The lawyer behind the compensation programs for the victims of 9/11, the 2010 BP (British Petroleum) oil spill, the 2007 Virginia Tech shooting, and other tragedies in the United States told a capacity crowd at Cooley Law School on Thursday that the programs — while very successful — were not a blueprint for handling future disasters.
“The 9/11 Fund is a precedent for nothing,” said attorney Kenneth R. Feinberg. “It will never be copied, nor should it.”
Mr. Feinberg was in Lansing on Thursday, Nov. 15, as part of Cooley Law School’s Krinock Lecture Series. He is the founder and managing partner of Feinberg Rozen, LLP, in New York City and Washington, D.C., and has been in the forefront of claim settlement programs for the biggest disasters and tragedies in U.S. history.
Feinberg’s visit is part of an ongoing commitment by Cooley to bring nationally and internationally known speakers to the school to talk with students about the practice of law. Through the Krinock lecture series and other programs, the law school has brought such speakers to Cooley as U.S.
Ambassador Luis Cdebaca, U.S. Attorney Barbara McQuade, U.S. Supreme Court Justice (retired) John Paul Stevens, Michigan Supreme Court
Justice Brian Zahra, U.S. Rep. Hansen Clarke, Israeli Supreme Court Justice Salim Joubran, and many others.
Thursday’s lecture filled the courtroom at Cooley’s Lansing campus, plus overflow rooms watching the presentation on TV. The lecture was also
broadcast to Cooley’s other Michigan campuses.
Feinberg told students that he was honored to be part of the Krinock lecture series and announced he would leave time for questions and answers. He began by warning listeners not to expect any major overhaul of the current tort system in the U.S. regardless of the situation to be addressed.
The tort system, he said, is so ingrained into the American lifestyle that there is no political will or historical basis to fundamentally change the system.
However, he continued, every once and awhile, there is a tragedy of such epic proportions that it galvanizes the public and gets the attention of the policy makers, leading to the creation of an alternative remedy. The Sept. 11, 2001 terrorist attack was one of those events, as was the massive BP oil spill on the Gulf Coast.
When such events occur, Kenneth Feinberg is the name on policy makers’ speed dial. “Time and time again, judges and government officials turn to him at moments of national crisis and calamity,” said Cooley Professor Richard C. Henke, who invited Feinberg to lecture at Cooley. “Ultimately, Mr. Feinberg’s success is attributable to a unique blend of intellect, empathy, sympathy, and an unparalleled ability to distill complex legal issues to their essence.”
Despite the title of this year’s lecture, “Pioneering the Resolution of Catastrophic Loss Claims,” Feinberg said that work they did and the programs they oversaw should not serve as a case study for how to handle future disasters. “These programs worked, but don’t do them again,” he said, explaining that the tragedies were unique and that any attempt to apply the 9/11 and BP solutions to unrelated future issues would likely not match the needs of the problem.
In addition to his appointment by the U.S. Attorney General to direct the September 11th Victim Compensation Fund, Feinberg was tapped by BP Oil to handle the oil company-funded compensation program in the wake of the Gulf Coast Oil Spill. He was similarly brought in by the University of Virginia president in the wake of the mass shooting on that campus, by the governor of Indiana following the 2011 State Fair pavilion collapse, and by the governor of Colorado after the mass shooting in the Aurora, Colo., movie theater in July 2012.
The 9/11 Fund was a Congressionally mandated program that used taxpayer funds to compensate the victims of the World Trade Center and Pentagon attacks. Fully 97 percent of the eligible victims from the 9/11 attack voluntarily entered the compensation program, agreeing not to sue in exchange for settlements that included $2 million for a death and $400,000 for injury in tax-free compensation.
The BP oil spill compensation program, announced just a week after the disaster following a meeting between BP and President Barack Obama, was funded by $20 billion in oil company money. Feinberg said he was surprised by both the speed and the scope of the British Petroleum funding, but indicated there were sound business reasons why the oil company chose that path. As with 9/11, affected persons were provided with a financial settlement when they agreed not to sue.
In the Colorado and Virginia Tech shootings, and in the Indiana State Fair pavilion deaths, smaller compensation programs were largely funded with donations from people around the country.
Although Feinberg said that the 9/11 and BP Oil compensation plans were unique and unlikely to work elsewhere, he did say there were some significant attributes of those arrangements that would aid the success of any future programs. The keys to successful compensation programs, he said, start with having a solid procedure in place. Also critical to success, Feinberg noted, are the certainty of the process, outreach to the victims, and transparency. “It’s important that victims have a stake in the program; that they have a right to be heard.”
He noted further that it’s important that attorneys are involved because a successful program needs them as allies and the victims need them to facilitate paperwork. He also said that any person administering such programs needs a stiff backbone and a strong sense of compassion.
Feinberg is the author of “What is Life Worth?” and “Who Gets What?” He was named Lawyer of the Year (2004) and one of The 100 Most Influential Lawyers in America (repeatedly) by the National Law Journal. In addition to the cases he talked about at Thursday’s lecture, Feinberg also served as a Special Master in the Agent Orange cases involving the defoliant affecting Vietnam veterans and designed a settlement for Hurricane Katrina victims. His firm has also been retained to settler personal injury claims related to the Jerry Sandusky scandal at Penn State, and to design and administer a settlement program for victims of hurricanes Ike and Gustav in Texas.
The Krinock Lecture series was established by the faculty conference of Cooley Law School to honor the late Robert Krinock, who served as professor and dean at Cooley Law School until his death in 1986 at the age of 45.
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