of other proposed class members not party to the adjudications or will substantially impair or impede their ability to protect their interest in that, for example, Defendants may exhaust their available funds in satisfying the claims of earlier plaintiffs to the detriment of later plaintiffs.
21. Defendants have acted and/or refused to act on grounds generally applicable to the proposed class, making final injunctive relief and correspondent declaratory relief appropriate with respect to the class as a whole in that Defendants have been unjustly enriched by their participation in a conspiracy (a) to enslave and exploit member of the class, (b) to convert of the value of class members slave/forced labor and services, and (c) to prevent and/or refuse restitution to the proposed class members, (d) to prevent and/or refuse to disgorge wrongfully gained and/or earned profits and benefits, or (e) to provide a full and complete accounting and disclosure of the extent of their aforesaid actions against Holocaust Victims.
22. Common questions of law and fact predominate in the claims of all class members including the named Plaintiff. These claims depend on proving Defendants are liable for their acts and/or omission based on evidence of a common scheme. Plaintiffs', and the plaintiff class members', proposed evidentiary showings would be based on the same documents and testimony concerning Defendants' actions.
23. A class action is superior to the other available methods for the fair, just an efficient adjudication of the controversy. Plaintiffs and the Plaintiff class members have no interest in individually controlling the prosecution of separate actions and, instead are on the whole aged and infirm and, therefore incapable as practical matter of pursuing individual claims. Even if individual class members had the resources to pursue individual litigation, it would be unduly burdensome to the Courts in which the individual litigation would proceed. Individual litigation magnifies the delay and expenses to all parties in the Court system of resolving the controversies engendered by Defendants' individual and/or common course of conduct. The class action device allows a single court to provide the benefits of unitary adjudication, judicial economy and the fair and equitable handling of all plaintiffs' claims in a single forum. The conduct of this action as a class action conserves the resources of the parties and of the judicial system, and preserves the rights of each class member. Furthermore, for most class members, a class action is the only feasible mechanism that allows them an opportunity for legal redress and justice. A large concentration of proposed class members is estimated to reside in this District and nearby states. The management of this litigation as a class will pose few problems for this Court.
24. There is another related class action pending against this defendant in this Court, entitled Pollack et al v. Siemens, Krupp et al, pending before the Hon. I. Leo Glasser. The Pollack v. Siemens, Krupp et al case is/was the first Holocaust victim slave/forced labor class action against the defendants named herein There is/are other cases against this defendant filed both in, at least, this District and the District of New Jersey.
25. Certification of the Plaintiff class is appropriate under Fed. R. Civ. P. 23(a) and also under 23(b) (1), 23(b) (2) and/or 23(b) (3).
EQUITABLE TOLLING
26. The Defendants with the active assistance of each other and third parties, have concealed information from the Plaintiffs and from the proposed plaintiff class by, inter alia:
a. Concealing the true nature and/or extent of its wilful and/or knowing cooperation with and/or assistance to the Nazi regime and prolonging the Holocaust;
b. withholding information from Plaintiffs and the plaintiff class members about the value of Defendants use of slave/forced labor; and
c. withholding information about the profits and/or benefits that Defendants have retained.
27. Since 1995 the archived records concerning the World War II actions of, amongst others, Germany and private German Banks, financial institutions and companies and other countries and private banks, financial institutions and companies which cooperated with the Nazi Regime, were and/or are being opened to the public. These records sparked a re-examination of various corporations and/or financial institutions roles in the war crimes and crimes against humanity committed during World War II and, by their inaction, deceit and concealment, perpetuated into the present.
28. Prior to November 5, 1997, German law barred Plaintiffs' and the plaintiffs class' claims for compensation and/or damages from private companies for and/or resulting from slave/forced labor during the Second World War. On November 7, 1997 a ruling of the Landgericht Court in Bonn lifted this 50 year ban and, for the first time, slave/forced laborers were permitted to file claims for compensations and/or damages against private German companies.
