Lawyer and mediator Kenneth Feinberg has earned a reputation as the “go-to” guy in the wake of national crises. Following tragedies and disaster – like 9/11, the 2010 Gulf oil spill and Boston marathon bombing – he decides how to administer victims’ compensation funds and fields questions about who gets what. Kojo talks with Feinberg about the practical, and emotional, questions that arise when trying to allocate resources fairly in the wake of a tragedy.

Guests

  • Kenneth Feinberg founder and managing partner, Feinberg Rosen LLP; author, "Who Gets What: Fair Compensation After Tragedy and Financial Upheaval"

Feinberg, 9/11 Victim Fund Manager

Is there another man in history who has been asked, in a sense, to “play God” the way that Kenneth Feinberg has? Feinberg is an arbitration lawyer who distributed the federal government’s Sept. 11 Victims’ Compensation Fund.

Feinberg Administers BP Victim’s Compensation Fund

Kenneth Feinberg faces the difficult task of administering the BP victim’s compensation fund. One big obstacle is people’s reluctance to believe that he’s not really working for BP.

Transcript

  • 13:06:44

    MR. KOJO NNAMDIFrom WAMU 88.5 at American University in Washington, welcome to "The Kojo Nnamdi Show," connecting your neighborhood with the world. In the wake of national tragedies and manmade disasters, when victims and survivors seek justice, questions of fair compensation often arise. Local and national politicians and leaders on campuses and at Fortune 500 companies alike, who aren't sure where to begin, often do so by placing a call to Kenneth Feinberg.

  • 13:07:25

    MR. KOJO NNAMDITime and again, he's been called on to establish guidelines for allotting payments to victims of large scale misfortune, overseeing the 9/11 Victims Compensation Fund, the gulf oil spill payouts from BP, and funds donated in the wake of the Boston Marathon bombing. But just who is Ken Feinberg, and how did he become the go to guy for decisions that are one part judicial and one part, well, biblical, drawing frequent comparison to Solomon.

  • 13:07:56

    MR. KOJO NNAMDIWell, here to answer those questions is Ken Feinberg himself. Kenneth Feinberg is a lawyer and mediator who is founder and managing partner of Feinberg Rosen LLP. His most recent book is "Who Gets What: Fair Compensation After Tragedy and Financial Upheaval." Ken Feinberg, thank you so much for joining us.

  • 13:08:15

    MR. KENNETH FEINBERGHonored to be here. Thank you.

  • 13:08:16

    NNAMDIYou, too, can join the conversation. If you have questions or comments for Ken Feinberg, the number is 800-433-8850, or you can shoot us an email to kojo@wamu.org. Your work with the 9/11 Victims Compensation Fund made many aware of who you are and what you do, but for those who might be unfamiliar still, how do you actually explain what you do?

  • 13:08:44

    FEINBERGEvery once in while, there's a tragedy in America that galvanizes policy makers and the public. They decide that we ought to set up out of the box thinking. We ought to come up with a new way, not the court room, but a new way to compensate victims. Innocent victims. And instead of filing a lawsuit or going to court, why don't we establish an alternative mechanism that will evaluate claims, determine eligibility, find out if there's proof of injury or death, pay the claim.

  • 13:09:31

    FEINBERGNow, the claim may be paid out of government money, the 9/11 Victim Compensation Fund, or private donations, the Boston Marathon, the Virginia Tech shootings, the Aurora, Colorado movie shootings, Newtown, all private money. Either way, do we want to set up a plan, and do we want to get out money -- distribute money quickly to eligible victims?

  • 13:09:59

    NNAMDIHow did you find yourself in this line of work? Go back to 1984 and talk about agent orange.

  • 13:10:06

    FEINBERGPurely accidental. Never planned it this way. Never welcomed it. In 1984, I was a lawyer, and a judge, a federal judge in Brooklyn, NY had the agent orange Vietnam veterans class action. And he called me up, I knew the judge, and he said, I'd like you to try, first, to mediate a settlement of the case between the chemical companies that manufactured the herbicide in Vietnam and the victim, Vietnam veterans. Once you do that, I would then like you to design and administer a compensation program to compensate eligible Vietnam veterans suffering from Agent Orange diseases.

  • 13:10:54

    FEINBERGAnd that took me on a new path professionally. After that case...

  • 13:11:02

    NNAMDIWell, let's not move that quickly, because that case had been going on for eight years before you got called.

  • 13:11:07

    FEINBERGThat's correct. It was getting ready for a trial after eight years of preparation. So, in eight weeks, we mediated a settlement, a comprehensive settlement of the litigation. No trial. And then we distributed, with this plan, over ten years, about 250 million dollars.

  • 13:11:29

    NNAMDIAnd, thus, a career, in a way, was born. But, you're a partner in a law firm with offices here in Washington that specialize in mediation. How does your day to day work with the firm differ from the work you do with victim compensation funds?

  • 13:11:43

    FEINBERGMy day to day work in a very small firm. It's just me and one or two other people, but my day to day work is mediating disputes between Fortune 500 com -- an insurance company, and a insured or a retailer and a wholesaler, etcetera. These programs, like 9/11, like the marathon, like Newtown, are an offshoot of that, but really something separate.

  • 13:12:12

    NNAMDI800-433-8850. Our guest is Kenneth Feinberg. He's a lawyer and mediator, founder and managing partner of Feinberg Rosen LLP. His most recent book is "Who Gets What: Fair Compensation After Tragedy and Financial Upheaval." You can also send us a tweet at kojoshow. Do you think our existing legal system is well positioned to make victims whole in the wake of a tragedy? Tell us where you think it succeeds and where you think it falls short. 800-433-8850.

  • 13:12:41

    NNAMDIKen Feinberg, you know that tort law is ill equipped to answer questions like the ones raised by the agent orange case, and I imagine, many that you've handled since. Each is unique, but generally speaking, how do you assess a situation and determine, as the book says, who gets what?

  • 13:12:59

    FEINBERGWell, first of all, policy makers have to set up a program. I don't do that. I get a call when Congress or private charities already have an amount of money that is available. Then, I'll be asked, answer the following the questions. We've decided we want to distribute the money. One, who is eligible? Who is eligible to receive the money? Two, how much should they receive? Three, what proof requirements are there to document their injury or their death, or their illness? And then finally, what procedural protection should there be?

  • 13:13:43

    FEINBERGShould somebody have the right to a hearing before me, or should someone have the right to appeal if they don't like the decision? Those are the basic checklist of items that you go through in establishing these programs.

  • 13:13:55

    NNAMDIYou feel it calls, as you've mentioned, a few cases after Virginia Tech, Aurora, Newtown, and Monday brought another mass shooting. This one in our own back yard, right here in D.C. that has left the families of a dozen victims struggling to pick up the pieces. What's your thinking about these incidents that you're called on time and again to help in the aftermath. We've now got a system in place that often includes a call to Ken Feinberg. What does that say about the state of affairs with these kinds of incidents in our culture in our country?

  • 13:14:29

    FEINBERGI think, in the great bulk of the cases, I don't get a call. There are no special funds. Bad things happen to good people every day in this country, and you don't have a compensation fund. If you're harmed and you're innocent, you go to court if there's somebody to litigate against, to sue. And I'm very, very wary of establishing these special funds if it means that they are an alternative to litigation. Most of these funds are not, as you know.

  • 13:15:05

    FEINBERGMost of these funds are private donations that come in. There are no preconditions. There is no requirement that you refuse to sue. It's a gift. And if it's a gift, that's one thing. But asking people to voluntarily surrender their right to litigate in return for compensation, that is very, very rare in this country, and it should be rare.

  • 13:15:32

    NNAMDISome would argue that victims of these large scale tragedies have an unfair advantage over victims of random acts of violence that are perpetrated every day. Do you think our legal system does a satisfactory or even adequate job of focusing on victims more broadly?

  • 13:15:46

    FEINBERGYes. I think in the great majority of cases, I think our legal system works fairly well. It's not perfect. What profession is perfect? But I think in the great -- the litigation system, as you know, is so engrained in the history of our country. It's part of our country. It's part of our culture. I don't think that's going to change. I don't think it should change. These special programs, like 9/11, very, very rare, and appropriately so.

  • 13:16:24

    NNAMDIA lot of people are uncomfortable with the idea of money as a surrogate for worth, when it comes to peoples' lives. Yet, a settlement may bring a measure of closure for victims and their families. How confident are you that the work that you do helps people find some peace, some resolution, if you like.

  • 13:16:41

    FEINBERGI'm not very confident about it at all. I see, every day, people receive a check for a death of a loved one, or they receive a check for a lost limb, or a damaged body. I hear a lot about, you know, a lot of talk about closure, and moving on, but I must say, you're correct. Money is a pretty poor substitute for loss, but that's the way our country has been since its founding.

  • 13:17:17

    NNAMDIWe're talking with Kenneth Feinberg. His latest book is called, "Who Gets What: Fair Compensation After Tragedy and Financial Upheaval." If you'd like to join the conversation, if you had to make decisions about how to compensate victims and their families, what factors would you use? 800-433-8850. It's impossible to make everyone happy in a situation like the ones that you step into, and we often hear the complaints as they tend to be voiced more loudly than the praise.

  • 13:17:45

    NNAMDIWhat are the rewards for you personally?

  • 13:17:50

    FEINBERGI'm not sure about reward, but if policy makers, President Bush, President Obama, the Attorney General John Ashcroft, Governor Patrick in Massachusetts, Mayor Menino in Boston. If they call and they ask me if I would be willing to serve on behalf of the American people, or the people of the Commonwealth of Massachusetts or what have you, it's pretty hard to say no. I think thousands, maybe millions of Americans can do exactly what I do.

  • 13:18:26

    FEINBERGI'm asked, I step up. If somebody else were asked, if you were asked, I'm sure you'd step up. And I get some satisfaction in responding to public policy requests. Pro bono, to serve without compensation, in most of these, in, like 9/11.

  • 13:18:45

    NNAMDIYep.

  • 13:18:46

    FEINBERGIn terms of trying to help my fellow citizens.

  • 13:18:51

    NNAMDIIt's interesting that you see all of this within the context of serving. There are two parts to my question about that. One, is that apparently the time you served as Chief of Staff with Senator Edward Kennedy both inspired and compelled you to be involved in service. And two, what do you say to people who say, well, you may see it as service, but we see it as an awful amount of power to be in that position.

  • 13:19:19

    FEINBERGFirst of all, working for Senator Kennedy was incredible. I think he'll go down in American history as one of the finest Senators in the history of our nation. I think his absence today creates a vacuum that is unfortunate for our people. I think that the critics who comment on the power that is delegated to me, in these various assignments, absolutely right. These are assignments with very little checks and balances. The delegation usually confers on me close to unfettered discretion, and it does raise serious public policy and political science questions about whether in the interest of efficiency and speed you want to confer that much authority on one person. I think that's a fair criticism.

  • 13:20:18

    NNAMDIBut if you brink to that job the philosophical approach of being in service, how does that in a way balance the notion of being all powerful?

  • 13:20:31

    FEINBERGWell, you've said it, in a way. What you're basically asked to do, implicit in your question, Mr. Feinberg, will you come in and quickly and efficiently and in a cost-effective way take this money that's here. And instead of it languishing in a bank for months or years while you litigate, instead will you come up quickly with a design and then administer the program so that the money gets out the door quickly to all eligible victims. And that's the tradeoff.

  • 13:21:07

    NNAMDIAnd that's the service you perform for society and for the victims. We go to the phones now. Here is Carl on the eastern shore in Maryland. Carl, you're on the air. Go ahead, please.

  • 13:21:19

    CARLThank you, Kojo. I appreciate the opportunity to talk to you and pose a question to your guest. What is his thinking on legislation that caps liabilities for individuals that are injured and limits what they can get in return and may need to go on with their lives in a more complete way? For example, in Maryland you have the one-bite rule. Someone's bitten by a dog, liabilities are limited to the first bite. And I'm curious what your guest thinks about those kinds of rules and legislation.

  • 13:21:53

    NNAMDIKen Feinberg.

  • 13:21:53

    FEINBERGI worry about a blanket rule that applies to everybody the same way, like an arbitrary cap on damages. In some states like Virginia there's a $100,000 cap on what an individual can recover in certain cases against a governmental entity. What worries me about one size fits all, Carl, is the notion that regardless of the nature of the damage or the degree of harm, there is a rule that applies to everybody. And I worry about that.

  • 13:22:27

    FEINBERGNow the one-bite rule is a little bit different. That doesn't apply to the amount of money that you can receive as much as the underlying harm that gives rise to the cap. And that's torte law. I can't comment on the one-bite rule. I don't know enough about it. But I do worry about a blanket rule that says in any and all cases regardless of incident, regardless of circumstance, you cannot receive more than X in the courtroom. I worry about a rule like that.

  • 13:23:02

    NNAMDIThank you very much for your call. We're going to take a short break. If you have called, stay on the line. We'll return to your calls when we come back. If you'd like to call the number is 800-433-8850. If you had to make decisions about how to compensate victims and their families, what factors would you take into consideration? You can send email to kojo@wamu.org. I'm Kojo Nnamdi.

  • 13:25:21

    NNAMDIWelcome back. Our guest is Kenneth Feinberg. He's a lawyer, mediator, founder and managing partner of Feinberg Rosen LLP. We're discussing his work in general and his most recent book in particular. It's called "Who Gets What: Fair Compensation After Tragedy and Financial Upheaval." And Ken Feinberg, I thought that when I got this book I would have to get a lawyer to read it and interpret it for me. But it's written in plain everyday English which makes it easily accessible for the average reader. How do you resist the temptation to write in legalese?

  • 13:25:56

    FEINBERGWell, that's an interesting question. I basically sit down and try and explain some of these cases and some of these compensation funds that I've been involved with and try and write in the vernaculars so that people will understand exactly what the challenges are in setting up these programs.

  • 13:26:15

    NNAMDIWell, that's what you have succeeded in doing. I've also watched footage of you interacting with angry crowds. And you never seem to lose your composure. How do you maintain that air of calm when facing down a group of emotionally-charged, sometimes deeply-involved people?

  • 13:26:33

    FEINBERGYou can't lose your cool. These are people in these town hall meetings after a tragedy like 9/11 or an oil spill that threatens their financial livelihood or a deranged gunman at Virginia Tech or Newtown. They are in an emotional state. Who can blame them for their reaction, their anger at life's unfairness? You have to brace yourself for what you know is going to be an emotional hurricane and you just have to deal with it.

  • 13:27:10

    NNAMDIGiven that and I imagine the fairly high stress nature of this aspect of your work, is this something that you see yourself doing indefinitely?

  • 13:27:22

    FEINBERGEvery time I do one of these, you say to yourself, I hope this is the last one. After the Boston Marathon bombings I say to myself, maybe I won't be called upon again. This is not something I welcome and it's not something I look forward to. So I don't view this as indefinite. And I view the last one as the last one and you hope there won't be another one.

  • 13:27:50

    NNAMDIBack to the telephones now. We got to Steve in Arlington, Va. Steve, you're on the air. Go ahead, please.

  • 13:27:58

    STEVEOh, hi, Kojo and Mr. Feinberg. Mr. Feinberg, I greatly admire your work and especially your demeanor. I'm wondering how has your family upbringing or your faith guided you in your deliberations?

  • 13:28:14

    FEINBERGWell, I grew up in Brockton, Mass. a blue collar town. I grew up at a time in the early 1960s when President Kennedy was calling for the American people to help their fellow man. What can you do for your country, not what can your country do for you. This communitarian ethic I think is an important part of my outlook. And I also think that I grew up in a time when the country and its people were so optimistic about the future. There's nothing you couldn't do without -- with the help of others and your community.

  • 13:28:56

    FEINBERGAnd I just feel working for Senator Kennedy as well that, as Kojo pointed out, it makes a difference in terms of your assessment of your role in society in trying to help others. And I just think that's an important part of my makeup and my personality.

  • 13:29:16

    NNAMDIGrew up in a time, Steve, in Brockton when the name Rocky Marciano meant a great deal.

  • 13:29:22

    FEINBERGThat's right.

  • 13:29:22

    NNAMDIAnd later years of course the Marvin Hagler also coming out of Brockton, Mass., two great boxing champions. Steve, anything else you'd like to ask?

  • 13:29:30

    STEVENo, that was fine. And kudos to you, Mr. Feinberg.

  • 13:29:33

    FEINBERGThank you very much.

  • 13:29:34

    NNAMDIThank you very much for your call. We move on to Susan in Winchester, Va. Susan, you're on the air. Go ahead, please.

  • 13:29:41

    SUSANYes. Again, I'd like to thank you for your service. This is an incredible thing that you do. And I was wondering, what are the processes in other countries? Are there any similar to ours or any that you look to for examples?

  • 13:29:55

    FEINBERGThat's a good question. America is unique in these funds. There's no country on earth that does that for two reasons. Most countries don't have a litigation system -- a court system like ours. They provide the basic necessities in time of tragedy. They'll help pay your mortgage. They'll help put food on the table. They'll make sure your automobile payments are up to date. But you don't have a litigation system as an alternative where you can sue and maybe collect a pot of gold. That's one reason.

  • 13:30:30

    FEINBERGThe other reason is, only in America do you have a charitable impulse like we have. I am amazed, after these tragedies -- in the Boston Marathon on Patriots Day April 15, within 60 days over 100,000 Americans sent in $60 million to be distributed. I am amazed at the charitable impulse of the American people. And that is why what we do here in America in setting up these programs, rare as they may be, nothing like it on earth.

  • 13:31:11

    NNAMDISusan, thank you very much for your call. After the 9/11 front compensation fund was created, that -- well not after but the manner in which it was created was an unprecedented move by congress that gave you unprecedented power. Do you think the government is likely to undertake a similar endeavor again?

  • 13:31:33

    FEINBERGYou will never see it again. The 9/11 victim compensation fund funded entirely by the taxpayer, not the airlines, not the World Trade Center, entirely taxpayer based is unique. I doubt very, very much, Kojo, that you'll ever see that again. There was no 9/11 fund after Oklahoma City. There was no 9/11 fund after Katrina. I doubt that there'll be a 9/11 fund after the U.S. Naval Yard shootings the day before yesterday. I don't think you'll see it. I don't think you should see it. And I think that the 9/11 fund should be viewed as a unique one off, unprecedented response to an American tragedy. And I think it's unique.

  • 13:32:18

    NNAMDIThank you very much for your call, Susan. We move on to Barry in Springfield, Va. Barry, you're on the air. Go ahead, please.

  • 13:32:25

    BARRYYes. I have a question for Mr. Feinberg. Obviously when people die and you make compensation decisions, a lot of it has to do with what people were earning in their lives. In the case of children dying and coming from families of different backgrounds socioeconomically, could you comment on the decisions that get made? Because clearly someone coming from more modest means as a child, let's say a teenager or a younger child, one doesn't know what will happen to them in terms of what they will do professionally.

  • 13:33:03

    BARRYSo I'd like to get a sense of how you make decisions on compensation for the loss of life for children coming from different -- radically different socioeconomic backgrounds.

  • 13:33:14

    FEINBERGI try not to get involved in that at all. Now, in the 9/11 fund I had to take that into account because the 9/11 fund said very clearly in the law creating the fund that you wanted to voluntarily entice people not to litigate against the airlines or the World Trade Center. So you had to pay more to a stock broker or a banker as opposed to a waiter, a busboy, a fireman, a soldier, a cop. That was required by law.

  • 13:33:47

    FEINBERGAnd what you do is you make certain assumptions -- you make assumptions every day in our legal system. You say, for example, that a child who died on one of the airlines that crashed into the World Trade Center, there is a basic formula that child would've earned on average $85,000 a year going forward. Now is that true? Well, you don't know. There are certain legal assumptions that must be made. But in most of these cases like the marathon, like Virginia Tech, like Newtown, you don't take into account economic means. You don't take into account economic loss or what a person would've earned. It is a gift.

  • 13:34:36

    FEINBERGYou try and give as -- you try and give everybody who's been injured or died the same amount of money for the same type of injury without regard to economic means. Otherwise you are promoting real divisiveness and emotional anger between claimant A versus claimant B. So you try not to consider those factors. But you're right, in 9/11 I had to do it and it did provoke a great deal of criticism.

  • 13:35:08

    NNAMDIAllow me to read the beginning of a National Journal article by James Oliphant in August of this year. It begins "To Ken Feinberg, if you lose both your legs you're as good as dead. Here in the world of the living, inspirational media stories after the Boston Marathon bombings featured survivors who persevered grittily relearning to walk atop state of the art prosthetic limbs, fighting for normalcy with each new step. But in Ken Feinberg's world it made no difference whether a person could still live a rewarding life or never left the race's finish line that did not enter the equation.

  • 13:35:44

    NNAMDIHis equation, his choice, his rules, whether you died at the scene or you lost both your legs, you received the same amount of money." Can you explain that?

  • 13:35:54

    FEINBERGCan you imagine the divisiveness and the emotional anger that I would confront if I told an individual who lost both limbs as a result of the marathon bombing, I'm going to give you less money than the other fellow next to you who also lost both limbs. But I'm going to give you less because I've looked at your tax returns, your insurance policies. I've evaluated your economic situation. You don't need as much money as your next door neighbor. I would be pilloried and criticized by the very people I'm trying to help.

  • 13:36:38

    FEINBERGSo what I did instead, if you lost both limbs, whether you're a football player or a librarian, it doesn't matter. You need the same amount of money. You'll get over $2 million each tax free. And all I want to know is what's the nature of your injury and was it caused by the bombing? I don't need your tax returns. You're vulnerable now. I'm not looking for you to justify the compensation.

  • 13:37:11

    FEINBERGAll I want to know is how seriously injured were you? What are your injuries? Were they caused by the bombing? And you will get the same amount as the next door neighbor, without a lot of costs in evaluating your claim, without delay in evaluating your claim. We got 60 million out the door within two months of the bombings.

  • 13:37:32

    NNAMDIAnd speaking of compensation, there are people who would like to know about yours. Sandy in Rockville emails, "Please ask Mr. Feinberg whether he's getting paid for his work for 9/11, agent orange, etcetera. He says he's doing it as a service. I can't believe he's doing this for nothing."

  • 13:37:50

    FEINBERGHow could you get paid in evaluating 9/11 claims? You're a patriot. You're asked by the President of the United States to come to the rescue of some of these victims and their families. 9/11, Boston Marathon, Virginia Tech, Newtown, Aurora, Colorado, the Dark Knight shootings. I'm glad to do that, honored to do it without compensation. Now in agent orange, the chemical companies did pay me for my service. And in the BP oil spill, BP paid me for my service. But in all of these other public interest compensation programs, you really can't get compensated and enjoy the trust of the people you're trying to help.

  • 13:38:40

    NNAMDIOnto Perry in Brunswick, Md. Perry, you're on the air. Go ahead, please.

  • 13:38:44

    PERRYThanks for taking my call, Kojo, and thanks, Mr. Feinberg for your book and for joining Kojo in this interview. I had a question about Katrina and the -- remembering back there were a number of businesses who submitted claims for supposed losses but without any documentation, had filed no tax returns, had operated their businesses off the books and paid no taxes for years, how did you handle that? And were there -- was their compensation also tax free? Thanks very much.

  • 13:39:17

    FEINBERGIf you said Katrina, I don't think there was such a program for Katrina. BP -- the BP oil spill, you're raising a very interesting question. Companies that had no documentation, that never submitted a tax return, that had no books and records to justify their damage, we rejected those claims. The American people, American businesses every day pay taxes. How can you compensate a claimant however justified may be the damage, if that claimant cannot corroborate or prove damage caused by the oil spill?

  • 13:39:52

    FEINBERGWe rejected hundreds of thousands of claims. In the BP oil spill in 16 months I received 1,200,000 claims from 50 states. I think I got about 400 claims from Maryland, a couple of hundred claims from Virginia. I didn't know the oil came this far north. And we rejected most of those claims as undocumented, ineligible. You can't demonstrate that your damage is tied to an oil spill a thousand miles away, and without proof, even bare bones proof, I'm not asking for, you know, a hundred percent proof, but without some evidence that corroborates your allegation, we rejected those claims.

  • 13:40:41

    NNAMDIBut as one indication of the kind of difficulty you faced, on the one hand you said it was easy to be able to compensation a fisherman who just couldn't go out fishing, on the other hand, somebody owns a hotel ten miles inland and that person said, well, my business was reduced greatly as a result of this, that takes a lot more, I guess, investigation.

  • 13:41:01

    FEINBERGOh, it does. We said to the hotel ten miles inland, we'll be glad to pay you -- and we paid thousands of those claims, but show us that your loss was due to the oil spill. Now, a few businesses were able to show cancellations due to the spill. Others showed that the bad publicity, the threat of the oil arriving close to their shore, caused massive cancellation of charter groups and others that might come to the Gulf. We tried to accommodate as many of them as we could.

  • 13:41:38

    NNAMDIGot to take another short break. If you have called, stay on line. We'll get to your calls. We still have a few lines open, so you can call 800-433-8850 if you have questions or comments for Ken Feinberg about his work. Do you think our existing legal system is well positioned to make victims whole in the wake of a tragedy? Tell us where you think it succeeds, where you think it falls short. 800-433-8850, or send us a tweet @kojoshow. I'm Kojo Nnamdi.

  • 13:44:08

    NNAMDIWelcome back to our conversation with Kenneth Feinberg. He's a lawyer, mediator, founder, and managing partner of Feinberg Rosen, LLP. We're discussing his work and his most recent book "Who Gets What: Fair Compensation After Tragedy and Financial Upheaval." Going directly to the phones and Chastity in Washington DC. Chastity, you're on the air. Go ahead, please.

  • 13:44:30

    CHASTITYGood afternoon, Mr. Nnamdi. Good afternoon, Mr. Feinberg. My question is kind of a two-parter. First, I'd like to ask Mr. Feinberg to speak on any knowledge or just anything that he might know about the Maafa, the African Holocaust, you know, where Africans were stripped from the continent and brought over to Atlantic world to toil, you know, freely -- I mean, not freely, but, you know, for free, you know, no...

  • 13:45:05

    NNAMDIAre you asking him if he is aware of the Atlantic Slave Trade?

  • 13:45:08

    CHASTITYNo. I'm asking is he aware of any -- I'm sorry. I'm asking if he's aware of anything that's being done to help descendants, you know, of slaves.

  • 13:45:21

    NNAMDIOkay.

  • 13:45:22

    CHASTITYGet recompensation for their ancestors.

  • 13:45:24

    NNAMDIOkay.

  • 13:45:25

    CHASTITYI know that there are two professors -- wait a minute, because it was a two-parter. I know there are some...

  • 13:45:27

    NNAMDIWell, let me get the first part first.

  • 13:45:31

    FEINBERGI've followed this. There's some interest -- there have been some lawsuits that have been filed to compensate descendants of slavery. Those lawsuits haven't got very far. I think there is a sense in the legal community that it is so amorphous, I mean, everybody is a victim in a way, and how you would determine eligibility, who would pay for it. So although yes, I have read about a few such lawsuits brought by descendants of slavery seeking compensation against individual companies that promoted the slave trade, but I don't think those lawsuits have gotten very far. Most of them have been dismissed.

  • 13:46:19

    NNAMDIChastity?

  • 13:46:19

    CHASTITYOkay. And then my second part to the question was, as a descendant myself, if I have like documents or whatever, like, I know my ancestors lived in a certain part of Virginia, they were owned by a certain family, do you have any advice on how a descendant might go about getting recompensation for their ancestors?

  • 13:46:42

    FEINBERGI think it's uphill sledding. I don't want you to waste a lot of your own money filing a lawsuit against the family that was responsible for the slavery, or a company that your descendants worked for. I think it is so unlikely that you'll have any success in the courtroom, that I would advise you to not go down that very challenging litigation road.

  • 13:47:10

    NNAMDIChastity, thank -- go ahead, Chastity.

  • 13:47:13

    CHASTITYI was just going to ask, so, I mean, would you have any, I mean, other advice? Because there have been other instances of, you own, genocide, culturally and otherwise where people have received compensation. I'm just wondering like does the counselor have any advice for, you know, people in the Americas seeking, you know, recompensation for their ancestors?

  • 13:47:34

    FEINBERGWell, you're right. There have been settlements. The German government, the Swiss government. I believe that there was recently, a few years ago, a $5 billion brought by Holocaust slave labor victims before and during World War II in Nazi Germany. So there are precedents for it. How you would go about fashioning either a lawsuit, or a compensation program, a voluntary compensation program to compensate eligible victims of slavery in America, that is, as I say, a real challenge. I don't think there is must political support for it.

  • 13:48:18

    NNAMDIChastity, as you know I'm sure, there has been a debate about reparations that's been going on for the past two decades that has not gotten very far, but there are still advocates of it, but thank you very much for your call. We got an email from Victor who says, "I'm listening online from Hangzhou, China where I am teaching." I make it that it's 1:48 a.m. in Hangzhou, China right now. But Victor says, "Please ask Mr. Feinberg to comment upon the attitude of BP which seems to have had second thoughts on its Gulf settlement. Also, has Mr. Feinberg ever thought about serving as a judge?"

  • 13:48:55

    FEINBERGI've thought about serving as a judge and I quickly put it out of my mind. I think I would go stir crazy sitting on the bench from 9:00 to 5:00 and hearing cases. I don't think I would want to do that. BP has had...

  • 13:49:12

    NNAMDIBut you have a good friend who is a judge.

  • 13:49:14

    FEINBERGWell, I have quite...

  • 13:49:15

    NNAMDIA judge on the highest court in the land.

  • 13:49:17

    FEINBERGJustice Stephen Breyer.

  • 13:49:18

    NNAMDIYes.

  • 13:49:19

    FEINBERGWe have worked together for Senator Kennedy for many years before he became a judge.

  • 13:49:22

    NNAMDIHave you indicated to him that you'd go stir crazy if you had to do his job?

  • 13:49:25

    FEINBERGHe knows me better than most. BP has had second thoughts. Now, when I ran that BP Gulf Coast claims facility, I believe the program worked extremely well. Everybody seemed -- policymakers and BP seemed satisfied with the result. Sixteen months of work, six-and-a-half billion dollars distributed, 220,000 individuals and businesses received compensation. Since then, since I retired, since I left and a new program was put in place, there have been allegations and investigations that the program is not working well.

  • 13:50:07

    FEINBERGI think the answer to your question is yes. BP, from what I read, is having second thoughts, and I have no idea how that will play out. I'm not involved in it at all.

  • 13:50:20

    NNAMDIAdministering these funds is a big job, and though the final decisions are ultimately yours, you can't possibly do it alone. What kind of support staff do you typically have?

  • 13:50:30

    FEINBERGWell, I have a few people who have worked with me for the last 30 years. Deputy Administrator Camille Biros, Deputy Administrator Jacqueline Zins, they've been with me -- my partner, Michael Rosen. They've been with me from the very beginning. Now in each assignment, depending on the scope, we will reach out to accounting firms, to claims adjusters, in BP we had about 3,000 claims adjusters and accountants. Depending on the size of the populations that's been harmed, depending on the scope of the work, we will get an infrastructure set up to design and administer these programs.

  • 13:51:14

    NNAMDIOnto the telephones again. Here is Larry in Washington DC. Larry, you're on the air. Go ahead, please.

  • 13:51:21

    LARRYThank you, Kojo. I very much enjoy your show, and I very much appreciate the work that your guest does. But the question as I heard it phrased was, is our legal system doing an adequate job in making victims whole? And I want to challenge the premise of the question.

  • 13:51:34

    NNAMDISure.

  • 13:51:34

    LARRYWhen there is a pot of money, or a pot of compensation, whether it's provided as a penalty in the Mobile case, or whether it's voluntarily provided, I think it is incredibly useful that your guest is able to parse that money in a way that's sensible and humane, but I don't like the notion that people believe that our justice system or our legal system has a responsibility to make people whole. Bad things happen constantly around the world, and I work in international development, so I see a fair amount of it.

  • 13:52:04

    LARRYAnd I think we've begun to believe that we're entitled to be made whole. If I crash my car, or if something bad happens, because we live in the environment we live in, we've begun to believe the notion that your question presumes, and that is that we have a right to be made whole. And that was just my observation. Thank you.

  • 13:52:21

    NNAMDII'd like to her Ken Feinberg comment on it.

  • 13:52:23

    FEINBERGWe could spend a whole semester discussing the thesis of that caller's inquiry. I think that the legal system largely, day in and day out works well. I think that our courts are responsive to real harm, and I think the courts in every city, village, town in our country do this every day. However, one can make a strong argument, as this caller has in a very articulate way, that expectation of recovery, of compensation, all too often encourages lawsuits that would be better left outside of the courtroom.

  • 13:53:17

    FEINBERGAnd it's an interesting debate over whether we over overlawyered and overlitigate and look for compensation in every single type of harm even harms that are a natural outgrowth of day-to-day living in the United States, and I think that's a good question. The woman who brings the lawsuit against McDonald's claiming that the coffee was too hot, that's an example of a claim that calls into question the efficiency and legitimacy of the judicial system, and I understand the point made by the caller.

  • 13:53:54

    NNAMDILarry, thank you very much for your call. Onto Keith in Southport, North Carolina. Keith, you're on the air. Go ahead, please.

  • 13:54:02

    KEITHYes, sir. I want to thank you for taking my call, and Mr. Feinstein (sic) , the -- I want to thank you for your candor as I'm not an attorney, and I don't know these things. But I heard you mention earlier about the case with the Agent Orange. I have a friend at home and he's a highly-decorated Vietnam veteran, and he has a whole bunch of issues that he tells me is related to that, and he's in sad shape, you know? He has to go get treatments, and to my k knowledge, he has never been compensated.

  • 13:54:38

    KEITHYou know, he lives in a small house that needs repairs, he's caring for his father who's almost 90 years old, and how would somebody like that go about getting compensated? You know, like, for instance, I see on TV they got the asbestos commercials, if you've been a victim of asbestos, and et cetera, you know, call this number. But I...

  • 13:54:58

    NNAMDIHow would his friend, Ken Feinberg, establish that his illness is related to Agent Orange, and can he still get compensated for that?

  • 13:55:05

    FEINBERGI'm not sure he could establish that relationship. But the only remedy today in 2013 that I know of, is the Veteran's Administration. The Veteran's Administration has a rule that's been on the books for many years that Agent Orange is presumed to be the cause of certain illnesses and harms, and that is the only remedy. I think the fund, for example, that I created -- that I designed and administered, the statute of limitations has run. That fund has been over for about 15 years.

  • 13:55:38

    FEINBERGThere's no private litigation remedy today that I know of for Agent Orange, but the Veteran's Administration does recognize as a military-related condition Agent Orange exposure leading to harm. That's the only remedy I know of.

  • 13:55:56

    NNAMDIKeith, thank you very much for your call. In response to a previous caller, you mentioned that it would take a whole semester to discuss that. You've written about the importance of mentors in your own life, and about how much you enjoy teaching college courses when your schedule allows it. What's your favorite class to teach?

  • 13:56:11

    FEINBERGI love teaching evidence. I find that the law of evidence, the effort to recreate truth in the courtroom about some external happening, who caused the car accident, or who's responsible for the fire, who's a victim, I find teaching evidence is a real change of pace for me. I've done it for about 15 years, and I try and do it as often as I can.

  • 13:56:36

    NNAMDIWhat is it about it that you enjoy?

  • 13:56:37

    FEINBERGI like how the rules of evidence try and encourage judges and juries to get the right result. Did A cause the accident, or did B cause the accident? And I like the idea of, in a free society, everybody coming into the courtroom and trying to convince their own peers that are in the jury box, here's what really happened pursuant to these rules.

  • 13:57:04

    NNAMDIOne of the places we might find you when you're not immersed in your work is at the opera. How did you become interested in that particular art form?

  • 13:57:12

    FEINBERGWhen I was nine years old in Brockton, Mass in the late fifties, I was a friend of the cantor in my local synagogue in Brockton. The cantor was a Viennese immigrant who had fled the Nazis and come to Brockton to work in synagogue, and he was an opera expert, and quite by accident. When I was just nine or ten years old, he got me interested in listening to opera and other classical music and that was the beginning. Sheer luck, Kojo, that this cantor, instead of talking to me about the Boston Red Sox, got me interested in Opera and in classical music.

  • 13:58:01

    NNAMDIAnd indeed, it's been the musical background of his entire life. Kenneth Feinberg. He's a lawyer, mediator, founder, and managing partner of Feinberg Rosen, LLP. His most recent book is called "Who Gets What: Fair Compensation After Tragedy and Financial Upheaval." Thank you so much for joining us in studio.

  • 13:58:18

    FEINBERGAn honor. Thank you very much.

  • 13:58:19

    NNAMDIAnd thank you all for listening. I'm Kojo Nnamdi.

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