Kenneth Feinberg spoke to the UCI Law School in the Disaster Law Lecture Series sponsored by the Center for Law, Environment and Natural Resources, on March 21, 2013. He has now taken on the task of distributing charitable contributions for The One Fund Boston, following the tragic events there. So far, the fund has collected $28 million.
The announcement for his talk describes him as: “Kenneth Feinberg is the administrator of the BP Deepwater Horizon Disaster Victim Compensation Fund and one of the nation’s leading experts in dispute resolution. He has also served as Special Master for the September 11 Victim Compensation Fund, provided oversight of TARP Executive Compensation, and administered compensation for he Virginia Tech, Aurora Theater, and Penn State-Sandusky tragedies.”
In this lecture, Feinberg spoke on “Unconventional Responses to Unique Catastrophes: Tailoring the Law to Meet the Challenges.” Here are my notes on the talk.
His book, published in 2012 is “Who Gets What?”
In the 9/11 tragedy, policy makers decided to come to aid of innocent victims.
Collecting compensation from BP was voluntary, as in 9/11, but you must sign that you will not sue.
It is a no fault compensation system.
Victims are paid generously. Typical compensation in 9/11 was $2,000,000 for a death, tax free. Injured responders received $400,000.
97% chose the public compensation.
Only 94 sued and their cases were settled.
$7.1 billion was given out in compensation.
This situation was a unique response and not likely to be repeated.
In the BP Deepwater Horizon Gulf oil spill, BP agreed with President Obama to pay $20 billion to victims, for which BP got a full release. There were 1.2 million claims, where losses had to be justified. Of these, 555,000 were honored and $6.5 billion were paid.
(Don’t take these numbers to be officially accurate, since between my poorly hearing a number and typing it into my cell phone, a lot can happen.) They obtained 225,000 releases. 18,000 cases of fraud were detected, and there are around 2,000 prosecutions. They got almost all legitimate claims.
His duties included talking to people who wanted to be heard, and he also did this at town hall meetings.
He is a dynamic speaker who can be both serious and humorous. He can be both emphatic and emotional.
In the other cases in which he was the compensation master, private money was used.
No waivers were needed as people could still sue.
In meeting with victims families, they were often emotional, angry, and troubled.
One’s law training was not helpful. Empathy, sensitivity, and understanding are needed.
Don’t make the mistake of thinking that you know how they feel.
He met personally off the record with 900 people.
Their talks were not about the money but about the memory of lost ones.
In the agent orange or dioxin situation from the Vietnam war, the victims did not sue as individuals but as a group. The standard for compensation was based on how disabled they were.
In 9/11, the injured must have been in the immediate vicinity of the world trade center.
The compensation system must be an equitable, transparent, and clear system.
Fairness could not be the major consideration.
Many emotional cases were cited by him.
In the University of Virginia shootings there were 32 deaths. The families received
$212,000 each as a “gift”. They can still sue, and the money was unconditional.
In the Aurora, Colorado, theater shooting, there were 12 dead and 30 injured.
Free mental health care was given by the city.
Hospital length of stay was used as a proxy for the extent of physical injury.
The 9/11 BP settlement was a good policy and gets an A. But he would not recommend that anyone do it again. It should not be a precedent. It was singular and unique. The regular court system works well every day.
In the question of fairness, some other tragedies in the US have not been compensated.
What he did was not rocket science. Others can do it, he said. He also said “No good deed goes unpunished”. His job was tough and stressful, and delegated to one person. You have to use your personal judgement in the settlements.
He answered a number of questions. FEMA is a model program with the right people.
Now there is a new settlement program for BP.
In his work, he represents the victims, not BP.
He did the 9/11 settlement pro bono.
Airline lobbying on 9/11 and patriotism led to that settlement.
The work had great emotional impact but tremendous rewards.
He received personal thanks with his family from President Obama.
He also received personal thanks from President Bush.
