How Akin Helped Holocaust Survivors Win Reparations

As a little Jewish girl growing up in Paris under Nazi occupation, Rosette Goldstein saw her childhood cut short by the struggle to survive extermination.

She changed her name, pretending to be the fourth daughter to a Christian couple living on a farm. And she had to run and hide every time she saw a green army truck come down the little path leading to her house. To avoid detection, she would hide face-down under piles of blankets, or in silos holding cow feed.

She never even had a chance to say goodbye to her 36-year-old father, who one day simply never came home, and was sent away by train to a concentration camp.

"Children, in a war, grow up fast," she told Law360. "I've always felt that it was a miracle and that there was a reason for me surviving."

At an event last month hosted by the Anti-Defamation League, Goldstein, now 86, was honored as a Holocaust survivor at the center of a legal dispute in the U.S. courts seeking accountability from SNCF, the French national railroad company, for its role in deporting 76,000 Jews — including her father — and thousands of others to Nazi concentration camps as part of Hitler's so-called Final Solution.

At the event, which was held at the John F. Kennedy Center for the Performing Arts in Washington, Goldstein received a standing ovation.

"Whenever I speak, people are shocked at how much France was involved in the Shoah, the Holocaust," she said. "My father was on one of those trains. He was on convoy No. 64."

The case against SNCF, a years-long project led by Akin Gump Strauss Hauer & Feld LLP, faced challenges due to the Foreign Sovereign Immunities Act, a 1976 law that prevents private plaintiffs from suing foreign governments in U.S. courts unless they meet certain conditions.

But despite initial legal hurdles, a political breakthrough spurring state-level legislation in Maryland and high-level negotiation between the U.S. and France led to a $60 million settlement in 2014, with all funds going to Holocaust survivors and family members who were affected by SNCF's collaboration.

"The money for a lot of survivors who are living below the poverty line has made a very meaningful difference later in their lives," said Raphael A. Prober, an Akin partner working on congressional investigations who's been representing the survivors pro bono since 2008.

Even as the French government stepped up to provide reparations to victims of SCNF's collaboration with the Nazis, some argue that the company has continued to avoid taking public accountability for its actions.

Over 50 Akin lawyers and lobbyists were involved in the case, contributing a total of roughly 5,000 hours of work. Akin's longtime chair, Kim Koopersmith, who is preparing to step down from her post next year, was one of the two partners who initially filed the case in 2006. Prober said the firm had been "deeply invested, from Day 1" in representing the survivors against the railroad.

"We've been seeking justice," he said.

Reaching an Agreement

According to historians and an SNCF-commissioned report from the 1990s detailing its work for the Nazis, the company determined transportation logistics for the Germans, and was paid for each person transported and each kilometer traveled.

"France very willingly collaborated from the start on this. The SNCF was part of that. The strategy was collaboration," Prober said.

In the early 2000s, Akin began representing Holocaust survivors — about 600 people — in its legal fight seeking damages and accountability from the railroad company.

The case was a long shot from the start: the plaintiffs didn't meet any of the requirements under the Foreign Sovereign Immunities Act to be able to pursue claims against the French government, Prober said.

Federal legislators, including Sen. Chuck Schumer of New York and Rep. Ileana Ros-Lehtinen, who represented part of Miami, introduced bills that would have carved out exceptions to the law to allow the survivors' case to move forward, but those efforts initially failed to gain momentum.

That all changed in 2009, when President Barack Obama announced a $100 billion federal investment for high-speed rail across the nation, prompting SNCF to launch bids for projects in several states.

SNCF's business plans in the U.S. further motivated Holocaust survivors to oppose the company. Among them was Leo Bretholz, a Polish Jew who was 21 years old when he was arrested in France in 1942 and placed on a train to Auschwitz.

While en route to the extermination camp aboard a cattle car that was part of an SNCF convoy, Bretholz managed to pry open a set of window bars, jump out the train, and live to tell the story.

Bretholz, who lost 20 family members to the Holocaust, immigrated to the United States in 1947, and eventually spearheaded the movement that forced SNCF to confront its complicity with the Nazis by engaging more directly with Holocaust survivors and their families.

When Keolis, a company partly owned by SNCF, sought a contract to operate two railway lines in Maryland, where Bretholz lived, he sprung into action, joining hundreds of other Holocaust survivors to oppose the deal and the company's larger ambitions.

As SNCF chased lucrative business opportunities in the U.S., Prober said, it proactively sought to rewrite its legacy through aggressive lobbying efforts, spending up to $1 million a year on the effort.

Goldstein, who emigrated to the United States in 1949 and grew up in New York before relocating to Florida, began actively advocating for survivors in 2009 after hearing that SNCF had offered $80,000 to fund Holocaust education in Florida in exchange for having a role in determining the curriculum. At the same time, the company was pursuing a $2.6 billion deal to build a high-speed rail that would connect Tampa and Orlando.

Frustrated, Goldstein turned to the press to express her concerns about SNCF's attempts to whitewash its Holocaust history. The backlash generated by her advocacy, as well as letters from both of Florida's U.S. senators to the state's Transportation Commission raising concerns with the arrangement, ultimately convinced the state to give back the money.

"I felt that I had to do something," she said. "I just could not let them do that … [so] I fought them in my own way."

Stymied in court by the Foreign Sovereign Immunities Act, the survivors and Akin's pro bono legal team turned to legislatures in states where SNCF sought to do business, demanding laws that would have forced the company to disclose its role in transporting Holocaust victims, open up and digitize its archives, and issue a formal apology.

Such a bill was passed in 2011 by legislators in Maryland, where Keolis, the SNCF subsidiary, had put in a $218 million bid to operate and maintain two light-rail lines. The efforts resulted in increased scrutiny into the railroad's legacy, and Keolis ultimately lost the bid to a Canadian competitor, Bombardier Transportation.

Meanwhile, support for the federal bills championed by Schumer and Ros-Lehtinen grew.

"Suddenly it was impacting the company's bottom line. Suddenly they cared about it. And frankly, it's very unfortunate that's the only thing that seemed to get their attention," Prober said.

Goldstein became the face of the movement after Bretholz, then 93, died in March 2014 two days before he was set to testify before the Maryland General Assembly in support of a bill that would have required Keolis to provide reparations to Holocaust survivors as a prerequisite to bid on a $2.2 billion light-rail project. That piece of legislation was never passed. Keolis, however, was not among the firms that were awarded the contract.

Meanwhile, negotiations for an agreement with the French government were already going on behind the scenes. The U.S. Department of State tapped Stuart E. Eizenstat, an American diplomat and attorney who served as the U.S. ambassador to the European Union from 1993 to 1996 and is now senior counsel at Covington & Burling LLP, to mediate the talks, and he reached out to Akin to help coordinate the government's efforts. In the end, they were able to broker a deal between the U.S. and France to secure reparations for the survivors in exchange for blocking the adoption of any exclusions to the Foreign Sovereign Immunities Act.

After nearly two years of high-level negotiations, the U.S. and France signed an agreement in December 2014 under which the French government paid $60 million in damages to be distributed among the survivors, with no legal fees taken.

"We got to the point of being in the [State Department's] Treaty Room with me and Rosette and many others, and seeing them sign this agreement," Prober said.

Under the agreement, the payout was only meant to compensate a specific group of survivors — people like Bretholz and Goldstein whose lives were affected by SNCF's policy of collaboration.

In addition to compensating victims and surviving spouses who were not already covered by other reparation programs, the agreement had enormous political value: it bound the United States to recognize and affirmatively protect the sovereign immunity of France within the American legal system with regard to Holocaust deportation claims.

'76,000 Souls on My Shoulders'

In Goldstein's eyes, however, the French government failed to issue a meaningful apology until several years later, when President Emmanuel Macron gave a speech on the 75th anniversary of the Vélodrome d'Hiver Roundup, in which French police arrested over 13,000 Jews, including more than 4,000 children, at the behest of German authorities over a two-day period in 1942. In the 2017 speech, Macron full-throatedly condemned France's complicity in the Holocaust, and denounced antisemitism and racism.

"In the consciences of French citizens, French political leaders, French officials and French journalists, antisemitism and racism had insidiously, slowly sown their seed, making the disgraceful tolerable and even evident, making it a state policy: the policy of collaboration," Macron said in the speech. "All that is what made such an absolute atrocity possible."

But even after that high-profile admission of guilt, SNCF continued to be evasive about taking responsibility for its role in transporting Jews and other Holocaust victims, including Roma and gay men and lesbians, to their death.

"SNCF does not blame themselves," Goldstein said. "They blame the state. They blame France."

Prober said there was a "disconnect" between the French government's acknowledgment of its past and the railroad's failure to do the same in a deliberate and public way.

"It's been really shocking to me that, for whatever reason, the company itself still seems to be very unwilling to embrace the words that President Macron spoke," Prober said.

SNCF told Law360 in an email that company officials have expressed regret on many occasions for its role in transporting people to extermination camps from Nazi-occupied France, citing a January 2011 speech that SNCF's chairman at the time gave on the matter.

"I want to express the deep pain and regrets of the SNCF for the consequences of the actions of the SNCF at that time. On its behalf, I bow to the victims, the survivors and the children of the deportees, and to the suffering that still lives on," the chairman, Guillaume Pepy, said in the speech, according to a company spokesperson.

And in December 2014, when the agreement between the governments of France and the United States was signed, the president and CEO of SNCF America said the company was "satisfied that those who have suffered so much have finally gotten a measure of justice."

The spokesperson also said that SNCF's World War II archives have been opened to the public since 1995, and have been accessible online in a dedicated section on the company's website since 2012.

Goldstein acknowledged that SNCF had donated to Jewish causes in recent years, but said she was left with a bitter taste in her mouth by what she saw as the company's unwillingness to embrace its legacy.

"I really can't blame the company today, if they are doing good, but I want them to admit that in their past, it was not good," she said.

Goldstein said she wants the memory of the Holocaust to continue to be honored, and its history taught in school. She said she does her part by speaking about her story whenever asked.

"I do it for 76,000 souls on my shoulders," she said. "It's also giving a life to my dad."

--Editing by Karin Roberts.

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