FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
VAZKEN MOVSESIAN; HARRY
ARZOUMANIAN; GARO AYALTIN;
MIRAN KHAGERIAN; ARA
KHAJERIAN, individually and on
behalf of all others similarly
situated including thousands of
senior citizens, disabled persons,
and orphans as well as on behalf
of the general public and acting in
the public interest, No. 07-56722
Plaintiffs-Appellees, D.C. No.
v. CV-03-09407-
CAS-JWJ
VICTORIA VERSICHERUNG AG, a
German corporation; ERGO OPINION
VERSICHERUNGSGRUPPE AG, a
German corporation,
Defendants,
and
MUNCHENER RUCKVERSICHERUNGS-
GESELLSCHAFT AKTIENGESELLSCHAFT
AG, a German corporation,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
Christina A. Snyder, District Judge, Presiding
Argued and Submitted
December 14, 2011—San Francisco, California
Filed February 23, 2012
2009
2010 MOVSESIAN v. VICTORIA VERSICHERUNG AG
Before: Alex Kozinski, Chief Judge, Mary M. Schroeder,
Stephen Reinhardt, Sidney R. Thomas, Barry G. Silverman,
Susan P. Graber, M. Margaret McKeown,
Raymond C. Fisher, Richard A. Paez, Johnnie B. Rawlinson,
and Sandra S. Ikuta, Circuit Judges.
Opinion by Judge Graber
2012 MOVSESIAN v. VICTORIA VERSICHERUNG AG
COUNSEL
Neil M. Soltman, Mayer Brown LLP, Los Angeles, Califor-
nia, for the defendant-appellant.
Kathryn Lee Boyd, Schwarcz, Rimberg, Boyd & Rader, LLP,
Los Angeles, California; Mark J. Geragos, Geragos & Gera-
gos, APC, Los Angeles, California; and Richard L. Kellner,
MOVSESIAN v. VICTORIA VERSICHERUNG AG 2013
Kabateck Brown Kellner LLP, Los Angeles, California, for
the plaintiffs-appellees.
David M. Balabanian, Bingham McCutchen LLP, San Fran-
cisco, California; David Saltzman, Saltzman & Evinch, PC,
Washington, D.C.; Marco Simons, Earthrights International,
Washington, D.C.; Antonette Benita Cordero, Deputy Attor-
ney General, Los Angeles, California; and Igor V. Timofeyev,
Paul Hastings LLP, Washington, D.C., for the amici curiae.
OPINION
GRABER, Circuit Judge:
Section 354.4 of the California Code of Civil Procedure
vests California courts with jurisdiction over certain insurance
claims brought by “Armenian Genocide victim[s]” and
extends the statute of limitations for such claims. Under that
statute, individual Plaintiffs, including Vazken Movsesian,
filed this class action against various insurers. One of the
defendant insurance companies filed a Federal Rule of Civil
Procedure 12(b)(6) motion to dismiss the claims, arguing,
among other things, that section 354.4 is preempted under the
foreign affairs doctrine. See U.S. Const. art. VI, cl. 2
(Supremacy Clause) (“This Constitution, and the Laws of the
United States which shall be made in Pursuance thereof; and
all Treaties made, or which shall be made, under the Author-
ity of the United States, shall be the supreme Law of the
Land; and the Judges in every State shall be bound thereby,
any Thing in the Constitution or Laws of any State to the
Contrary notwithstanding.”). We hold that section 354.4 is
preempted and, accordingly, reverse the district court’s con-
trary ruling.1
1
Because we conclude that section 354.4 is preempted, we need not and
do not reach any other issues.
2014 MOVSESIAN v. VICTORIA VERSICHERUNG AG
FACTUAL AND PROCEDURAL HISTORY
In 2000, the California legislature enacted section 354.4,
which provides that California courts may entertain various
insurance claims brought by “Armenian Genocide victim[s]”
arising out of policies issued or in effect between 1875 and
1923. The law also extends the statute of limitations for such
claims. Section 354.4 reads in relevant part:
(a) The following definitions govern the construc-
tion of this section:
(1) “Armenian Genocide victim” means any per-
son of Armenian or other ancestry living in the Otto-
man Empire during the period of 1915 to 1923,
inclusive, who died, was deported, or escaped to
avoid persecution during that period.
(2) “Insurer” means an insurance provider doing
business in the state, or whose contacts in the state
satisfy the constitutional requirements for jurisdic-
tion, that sold life, property, liability, health, annui-
ties, dowry, educational, casualty, or any other
insurance covering persons or property to persons in
Europe or Asia at any time between 1875 and 1923.
(b) Notwithstanding any other provision of law,
any Armenian Genocide victim, or heir or benefi-
ciary of an Armenian Genocide victim, who resides
in this state and has a claim arising out of an insur-
ance policy or policies purchased or in effect in
Europe or Asia between 1875 and 1923 from an
insurer described in paragraph (2) of subdivision (a),
may bring a legal action or may continue a pending
legal action to recover on that claim in any court of
competent jurisdiction in this state, which court shall
be deemed the proper forum for that action until its
completion or resolution.
MOVSESIAN v. VICTORIA VERSICHERUNG AG 2015
(c) Any action, including any pending action
brought by an Armenian Genocide victim or the heir
or beneficiary of an Armenian Genocide victim,
whether a resident or nonresident of this state, seek-
ing benefits under the insurance policies issued or in
effect between 1875 and 1923 shall not be dismissed
for failure to comply with the applicable statute of
limitation, provided the action is filed on or before
December 31, 2010.[2]
In 2003, Movsesian and several other individuals filed this
class action against Defendants Victoria Versicherung AG
(“Victoria”), Ergo Versicherungsgruppe AG (“Ergo”), and
Munchener Ruckversicherungs-Gesellschaft Aktiengesell-
schaft AG (“Munich Re”). Munich Re is the parent company
of Victoria and Ergo. The class consists of persons of Arme-
nian descent who claim benefits under Defendants’ life insur-
ance policies issued or in effect in the Ottoman Empire
between 1875 and 1923.
Plaintiffs seek damages from Defendants on theories of
breach of contract, breach of the covenant of good faith and
fair dealing, unjust enrichment, and constructive trust. Plain-
tiffs rely on section 354.4 in order to bring their claims now.
Munich Re moved to dismiss all claims, Fed. R. Civ. P.
12(b)(6), arguing that section 354.4 is unconstitutional
because it violates the Due Process Clause of the 14th
Amendment to the Constitution and because it is preempted
under the foreign affairs doctrine. Munich Re also asserted
that it is not a proper defendant and that the class members
lack standing to bring claims under section 354.4.
The district court held that section 354.4 is not preempted
under the foreign affairs doctrine. It also held that the class
members have standing to bring their claims, that Munich Re
2
In 2011, California revised the law to extend the statute of limitations
under section 354.4(c) from December 31, 2010, to December 31, 2016.
2016 MOVSESIAN v. VICTORIA VERSICHERUNG AG
is a proper defendant, and that section 354.4 does not violate
the Due Process Clause. The court denied Munich Re’s
motion to dismiss the claims for breach of contract and breach
of the covenant of good faith and fair dealing, but granted
Munich Re’s motion to dismiss the unjust enrichment and
constructive trust claims.
Munich Re filed a motion to certify the district court’s
order for interlocutory appeal. The district court granted the
motion and stayed the case. Munich Re timely petitioned this
court for permission to pursue an interlocutory appeal, and we
granted the petition. On appeal, the parties addressed three
issues: (1) whether section 354.4 is preempted under the for-
eign affairs doctrine; (2) whether Munich Re is a proper
defendant; and (3) whether the class members have standing
to bring their claims. A three-judge panel affirmed. Movsesian
v. Victoria Versicherung AG, 629 F.3d 901 (9th Cir. 2010).
We then took this case en banc, thereby vacating the panel’s
opinion. Movsesian v. Victoria Versicherung AG, No. 07-
56722, 2011 WL 5336269 (9th Cir. Nov. 7, 2011).
STANDARD OF REVIEW
We review de novo the district court’s decision on a Rule
12(b)(6) motion to dismiss. Pakootas v. Teck Cominco Met-
als, Ltd., 452 F.3d 1066, 1072 (9th Cir. 2006). Similarly, we
review de novo questions of law. Id.
DISCUSSION
A. The Foreign Affairs Doctrine and Field Preemption
[1] The Constitution gives the federal government the
exclusive authority to administer foreign affairs. See, e.g.,
United States v. Pink, 315 U.S. 203, 233 (1942) (“Power over
external affairs is not shared by the States; it is vested in the
national government exclusively.”); Hines v. Davidowitz, 312
U.S. 52, 63 (1941) (“The Federal Government, representing
MOVSESIAN v. VICTORIA VERSICHERUNG AG 2017
as it does the collective interests of the forty-eight states, is
entrusted with full and exclusive responsibility for the con-
duct of affairs with foreign sovereignties. . . . Our system of
government is such that the interest of the cities, counties and
states, no less than the interest of the people of the whole
nation, imperatively requires that federal power in the field
affecting foreign relations be left entirely free from local
interference.”).
[2] Under the foreign affairs doctrine, state laws that
intrude on this exclusively federal power are preempted. For-
eign affairs preemption encompasses two related, but distinct,
doctrines: conflict preemption and field preemption. Am. Ins.
Ass’n v. Garamendi, 539 U.S. 396, 418-20 (2003). Under
conflict preemption, a state law must yield when it conflicts
with an express federal foreign policy. See id. at 421 (“The
exercise of the federal executive authority means that state
law must give way where, as here, there is evidence of clear
conflict between the policies adopted by the two.”); Von
Saher v. Norton Simon Museum of Art at Pasadena, 592 F.3d
954, 960 (9th Cir. 2010) (“The Supreme Court has declared
state laws unconstitutional under the foreign affairs doctrine
when the state law conflicts with a federal action such as a
treaty, federal statute, or express executive branch policy.”),
cert. denied, 131 S. Ct. 3055 (2011).
[3] But the Supreme Court has made clear that, even in the
absence of any express federal policy, a state law still may be
preempted under the foreign affairs doctrine if it intrudes on
the field of foreign affairs without addressing a traditional
state responsibility. This concept is known as field preemp-
tion or “dormant foreign affairs preemption.” Deutsch v. Tur-
ner Corp., 324 F.3d 692, 709 n.6 (9th Cir. 2003).
[4] In Pink, 315 U.S. at 233, and Hines, 312 U.S. at 63, the
Supreme Court recognized that the Constitution implicitly
grants to the federal government a broad foreign affairs
power. See also Deutsch, 324 F.3d at 709 (“Because the Con-
2018 MOVSESIAN v. VICTORIA VERSICHERUNG AG
stitution mentions no general foreign affairs power, and
because only a few specified powers related to foreign affairs
are expressly denied the states, one might assume that, with
certain exceptions, states are free to pursue their own foreign
policies. This is not, however, the case. To the contrary, the
Supreme Court has long viewed the foreign affairs powers
specified in the text of the Constitution as reflections of a gen-
erally applicable constitutional principle that power over for-
eign affairs is reserved to the federal government.”). The
existence of this general foreign affairs power implies that,
even when the federal government has taken no action on a
particular foreign policy issue, the state generally is not free
to make its own foreign policy on that subject.
For example, in Zschernig v. Miller, 389 U.S. 429, 440-41
(1968), the Supreme Court recognized that, even in the
absence of any treaty, federal statute, or executive order, a
state law may be unconstitutional if it “disturb[s] foreign rela-
tions” or “establish[es] its own foreign policy.” There, the
Court considered the constitutionality of an Oregon probate
law that imposed conditions under which aliens could receive
Oregon property by succession or testamentary disposition.
Id. at 430-31. The state statute provided for escheat unless the
nonresident alien could demonstrate that the foreign country
from which the alien came granted various reciprocal rights
to United States citizens. Id.
The Oregon statute conflicted with no express policy of the
federal government. Id. at 440-41. Indeed, the federal govern-
ment’s amicus curiae brief stated: “The government does not
contend that the application of the Oregon escheat statute in
the circumstances of this case unduly interferes with the
United States’ conduct of foreign relations.” Id. at 434 (inter-
nal quotation marks and ellipsis omitted).
But the absence of a conflict did not settle the question of
preemption. Instead, the Court analyzed the purpose and oper-
ation of the Oregon statute to determine whether it constituted
MOVSESIAN v. VICTORIA VERSICHERUNG AG 2019
an “intrusion by the State into the field of foreign affairs
which the Constitution entrusts to the President and the Con-
gress.” Id. at 432. In order for field preemption to apply, the
Oregon law had to have “more than some incidental or indi-
rect effect in foreign countries.” Id. at 434 (internal quotation
marks omitted).
The Court concluded that application of the Oregon law
invited courts to conduct detailed inquiries into the political
systems and conduct of foreign nations. Id. at 433-40. In
applying the statute,
the probate courts of various States have launched
inquiries into the type of governments that obtain in
particular foreign nations—whether aliens under
their law have enforceable rights, whether the so-
called “rights” are merely dispensations turning upon
the whim or caprice of government officials, whether
the representation of consuls, ambassadors, and other
representatives of foreign nations is credible or made
in good faith, whether there is in the actual adminis-
tration in the particular foreign system of law any
element of confiscation.
Id. at 433-34. The application of the law therefore required
value-laden judgments about the actions and policies of for-
eign nations and the credibility of foreign representatives. “As
one reads the Oregon decisions, it seems that foreign policy
attitudes, the freezing or thawing of the ‘cold war,’ and the
like are the real desiderata. Yet they of course are matters for
the Federal Government, not for local probate courts.” Id. at
437-38 (footnote omitted). The Court also noted that “[s]uch
attitudes are not confined to the Oregon courts,” citing a num-
ber of decisions from other states expressing a desire to keep
United States money out of the grasp of communist or author-
itarian nations. Id. at 437 n.8.
Although the Oregon probate statute conflicted with no fed-
eral law and appeared, at first blush, simply to regulate
2020 MOVSESIAN v. VICTORIA VERSICHERUNG AG
property—a traditional area of state responsibility—the
Supreme Court held that the law was preempted under the for-
eign affairs doctrine. Id. at 440-41. “The statute as construed
seems to make unavoidable judicial criticism of nations estab-
lished on a more authoritarian basis than our own. It seems
inescapable that the type of probate law that Oregon enforces
affects international relations in a persistent and subtle way.”
Id. at 440.
[5] More than three decades later, in Garamendi, the
Supreme Court clarified when the application of the field pre-
emption doctrine might be appropriate. There, the Court
addressed the constitutionality of California’s Holocaust Vic-
tim Insurance Relief Act of 1999 (“HVIRA”), which required
any insurer doing business in California to disclose informa-
tion about all policies it sold in Europe between 1920 and
1945. Garamendi, 539 U.S. at 401. Although the Court ulti-
mately concluded that HVIRA was preempted because of a
direct conflict with express federal policy, the Court also pro-
vided valuable insight into the doctrine of field preemption.
The Court explained:
The two positions [conflict preemption and field
preemption] can be seen as complementary. If a
State were simply to take a position on a matter of
foreign policy with no serious claim to be addressing
a traditional state responsibility, field preemption
might be the appropriate doctrine, whether the
National Government had acted and, if it had, with-
out reference to the degree of any conflict, the prin-
ciple having been established that the Constitution
entrusts foreign policy exclusively to the National
Government. Where, however, a State has acted
within what Justice Harlan called its “traditional
competence,” but in a way that affects foreign rela-
tions, it might make good sense to require a conflict,
of a clarity or substantiality that would vary with the
MOVSESIAN v. VICTORIA VERSICHERUNG AG 2021
strength or the traditional importance of the state
concern asserted.
Id. at 419 n.11 (citations omitted). With respect to HVIRA,
the Court rejected the contention that the statute concerned a
traditional state responsibility merely because it involved
insurance. Noting the narrow scope of the statute and the
nature of the legislative findings accompanying it, the Court
observed that “there is no serious doubt that the state interest
actually underlying HVIRA is concern for the several thou-
sand Holocaust survivors said to be living in the State.” Id. at
426. Thus, Garamendi suggests that, under a field preemption
analysis, when a state law (1) has no serious claim to be
addressing a traditional state responsibility and (2) intrudes on
the federal government’s foreign affairs power, the Suprem-
acy Clause prevents the state statute from taking effect.
In Von Saher, we applied those principles to a California
statute that extended the statute of limitations for civil actions
to recover looted Holocaust-era artwork. After concluding
that the statute, Cal. Civ. Proc. Code § 354.3, did not conflict
directly with any express federal foreign policy, we conducted
a thorough field preemption analysis and held the statute
unconstitutional.
First, we addressed the question whether section 354.3 con-
cerned an area of traditional state responsibility. Von Saher,
592 F.3d at 964-65. We acknowledged that the general sub-
ject area of the statute, the regulation of stolen property, is tra-
ditionally an area of state responsibility. Id. at 964. But we did
not stop there. Instead, we inquired into the “real purpose” of
the statute to determine whether it concerned an area of tradi-
tional state responsibility:
Property, of course, is traditionally regulated by the
state. But § 354.3 cannot be fairly categorized as a
garden variety property regulation. Section 354.3
does not apply to all claims of stolen art, or even all
2022 MOVSESIAN v. VICTORIA VERSICHERUNG AG
claims of art looted in war. The statute addresses
only the claims of Holocaust victims and their heirs.
Section 354.3(b).
Courts have consistently struck down state laws
which purport to regulate an area of traditional state
competence, but in fact, affect foreign affairs. See,
e.g., Garamendi, 539 U.S. at 425-26 (rejecting pur-
ported state interest in regulating insurance business
and blue sky laws); Crosby[ v. Nat’l Foreign Trade
Council], 530 U.S. [363,] 367, 373 n.7 [(2000)]
(rejecting purported state interest in taxing and
spending); Zschernig v. Miller, 389 U.S. 429, 437-38
(1968) (rejecting purported state interest in regulat-
ing descent of property); Deutsch, 324 F.3d at 707
(rejecting purported state interest in procedural
rules).
The Garamendi Court in dicta rejected the “tradi-
tional state interests” advanced by California in sup-
port of HVIRA, finding instead that the real purpose
of the state law was the “concern for the several
thousand Holocaust survivors said to be living in the
state.” Garamendi, 539 U.S. at 426. Though § 354.3
purports to regulate property, an area traditionally
left to the states, like HVIRA, § 354.3’s real purpose
is to provide relief to Holocaust victims and their
heirs.
Von Saher, 592 F.3d at 964 (parallel citations omitted). We
concluded that, although the statute’s goal of providing relief
to Holocaust victims was laudable, “[i]n so doing, California
can make ‘no serious claim to be addressing a traditional state
responsibility.’ ” Id. at 965 (quoting Garamendi, 539 U.S. at
419 n.11).
We then turned to the question whether section 354.3
intruded on a power expressly or impliedly reserved by the
MOVSESIAN v. VICTORIA VERSICHERUNG AG 2023
Constitution to the federal government. Id. at 965-68. Section
354.3 attempted to provide redress for wartime wrongs, and
“[t]he legislative findings accompanying the statute repeat-
edly reference the ‘Nazi regime,’ ‘Nazi persecution,’ and ‘the
many atrocities’ the Nazis committed.” Id. at 966. The appli-
cation of the statute would often entail inquiry into the repara-
tion efforts of foreign nations, which itself would involve an
examination of underlying allegations of Nazi transgressions.
Id. at 967. We ultimately concluded that section 354.3
intruded on the federal government’s power to make and
resolve war, holding that the federal government’s failure to
act did not “justify California’s intrusion into a field occupied
exclusively by the federal government.” Id. at 965-68.
Field preemption is a rarely invoked doctrine. Id. at 963.
Supreme Court jurisprudence makes clear, however, that field
preemption may be appropriate when a state intrudes on a
matter of foreign policy with no real claim to be addressing
an area of traditional state responsibility. We followed that
guidance in Von Saher, and we must follow it here.
B. The Constitutionality of Section 354.4
Keeping in mind the principles that we have just articu-
lated, we now address the constitutionality of section 354.4.
1. Section 354.4 does not concern an area of traditional
state responsibility.
[6] Plaintiffs argue that section 354.4 concerns an area of
traditional state responsibility because it regulates insurance.
But, as we noted in Von Saher, the required inquiry cannot
begin and end, as Plaintiffs suggest, with the area of law that
the state statute addresses. 592 F.3d at 964-65. On the con-
trary, we must look further to determine the “real purpose of
the state law.” Id. at 964; see also Garamendi, 539 U.S. at
425-26 (rejecting purported state interest in regulating insur-
ance business and blue sky laws, and concluding that the real
2024 MOVSESIAN v. VICTORIA VERSICHERUNG AG
purpose of the statute was to provide redress for Holocaust
victims); Von Saher, 592 F.3d at 964 (“Though § 354.3 pur-
ports to regulate property, an area traditionally left to the
states, like HVIRA, § 354.3’s real purpose is to provide relief
to Holocaust victims and their heirs.”); cf. Zschernig, 389
U.S. at 440 (“The several States, of course, have traditionally
regulated the descent and distribution of estates. But those
regulations must give way if they impair the effective exercise
of the Nation’s foreign policy.”).
[7] Here, the text and legislative history of section 354.4
leave no doubt that the law “cannot be fairly categorized as
a garden variety” insurance regulation. Von Saher, 592 F.3d
at 964. Section 354.4 is not a neutral law of general applica-
tion. It applies only to a certain class of insurance policies
(those issued or in effect in Europe and Asia between 1875
and 1923) and specifies a certain class of people (“Armenian
Genocide” victims and their heirs) as its intended beneficia-
ries. See Garamendi, 539 U.S. at 425-26 (“But, quite unlike
a generally applicable ‘blue sky’ law, HVIRA effectively sin-
gles out only policies issued by European companies, in
Europe, to European residents, at least 55 years ago. Limiting
the public disclosure requirement to these policies raises great
doubt that the purpose of the California law is an evaluation
of corporate reliability in contemporary insuring in the State.”
(citations omitted)). And, just as in Garamendi, the legislative
findings accompanying the statute plainly reveal its true pur-
pose.3 See S. 1915 § 1(c), 1999-2000 Reg. Sess. (Cal. 2000)
(“It is the specific intent of the Legislature to ensure that
Armenian Genocide victims and their heirs be permitted to
have an expeditious, inexpensive, and fair forum in which to
resolve their claims . . . .”); Garamendi, 539 U.S. at 426
(“Indeed, there is no serious doubt that the state interest actu-
ally underlying HVIRA is concern for the several thousand
3
We need not and do not decide how courts might determine the real
purpose of a statute when that purpose is not apparent from the legislative
findings and scope of the statute.
MOVSESIAN v. VICTORIA VERSICHERUNG AG 2025
Holocaust survivors said to be living in the State. § 13801(d)
(legislative finding that roughly 5,600 documented Holocaust
survivors reside in California).”).
[8] Thus, it is clear that the real purpose of section 354.4
is to provide potential monetary relief and a friendly forum
for those who suffered from certain foreign events.4 This is
precisely the same purpose underlying HVIRA, the statute
held unconstitutional in Garamendi, and section 354.3, the
state law held preempted in Von Saher. As Garamendi and
Von Saher make clear, that goal, however laudable it may be,
“is not an area of ‘traditional state responsibility,’ and the
statute is therefore subject to a field preemption analysis.”
Von Saher, 592 F.3d at 965; see also Garamendi, 539 U.S. at
425-26 (noting the weakness of the state’s interest in vindicat-
ing the insurance claims of Holocaust survivors). In sum, sec-
tion 354.4 does not concern an area of traditional state
responsibility.
2. Section 354.4 intrudes on the federal government’s for-
eign affairs power.
We turn, finally, to the question whether section 354.4
intrudes on a power expressly or impliedly reserved to the
federal government. We conclude that section 354.4 intrudes
on the federal government’s exclusive power to conduct and
regulate foreign affairs.
[9] Section 354.4 has “more than some incidental or indi-
rect effect” on foreign affairs. Zschernig, 389 U.S. at 434. The
statute expresses a distinct political point of view on a specific
matter of foreign policy. It imposes the politically charged
4
We express neither agreement nor disagreement with the California
legislature’s viewpoint. We simply observe that California’s main goal in
enacting section 354.4 was to provide redress for individuals who were,
in its view, victims of a foreign genocide, and that that goal falls outside
the realm of traditional insurance regulation.
2026 MOVSESIAN v. VICTORIA VERSICHERUNG AG
label of “genocide” on the actions of the Ottoman Empire
(and, consequently, present-day Turkey) and expresses sym-
pathy for “Armenian Genocide victim[s].” Cal. Civ. Proc.
Code § 354.4. The law establishes a particular foreign policy
for California—one that decries the actions of the Ottoman
Empire and seeks to provide redress for “Armenian Genocide
victim[s]” by subjecting foreign insurance companies to law-
suits in California. See id.; Zschernig, 389 U.S. at 441 (hold-
ing that, even in the absence of a conflicting federal policy,
a state may violate the constitution by “establish[ing] its own
foreign policy”).
Furthermore, the statute’s jurisdictional grant is predicated
on a determination that the claim is brought by an “Armenian
Genocide victim, or heir or beneficiary of an Armenian Geno-
cide victim.” Cal. Civ. Proc. Code § 354.4(b). “ ‘Armenian
Genocide victim’ means any person of Armenian or other
ancestry living in the Ottoman Empire during the period of
1915 to 1923, inclusive, who died, was deported, or escaped
to avoid persecution during that period.” Id. § 354.4(a)(1).
Courts applying this provision may therefore have to decide
whether the policyholder “escaped to avoid persecution,” id.,
which in turn would require a highly politicized inquiry into
the conduct of a foreign nation, see Zschernig, 389 U.S. at
435-36 (finding preempted an Oregon statute that invited
courts to engage in highly politicized analysis of foreign
nations’ governments and conduct).
The passage of nearly a century since the events in question
has not extinguished the potential effect of section 354.4 on
foreign affairs. On the contrary, Turkey expresses great con-
cern over the issue, which continues to be a hotly contested
matter of foreign policy around the world. See, e.g., Turkey
retaliates over French ‘genocide’ bill, BBC, Dec. 22, 2011
(reporting that the Turkish prime minister announced mea-
sures against France after the French National Assembly
passed a bill criminalizing denial of the “Armenian Geno-
cide”); Peter Baker, Obama Marks Genocide Without Saying
MOVSESIAN v. VICTORIA VERSICHERUNG AG 2027
the Word, N.Y. Times, Apr. 25, 2010, at A10 (noting that
President Obama was careful to avoid using the word “geno-
cide” during a commemorative speech in an attempt to “avoid
alienating Turkey, a NATO ally, which adamantly rejects the
genocide label”).
[10] In conclusion, section 354.4 expresses a distinct point
of view on a specific matter of foreign policy. Its effect on
foreign affairs is not incidental; rather, section 354.4 is, at its
heart, intended to send a political message on an issue of for-
eign affairs by providing relief and a friendly forum to a per-
ceived class of foreign victims. Nor is the statute merely
expressive.5 Instead, the law imposes a concrete policy of
redress for “Armenian Genocide victim[s],” subjecting for-
eign insurance companies to suit in California by overriding
forum-selection provisions and greatly extending the statute
of limitations for a narrowly defined class of claims. Thus,
section 354.4 “has a direct impact upon foreign relations and
may well adversely affect the power of the central govern-
ment to deal with those problems.” Zschernig, 389 U.S. at
441. Section 354.4 therefore intrudes on the federal govern-
ment’s exclusive power to conduct and regulate foreign
affairs.
CONCLUSION
[11] Because California Code of Civil Procedure section
354.4 does not concern an area of traditional state responsibil-
ity and intrudes on the field of foreign affairs entrusted exclu-
sively to the federal government, we hold that section 354.4
is preempted. We remand the case to the district court with
instructions to dismiss all claims revived by that statute.
REVERSED and REMANDED with instructions.
5
We need not and do not offer any opinion about California’s ability to
express support for Armenians by, for example, declaring a commemora-
tive day.