No. 02-722 In the Supreme Court of the United States AMERICAN INSURANCE ASSOCIATION, AMERICAN RE-INSURANCE COMPANY, ET AL., Petitioners, v. JOHN GARAMENDI, IN HIS CAPACITY AS COMMISSIONER OF INSURANCE FOR THE STATE OF CALIFORNIA, Respondent. On Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit JOINT APPENDIX KENNETH S. GELLER FRANK KAPLAN Counsel of Record Counsel of Record JOHN J. SULLIVAN Alschuler Grossman Stein Mayer, Brown, Rowe & Kahan LLP & Maw 1620 26th Street 1909 K Street, NW Fourth Floor Washington, DC 20006 Santa Monica, CA 90404 (202) 263-3000 (310) 907-1000 Counsel for Petitioners Counsel for Respondent PETITION FOR CERTIORARI FILED NOVEMBER 7, 2002 CERTIORARI GRANTED JANUARY 10, 2003 TABLE OF CONTENTS Appendix Page A. Relevant Docket Entries: United States District Court for the Eastern District of California .............. 1 B. Relevant Docket Entries: United States Court of Appeals for the Ninth Circuit................... 13 C. Order Granting Certiorari (January 10, 2003) ...... 23 D. Declaration of Rabbi Abraham Cooper (April 24, 2000) ...................................... 24 E. Declaration of Arthur P. Stern (April 25, 2000) .... 29 F. Declaration of Leslie Tick (May 3, 2000) ......... 32 G. Statement by Deputy Treasury Secretary Stuart E. Eizenstat (June 12, 2000) ...................... 50 H. Letter from National Security Adviser Samuel R. Berger and Counsel to the President Beth Nolan to National Security Assistant Michael Steiner (June 16, 2000) ...................................... 52 I. Letter from National Security Assistant Michael Steiner to National Security Adviser Samuel [R]. Berger (July 5, 2000) ......................... 55 J. Deputy Secretary of the Treasury Stuart E Eizenstat, Remarks at the 12th and Concluding Plenary on the German Foundation, Berlin, Germany (July 17, 2000) ..................................... 57 K. Harry Schweid, Armitage Speaks on Holocaust Claims (AP July 18, 2001) ..................... 69 (I) ii TABLE OF CONTENTS — Continued Appendix Page L. Supplemental Declaration of Frank Kaplan (August 13, 2001) ................................... 71 NOTICE The following items have been omitted in printing this Joint Appendix because they appear on the following pages in the printed Appendix to the Petition for a Writ of Certiorari: A. Opinion of the United States Court of Appeals for the Ninth Circuit, filed July 15, 2002 (amended September 9, 2002) ........................... 1a B. Opinion of the United States Court of Appeals for the Ninth Circuit, filed February 7, 2001 ............ 34a C. Opinion of the United States District Court for the Eastern District of California, filed October 2, 2001 61a D. Opinion of the United States District Court for the Eastern District of California, filed June 9, 2000 . 85a F. Letter from Deputy Treasury Secretary Stuart E. Eizenstat to the Honorable Gray Davis (November 30, 1999) .................................... 123a G. Deputy Treasury Secretary Stuart E. Eizenstat, Special Representative of the Secretary of State and the President on Holocaust-Related Issues, Senate Foreign Relations Committee (April 5, 2000) .... 126a H. The Executive Agreement on the German Foundation (July 17, 2000) ............................ 153a iii TABLE OF CONTENTS — Continued Appendix Page I. Joint Statement by President George W. Bush and Chancellor Gerhard Schroeder on a Transatlantic Vision for the 21st Century (March 29, 2001) .... 169a J. Statement by Ambassador Randolph M. Bell, Special Envoy for Holocaust Issues, U.S. Department of State, Washington, DC, to the U.S. House of Representatives, Committee on Government Reform, Subcommittee on Governmental Efficiency, Financial Management and Intergovernmental Relations (September 24, 2002) ....................... 174a The following items have been omitted in printing this Joint Appendix because they appear on the following pages in the printed Appendix to the Respondent’s Brief in Opposition: D. Testimony of Leslie Tick, California Department of Insurance, United States House of Representatives Government Reform[’s] Subcommittee on Governmental Efficiency, Financial Management and International Relations (September 24, 2002) ...... 23 E. Statement of Representative Henry A. Waxman, Ranking Minority Member, Committee on Government Reform, at the Subcommittee on Governmental Efficiency, Financial Management and International Relations Hearing on H.R. 2963 (September 24, 2002) ......................... 31 F. Prepared Statement of David S. Waldman, Vice President-Chief Operations Counsel, MONY Life Insurance Company, for the House Committee on the Government Reform’s Sub-committee on Government Efficiency, Financial Management and iv TABLE OF CONTENTS — Continued Appendix Page Inter-Government Relations Hearing on H.R. 2963 (September 24, 2002) ......................... 35 G. Order of U.S. Court of Appeals for the Ninth Circuit denying petition for rehearing and petition for rehearing en banc filed on March 29, 2001, in Gerling Global Reinsurance Corp. of American, et al. v. Low, No. 00-16163, et al. (Gerling I) ................. 42 H. Cover page and pages 6-9 of Brief for Amicus Curiae the United States of America served on or about September 20, 2000, in Gerling Global Reinsurance Corp. of American, et al. v. Low, No. 00-16163, et al. (Gerling I).................................. 44 I. Cover page and page 11 of Brief for Amicus Curiae the United States of America served on or about March 9, 2001, in Gerling Global Reinsurance Corp. of American, et al. v. Low, No. 00-16163, et al. (Gerling I) ............................... 50 J. An unofficial translation of the Bundestag resolution, adopted on May 30, 2001, dealing with the German Foundation; obtained from the United States Department of State .......................... 53 K. Cover page and page 6 of Motion of the Federal Republic of Germany for Leave to File Brief Amicus Curiae and Brief Amicus Curiae supporting affirmance of summary judgment for plaintiffs- appellees/cross-appellants, served on or about March 15, 2001, in Gerling Global Reinsurance Corp. of American, et al. v. Low, No. 01-17023, et al. (Gerling II) ........................................ 55 v TABLE OF CONTENTS — Continued Appendix Page L. Investigative Subpoena for Records issued In the Matter of Holocaust Victims Insurance Enforcement Proceeding Case No. 31393-99-SC .............. 58 N. Cover page and excerpt from pages 41-42 of Memorandum of Law in Support of Azzicurazioni Generali S.p.A.’s Motion to Dismiss, Strike, and/or for Judgment on All Plaintiffs’ Claims, on Choice of Law and Related Grounds, dated November 15, 2002, in In re: Assicurazioni Generali S.p.A. Holocaust Insurance Litigation (S.D.N.Y. 2002) (No. MDL 1374 M 21-89 (MBM)) ....................... 71 1 APPENDIX A UNITED STATE DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA Nos. 00-CV-506, 00-CV-613, 00-CV-779, 00-CV-875 GERLING GLOBAL REINSURANCE CORP. OF AMERICA, ET AL., Plaintiffs, v. CHUCK QUACKENBUSH, IN HIS CAPACITY AS COMMISSIONER OF INSURANCE FOR THE STATE OF CALIFORNIA, Defendant. RELEVANT DOCKET ENTRIES* DATE # DOCKET ENTRY [entries from the Docket in 00-CV-506 (Gerling)] 3/9/00 1 COMPLAINT by the Gerling plaintiffs. 3/9/00 7 NOTICE OF MOTION AND MOTION for preliminary injunction by plaintiffs. 3/9/00 8 MEMORANDUM OF POINTS AND AUTHORITIES by plaintiffs in support of motion for preliminary injunction. * For the Court’s convenience, the docket entries have been revised and reworded to reflect more clearly the actual entries in the district court’s docket. Separate dockets were maintained for the four cases filed by petitioners and Gerling until October 16, 2000, when the district court ordered the cases consolidated. 2 3/27/00 20 NOTICE OF MOTION AND MOTION to dismiss by defendant. 3/27/00 21 MEMORANDUM OF POINTS AND AUTHORITIES by defendant in support of motion to dismiss. 3/27/00 22 DECLARATION of Frank Kaplan in support of motion to dismiss. 4/10/00 29 MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION by plaintiffs to motion to dismiss by defendant. 4/10/00 30 NOTICE OF COUNTER-MOTION AND COUNTER-MOTION for summary judgment by plaintiffs. 4/10/00 32 MEMORANDUM OF POINTS AND AUTHORITIES by plaintiffs in support of counter-motion for summary judgment. 5/8/00 55 RESPONSE by defendant to motion for summary judgment by plaintiffs, and to motion for preliminary injunction by plaintiffs. 5/8/00 57 OBJECTIONS by defendant to evidence submitted by plaintiffs in support of motions for summary judgment and preliminary injunction. 5/8/00 60 DECLARATIONS in opposition to motion for preliminary injunction and motion for summary judgment. 5/15/00 73 BRIEF of the Federal Republic of Germany as amicus curiae. 5/17/00 77 OPPOSITION by defendant to motion for summary judgment by plaintiffs, and to 3 motion for preliminary injunction by plaintiffs. 5/22/00 78 REPLY BRIEF by defendant in support of motion to dismiss complaint. 5/22/00 80 REPLY by plaintiffs in support of counter-motion for summary judgment. 5/22/00 85 RESPONSE by defendant to brief of Federal Republic of Germany as amicus curiae. 6/2/00 92 NOTICE OF MOTION AND MOTION to file amicus brief by the People of the State of California. 6/6/00 94 MINUTES of hearing * * *: motion to file amicus brief by the People of the State of California SUBMITTED, motion to dismiss by defendant SUBMITTED, motion for preliminary injunction by plaintiffs SUBMITTED, motion for summary judgment by plaintiffs SUBMITTED; order to be prepared by the