The Catholic University of America

 

 

 

 

Renowned Special Settlement Master Kenneth Feinberg
Delivers Brendan F. Brown Lecture

 

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No one in America has played a role quite like Kenneth Feinberg’s in many of the nation’s great tragedies, disasters, and misfortunes of the past decade or so. 

Time and again, he has been tapped by the government to settle claims and cut the checks to victims and families in the wake of such seminal events as the BP Oil Spill, the GM Ignition Switch Program, the Hokie Spirit Memorial Fund following the tragic shootings at Virginia Tech University, and the granddaddy of them all, the distribution of the 9/11 fund.
 
Feinberg—arguably the country’s best-known Special Settlement Master, mediator and arbitrator—delivered the law school’s second Brendan F. Brown lecture of the semester on Nov. 20,  “Unconventional Responses to Unique Catastrophes: Tailoring the Law to Meet the Challenges” during which he discussed his work and what he has learned about human nature over many years in such roles.
 
“Never underestimate the charitable impulse of the American people. It is astounding to me,” he said, referring to people’s willingness to donate to emergency funds that respond to tragedies or disasters.
 
Such compensation funds are, in Feinberg’s words, “true alternatives to the tort system.”  Victims or families who accept taxpayer-supported payouts generally give up the right to sue. (The Hokie Spirit Memorial Fund, seeded with privately donated money, is an exception).  But because such funds are set up so rarely, their existence does not threaten the conventional tort system.
 
“These funds are precedents for nothing,” Feinberg stated.
 
Serving as Special Master of the September 11th Victim Compensation Fund was perhaps his best known public role, but Feinberg expressed ambivalence about the way the process was set up.
 
While creating the fund with taxpayer money “was sound public policy and absolutely the right thing to do,” Feinberg said that 9/11 was an event like no other, and that Congress should not make a habit of the practice because it causes resentment among victims of other events who do not receive the same treatment.
 
“Don’t ever do it again. You better be careful when you carve out special public compensation for these people and no one else,” he said.  
 
Feinberg also spent some time explaining to his attentive audience in Slowinski Courtroom what he has observed about human psychology through his dealings with people still reeling from tragedy.
 
For most victims and families, it is not about the size of a payment, but about bearing witness for a lost loved one.
 
“Nobody comes to me to talk about money. They come to vent about unfairness of the world,” he remarked. Especially difficult for families is the absence of a body for the closure of a proper burial, as was prevalent in the aftermath of 9/11.  
 
Before he took questions from the audience, Feinberg emphasized the importance of designing compensation funds correctly, with appropriate standards of proof. As the designated Administrator of the Gulf Coast Claims Facility in 2012, he was flooded by dubious claims from all over the world——including Israel and Norway—of damages from the massive oil spill.
 
Feinberg, formerly the chief of staff to the late Sen. Edward Kennedy, is the managing partner of Feinberg Rozen, LLP and one of the nation’s leading experts in mediation and alternative dispute resolution. Among other prestigious appointments:
 
He was appointed by the Secretary of the Treasury to serve as the Special Master for TARP Executive Compensation, where he was responsible for determining annual compensation packages for senior corporate officials at companies that received the most taxpayer financial assistance.
 
Feinberg was the Fund Administrator responsible for the design, implementation and administration of the claims process for the GM Ignition Switch Program, as well as the Hokie Spirit Memorial Fund following the tragic shootings at Virginia Tech University in 2007.
 
“If you want to do this work, brace yourself, because it is emotional,” he concluded.
 
Earlier in the day, Feinberg covered much of the same ground during informal remarks as the invited guest speaker (left) for the November faculty luncheon at the law school. At that occasion, he stressed the importance of empathy and close listening in his job as equally important as a firm grasp of the law.
 
Feinberg was designated “Lawyer of the Year” by the National Law Journal in 2004. He is listed in “Profiles in Power: The 100 Most Influential Lawyers in America” (National Law Journal, multiple issues). He is the author of numerous articles and essays on mediation, mass torts and other matters and is the author of, “What is Life Worth? The Unprecedented Effort to Compensate the Victims of 9/11” (Public Affairs 2005).