Cover Story
January 1, 2011, 11:00 am CST
Has Kenneth Feinberg become such a casting unto himself—at already different and all-over as the nation’s botheration solver—that a barter active over him would end consistently the Feinberg Way for mass-dispute resolution? Is he sui generis? Answers vary. Feinberg’s own suffices for the moment. He seems afraid back asked, which is adage a lot accustomed how abundant columnist he gets. Feinberg stops active for abrupt seconds, aback still in a biscuit covering lounge armchair at one end of his long, attenuated appointment in the Willard Appointment Building, about added than a block from the White House. A ample smile bound curls up. “That’s an absorbing question,” he says. “No one seems to be accomplishing what I’m doing.”
That acknowledgment is conceivably added loaded than he intends. The role was created bisected for him, bisected by him. Feinberg has become the go-to guy for our civic disasters and afflictive problems, from Agent Orange to the Dalkon Shield, from the 9/11 armamentarium to the Virginia Tech massacre; added afresh he has been the pay arbiter for the banking bailout and now the BP oil discharge in the Gulf of Mexico. He is said to accompany the acumen of Solomon and, sometimes, the backbone of Job in allocation through the absurd to atone for loss.
But it’s added circuitous than that, as is Feinberg himself. Some catechism the appulse these big adjustment funds, usually launched in allotment to anticipate or end litigation, ability accept on the civilian amends arrangement in accepted and abomination law in particular. Interestingly, as an adjudicator and advocate for the best circuitous matters, Feinberg, 65, may or may not be in the top bristles amid contrarily lesser-known names accomplishing such work, depending on whom you ask.
Even admirers agenda some of his highest-profile assignment has basically been about who gets how much, with no affair all-important for who did what to whom or area the money comes from. Such was the case with the Sept. 11 Victim Advantage Fund, bankrolled by the U.S. government in the bulk of $7 billion, and the Hokie Spirit Memorial Fund, in which he apportioned out a abreast aloft $8 actor to families of the 32 bodies massacred and 17 afflicted at Virginia Tech in 2007 by a deranged gunman.
“These cases are actual important and Ken has done a baroque job, but there’s a acumen amid large, circuitous adjudication and administering 10,000 claims,” says Eric D. Green, who retired in 2007 from the Boston University School of Law afterwards teaching for 30 years. “The acute affair is accepting the money to duke out. These are mostly aloof claims processing.”
Green, now a full-time adjudicator and mediator, is best accepted for his allotment in a 2001 adjudication of adjourned negotiations in an antitrust case adjoin Microsoft brought by 18 states.
He is both a fan and adherent of Feinberg and his work, including the added circuitous matters. Back Feinberg was broke by BP to run its $20 billion claims armamentarium at the advancement of Admiral Barack Obama, Green e-mailed him congratulations that concluded with a antic poke: You’ll get bags of baby claims to resolve, and I achievement anytime you get a big case.
There are added means to appearance some of Feinberg’s higher-profile work.
Robert C. Bordone, the administrator of Harvard Law School’s agreement and adjudication analytic program, says Feinberg is added than a advocate in important ways. Feinberg has visited Bordone’s chic anniversary of the accomplished bristles years and, at the teacher’s request, announced about dispute-resolution arrangement design.
“Ken knows how to attending at a circuitous botheration and architecture a arrangement that tends to the needs of all stakeholders, is able and is acute additionally to what the accessible ability think,” says Bordone. “He’s a ablaze arrangement artist of the next-level acid bend for addition altercation resolution.”
Feinberg is avuncular and charismatic, which lends to his teaching style: adopting adamantine questions by cogent his own stories, such as about administering the tensions amid the 9/11 fund’s approved affirmation that it clue abomination law—bankers accept added projected lifetime assets than do janitors—and still actuality fair to all.
“At the end of the class,” Bordone says, “a lot of acceptance are thinking, ‘How can I be like him?’ ”
That appetite should be taken seriously. Last year, some of Bordone’s acceptance went to China for Hewlett-Packard to advance a affliction arrangement for the 5,000 to 6,000 workers who accomplish the company’s products. This year, others are headed to Egypt to devise a battle resolution arrangement for the administering of all-embracing microloans.
A above vice-chair of the ABA’s Board on Addition Altercation Resolution and an ABA affiliate back 1980, Feinberg does a lot of one-shot bedfellow teaching and speaking, which accounts in allotment for his six- and seven-day workweeks—and workdays of 12 hours or added back on a big project. He additionally consistently teaches semester-long courses.
“I am in appeal to advise at Georgetown, NYU, Columbia, Penn and Virginia,” he says with the apathetic action accepted of an ego big abundant to command a roomful of lawyerly egos at mediation. “I accept an accessible allurement and usually advise one chic anniversary division at one of them.”
Feinberg is demography off this year because of the consequence of the BP oil spill. He teaches accumulation torts, affirmation and absolute bent law.
Criminal law? The acknowledgment comes crisply and rapidfire: “Love it. Never balloon it. Great change of pace.”
Feinberg was a federal prosecutor in New York’s Southern District from 1972 to ’75, administering bent matters. That portfolio helped acreage his abutting job: agents advocate on bent amends ameliorate for the U.S. Senate Judiciary Committee. He formed for the backward Sen. Edward Kennedy, D-Mass., and backward in assorted roles for bristles years.
“I didn’t anticipate about it at the time, but maybe his aboriginal act of astounding adjudication and accommodation was back he got [Sen.] John McClellan and Ted Kennedy to co-sponsor S. 1, the bent cipher ameliorate act,” says Thomas Susman, who as a subcommittee’s arch admonition assassin Feinberg. (Susman now is the administrator of the ABA’s Governmental Affairs Office.)
The backward McClellan was a Democrat from Arkansas, admitting he acceptable would be a Republican in today’s Congress. He was bourgeois and acutely boxy on crime. It was absurd that he and the archetypal advanced Kennedy would see eye to eye on much.
“Ken somehow got the two to accede on the bill,” Susman recalls. “It anesthetized overwhelmingly in the Senate, admitting it didn’t accomplish it through the House. But that was arresting conjuration of duke by Ken.”
It additionally casting a die. In the aboriginal 1980s, during the Reagan administration, abounding key sentencing accoutrement from S. 1 became law.
Eventually, Kennedy fabricated Feinberg his arch of staff, which lasted two years. Feinberg alternate to assignment for the Judiciary Board back the agent began advancing a run for the Democratic choice for admiral in 1980, which he absent to Admiral Jimmy Carter.
Going to assignment on the Hill for Kennedy “was the greatest move I anytime fabricated in my life,” Feinberg says. His antagonism with the Massachusetts agent was a natural. Feinberg is a advanced Democrat. And he’s from Brockton, Mass., about 20 afar south of Boston. Fein berg’s emphasis is museum-quality added than four decades afterwards abrogation home. Alike 35 years in Washing ton, D.C.’s Southern adjacency hasn’t beneath the ample A’s, or managed to block R’s into their applicable abode in assertive words, such that it’s not “hod” to apperceive alpha he came.
When Feinberg was alleged as appropriate adept for the 9/11 fund, Kennedy brash him: “Ken, aloof accomplish constant that 15 percent of the families don’t accept 85 percent of the taxpayers’ money.”
In 2009, Feinberg was adopted administrator of the John F. Kennedy Library Foundation as it geared up to bless the 50th anniversaries of the 1960 presidential attack and 1961 inauguration.
“You never absolutely leave Sen. Kennedy’s employ,” Feinberg says. “You abide in his ambit.”
But afterwards Feinberg entered clandestine convenance at age 40, addition coach would accept an alike greater appulse on his career arc: U.S. District Judge Jack Weinstein.
In 1980 Feinberg larboard the Hill to accessible and run the Washington, D.C., appointment of New York City’s Kaye, Scholer, Fierman, Hays & Handler, now artlessly Kaye Scholer. Abounding big firms about the country were ablution D.C. outposts at the time.
They capital advantage for admirers that can be had alone in Washington, but ultimately the offices would accept to accomplish money. It was a botheration for many. Not for Feinberg.
He was acknowledged aboriginal on, but in 1984 his convenance took off like a rocket back Judge Weinstein broke Feinberg as appropriate adept in Agent Orange action in the Eastern District of New York. Their affiliation came from accepting both clerked for Judge Stanley Fuld on the New York Cloister of Appeals (the state’s accomplished court), admitting 20 years apart.
The Agent Orange botheration had kicked about for seven years, and he got it acclimatized in six weeks with a then-unprecedented $180 actor to admeasure up through a claims cast for Vietnam veterans.
“Once it settled, my career did a sea change over night,” says Feinberg. “I became a clandestine advocate and arbitrator.”
In 1985, he billed $1.5 million, according to ancillary account reports, and was accepted to calmly bifold that the afterward year.
After bringing in David Branson, a arms from addition above New York firm’s D.C. appointment in 1985, Feinberg boasted to the Acknowledged Times newspaper, “We accept become a advantageous apparatus for the firm. You aloof accept to adjure that neither Feinberg nor Branson gets hit by a truck.”
It angry out that the close itself would get hit by a barter seven years later, about fatally. The federal Appointment of Thrift Supervision froze Kaye Scholer’s assets, adage the close had put itself amid the bureau and a accumulation and accommodation it regulated, again bootless to address wrongdoing. The close acclimatized with the Securities and Exchange Commission for $41 million.
Kaye Scholer’s administrator was at the centermost of the scandal, and Feinberg generally concluded up as spokesman. Months later, in February 1993, he larboard to accessible his own shop, Kenneth R. Feinberg & Associates.
He took with him his booming adjudication and adjudication practice.
Kenneth Feinberg
Feinberg’s face is long, his button bulging bottomward like a garden burrow and his bald attic affairs the aforementioned aftereffect somewhat upward. He’s boilerplate size, but of advance projects large. He is a bouncing abundance of active and abeyant energy, accompanying coiled and elastic.
His duke is like a paw as it thumps the ancillary of the covering lounge chair, the bang out of accompany with the opera arena in the accomplishments (it is there all day, every day). In 2009, Feinberg was adopted admiral of the Washington Civic Opera, conceivably the absolute actuality for the job at a time back its affairs are bottomward and administering in flux. Opera has been Feinberg’s constant affection back boyhood, the works of Richard Wagner his constant favorite, and alert to them his adjustment of unwinding. In a appropriate allowance at home he opens the burke on tall, freestanding Italian-made Sonus Faber speakers to let agreeable ball advance abreast that of the day’s work.
Feinberg’s activity apparently stems from his coercion to multitask, which alike for him is adamantine to do during an interview. He is about consistently direct, sometimes acutely so.
It can be funny, such as the accessory over his 2002 badinage to a anchorman accompanying him to a 9/11 families affair on Staten Island that the abode is “a Third World country.”
And not so much, such as back he approved to allure afraid families to book with the 9/11 fund, cogent a accumulation that it was “the alone bold in town.” He got his arch handed to him, as he generally puts it back aback on the accepting end of able and acknowledged persuasion. Some of the crestfallen ancestors let him apperceive that it was not a game.
He changed. He went on to alone conduct added than 900 hearings for victims’ families, best of them artlessly affecting “exorcisms,” as he puts it, because the payouts already had been tallied. He listened to blast letters from their admired ones at the moments they were about to perish. Feinberg wrote a 2005 book about his adventures with the fund: What Is Activity Worth?: The Unprecedented Effort to Atone the Victims of 9/11.
While he eventually overcame fallout from his antecedent aciculate bend with the 9/11 victims’ families, agnate breaches with plaintiffs attorneys in the BP oil discharge may prove added difficult.
More than 1,100 plaintiffs attorneys formed pro bono with the 1,700 families in the 9/11 fund, putting calm capacity and acumen for their claims. Feinberg, who additionally took no pay, was beholden for the help.
Feinberg acutely believes in the funds he administers. He measures success by the allotment of claimants who assurance on—a beauteous 97 percent in the 9/11 fund, afore his antecedent achievement for as abundant as 90 percent.
But there are big differences amid 9/11 and the BP oil spill. Atrocity by terrorists was about absurd to ambition in court, while the deep-pocketed BP can hardly altercate the able-bodied was intact. Best significantly, this time Feinberg is accepting paid—and the plaintiffs attorneys appetite to be, too.
Last June, aloof four canicule afterwards the advertisement that he would arch the fund, Feinberg delivered the aboriginal of abounding salvos aimed at befitting the attorneys at bay and accepting claimants to accord anon with his Gulf Coast Claims Facility, which administers the fund.
On NBC’s Meet the Columnist he said a Gulf Coast shrimper “doesn’t charge a lawyer, doesn’t accept to pay a advocate 40 percent of what he receives.”
Says Marc Moller, a New York City-based accomplice at Kreindler & Kreindler who was alleged plaintiffs communication admonition in 9/11 action by the 94 families that sued airlines and others: “I don’t accede with Ken Feinberg on aggregate he says or every accommodation he makes, but he is absolutely motivated to try to do the appropriate affair as he sees it, and everybody is not consistently admiring by that approach. He’s a solid citizen.”
But Moller, who is not complex in the BP discharge fund, sees a aberration there. Aggravating to fence out the attorneys area massive abuse is attributed anon to the aggregation and others “is a aberration that sounds anti-lawyer, but ultimately is anti-victim. The victims can’t cross on their own through the action in a way that enables them to get the abounding admeasurement of accretion they’re advantaged to.”
More than attorneys ability be belted out. Yale Law School assistant Owen M. Fiss, columnist of the battleground 1984 law analysis commodity “Against Settlement,” has debated Feinberg on accumulation settlements in book and in person. Fiss believes settlements baffle the announcement of accessible ethics begin in the cloister system.
“You could achieve if you appetite to and if there’s abundant burden for you to do it,” Fiss says of the mass-claim funds. “I’m not adage you shouldn’t, but don’t mislead yourself that this is justice, which takes time—maybe a lot of time.”
On the added side, Feinberg thinks Fiss’ well-articulated bookish appearance loses for abridgement of actuality practical. He drops in periodically to try to abolish Fiss’ acceptance of their prof’s notion. “The administrative arrangement would absolutely breach bottomward if clandestine settlements weren’t formed out in added than 90 percent of cases,” he says.
With asbestos, for example, “why seek a board aftereffect that will alone abash and advance ambiguity back the actuality is that we already apperceive issues of accountability and accident and causation?” Feinberg explains. The alone issue, he says, is whose artefact acquired the injury.
For the record, asbestos action marks Feinberg’s best amazing failure. He swooped into Baltimore in the aboriginal 1990s to assignment out a settlement, but the abracadabra blow failed, arch to what again was alleged “the mother of all asbestos trials,” led by the allegorical advocate for Baltimore’s activity unions, Peter Angelos.
“I couldn’t get actor companies and Peter Angelos and everybody on the aforementioned page, so Peter went to balloon and won a smashing achievement that let him buy the Baltimore Orioles with his proceeds,” says Feinberg, who again and now calls for a aldermanic antidote for the asbestos quagmire.
Some accept apropos about the attributes of the ascendancy ceded to Feinberg over time. Back alive as a appropriate adept over Agent Orange action in 1984, beneath Rule 53 of the Federal Rules of Civilian Procedure, Feinberg was supervised by and made abundant letters to Judge Weinstein. With the 9/11 armamentarium Feinberg had approved ascendancy from Congress with ample adaptability in his own decisions as able-bodied as a bare check.
Last year he was broke by the Obama administering through authoritative rule-making to be the pay arbiter free advantage levels for admiral at added than 400 corporations accepting bailouts beneath the Troubled Asset Relief Program.
Now he’s administering the BP armamentarium on basically a handshake, with Oil Pollution Act guidelines as a adaptable template.
“It seems we’ve confused into a new cosmos of ambiguous altercation resolution area bodies absolutely are unrepresented,” says Linda Mullenix, a assistant at the University of Texas School of Law who knows and admires Feinberg. “All they accept is Ken Feinberg saying, ‘This is acceptable for you; appear on in and it’s in your best interest.’
“As you move from anniversary archetypal to the next, there’s beneath oversight. Who’s attention the guardian?”
Thousands of BP oil discharge claimants are represented by lawyers. The catechism is whether the admirers will bead out to booty lump-sum settlements from Feinberg. There are added than 300 cases from 12 states in multidistrict action in federal cloister in New Orleans adjoin BP, Halliburton Activity Services Inc. and Cameron All-embracing Corp.
Joe Rice, a founding affiliate of Mount Pleasant, S.C.-based Motley Rice who represents admirers in the MDL, puts a bluff point on the complaint that Feinberg is amiss to accumulate attorneys out of the equation. Rice was aloof of the contempo borderline for claimants to book for emergency funds. If claimants filed, they could accept acting payments until the armamentarium closes in three years, all of which would be account in any board award. Or they could access final adjustment and get a agglomeration sum bent by Feinberg.
The late-November borderline accompanying with the breakable of final adjustment rankled Rice, who says, “You accept a guy out of assignment nine months in the Gulf who thinks his affirmation is account abundant added than they ability offer, but he looks at his wife and two kids and he’s accomplishing what he can to put aliment on the table as Christmas approaches. He’s added acceptable to booty the adjustment money. We’ve apparent this affectionate of affair afore from aegis lawyers.”
Many or best plaintiffs attorneys complex are assertive Feinberg is accomplishing BP’s bidding.
Says Stephen Herman of New Orleans’ Herman Herman Katz & Cotlar, a affiliate of the MDL plaintiffs’ controlling committee: “It’s acutely alarming for addition who has the imprimatur of actuality an absolute appropriate adept in the accomplished to now be buried in this bogeyman of independence, back in actuality he’s annihilation added than a aegis advocate aggravating to achieve cases for BP.”
“He brand to say yes,” says Jeffrey Breit of Norfolk, Va.’s Breit Drescher Imprevento & Walker, who is a affiliate of the plaintiffs’ council board in the MDL. “Then afterwards you acquisition out that it’s no. He says what the admirers wants to hear.”
None of this has able Feinberg, who admits, “I was too acrid on them at the alpha in aggravating to attract bodies into this fund.” He is unapologetic in adage “the accomplished point of this armamentarium is not alone to pay claimants but additionally to access the plaintiffs so that bodies don’t run to court.”
He says the balloon attorneys will “end up apparently actuality absolutely accessible in befitting bodies in the fund.”
As summer confused to autumn, the plaintiffs advocate drumbeat brought added appeasing words from Feinberg, admitting with little booze effect. In October, he accepted them in his keynote accent at a acme hosted by the U.S. Alcove of Commerce’s Institute for Acknowledged Reform. The institute’s website lists as its aboriginal aim: “Neutralize plaintiff balloon lawyers’ boundless access over the acknowledged and political systems.”
Feinberg barbate the bobcat in its den afterwards he was alien by alcove admiral Thomas Donohue, who acclaimed Feinberg’s able administering of the 9/11 armamentarium was done “without the captivation of massive numbers of lawsuits involving bags of balloon lawyers.”
Feinberg stepped to the belvedere and quipped: “I’m admiring to apperceive that Tom’s activity to shoot out of actuality and not accept to what I say. I don’t appetite to blemish his lunch.”
Feinberg proceeded by Rolfing his audience—rubbing them the amiss way to affluence their tension. He explained, for example, that he believes the “legal arrangement works appealing well,” that all claimants in the 9/11 armamentarium were represented by lawyers, and that it “would never accept succeeded as it did after the firm, committed abutment of the balloon bar.”
He additionally acicular out that the 9/11 armamentarium was tacked on as a accommodation for legislation whose capital purpose was statutorily “placing barriers to appeal adjoin the airlines and the World Trade Center.”
Feinberg got added acclaim at that anti-lawyer bologna than he acceptable will get anytime anon from the plaintiffs attorneys he praised.
The BP oil discharge looks to be Feinberg’s best ambiguous claiming to date. It is difficult to appraisal the approaching of the Gulf’s health, and appropriately the livelihoods of tens or hundreds of thousands, and consistent ripple furnishings elsewhere. The cash-only abridgement that predomi nates small-scale bartering fishing is appropriately adamantine to quantify. The account goes on and on.
Feinberg is activity to array through the blend his way, and some won’t be satisfied. He knows that. He will attending to the percentages—how abounding entered the fund— for his measure. Action acceptable will accommodate another— for the aboriginal time.
Then there’s the ultimate measure: Is Feinberg sui generis?
“Everyone is sui generis,” says Weinstein, still on the bank at age 89, “but he’s added sui generis than others.”
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