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Man at helm of oil fund master of mediation 19 Jul 2010 12:00 am

USATODAY.com
by Martha T. Moore
Updated 6/28/2010

When a federal judge announced a settlement in the case of rescue and recovery workers sickened by working at Ground Zero, he made certain to mention an important name to seal the deal: Kenneth Feinberg.

"His heart, his soul is invested in this process," Judge Alvin Hellerstein said June 10.

Feinberg isn't handling the $712.5 million settlement for sick rescue workers. He will hear only appeals of individual settlement amounts in dispute.

But his name is powerful enough to be a selling point in getting nearly 10,000 plaintiffs to accept the deal.

Savvy, direct, and increasingly skilled at dealing with victims, Feinberg has become the first pick — almost the only pick — to handle compensation for cases that are as emotionally fraught as they are legally complex.

On June 16, President Obama gave him his current challenge: running a $20 billion fund for economic damages from the Gulf of Mexico oil spill, funded by energy company BP.

Feinberg, 64, has handled a litany of grief: Agent Orange, asbestos, faulty contraceptive devices, the Virginia Tech shooting and the victims' compensation fund for the families of those killed on Sept. 11, 2001.

In August, Feinberg will step down as Obama's "czar" reining in executive pay at companies that were bailed out with federal funds.

"Can Ken Feinberg Be Cloned?" an editorial in the Boston Globe asked this month.

Finding alternatives to suits

Feinberg gains credibility by grounding decisions in accepted legal principles, even though as a settlement administrator he has wide latitude to make decisions, says Richard Nagareda, a Vanderbilt University law professor and expert on claims involving personal injury and loss.

He also has an ability to convince people who are suffering emotionally and economically that he is offering a better deal than going to court. "He has demonstrated that there is an alternative" to massive litigation, says Nagareda, who argues that without Feinberg's success with the congressionally mandated 9/11 fund, the BP escrow fund might never have happened. Of the 2,973 deaths on 9/11, families for 2,880, or 97%, sought compensation from the fund rather than suing the airlines whose jets were hijacked.

"There are certain complex mass disasters in this country where policymakers recognize that the conventional traditional legal system is flawed," Feinberg says in a telephone interview. Either the number of claims is so large, or, as in the case of 9/11, the event is so horrific, "an alternate mechanism" is needed. "That's what I think is more and more recognized."

For the Gulf Coast fund, Feinberg emphasizes he wants to make initial payments quickly and develop a system that treats claims fairly and consistently.

Unlike his work with the 9/11 fund, Feinberg has no congressional regulations to comply with in running the oil spill fund. Also unlike his pro bono work on behalf of 9/11 victims, he will be paid by BP, though how much is still under discussion, Feinberg said through a spokeswoman.

Yet Feinberg says one aspect of the oil spill fund will echo previous cases: "Do not underestimate the emotion that confronts innocent victims of any disaster. ... You have to deal with those."

Center stage in courtroom

Born in Brockton, Mass., Feinberg wanted to become an actor until his father, who owned a tire store, pointed out that he could avoid waiting on tables by doing his acting in front of a jury.

He became an assistant U.S. attorney in New York, then spent five years working for Sen. Edward Kennedy, D-Mass.

Feinberg began earning his reputation as a master of mediation in 1984, when a federal district judge asked him to serve as the court-appointed special master in litigation over Agent Orange, the defoliant used in Vietnam that veterans claimed caused serious health problems. In six weeks, he achieved a $180 million settlement in a case that had lasted four years.

"He's very, very canny, very adept, likable, and has a great gift of gab — all the personal qualities that one wants in somebody who needs to inspire trust in people who are adversaries," says Peter Schuck, a Yale Law School expert on claims of personal injury and loss.

The national recognition Feinberg earned running the 9/11 fund wasn't initially positive.

"In the beginning, Ken was very cold," says Charles Wolf, whose wife, Katherine, was killed in the World Trade Center attack. "He was hated, just hated." Wolf started a website, FixtheFund.org, to spell out complaints.

But Wolf says he saw Feinberg change: showing more empathy toward families, and using what leeway he had within congressional rules to increase payments and equalize compensation between rich and poor families. As a result, Wolf came to support the fund, and Feinberg.

"He will be compassionate, he will be clear, he will be business-like. He will be looking for fraud, but he will not treat you like a fraudster," Wolf says of the oil spill fund. "He's looking to help, not to restrict. He knows how badly these people are hurting."

Feinberg was deeply affected by the 9/11 families' pain, says Chuck Hagel, the former Republican senator from Nebraska, who has been friends with Feinberg since both worked on the Agent Orange case.

"He never whined, never any of that. He took it seriously, he took it home with him. I don't think there's any question that changed his life," Hagel says.

To relax, Feinberg listens to opera — at top volume, Hagel says — and occasionally sings along.

Opera "allows you to lose yourself in story and music," Feinberg says.

"In the 9/11 fund, I think it saved my sanity."

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