An "elated" Long Beach businessman who survived the Nazis' Auschwitz death camp announced Wednesday that he has won $100,000 and an unprecedented apology from the Institute for Historical Review and Liberty Lobby, which claimed the Holocaust never happened.
"This is a victory for all. It is a tremendous relief," said the 58-year-old Mel Mermelstein. "I will sleep a lot better now. I will even die easier."
Mermelstein had sued the Washington-based Legion for Survival of Freedom and its subsidiaries, including the Torrance-based institute, for $17 million for emotional distress and libel, claiming they reneged on an offer to pay him $50,000 for proof that millions of Jews were gassed by Nazis during World War II.
The settlement, approved Monday by Los Angeles Superior Court Judge Robert A. Wenke, ended his civil suit two weeks before it had been scheduled for trial.
Gloria Allred, attorney for Mermelstein, said the agreement includes the unpaid $50,000 prize and $50,000 damages. If the $100,000 is not paid in specified installments by Oct. 1, the defendants agree they owe Mermelstein an additional $50,000.
In what Allred termed a "unique" settlement, the defendants also agreed to apologize to Mermelstein and all other survivors of Auschwitz for "pain, anguish and suffering" caused by denials of the Holocaust they had published.
Noting they never meant to "offend, embarrass or cause emotional strain to anyone," the defendants formally stated in court documents:
"The Legion for Survival of Freedom, Institute for Historical Review, Noontide Press, Elisabeth Carto, Liberty Lobby and Willis Carto do hereby officially and formally apologize to Mr. Mel Mermelstein, a survivor of Auschwitz-Birkenau and Buchenwald, and all other survivors of Auschwitz for the pain, anguish and suffering he and all other Auschwitz survivors have sustained relating to the $50,000 reward offer for proof that 'Jews were gassed in gas chambers at Auschwitz.' "
(Additional defendants agreeing to the stipulated judgment that ended the case were former institute Director Lewis Brandon, Bruce Holman, Lavonne Furr and another subsidiary, Independence House.)
Espouse 'Right Wing' Causes
The Legion for Survival of Freedom and its lobbyist subsidiary, Liberty Lobby, both founded by Willis Carto, are based in Washington and espouse "right wing" causes.
The institute is a division of the legion that attempts to show Nazis had no extermination policy for Jews. Noontide Press is a publishing division of the legion. The other defendants have worked with the various divisions.
"Such an apology has never been brought about by any Jewish organization or any other organization," said Mermelstein, who was congratulated on behalf of all 60,000 American Holocaust survivors in a note from Benjamin Meed, president of the American Gathering & Federation of Jewish Holocaust Survivors.
The defendants also agreed to formally acknowledge the Oct. 9, 1981, judicial recognition by Los Angeles Superior Court Judge Thomas T. Johnson that "Jews were gassed to death at Auschwitz concentration camp in Poland during the summer of 1944."
Testimony at Nuremberg
Testimony at the Nuremberg war crimes trials stated that Zyklon B, a cyanide-based insecticide gas, was used to exterminate as many as 3 million Auschwitz inmates.
The defendants claimed the gas was used only to delouse inmates' clothing and that the gas chambers were only mortuaries to accommodate inmates who died of natural causes.
Johnson's legal pronouncement, although it did nothing to resolve the suit in 1981, was considered a significant partial victory by Mermelstein and his supporters.
Mermelstein, who had assured Johnson in 1981 that any money he obtained in the suit would go to charity, reiterated Wednesday that he would donate the funds to the Auschwitz Study Foundation.
Mermelstein said he has spent about $150,000 on court costs, but Allred said private unsolicited donations may cover that expense. She and her firm have donated their services without fees because her partner, Michael Maroko, is the son of Auschwitz inmates.
Mermelstein said that although he would have been happier had the whole "Jew-baiting" incident never occurred and provoked him to sue, he was satisfied with the outcome and felt that he had vindicated all Jewish people.
"Resistance to tyrants is obedience to God," he said, paraphrasing a motto of Thomas Jefferson to explain his persistence in the litigation.
'Only Sane . . . Thing to Do'
G. G. Bowman, attorney for the legion and institute and most of the defendants, said agreeing to the settlement was "the only sane, conservative thing to do."
Bowman said Brandon had no authorization for the letter he sent Mermelstein on Nov. 20, 1980, challenging him to prove the Holocaust had occurred and that Brandon was fired shortly afterward.
"We were glad to apologize," he said. "The letter should never have gone to him (Mermelstein) in the first place. It was a provocative type thing that no conservative organization would ever do."
Mark von Esch, attorney for Willis Carto and Liberty Lobby, said he agreed to the settlement because the estimated 30-day trial would have cost his clients more than $100,000 and because Johnson had already decided the only issue worth trying--whether Jews were gassed at Auschwitz.
"If I can get out for less than it costs to prove my point," Von Esch said, "I have a good settlement."
He said the defendants would have no trouble in paying the $100,000 to Mermelstein by the Oct. 1 deadline.
Brandon, who represented himself in the case, could not be found for comment.
Mermelstein's suit was rooted in an open offer of $50,000 by the institute in 1979 to the first person who could prove a single Jew was gassed to death during the Holocaust. Then-institute Director Brandon (also known as David McCalden) later said the offer was withdrawn for lack of takers and changed in 1980 to $25,000 for proof that the diary of Anne Frank was authentic and $25,000 for proof that Jews were turned into bars of soap by the Nazis.
After a letter about the Holocaust from Mermelstein was published in the Jerusalem Post in 1980, the institute printed an open letter to Mermelstein in its bulletin accusing him of "peddling the extermination hoax. . . ."
Brandon also wrote Mermelstein on Nov. 20, 1980, agreeing to reopen the $50,000 offer and threatening to "draw our own conclusions and publicize this fact" if he failed to respond.
Mermelstein, who lost his mother and two sisters to the gas chambers at Auschwitz, provided the institute with a list of evidence including declarations of 13 Auschwitz eyewitnesses, Zyklon B gas crystals, human hair and ashes of cremated prisoners.
But on Jan. 27, 1981, Brandon said there had been a delay because famed Nazi hunter Simon Wiesenthal had applied for the $25,000 prize for proof of the Frank diary and that would have to be considered first. Gassing evidence provided by Mermelstein, he said, would have to be weighed with Wiesenthal's, who had also claimed the $50,000 prize.
On Feb. 19, 1981, Mermelstein sued.