Recently, the U.S. Senate Judiciary Committee held a hearing that focused on the ongoing voluntary review of Credit Suisse’s activities before, during, and after World War II. The Holocaust perpetrated by the Nazis is the darkest chapter in human history and is an atrocity that continues to have profound meaning to this day. UBS and Credit Suisse have apologized for the role the banks played in this chapter, taken accountability for their actions, and undertaken significant efforts to examine and publicize their World War II era history.
The Settlement Agreement of 1999
Under the 1999 landmark court-approved Settlement of lawsuits filed against Swiss banks by classes of Holocaust victims, Credit Suisse and UBS paid $1.25 billion, which was subsequently distributed by the court and court-appointed special masters to Holocaust victims and their heirs.
The Settlement was intended to achieve a global resolution through a conclusive end to the controversy that went beyond legal and financial closure. The payment that the banks made as part of the Settlement Agreement had two components: compensation for legally recognized claims and a larger portion addressing moral and unknown claims, where the banks agreed to compensate for their improper conduct, regardless of whether those acts could give rise to legal claims. Accordingly, the scope of the Settlement is extremely broad and includes the release of all claims – whether known, unknown, or later discovered – that are in any way associated with the Nazi Regime (including associated individuals and public or corporate entities), the Holocaust, World War II, and its prelude and aftermath.
As further evidence of the breadth of the Settlement and its applicability beyond the resolution of the litigation, major Jewish organizations embraced the Settlement as fair, adequate and reasonable, and agreed in writing to be bound by its terms. While the Settlement provides finality from claims and closure of controversy, it does not prevent any party from voluntarily reviewing its own history.
Credit Suisse’s voluntary review into its World War II-era conduct
As part of that search for historical truth, beginning in 2020, Credit Suisse – and, following its acquisition, UBS – have conducted a monumental voluntary investigation into Credit Suisse’s World War II-era conduct. Credit Suisse and UBS have taken these steps notwithstanding the finality of the 1999 Settlement and the extensive historic investigations already conducted by the Independent Committee of Eminent Persons (ICEP), 1 the Bergier Commission, 2 the U.S. Senate, and others in the 1990s and early 2000s. This multi-year effort has entailed making available more than 16.5 million documents, consisting of 44 million pages and four terabytes of data; approximately 85 people; and research in 18 public archives in seven countries. UBS has continued to support these efforts, as a testament to its unwavering commitment to finding the truth. To that end, UBS rehired the independent Ombudsperson who was previously engaged by Credit Suisse to oversee this unprecedented voluntary review, dedicating so far hundreds of millions of dollars to uncover the truth.
The purpose of this voluntary review is to responsibly strengthen the historical record of this dark period in human history, with the aim that, through knowledge and reflection, the atrocities of Nazism are never repeated. The bank welcomes any new findings.
Q & A
1. What does UBS hope this voluntary review will lead to?
The purpose of this unprecedented voluntary review, which has expanded in scope well beyond what was originally envisioned, is to responsibly strengthen the historical record of this dark period in human history, with the aim that, through knowledge and reflection, the atrocities of Nazism are never repeated.
2. When will the voluntary review on Credit Suisse’s World-War II-era conduct conclude?
This voluntary review will conclude at the end of this year when the Ombudsperson issues his final report.
3. Can this voluntary review lead to further legal claims?
Swiss banks and classes of Holocaust victims reached a landmark, court approved Settlement in 1999 that was agreed to and endorsed by Jewish organizations. This Settlement had the purpose of bringing final closure to litigation and all public disputes related to World War II, its prelude, and its aftermath. The historic 1999 Settlement is binding, covers facts known and unknown and later discovered, and includes Nazi assets as well as victims’ assets. However, this Settlement agreement does not prevent continuing to understand history and openly share the findings, which is what Credit Suisse chose to undertake in 2020.
4. There appear to be new findings from the current voluntary review. What is UBS’s view on these new findings?
As a result of the extensive work conducted previously, including by the Bergier Commission and the ICEP, much was already known about the role of Swiss banks during WWII and its aftermath. UBS, however, welcomes any new findings of Nazi accounts and improper activity, as the purpose of this unprecedented voluntary review is to responsibly strengthen the historical record of this dark period of human history, with the aim that, through knowledge and reflection, the atrocities of Nazism are never repeated.
5. Some have publicly argued that the Settlement agreement should not bar further legal actions, claiming it covered only accounts belonging to Holocaust victims – not Nazi accounts – and that not all facts were known at the time?
The historic 1999 Settlement is binding, covers facts known and unknown, and clearly and explicitly includes Nazi assets as well as victims’ assets, something recognized and understood at the time the Settlement was negotiated.
6. UBS recently attended a US Senate hearing relating to its voluntary review of Credit Suisse’s WWII-era conduct. How concerned are you that this review could lead to potential new claims?
The hearing concerned Credit Suisse’s ongoing voluntary investigation into its World War II–era conduct, which we expect to conclude when the Ombudsperson issues his final report by the end of this year.
Swiss banks reached a landmark, court approved Settlement in 1999 that was agreed to and endorsed by Jewish organizations. Under this Settlement, Credit Suisse and UBS agreed to pay USD 1.25 billion – an extraordinary amount at the time – which was subsequently distributed by the court and its appointees to hundreds of thousands of Holocaust survivors and heirs of Holocaust victims.
The Settlement Agreement is clear that it covers both known and unknown claims and those subsequently “arising or discovered”. At the time, the parties anticipated that additional information could emerge in the future. Because the purpose of the Settlement was to bring “complete closure and an end to the confrontation,” they explicitly included “unknown” claims to avoid reopening discussions in light of new discoveries.
7. UBS has been accused of restricting and retaining information from the voluntary review. Why and what are the documents retained?
This refers to a limited set of files and communications protected by attorney-client privilege, which relate to the 1990s Holocaust class action litigation and the 1999 Settlement Agreement. The bank’s historic voluntary review focuses on the World War II-era activities, not the litigation that resulted in the 1999 Settlement Agreement.
In the interest of transparency, we are nevertheless exploring ways to provide the Ombudsperson with access to these documents. At the same time, we must ensure appropriate safeguards are in place, particularly given recent threats of litigation related to the 1999 Settlement Agreement.
To put this in context, Credit Suisse has provided the Ombudsperson with approximately 16.5 million documents and has withheld less than 0.1% of the total number of documents. Notably, Credit Suisse has not withheld any privileged documents from prior to the 1990s or in the 1990s that do not relate to the 1990s class action litigation.
8. Can UBS disclose the names of account holders or are they protected by confidentiality pursuant to Swiss law?
UBS must comply with applicable laws and can, therefore, share client data only in compliance with Swiss requirements. However, UBS has no interest in protecting Nazi criminals or their supporters. Accordingly, we are pursuing options to be able to provide as many names as legally possible in the final report.
9. Is it true that UBS has sued the Simon Wiesenthal Center?
No, this is not correct. UBS has not sued the SWC. UBS has asked Judge Korman, the judge who oversaw the class action Settlement in 1999, for clarification of the 1999 Settlement Agreement that we hope will avoid litigation threatened by the SWC and others.
The SWC and any other Jewish organizations, consistent with their obligations under the 1999 Settlement, are free to continue to seek the truth related to the darkest chapter in human history.
Any decision Judge Korman will take will be made public.
10. Has UBS set aside a provision for any potential financial claims?
UBS is confident in its position, and consistent with its policy, does not comment on provisions.
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