1 UNITED STATE S COURT OF APPEALS FOR THE S ECOND CIRCUI T August T erm, 2004 (Argued: M

ay 16, 2005 Decided: Sept ember 8, 200 5) Errata Filed: October 4, 2005) Docket No. 04-1898(L), 04-1899(CON)

I N RE H OLOCAU ST V IC TI M A SSETS L IT IGATI ON

S AMUEL J. D UBB IN , Plaintiff-A ppellant , P INK T RIA NGLE C OALI TI ON , K ARL L ANGE and P IERRE S EEL , Interested Parties-Cross-Appellants,

-v.- U NION B ANK OF S WIT ZERL AND , S WISS B ANK C ORP ., also known as Swi ss Natio nal Bank, B ANKI NG I NSTITUTION S #1- 100, J OHN D OES #1-100, C ERTA IN S WISS B ANK A CCOUN TS described as follows, Swiss Bankers Assoc., Swiss Bankers Association, and Bank

of Inter national Set

tlements , Defendants-Appellees , P LAINTIFFS ’ E XECUTI VE C OMMITTEE S ETTLEMEN T C LASS , Interested-Party-Appellee , J UDAH G RIBETZ , Special Master

, G IZELLA W EIS SHAUS , on behalf of herself and all other persons of all national origins, ethnic groups, races, creeds and colors, similarly situated as victims and survivors of the Nazi Holocaust and J ACOB F RIEDMAN ,2

Plaintiffs , W ORLD J EWISH R EST IT UTI ON O RGANI ZATI ON , S OUTH F LORIDA H OLOCAU ST C OALI TI ON and T HOM AS W EISS , Interve nor-Plaint iffs , W ASH INGT ON S TATE I NSURANCE C OMMISS IONER , G REGORY T SVIL ICHOVSKY , M ATVEY Y ENTUS , S OFIYA B LOSHTEYN , O LGA T SVI LIKHOV SKYA , L ARISA R

YABAYA , R OSA Y ENTUS , P AVEL A RONOV , L UBOV S TARODI NSKAYA , and E LIAZAR B LOSHTEYN , Interested-Parties

, P OLIS H A MERI CAN D EFENSE C OMMITTEE , I NC ., a non-pro fit California Corporation, I RVI NG W OLF , D IS ABI LIT Y R IGHTS A DVOCAT ES A ND D IRECTOR OF I NTERNATIONAL A FFAIRS AND R EPRES ENTATIVE TO THE U NIT ED N ATI ONS OF A GUDATH I SRAEL W ORLD O RGANI ZATI ON , Movants , G.K., a Holo caust Sur

vivor and m ember of t

he New American Jewish Club of Miami, L.K., a Holocaust Survivor and member o f the New American Jewis h Club of Mi ami, F.K., a Holo caust Sur

vivor and m ember of t

he New American Je

wish Club of

Miami, H OLOCAU ST S URVIVORS F OUNDAT ION USA, I NC
. (HSF), D AVI D S CHAECTER , individually and as President of the Holocaust Survivors Foundatio n-USA, Inc ., L EO R ECHTER , individual ly and as President o f the Natio nal Associ ation of Je wish Holoc aust Survivor s (NAHOS) , N ATIONAL A SSOCIATION OF J EWISH H OLOCAU ST S URVIVO RS (NAHOS), D AVI D M ERM ELS TEIN , individu ally an d as Preside nt of the Ne w Americ an Jewish Club of Mia mi and Presi dent of the South Flori da Holoc aust Survivor s Coalition , N EW A MERI CAN J EWISH C LUB OF M IA MI , S OUTH F LORIDA H OLOCAU ST S URVIVORS C OALI TI ON , A LEX M OSK OV IC , individually and as President of the Child Survivors/Hidden Children of the Holocaust, Inc., C HILD S URVIVORS /H IDDE N C HILDREN OF THE H OLO CAUST , E STHER W IDMAN , individually as member of the National Association of Jewish Holocaust Survivors (NAHOS), F

RED TAUCHER , individually and as President of the Survivors of the Holocaust Recovery Project (SHARP), S URVI VORS OF THE H OLOCAU ST R ECOVERY P ROJECT3

(SHARP), N ESSE G OD IN , individually and as President of the Jewish Holocaust Su

rvivorsand Friend s of Great er Washington , J EWISH H OLOCAU ST S URVI VORS AND F RI ENDS OF G REATER W

ASH INGT ON , H ENRY S CHUSTER , individual ly and as President of the Holocaust Survivors Group of Southern Nevada, H OLOCAU ST S URVIVO RS G ROUP O F S OUTHER

N N EVADA , H ERBERT K ARLI NER , individually and as a member

of the Holo caust Sur

vivors F oundation -USA, Inc. and the South Florida Holocaust Survivors Coalition, L EA W EEMS , individually and as President of the Houston Council of J ewish Holo caust Sur vivors, H OUST ON C OU NC IL OF J EWISH H OLOCAU ST S URVIVORS , S AM G ASS ON , individually and as President of the Habonim Cultural Club, Survivor s of the H olocaust, H ABONI M C ULTURAL C LUB , S URVI VORS OF THE H OLO CAUST , H OLOCAU ST S URVI VORS OF S OUTH F LORI DA , D ENA A XELR OD , individ ually a nd as a member of the Child Survivors of the Holocaust, South Florida Group and the South Florida Holocaust Survivors Coalition, S

AUL B IRNB AUM , individually and as President of the Holocaust Survivors Club of Boca Raton (Century Village), H OLOCAU ST S URVIVO RS C LUB OF B OCA R ATON (C ENTURY V ILLAGE), M IR IA M RUBIN , Individu al Holoc aust Survivor, D ORIS F ED RID , Individual Holocaust Survivor, H ELGA G ROSS , Individu

al Holocaus t Survivo r, N ATIONAL F EDERATI ON OF THE B LI ND , USA, G ERMAN C OUNCI L OF C ENTERS FOR S ELF -D ETER MINED L IVES , Finist, Russia, E QUAL A BIL ITY L IMI TED , United Kin gdom, T

HROUGH THE L OOKI NG G LASS , USA, D IS ABL ED P ERS ONS I NTERNATIONAL , C ANADA , W ORLD I NST IT UTE ON D ISABILI

TY , USA, C ENTER FOR I NDEPEN DENT L IV ING , B ULG ARIA , D IS ABI LIT Y R IGHTS E DUCAT ION A ND D EFEN SE F UND , US, C ENTER FOR I NDEPEN DENT L IV ING , B ERKELEY , USA, C ALIFORNI A F OUNDATION FOR I NDEPEND ENT L IV ING C ENTER , I NDEPEN DENT L IV ING R ESOURCE C ENTER , S AN F RANCISCO , C OMPUTER T ECHNOLOGIES P ROGRAM , USA, R

AGGED E DGE /A VACA DO P RESS , USA, L EGAL A DVOCACY FOR THE D EFENSE OF P EOPLE W ITH D IS ABI LIT IES , N ATIONAL C ONFED ERATION OF D IS ABLED P ERS ONS , G REECE AND D E JU R E A LAP ITVANY , H UNGARY , Appellants

.4

Before: M

ESKILL , N EWMAN , and C ABRANES , Circuit Judges

. Appeal from a memorandum and order of the United States District Court for the Eastern Distric t of New Yor

k (Edward R. K

orman, Chief Judge

) alloca ting settle ment funds i n the Holo caust Victim Assets Litigation. Appellants challenge the geographic distribution of funds earmarked for needy Je wish Holoc aust victi ms. A FFI RMED
. E DWARD L ABA TON , Goodkind

Labaton Rud off & Sucha row, LLP, New Yo rk, NY (Ar

thur J. En gland, Jr. , Charles M. Auslander, and Brenda K. Supple, Greenberg Traurig, P.A., Miam

i, FL; Samuel J. Dubbi

n, Dubbin & Kravetz, L

LP, Coral Gables, FL; Stephen B urbank, Philadelphia, PA, of counsel

) for Appellants

. B URT N EUBOR

NE , New York, NY, and R OBERT A. S WIFT , Kohn Swift & Graf, PC, Philadelphia, PA (Melvyn I. Weiss, Deb orah M. St

urman, Mi

lberg Weiss

Bershad & Schulman LLP, New York, NY; Morris A. Ratner, Caryn Becker, Lieff Cabraser Heimann & Bernstein, LLP, New York, NY) for Appellees

. Alan S. Jaffe (Charles S. Sims, Gregg M. Mashberg, and Frank R. Scibilia, of counsel

), Pros kauer Rose L

LP, New Yor

k, NY for amici curiae The American Jewish Joint Distribution Committee and Idud Hasadim

. Marshall Beil, McGuire Woods LLP, New York, NY (Joseph S. Kaplan, and Christine M. Fecko, McGuire Woods LLP, New York, NY; Michael D. Lissner, Lissner & Lissner, New York, N

Y, of counsel

) for amici cu

riae The Associat ion of Je wish Family

& Children’s A

gencies, Inc., The Blue Car

d, Inc., The Nachas Healt

h and Family Network , Inc., and the

Margaret Tietz Nur sing and Rehabilitation Center

.1 This app eal was consol idate d with an appeal f

rom the Dist

rict Court’ s denia l of a ttorney’s fees br ought by Sam uel J . Du bbin , HS F’s c oun sel. W e ad jud icate Du bbin ’s app eal in a sep arate opin ion. See In re Holocaust V ictim A ssets Litig. , ___ F.3d

___ (2d C ir. 2005). 5 J OSÉ A. C ABRANES , Circuit Judge : The Holocaust Survivors Foundation-U.S.A., Inc. (“HSF”), and several individuals and organizatio ns, appeal f

rom the March 9, 2004 m emorandum and order o f the Unit

ed States D istrict Court for the Easter

n District of New Yor

k (Edward R. K

orman, Chief Judge

). 1 The District Court rejected the HSF’s objections to the Court’s earlier orders, which had allocated supplemental funds to one of the settlement classes in the litigation styled as the Holocaust Victim Assets Litigation. On appeal, the HSF continues to object to the manner in which the District Court allocated funds among class members. In particular, the HSF asserts that needy Holocaust survivors residing in the United States have received a disproportionately small allocation, relative to the ne edy survivors residing in the former Soviet Union (“FSU”). Because the District Court acted well within the bounds of its discretion in allocating the settlement fund, we affirm. B ACK GRO UND I. Swiss Bank Settlement The Holocaust Victim Assets Litigation began in 1996 and 1997, when several class actions against lead

ing Swiss banks were f

iled in the D istrict

Court and s ubsequent

ly consolidated. See In re Holocaust Victim Assets Litig. , 105 F. Sup p. 2d 139, 14 1 (E.D.N.Y. 2 000). The D istrict Court has described the princi pal cla ims of these c lass actio ns as follow s:

Plaintiff s alleged th at, before

and during

World War I I, they were subjected to persecution by the Nazi regime, including genocid e, whole sale and systematic looting o f personal a nd business propert y and slave lab or. Plaint

iffs alleg ed that, in k

nowingly retaining and concealing the assets of Holocaust victims, accepting and laundering illegally obtained Nazi l oot and transacting in the2 Fed . R. Civ. P . 23 pro vides, in re levan t part: (a) Prerequis ite s to a

Class Action. One or more mem bers of a clas s may sue or be sued as rep resentative parties on behalf of all only if

(1) the class is so nu m ero us th at join de r of a ll me m ber s is im pra ctica ble, (2) the re ar e qu estion s of law or fa ct co m m on to the c lass, (3) the cl aims or def

enses of the re present ati

ve part ies a re typi cal of

the cla ims or defen ses of the cl ass , an d

6 profits of slave labor, Swiss institutions and entities, including the named defendants, coll

aborated wit

h and aided th e Nazi regime i n furtheranc e of war cr imes, crim es again st humanity , crimes a gainst peace, slave la

bor and geno cide. Plaint

iffs als o alleged that defenda nts breach ed fiduci ary and o ther dutie s; breach ed contra cts; converted plaintiffs’ property; enriched themselves unjustly; were negligent; v

iolated cus tomary int

ernational law, Swiss b anking law and the Swiss commercial code of obligations; engaged in fraud and conspiracy; and concealed relevant facts from the named plaintiffs and the pl aintiff cl ass members i n an effort t o frustrate p laintiffs’ ability to p ursue th eir claims . Plaintif fs sough t an accounti

ng, disgorgem ent, compen satory and punitive damages, and declaratory and other appropriate relief. Id . at 141-42. In May 1997, defendant banks moved to dismiss the litigation or, in the alternative, to stay the pr

oceedings. Id

. at 142. While defendants’ motions were pending, the parties engaged in settlement discussions facilitated by Stuart E. Eizenstat, then Under Secretary of State and Spec ial Representative of the Presiden t and Secret

ary of Stat e on Holocaus t Issue s. Id

. In August 1998, after the District Court became involv

ed in the dis cussions , the parti es agreed in principle t

o settle t he litigatio n for $1.2 5 billion to be distr ibuted for the benefit

of “Jews, homosexuals, Jehov

ah’s Witnes ses, the d

isabled and Romani—gr

oups recognized by the

United Nations as havi

ng been the t

argets of systemat ic Nazi persecution.” Id

. at 142-4 3. On Janua ry 26, 199 9, the pa rties formal ly exec uted the C lass Action Sett

lement Agre ement (“Set

tlement Agr

eement”), s ubject to t

he Distr ict Court’ s approval

. On March 30, 1999, the District Court provisionally approved the Settlement Agreement and certified, pursuant to Federal Rule of Civil Procedure 23(a) and (b)(3), 2 five settl ement cl asses:(4) the rep resen tative pa rties will fairly an d ad equ ately pro tect the inte rests of the class. (b) Class Actions Maintai nable. An acti on may be maintained as a cl ass ac tio n if t he prerequi sit es of s ubdivis ion (a) are sati sfi ed, and i n additi on:

. . . (3) the court

finds that

the quest

ions of la w or fact common to the
m em ber s of th e cla ss pre do m inate ove r any qu estion s affe cting only indiv idu al m em ber s, and that a class a ction is sup erio r to oth er av ailab le methods for the fair an d effi cient adjudica tio n of th e contr oversy. The
m atter s per tinen t to the find ings in clud e:

(A) th e inte rest o f m em ber s of th e cla ss in ind ividu ally con trolling the p rose cutio n or def ense of se par ate a ction s; (B) t he extent and nature of any l

iti gati on concerning the controve rsy al

ready commenced by or agai nst members of the class ; (C) the desir abil

ity or undesi rabil

ity of concent

rating the litigatio n of th e cla ims in the partic ular foru m ; (D) the diff

icul tie s likely t o be encount ered in t he management of a cl ass ac tio n.

3 Membership in those four cl asses was limited to “Victi m[s] or Target[s] of Nazi Persecut ion, ” a phras e that encompassed i ndivi duals or enti tie s “pers ecuted or t arget ed for per secuti on by the Nazi Regime becaus e they were or were believed to be Jewish, Rom ani, Jehovah’ s Witness, homosexual, or physical ly or mentally di sabled or handicapped.” Settl ement Agreement § 1.

4Specifically, the Deposited A ssets Class includes “Victim s or Targets of N azi Persecution an d their heirs,
success ors, administ

rator s, e xecutors , af

fil iat es and as sign s who have or at any t ime have ass erted, asser t or may i n the future seek t o asser t Claims agains t any Rel easee fo r rel ief o f any ki nd whatsoever rela tin g to or

aris ing in any way fro m Deposite d Assets or any ef fort to rec over Deposit ed Assets .” Settle ment Agreement § 8. 2(a) . I t shoul d be noted that the t erm “Releasees ” under the Sett lement Agreement

is n ot l imite d to Swis s bank defe ndants,and that the Set tle ment Ag ree m ent r esolv ed lega l claim s aga inst, inter alia , the S wiss g ove rnm ent, th e Sw iss N ation al Ba nk (th at is, Sw itzerla nd ’s cen tral ba nk), a nd cert ain S wiss b usin esse s. Id . at § 1. 7 Deposited Assets Cl ass, Loo ted Asset s Class, S lave Labor Cl ass I, Sl ave Labor Clas s II, and

Refugee Class. Id . at 143-44. Membership in all except the Slave Labor Class II is limited to members of groups targeted for Nazi persecution. 3 Two of the classes are particularly relevant to this appeal. The Deposited Assets Class, as its
name sugges ts, consists of Nazi persecution vict

ims and th eir heirswhose claims are ground ed in

assets t hat were deposited by the vic tims with Sw iss banks. 4 See id . at 143. The Looted A ssets Class, by contra st, includ es princip ally “th ose who cl aim their property w as looted by Nazis and then disposed5 The Se ttlement Agre eme nt defined m emb ers of the Loo ted Assets Class as “V ictims or Targets of N azi

Persecuti on and their heir s, s uccessor s, a dminist rator s, e xecutors , af

fil iat es and as sign s who have or at any t ime have asser ted, asser t or may i n the f uture s eek to as sert

Claims ag ains t any Rel easee fo r rel ief o f any ki nd whatsoever rela tin g to or a ris ing in any way fro m Looted Assets or Cloaked Ass ets or any eff ort t o recover Loot ed Assets or Cloaked Ass ets.” S ettlem ent A gree m ent § 8.2(b ). The term “L oote d A ssets” refe rs to a ssets “ actu ally o r alleg ed ly be long ing in whole or i n par t t o Vict ims or Targe ts of Nazi

Pers ecution tha t wer e actuall y or a ll egedl

y st ole n, e xprop ri ated,

Aryani zed, confiscated, or that were otherwis e wrongfully taken by, at the request of , or under the auspices of, the Nazi Regime.” Id . at § 1. T he te rm “C loak ed Ass ets,” b y co ntra st, refe rs to a ssets b elon ging to, inter alia , entitie s and indiv idu als “ass ocia ted with the N azi R egim e . . . , the id entity , valu e or ow ner ship o f wh ich w as in fa ct or allege dly d isguis ed by . . . any Releasee.” Id

.

6 Although the Lead Set tle ment Counsel does not re present any part y in t he context

of the se appeal s, h e has played a nu mbe r of important roles in this liti gation, both as a representative of the plaintiffs and as “som ething of a general counsel t o the administrat ion of the s ettl ement fund.” In re Holocaust Victim Assets Litig. , No. CV 96-4849,sli p op. at 3 ( E.D.N.Y. Se pt. 13, 2004) . The Dis tri ct Court has aut horiz ed the Lead Set tle ment Counsel t o provi de “an adv ersa rial d efe nse” of the Dis trict C our t’s pos ition in this C our t. Id ., slip op . at 1. 8 of throu gh the Swis s Banks. ” 5 In re Holocaust Victim Assets Litig. , 413 F.3d 18 3, 185 (2d Cir . 2001) (emphasis added). The Settlement Agreement provided for the appointment of a Special Master to “develop a proposed plan of allo cation and di stribut ion of the S ettlement

Fund, empl

oying open an d equitable procedures to ensure fair consideration of all proposals for allocation and distribution.” Settlement Agreement § 7.1. As Lead Settlement Counsel, Professor Burt Neuborne of the New York Universi ty Law School, 6 explained: [t]he decision to utilize a Special Master to propose a plan of allocation and distribution was motivated by a desire to spare Holocaust survivor s from b eing forced into an adver sarial relationship that would have required them to squabble over a settlement fund that, while substantial, is necessarily insufficient to do full justice to all members of each plaintiff class. It was hoped that a neutral Sp ecial Master, acting wit h the guidan ce of the aff

ected community

, could cond

uct a serio us inquir

y into the f

acts and law,and propose a plan of allocation and distribution that would do nonadversari al justic e to the cl aims of all class memb ers. In re Holocaust Victim Assets Litig. , Submiss ion of Lead

Settlement

Counsel in S upport of

the Special Master’ s Propo sed Plan of Allocation and Distri

bution of Settlement

Proceeds , No. CV 96-48 49, at7 As the D istrict Court later underscored , Mr. Gribetz
is an e xtra ord inarily able lawy er w ith a lo ng re cor d of distin guish ed pub lic ser vice

. He has serv ed as C oun sel to the G over nor of the State of N ew Y ork an d as D epu ty Ma yor of the C ity of N ew Y ork. H e has c ontribu ted his tim e and energ y to chari tabl e and community organizat ions too numerous t o reci te. Most import antl y, he has a deep understa nding of all iss ues rel ated t o the Holoca ust. He is a member of the Board of t he Museum of Jewish Heri tage—A Living Memorial to the Holocaust , whic h is locat ed in New York. He i s al so the author o f The Timetabl es of Jew ish Histo ry (199 3). In re Holocaust Victim Assets Litig. , 2000 U. S. Dist . LEXIS 20817, at *5- *6, 20 00 WL 33241660, at * 1 (E.D. N.Y. Nov. 22, 200 0).

8 The Settl ement Agreement was app roved by t he Distr ict Court as a mended by the part ies, most recent

ly on on August 9,2000. Subs equent ref erences t o the Set tle ment Agreement are t o the amended vers ion gr anted fi nal appro val by th e D istrict Cou rt. 9 3 (E.D.N.Y. N ov. 20, 2000) . On March 3 1, 1999, the Distric t Court app ointed Th e Honorable Judah Gribetz as Special Master for this litigation. 7 Under the District Court’s direction, an extensive plan was implemented to give notice of the Settlem ent Agreemen

t to member s of the s ettlement classes. 105 F. Supp . 2d at 144-4 5. This notice plan included “(i) world-wide publication, (ii) press coverage, (iii) an extensive community outreach program, (iv) a direct mail program that included the sending of more than 1.4 million notice package s directl

y to potent

ial class m embers in

at least 48 c ountriesand (v) an I nternet n otice effort. ” Id

. The Dist

rict Court then conduc ted two fair

ness hear ings—one i

n its Br ooklyn courtroom on November 29, 1999 and another by telephone connection with Jerusalem on December 14 , 1999. Id

. at 145. On August 9, 2000, the District Court’s final order and judgment approving the Settlement Agreement was entered. 8 In discussing the procedural fairness of the settlement, the District Court observed: [B]ased u

pon my exten sive pers onal involvement in the process , I know that t

he comprom

ise was reached as the r

esult of lengthy, wellinformed and arm’s-

length negot

iations by competent a

nd dedicated counsel who

provided loyal and effe ctive legal represent ation to all10 parties. Counsel fo r the plaintiff set tlement clas ses are exp erienced plaintiff s’ advocates

and class act

ion lawyers . One could n ot assemble a more capable group. Among the lawyers for the plaintiffs who are serving without fee are Professor Burt Neuborne of New York University Law School, a brilliant scholar and advocate, who developed the class’s legal theories and who presented legal argument on behalf of plaintiffs, and Melvyn H. Weiss and Michael D. Hausfeld, leading memb ers of th e class action bar, who a bly led plaintiffs’ negotiating team. While I have independently eva luated the fairness of the set tlement, t he unanimou s suppor

t of thisgroup in favor of final approval is entitled to great weight.

Id . at 146. Th e Court decli

ned, however, to embrace at that poi

nt any speci fic method of

allocating an d distri

buting the $1.25 billio n fund, explaining the s equence of its deci sions as foll ows:

[O]rdinari ly, it is pre ferable t o provide sp ecific i nformation to class members concerning their likely recovery prior to the fairness hearing in order to permit criticism and challenge, if appropriate. However, the special circumstances of this litigation, involving five worldwide settlemen t classesarising ou

t of events

that tran spired app roximatel y 60 years ago,

make it virt

ually impos sible to p rovide sp ecific information to individuals about their precise recovery prior to the completion of the elaborate claims processes contemplated by the Settlement

. . . . . . . . [O]nce I have approved the basic fairness of the settlement and its attendant proced

ures, th e Special Mas ter will pr omptly is sue his recommen dations co ncerning alloca tion and d istribution and those recommendations will be transmitted for comment and criticism to the members of the plaintiff classes. Only after I approve the plan of allocation and distribution will a claims process capable of generating specific f igures be p ossible. Id . at 150-51. On September 11, 2000, the Special Master submitted to the District Court a proposal for the allocati on and dist

ribution of settlement proc eeds. See In re Holocaust Victim Assets Litig. , No. CV 96-4849 (E.D.N.Y. Sept. 11, 2000) (Special Master’s Proposed Plan of Allocation and Distribution of Settlem ent Procee ds) (“Spe cial Master ’s Propo sal”), at J.A. 714. The Special Master reported that,11

in the cour se of developing his p roposal, he had consu

lted with do zens of ind

ividuals, “ reviewed many forma l proposal s submitted fr om around t he world, ” and rec eived tho usands of le tters, primaril y from Hol

ocaust su rvivors

. Id

. at 2; at J.A. 720. T

he suggest ions recei ved by the Spe cial Master s hared sever

al “common t

hemes”: that the task before the Special Master and, ultimately, the [District] Court, is daunting; that the settlement of the litigation against the Swiss bank s repres ents, in s ome small f ashion, ano ther his toric opportun ity in the at

tempt to r edress t he indescr ibable wron

gs that have been wrought against the victims of the Holocaust; and that the allocation and distri

bution of the $1.25 bi

llion sett lement fund should be meani ngful, wi th some last ing impa ct upon cl ass members. Id . (footno te omitted

). Many of t

hose who com

municated wi

th the Special Master, especially Holocaust survivors, viewed the Swiss Bank settlement as “a further step along the often tortuous path towar

d accountabi

lity and rem embrance.” Id . Further more, the S pecial Mast

er undert ook his task—the “daunting” task of allocating and distributing “an historic, yet limited, settlement fund in a manner which is fair, equitable and consistent with governing legal principles”—with the recognition that

no amount of money could begin to compensate the millions of victims of Nazi persecution for the horrors they suffered during the Holocaust, that no amount of money could restore the generations that were lo st, and th at no amount of money cou

ld right t he injust ice perpetrated by Nazi Germany that has been termed “one of the greatest t hefts by a g

overnment

in histor y.” Id . at 2-3 (quoting Stuar

t E. Eizenst

at, Foreword

to Stuart E. Eizenstat

& William Z. Slan

y, U.S. Dep’t of State, U.S. and Allie

d Efforts t o Recove r and Restor

e Gold and Othe

r Assets Stolen or Hidden by Ge

rmany During Wor

ld War II—Pr

eliminary S tudy at iii, iii ( 1997), available at http://ww w.state.go v/www/ regions/ eur/ngrp t.pdf), at J.A. 720-2 1. In allocati ng the $1.25 b

illion set tlement fu nd among th e five sett

lement clas ses, the S pecial Master concluded that the Settlement Agreement accorded “priority” to distributions directed to12

members o f the Depos

ited Asse ts Class

. Id

. at 10-12, at

J.A. 728-3 0. The Special Master undersco red that

[m]ore than three years after the complaints were filed in this lawsuit, the unprecedented forensic accounting investigation conducted by the Indepe ndent Com mittee of E minent Per sons (“ICEP ,” also known as th e “Volcker Com mittee” aft

er its Chai rman, [th e former Chairman of

the Federal

Reserve Bo ard] Paul A. Volcker), co ncluded that some 54,000 Swis s bank accoun ts are “pr obably” or “possibl

y” related to Holocaust victims, and, accordingly, that these accounts can be returned to their proper owners, virtually all of whom by now are the ori ginal ow ners’ heirs. Id . at 11 (footnote omitted), at J.A. 729. Even before the Special Master submitted his proposal, the District Court noted that “the report of the Volcker Committee, which included three members appointed by the Swiss Bankers Association, . . . provided legal and moral legitimacy to the clai ms asserted . . . on behalf

of the memb ers of th e Deposite d AssetsClass.” In re Holocaust Victim Assets Litig. , 105 F. Supp. 2d at 153. Relying on the report of the Volcker Committee and on consultations with that Committee’s members, the Special Master estimated that “the value of all bank accounts that will be r

epaid is wit

hin the ran

ge of $800 mi

llion,” and al

located that

amount to t

he Deposit

ed Assets Cl ass. Special Master ’s Propo sal at 15; at J.A. 733. The remainder of the

$1.25 billio n fund becam e available for , inter alia , allocation to the other fou r settlem ent classe s, includi ng the Loot

ed AssetsClass. Id

. In addition, the Speci

al Master noted that some of t he initial $8 00 million al

location to

the Depos ited Asse ts Class may remain unclaimed af

ter the con clusion of

the claims p rocess,

and may therefore be reallocated to other settlemen t classes

. Id

. The Special M

aster then explained t

hat allocatio n and dist

ribution of fundsto the Loo ted Assets Cla ss posed unusu al chal lenges:

There is scarcely a victim of the Nazis who was not looted, and on nearly an inco mprehensible scale. .

. .13 . . . With only lim

ited exceptions, howev

er, the cur rent his torical record simply does not permit precise determinations even as to the material losses in total, much less the nature and value of the loot traceable to

Switzerland

or Swissentities.

. . . It is neither justifiable nor appropriate to select which looting victims may be entitled to recompense from this $1.25 billion Settlement Fund based entirely upon the happenstance of where the Nazi Regime chose to direct which loot, which records of the plunder ha ppen to surv ive, and which ite ms one may hazard a guess may have found their way to or through Switzerland. Every surviving “Victim or Target” was looted—many hundreds of thousand s of people excluding heirs

. Special Mas ter’s Pr

oposal at 1 11-14 (emp hasis in o riginal), at J.A. 829-3 2. In ligh t of these consider ations, t he Special Mas ter reject

ed a distr ibution pr ocess cons

isting of individuali

zed valuationsof Looted

Assets Cl ass members’ claims , concluding that such a case-by-ca se approach would creat

e “an unwieldy and enormou sly expensive apparatu s” and would generate adm

inistrat ive expenses t hat “would [

have] unjus tifiably de

plete[d] t he Settlemen

t Fund.” Id

. at 114-15, at

J.A. 832- 33. The Spec

ial Master also recom

mended agains t distr

ibuting s ettlement

proceeds t

o all Looted Assets Cl ass members on a pro rata

basis, since each class member would then receive “little more9 As t he Spec ial Maste r exp lained,
The estima te of Jew ish surviv ors of N azi perse cution alone ra nges fro m 8 32,00 0 to 960,000, a num ber increased by the varied estim ates of Rom a, Jehovah’s W itness, disabled and hom osexual survivors. M oreover, each of the five classes includes, among others , “hei

rs, ” a ter m undefined in the Set tle ment Agreement but g overned by New York law. New York la w does not l

imit “heir s” to chil dren, s pouses or even near r elat

ives. Rather, the defi

nit ion of “heir s” ext ends well

beyond even great -grandchi

ldren of grandparen ts—and, moreover, must be determined at the time of t he decedent’ s death. Under thi s defi nit ion, the Speci al Maste r beli eves t hat heirs of Nazi victims, all apparently class m emb ers, easily numbe r in the millions. Spe cial M aster ’s Pro posa l at 9 (in tern al cita tion a nd footn otes om itted ), at J.A. 727.

10 The cy presdoc trine take s its nam e fro m the N orm an F ren ch e xpr essio n, cy pres com me p ossible , whic h means “as nea r as pos sibl e.” The doct rine o rigi nated t o save testamentary c haritable gifts that would otherwise fail. Unde r cy pres, if t he tes tat or had a ge ner al ch aritab le inte nt, the cou rt will lo ok fo r an a ltern ate re cipie nt tha t will best s erve th e gif

t’ s ori ginal purpose. In t he clas s act ion cont ext, it

may be appropri ate fo r a court

to use cy presprinciple s to distribu te unc laime d fun ds. In such a cas e, the unclaimed funds should be dist ribut ed for a pur pose as near as possible to the legitimate objectives unde rlying the lawsuit, the interests of class
m em ber s, and the in tere sts of th ose s imila rly situ ated

. In re Airline

Ticket Comm ’n Antitrust Liti g. , 307 F. 3d 679, 682- 83 (8th Cir. 2002) ( int ernal cit ati ons omit ted). We have previo usly a pproved a di str ict court’ s allocat

ion, pursuant

to t he cy presdoctrine, of settlement fund s to those class mem bers “‘most i n need of help.’” In re “A gent O range” Prod . Liab . Litig., 818 F .2d 14 5, 158 (2 d C ir. 1987). 14 than a few dol

lars”—a result the

Special Mas ter considered “obviously unt enable.” 9 Id

. at 115, at J.A. 833. Instead, the Special Master recommended that (at least during the first stage of payments from the settlemen t fund) d istribu tions tar get the sur

viving victi

ms of Nazi

persecut ion rather than the victims ’ heirs. Id

. at 17-19, at

J.A. 735-5 7. Even more

significan t for thi s appeal is the Special Master’s recognition that the settlement fund, while insufficient to “repay even a small fraction of what was looted in the Holocaust,” presented “an opportunity to provide meaningful assistance to the Looted

Asset Clas s members

who are in th e greatest

financial nee d.” Id

. at 116, at J.A. 834. He therefore proposed “an initial allocation of $100 million to cy pres programs 10 designed to benefit the neediest el

derly sur vivors of the Holocaus t—who perhaps would b e less in n eed today had t heir11 An additional $10 mill ion all ocation would “benefit .

. . all members of all f ive class es” by creating “a comprehensi

ve li st, avail able t o all , of all the ‘ Victi ms or Target s of Nazi Persecut ion’ , and al

l of t heir murdered anc esto rs.” Sp ecia l Ma ster’s P rop osal a t 115 -16 , at J.A. 8 33- 34.

12 As the Speci al Maste r expl ained, thi s 90/10 rat io was “ based upon pre cedent” f rom previous all ocati ons of recov ered assets “d ating ba ck to 1 945” and w as “w arran ted by curre nt dem ograp hics . . . of survivin g ‘Victim s or Ta rgets of N azi P erse cutio n’ as d efine d u nd er th e Se ttlem ent A gree m ent.” Spe cial M aster ’s Pro posa l at 11 8-1 9, at J.A. 836-37. 15 assets n ot been loot

ed and their

lives nearl

y destroy ed.” 11 Id . at 117 (fo otnote add ed), at J.A. 835. Needy Jewis h survivo rs would r eceive 90% of

the $100 mil

lion fund, and the rem aining 10% wo uld be distribu ted to nee dy Roma, Jehovah’ s Witness, d isabled, and homose xual survi vors. 12 Id . at 188,

at J.A. 836. Of particular signi ficance to t he instant appeal is th e Special Mas ter’s pr oposed geographic allocation of funds earmarked for needy Jewish Holocaust survivors. This allocation was guided not by the ge ographic distributio n of the Jew ish survivors generally , but by the geographic distribution of that group ’s neediest members. In this regard, the Special Master observed:

The Jewis h survivo r communi ty is concen

trated pr imarily in I srael, the form er Soviet Un

ion, Nort h America and

Europe, wit

h additiona

l concentrations in other regions including Australia, Argentina and elsewhere. Their pos t-War exper iences have b een extraor

dinarily diverse. In most Wes tern natio ns, Nazi vic tims gener ally have benefitted from relatively strong economies and “social safety net” programs intended to assist the needy and the ill. Equally significant, Nazi victims in the United States and Israel, as in most Western nations, have been eligible for a wide range of indemnification a nd restitu tion prog rams int ended to pr

ovide modes t to some times significant recompense for the material losses suffered at the hands of the Nazis and their accomplices. However, notably absent from most pos t-Holocau st compen sation pr ograms are the victim s of Nazi persecution who remain behind what was once the Iron Curtain. Id. at 119 (footnotes omitted). The Special Master then “earmarked” 75% (or $67.5 million) of the funds allo cated to n eedy Jew ish Holoca ust survivors “ for programs a ssisting dest itute, el derly Jew ish victims o f Nazi pers ecution in t he former Soviet Unio n,” id

. at 120, and approximately 4% “to16

needy surv

ivors in t he United St

ates,” In re Holocaust Victim Assets Litig. , 302 F. Sup p. 2d 89, 97 (E.D.N.Y. 2004). The Dist rict Court again implemented a notic e plan and rece ived “appro ximately 754 communicat

ions” in response t

o the Special M

aster’sPropos al. See In re Holocaust Victim Assets Litig. , 2000 U.S. Dist. LEXIS 20817, at *7 (E.D.N.Y. Nov. 22, 2000). Nonetheless, “the overwhelming majority of the Settlement Class members—more than 99 percent—did not submit any comment regarding t

he Propos ed Plan and pr

esumably had

no objectio n.” Id

. at *7-*8. In an order of November 22, 2000, the District Court, “[a]fter carefully considering all of the comments and objections,” found the Special Master’s Proposal “carefully reasoned and well supported,” and adopted th e proposa

l in its ent irety. Id . at *9-*10. Several indi

viduals who

are not appe

llants her e pursued an appeal fro m the Dist

rict Court’s November 2 2, 2000 ord er, challengi ng, inter alia

, “(1) the inadequacy of the total settlement amount of $1.25 billion; (2) the allocation of $800 million to the ‘Deposited Assets’ class, including adjustments for interest, fees, and inflation; (3) the application of the doctrine of cy pres to resolve the claims of the ‘Looted Assets’ class, rather than require—or permit—claimants to put forth documentar

y evidence of t

heir actual l

osses.” In re Holocaust Victim Assets Litig. , 413 F.3d at 186. On July 26,

2001, we affi

rmed. Id . at 187. In doing s o, we conclude d that the di strict co urt did no t abuse its discretion in allocat

ing $800 million to the “Deposited Asse ts” class . The exist ence and esti

mated value of the

claimed depos

it accountswas establ

ished by ext

ensive forensi c accounting. In additio n, these cla ims are bas ed on wellestablished legal principles, have the ability of being proved with concrete documentation, and are readily valuated in terms of time and inflation. By contrast, the claims of the other four classes are based on no

vel and untes ted legal the ories of liability, wo uld have been very difficult to prove at trial, and will be very difficult to accurately valuate. Any alloc ation of a settlement of this magnitude and compr ising such different t ypes of cl aims must be based, a t least17 in part, on

the compar

ative strengths and

weaknesses

of the ass erted legal c laims.

Id . at 186. We als o found no “legal merit

” in the claim s that th e cy pres doctrine h ad been inappropriately applied to the Looted Assets Class and that members of that class “should be allowed to pr

ovide proo f of their

actual loss

of proper ty.” Id

. On August 19, 2002, the Special Master informed the District Court that, “[a]s a result of unanticipated interest and other income to the Settlement Fund . . . there are sufficient excess funds to provid e for sup plemental di stribut ions to cl ass members.” Let

ter of Ju dah Gribet

z, Special Master, Holocaust

Victim Ass ets Liti

gation, to T

he Hon. Edwar

d R. Korman,

Aug. 19, 2002 , at 1. The Special M

aster proposed th at the allocat ion to the L

ooted Ass ets Classbe increase d by $45 million, and that “[t]he proportions allocated among various ‘Victim or Target’ groups and geographic r

egions . . . r

emain the s ame.” Id

. at 3-4. In a motio n dated Sept

ember 23, 20 02, the HSF

objected to

the Special Master’sproposed supplemen

tal distr ibution, “principall

y advocating f

or an allocat

ion of a proportionate

(25%) share of all unclaimed f

unds—incl

uding thos e now available and those that will be rem aining fro m the $800 million s et aside to

pay bank accoun

t claims—f

or the need s of U.S. S urvivors .” In re Hol ocaust Vic tim Assets Litig. , Objections of U.S. Survivor Groups to Special Master’s Recommendations Concerning Allocation o f Accumulat

ed Interes t on Settlement Fund s, No. CV 96- 4849, at 3 (E. D.N.Y. Sept . 23, 2002) (footnote omitted) (emphasis in original). On Septemb er 25, 2002 t

he Distr ict Court ad opted the S pecial Mast er’s reco mmendation

. In re Holocaust Victim Assets Litig. , No. CV 9 6-4849 (E .D.N.Y. S ept. 25, 2 002) (orde ring a 45% increase in “annual requests for funding from the three administrative agencies distributing humanitarian cy pres funds to needy members of the Looted Assets Class”).18

In a memorandum of September 28, 2002, the District Court informed the HSF that its objection was received only after the District Court’s order had been filed, and that the objection was, in any event, untim ely. In re Holocaust Victim Assets Litig. , No. CV 96-48 49 (E.D.N.Y. Sept. 28, 2002) (handwritten memorandum on a copy of HSF’s objection). The HSF then moved for reconsideration. On September 10, 2003, the HSF also moved in the District Court for an order “authorizing the immediate

allocation of the sum of $200 million to be used to meet the human services needs of Class members who are currently being under served, or who would be eligible to be served, by the existing Jewish social service agencies in the United States, Israel, Europe, and other places where Survivor s are in need .” In re Holocaust Victim Assets Litig. , Motion f or Immed iate Inter im Distribution of Swiss Settlement Proceeds, No. CV 96-4849, at 1 (E.D.N.Y. Sept. 10, 2003). The HSF requested that a “minimum” of 25% of that allocation—that is, $50 million—be earmarked for Holocaust survivor s residi

ng in the Uni

ted States

. Id

. (emphasis omitted). On October 2, 2003, the Special Master submitted to the District Court a report estimating that an additional $60 million was “available for immediate distribution for the benefit of needy victims o r targetsof Nazi per secution. ” In re Holocaust Victim Assets Litig. , Special Mas ter’s In terim Report on D istribu

tion and Recom

mendation f

or Allocation of Exces s and Pos sible Unclai med Residual Fu

nds, No. CV 9 6-4849, s lip op. at 3 ( E.D.N.Y. Oct . 2, 2003). T he Special Mas ter then proposed that the ent

ire $60 mill

ion be allocat

ed wholly to t

he Looted As sets Clas s “in accordance with the cy pres

principles that have s uccessfu

lly governed

the adminis tration o f the init ial $100 million allo cation and di stribut ion to the L

ooted Ass ets Classin 2001, and t he first supplemen

tal allocation and distri

bution of $45 million

in 2002.” Id

. at 4 (foot

note omitt

ed). In ot her words , an19

addition al $54 mi llion (90 % of the $60 million a llocati on) would be alloc ated to ne edy Jewi sh survivor s, and 75% o f that amou nt would be e armarked f

or needy Jew

ish sur vivors in the FSU. The HSF f

iled its ob jection to t

he Special Mas ter’s re commendation on Octob er 31, 2003, urging the Court to ad opt inst

ead the HSF’ s propos al of Septem ber 10, 2003

. In re Hol

ocaust Vic tim Assets Litig. , Response

of Holocaus t Survivo rs Foun dation-US A, Inc. to S pecial Mast

er’s Int erim Recommendation, No. CV 96- 4849 (E.D.N .Y. Oct. 31, 2 003). Accor ding to the

HSF, “[t] he Special Master’s recommendation embodies a standardless ‘rough justice’ paradigm in which the extreme conditions under which many elderly Nazi victims in the FSU live is deemed to override the rights of all other

Looted As sets clas s members who also hav

e economic nee d and cannot o btain vital home and healt

h care and emer

gency servi ces in their

declining year s.” Id

. at 3. On November

17, 2003, th e Distri ct Court ado pted the Sp ecial Master’s Octo ber 2, 2003 recommend ation, alloc ating an addit ional $60 mil

lion to th e Looted As sets Clas s and ordering that such funds “be allocated proportionately among the same ‘Victim or Target’ groups and the same geographic r

egions enun ciated in” th e original Sp ecial Master’s Pro posal. In re Holocaust Victim Assets Litig. , No. CV 96-48 49, slip op . at 2 (E.D.N .Y. Nov. 17, 2 003). The D istrict Court’s N ovember 17, 2003 order

noted that

the HSF’sobjection wa s overru led, for r easons that would be ex

plained in “an opinion to

follow.” Id

. II. Opinion of the District Court In a memorandum and order filed on March 9, 2004, the District Court addressed the merits of the HSF ’s objections to s upplementa l allocation s ordere d by the Cour t on Septem

ber 25, 2002 and November

17, 2003. In re Holocaust Victim Assets Litig. , 302 F. Sup p. 2d 89 (E.D .N.Y. 2004)

. The District Court summa rized the substance of HSF’s obj ections a s follows:

[The HSF] a grees that funds allo cated to t he Looted A ssets Class should be d

istribu ted throu gh a cy pres

distributio n to the ne ediest20 survivors, bu t only afte r distributin g the funds pro rata among countries. Put differently, [the HSF] argues that a survivor community in a given country should be allocated (for the benefit of its needie st survivors on ly) a perc entage o f the Looted Assets Cla ss funds equal to whatever percentage of the world survivor community it represen ts. Id . at 95. The Court then provided an extensive account of historical reasons why “the population of needy survivor s is dis tributed

quite diff erently th an the popul

ation of s urvivors .” Id

. at 98 (emphasis in original). According to the most reliable demographic statistics available to the District Court, approximately 19% to 27% of Holocaust survivors live in the FSU, while 14% to 19% live in the United Stat

es. Id . at 97. Yet, of the over $53 billion in restitution funds distributed since the end of the Second Wo rld War, “$1 4.8 billion , or just shy of 28%

. . . has gone

to survi vors in t he United States,” wh

ile “just u nder $444 m

illion, or 0.8% . . . hasgone to su

rvivorsin the FSU. ” Id

. at 98 (emphasis omitted). Quite apart

from thi s histor

y of dispr oportionate resti

tution ef forts, the lives o f surviv

ors in the FSU have

differed drastical ly from th e lives of s urvivors in Western

societies . As the Dis trict Court aptly summarized, “[a]s brutal as life was under Communism, . . . the situation for many elderly pens

ioners has become even wo rse with i ts collaps e.” Id

. at 99. In part because “the personal sa vings of ma ny indivi duals in th e FSU were wiped ou t by hype rinflatio n after the collapse of the Sovi et Union, . . . approxim ately 60% of all elderly n ow living in t

he FSU are im

poverish ed.” Id . (internal quotation marks omitted). The District Court then marshaled further statistical evidence and first-hand accounts to demonstr ate that th e “financial s

ituation o f individu

al survivo rs in the

FSU . . . is woeful in comparis on to that

of survi vors in t he United St

ates.” Id . at 100-07. For example,21 [t]he survivor community in the FSU constitutes between 32% and 40% of the total Jewish population in the FSU. The survivor community

in the Unit

ed States, on the other hand, make s up only 2.5% of th e Jewish po pulation. Wh ile at firs t blush t

his stat istic may appear insignificant, . . . “[t]he high percentages [of survivors] in the FSU mean that there is a comparatively small Jewish community available to support victims.” This problem is exacerbated by the fact that while 56% of survivors in the United States are married and 96% have chil

dren, only 4 1% of sur

vivors in the FSU are

married and only 44% have children. In sum, family and community support networksare stret

ched thin in

the FSU.

Id . at 100 (alt

erationsin original

) (citatio ns omitt

ed) (quot ing and citin

g Andrew Hahn

et al., Jewish Elderly Nazi Victims:

A Synthes is of Compar

ative Info rmation on H

ardship and Nee

d in the Unite

d States, I srael, and the Former Soviet Union

(2004) (a report prepared for the American Jewish Joint Distribution Committee by research ers fro m Brandei s University), available at http://ww

w.cmjs.or g/pdf/JD CBrandeis Report01- 26-04Fina l.pdf). The District Court likewise emphasized the significant differences in the social safety nets available to s urvivors

residing in the FSU r

elative to t

hose residing in th e United Stat es. Id . at 100- 07. Thus , the Dist

rict Court acknowledged t

hat a signif

icant number of sur

vivors in the United States are poor, but found that

“the need fac ed [in the Un ited States ] is of a di fferent k

ind than th at faced by sur

vivors in the FSU,” wh ere 55% of

the settlement fund s distr ibuted by t

he American Jewish Jo int Dist ribution Committee (

“JDC”) had b een spent o n hunger relief prog rams. Id . at 102, 106. The Di strict Co urt conclu ded that th e 135,000 iden

tified des titute Je

wish Holoc aust victi

ms in the FSU su ffer fr

om “particularly” acut

e need; indeed , they are “bar ely surviv ing.” Id . at 99. Finally, the District Court overruled the HSF’s objections to the calculations underlying the
geograp hic allo cation of

settlemen t funds: Of the Looted Assets and excess funds, I have thus far allocated to needy surv

ivors in t he FSU 18.75 times the

amount I h ave allocated to needy su

rvivorsin the Unit

ed States. If I were t

o assume t

hat13 Le ad S ettlem ent C oun sel ch allen ges th e stan ding of all a ppe llants to app eal th e D istrict C our t’s ord ers.

Although the Dist

rict Court hel d that

the HSF lacked s tandi ng, t he sta nding of

other appell ants was neit her rai sed before,nor addres sed by, the Dis tri ct Court. Upon review of the re cord of t

his c ase, we are sat

isf ied th at at

leas t one indiv idual appell ant, “G.K.”, a needy Holocaus t sur vivor r esiding in t

he United St ates,

has met mini mal sta nding requ irem ents. W e wo uld or dinarily re ma nd this c ause to the D istrict Cou rt for a d eterm ination (1) w hethe r appe llants (oth er tha n the HSF and “G.K.”) have st anding t o appeal from the Dis tri ct Court’ s orders ; and ( 2) whethe r our deci sion that “ G .K.” h as sta nd ing a ffec ts the s tand ing o f the H SF bec aus e “G .K.” m ay b e a m em ber of an orga nizat ion th at, in turn, may be a member of the HSF. However, such a re mand is not necessa ry here,sinc e we address t he claims of “G .K.” o n the me rits, and the m erits o f her claim are id entic al to th e m erits o f othe r app ellan ts’ claim s. See In re H olocaust Victim A ssets

Litig. , 225 F. 3d 191, 197 n. 7 (2d Cir. 2000) (decli ning t o remand the quest ion of a part y’s standing to t

he district court when t

he merits of tha t part

y’s clai ms were full

y adjudic ated i n the cour se of addre ssi ng clai ms brought by parties w ith standin g). 22

every needy s urvivor d eserved th e same amoun t of money,

that would mean that there should be 18.75 times more needy survivors in the FSU t

han there ar

e in the Unit

ed States. There are at

least that many. The J DC has clearl y documented

at least 135 ,000 surv

ivors in the FSU who are in desperate need, more than the entire survivor population in the United States. Thus, even in [the HSF’s] terms, the 18.75 number would be subject to challenge only if there were more than 7,200 s urvivors

in the Unit

ed States wh o are in comp arable distress. The empirical evidence that has been produced has not identified 7,200 such

people. Id . at 108. After over

ruling th e HSF’s ob jections o n the merit s, the Dis trict Cour t inquired whether, in any event, th e HSF had st anding to r

aise such o bjections . The Court held that t

he HSF lacked standing, principally because the HSF failed to prove that it is a “membership corporation” with “standing to litigat e on behalf o f its mem

bers.” Id . at 115-17. The HSF, j oined by sev

eral individuals and or

ganizations , now appealsthe Distr ict Court’ s March 9, 2004 memorandum and order. D ISCUS SION Before considering the merits of appellants’ challenge to the District Court’s allocation and distributio n orders, 13 it is helpful to specify the aspects of the District Court’s opinion that appellants

are not challenging. Appellantsdo not dis pute that t he Distr ict Court m ay, as a general matter and

in the approp riate cir cumstanc es, distribu te settlem ent proce eds to the n eediest c lass membe rs,23

pursuant to the cy pres

doctrine. See, e.g. , Appellants’ Br. at 33. Rather, they question whether the Distric t Court exce eded the bou nds of that general pr

inciple in t

his case by a

llocating f unds part ly on the basi s of geogra phic dispa rities in th e provisio n of basic n eeds. Appellants also do not dispute the findings that underlie the District Court’s initial decision to distr ibute the s ettlement

funds in this case t

o the needies t class members—namely, the fi ndings that (1) a ca se-by-cas e valuation o f Looted A ssets Cl ass members’ claims , “would have r esulted in an unwieldy and enormously expensive apparatus,” and (2) “[a] pro rata distrib ution woul

d have resu

lted in the payment of literally pennies to each of the millions of individuals who would fall into” the Looted As sets Clas s. In re Holocaust Victim Assets Litig. , 302 F. Supp. 2d at 96 (internal quotation marks omi

tted). In any event, we ha

ve previously affirm ed the Dist rict Court’s use of

a cy pres remedy in t

his case. Instead, appellantsask us to

review only t

he manner in which the cy pres distribution of funds to the needi est Loot

ed AssetsClass memb ers was acco mplished by the Dist rict Court —namely, the

y ask us to consider whether the District Court properly allocated the funds earmarked for needy Jewish Holocaust s urvivors by directin

g 75% of th ose funds

to the FSU

and only 4% t

o the United States. As we recogn

ized in an earl

ier appeal related to th

is litigat ion, “[t]h e distric t court has broad supervis ory powers

with resp ect to the ad

ministr ation and allocation of

settlemen t funds, and we ‘will disturb the scheme adopted by the district court only upon a showing of an abuse of discretion,’” In re Hol

ocaust Vic tim Assets Litig ., 413 F.3d a

t 185 (citi ng Beecher v. Able , 575 F.2d 10 10, 1016 (2d Cir . 1978), and

quoting In re “Agent Orange” Prod. Liab. Litig. , 818 F.2d 179, 181 (2d Cir. 1987)). “A district court ‘abuses’ or ‘exceeds’ the discretion accorded to it when (1) its decision rests

on an error

of law (su ch as applicat

ion of the w

rong legal pr

inciple) or a clearly err

oneous fac tual24

finding, or (2) its decision—though not necessarily the product of a legal error or a clearly erroneous factual finding—cannot

be located wit

hin the ran

ge of permi ssible de cisions. ” Zervos v. Verizon N.Y., Inc. , 252 F.3d 16 3, 169 (2d Cir . 2001) (f ootnotesomitted)

. Appellantsargue that t

he Distr ict Court i nappropr iately relied

on geograph

ic differences in Holocaust survivor s’ needs b ecause thes e needs are l argely a func tion of hi storical events th at followed t he injuries inflicted by the Nazi reg

ime and by th e Swiss ban

k defendant s. We recogn

ize that, in a traditional class action brought to remedy an injury that had occurred shortly before the initiation of suit, the amount s allocated a

mong claimants would n ormally var y primaril y by the effe ct of the inju ry upon dif

ferent clai mants, r ather than by the curr

ent financial needs of

the claimant s. But, in t he circums tances pre sented by t his case, we

think the eq

uitable pr inciples of the cy pres doctrine permit the geographic variation that the District Court adopted. As that Court pointed out, survivors residing in the FSU had been cut off by the Soviet regime from the ten prior major efforts at Holocaust reparations, and of the $53 billion that has been provided to Holocaust victims through t hese prio r effort s, $14.8 bi llion or 28 % has gone t

o survivo rs in the

United Stat

es and only $444 millio n or 0.8% h as gone to s urvivors in the FSU. See In re Holocaust Victim Assets Litig. , 302 F. Supp. 2d at 98. This extraordinary circumstance understandably prompted the District Court to consider the variation in current financial need in making the geographic al location. Appellants further contend that the District Court exceeded its discretion because “[n]o court” has previously allocated settlement funds by consulting the same “factors” the District Court applied here. Appellants’ Br. at 32. The “factors” in question include the history of previous
compensa tion efforts, material deprivat ions associ ated wit h decade s of life und er a Commu nist regime and the effects of that regime’s collapse, and access to family and community support networks

. In re Holocaust Victim Assets Litig. , 302 F. Supp. 2d at 97-107. Like appellants, we are25

unaware of any other court that has relied on this particular combination of factors in allocating settlement funds. But, unlike appellants, we believe that consideration of these factors, in the circumstances presented, was entirely appropriate and well within the wide discretion afforded to the District Court. Appellants also argue that the District Court’s “totally subjective” allocation of settlement funds exceeded the bounds of proper discretion set forth in two appellate decisions concerning the scope of t he cy pres doctrine, In re Airline Ticket Commission Antitrust Litigation , 268 F.3d 619 (8th Cir. 2001) (“ Airline T icket Commis

sion I ”), and In re Airline Ticket Commission Antitrust Litigation , 307 F.3d 679 (8th Cir. 2002) (“

Airline Ticket Commission II ”). Apellant s’ Br. at

32-33. This contention is without merit. In Airline T icket Commis

sion I , the Eighth Circuit held that a cy pres allocation of settlement funds exceeds the bounds of the District Court’s discretion when the district court (1) fails to offer any “indication” of having “carefully weighed all of the considerations” relevant to the allocation; and (2) makes “no findings” in connection with its distribution of funds. 268 F.3d at 626 (internal quotation marks omitted). Upon review of the record of this case, we find that

the opinio ns of the

Distric t Court and

the repor ts of th e Special Master are not susceptible to the same criticisms. Indeed, the allocation challenged by appellants here—earmarking 75% of Looted Assets Class funds allocated to all needy Jewish survivors to needy Jewis h survivo rs in the FSU—was rendered aft

er the Dis trict Cour

t carefull y weighed all relevant con siderati ons and mad e numerous factual findings. See In re Holocaust Victim Assets Litig. , 302 F. Supp. 2d at 97-107. Under the standard set forth in Airline T icket Commis

sion I , the Dist rict Court acted well within its discretion, and we find no support in the record of this case for appellants’ suggestion that the Court acted in a “totally subjective” manner.26

In Airline Ticket Commission II , the Eighth Circuit again reversed the district court’s allocation of the sam e settlement fundsbecause, on r emand, the d

istrict court had al

located the f

unds to an entity that could not “c

laim any relat

ion to the s ubstanti

ve issues ” of the und erlying lit igation. 307 F.3d at 683. Furthermore, an alternative allocation rejected by the district court in Airline Ticket Commission II

“would [have

] relate[d ] directly” to the inju

ries alleged

in that cas e. Id

. Contrary to appellants’ view, the circumstances of Airline Ticket Commission II bear no resemblance to the instant litigation . The suf

fering of Holocaust

survivor s everywher

e relates d irectly to the lootin

g they suffered at the hands of the Nazis and their accomplices. More significantly, the claims of needy American Hol

ocaust su rvivors , whose int

erests t he HSF pur

ports t o advocate, ar

e no more related to the underlying litigation against Swiss banks than the claims of needy survivors in the FSU. In short, ap pellants’

reliance on t

he Airline Ticket Commission decisions is entirely misplaced. Finally, we inquire whether the District Court acted within the bounds of its discretion by rejecting the HSF’s proposed alternative to the District Court’s allocation methodology. The HSF, it must be recalled, challenges the District Court’s decision to distribute funds in accordance with the geographic distribution of needy Holocaust survivors. Instead, the HSF proposes the following methodology: (1) “allot[ ] funds geographically,” presumably in proportion to total survivor population and without regard to need; and (2) “within” each “geographi cal region,” distribute funds “acco rding to n eed.” Appellan ts’ Br. at 33. There are at least two reasons why the District Court did not exceed its discretion by rejecting t he HSF’s p roposed a

llocation m ethodology . First, the HSF’s methodology implies t

hat Jewish Holocaust s urvivors who resid e in the Unit

ed States t oday are legall

y entitled t

o a particul

ar share of the settlement fund based on their total number (rather than the number of needy survivors among them). We find no legal or equitable support for this view. Members of the Looted Assets14 One of plainti ffs’

clas s counsel

in this l iti gati on, Robert

Swift , has request ed that we remand this cause t o the District Court “w ith instructions barring any further cy presdist ribut ions until [the Distr

ict Court] has rendered a deci sion as to the fi

nal di str ibuti on” of al

l Deposi t Asset s Clas s funds l ikel y to re main unclai

med— funds Swif

t est imates at $600 mill ion. Appell ee Class Br. at 4, 9. At thi s time, it

is n eit her neces sary nor appropri ate fo r us t o int erfere in the 27 Class (whet

her they cur

rently res ide in the Un

ited States , the FSU, o r elsewhere) were pers ecuted sixty years ago, principally in Europe, but it is well-documented that their experiences in the intervening decades have differed dramatically. As the Lead Settleme nt Counsel aptly argues, “[t]he accident of current residence is utterly unconnected with the events giving rise to this litigation, and is irrelevant to any p rincipled b asis for allocating t

he funds. ” Lead Settlement Couns el’s Br. at 47. Second, the D istrict

Court art iculated a com

pelling equi

table reaso n to reject

the HSF’s proposed allocation m ethodology . As a logical m atter, th is method ology “is t

ailored to benefit individuals who are a part of a small group of needy survivors within a large nationwide survivor population .” In re Holocaust Victim Assets Litig. , 302 F. Sup p. 2d at 95. N eedy survi vors in t he United States are precisely the group that stands to gain, since the United States’ share of needy Holocau st survivors is substantially less than United States’ share of all Holocaust

survivor s. Id

. But from the perspect ive of the worldwide population of needy Holocaust survivors—the population for the benefit of which the fu

nds allocat

ed to the Lo oted Asse ts Class are being dis tributed —there is nothing equitable about an allocation methodology that provides the “relativel y few needy survivors” in the United States “with a disproportionate benefit solely because of the overall size of the surv ivor commu

nity in the U nited Stat

es.” Id . at 109. Accor

dingly, the D istrict

Court concl

uded that the HS F’s allocat

ion method ology is “ar

bitrary and unreaso nable.” Id . We need not decide today whether appellant s’ propo sal is ind eed so inequ itable as to

be “arbitr

ary and unreasonable,” for our s tandard of

review is f

ar more def

erential. We m ay merely inq uire whether the Dis trict Court had t

he discret ion to adop t a different allocati on plan. Fo r the reas ons set f orth above , we hold that it did. 14discr eti onary j udgments of t he Distr ict Court i n the manner Swi ft s uggest s. Without co mm enti ng on the merits of Swif t’ s re quest , we de ny i t, but we do so wi thout prej udice to asi mila r req uest bei ng made t o the Distri ct Cour t i n due course.

15 The HSF’s appel lat e brie f avert s to t

he Distr ict Court’ s “fl awed judici al pr ocess, ” refer ring princi pall y to ( 1) the Dist rict Court’ s approval of t

he Sett lement Agreement

before a doptin g a pla n for di str ibuti ng and allocat

ing sett lement f unds; an d (2) all eged “ass urances by the Lead Clas s Counsel and the cour t th at the ini tial al locat ion imbalance would be rect ifi ed with s ubsequent di str ibuti ons of l arger amounts ” for t he benefi t of s urvivor s res iding in the United St ates. Appell ants’ Br. at 26. The HSF charact eriz es the se purpor ted procedur al i rregul arit ies a s “examples ” by which this Court’ s “examination” of t he merits of thi s appeal would be “informed.” Id . at 17 , 20. Upon carefully reviewing the record of t his case, we find no evidence whatsoever of a “flawed judicial process.” To the contrary, the car eful co nsider ati on that the Dis tri ct Court,

the Speci al Maste r, a nd the Lead Set tle ment Counsel have accorded t o every s tep i n the al locat ion and di str

ibuti on of t his h ist oric s ettl ement are exempla ry. 28 C ONCLUSIO N The allocation and distribution of this historic settlement began with “a desire to spare Holocaust survivor s from b eing forced into an adver sarial rel

ationship that would have require d them to s quabble over

a settlemen

t fund th at, while su

bstantial , is necess arily insu fficient t o do full justice” t o the victim s of Nazi persecutio n. In re Holocaust Victim Assets Litig. , Submission of Lead Settlement Counsel in Support of the Special Master’s Proposed Plan of Allocation and Distribution of Settlement Proceeds, No. CV 96-4849, at 3 (E.D.N.Y. Nov. 20, 2000). More than six years after the creation of the settlement fund, the desired harmony among its beneficiaries has not been achieved. Indeed, the instant appeal is but one of a series of challenge s to the District Court’s allocation and distribution orders. Yet the objections raised by appellants here—and th e zeal with which these obj ections hav e been purs ued 15 —have in no way u ndermined the thoughtful analysis and scr upulous f airness w ith which Chi ef Judge Ko rman has ap proached every step of this litigation. We have carefully considered all arguments raised by appella nts and we find each of them to be without

merit. Acco rdingly, t

he Distr ict Court’ s memorandum and ord er of March 9, 2004 is hereby affirmed.