The Honorable Kenneth Feinberg – Compensating Victims of Tragedy

Compensating business owners in the aftermath of a tragedy isn’t easy. Financial records must be confirmed and reviewed. Financial projections must be taken into account. Apportionment needs to be considered. Valuing lost or impaired human lives is an even more sensitive subject.

Professor Feinberg is a former chief of staff to Senator Edward M. Kennedy and member of two presidential commissions. He is also adjunct professor of law at Georgetown University, the University of Pennsylvania, Columbia University and New York University.



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The Honorable Kenneth Feinberg:

The Honorable Kenneth Feinberg is a preeminent lawyer and mediator. Professor Feinberg served as Special Master for compensation in the wake of America’s most horrific tragedies. He served in this role in the aftermath of the Agent Orange case and British Petroleum’s Oil Spill in the Gulf of Mexico. Mr. Feinberg served as Special Master on a pro bono basis for the September 11 Victim Compensation Fund, the Virginia Tech Shooting and the Trouble Asset Relief Program.


00:00:59 – Bad things happen to good people every day in this country.

It’s governed by modern day law, but I must say, after you do these for a while, you do. Sort of gained some perspective. About these programs, one perspective is they are very rare and they should remain rare.

The idea that they’ll be special. Compensation programs for the select few. Every other innocent victim, fend for yourself. You get your lawyer. I’ll get my lawyer, judge, and jury, but for a few very special programs like nine eleven like. The Boston Marathon bombings.

Like the Virginia Tech shootings. Policymakers decide just for you. Special compensation now, I must say. That is not American. It is not the way we normally do things. Bad things happen to good people every day in this country.

There’s no 911 fund. So in terms of the townwood, I guess I would say that be careful. About singling out very special innocent victims. For a very generous program everyone else

00:09:48 – Pay me my lost income, my lost revenue.

In BP after we compensated all of the deaths and injuries in the Deepwater Horizon rig explosion. Now we had the problem. You present. What do you do about businesses?

That can’t fish in the gulf, can’t shrimp, can’t oyster harvest, can’t go on tours because the Gulf oil has closed the beaches and closed the waters of the Gulf? Well, the law is pretty clear economic loss. What is the damage done to your business caused by the oil spill? What assumption should be made and then you pay the claim no one died? No one was injured. These are claims for economic harm.

That is, my business is closed.

Because I no longer have access to the gulf. So, mister Feinberg, my oyster beds are damaged. Caused by the oil. Pay me my lost income, my lost revenue. As a result of the oil spill and Feinberg evaluates the claim and if it is and if the closing of the oyster beds. Is the result is the proximate result of the oil spill pay to the order of the oil of the of the oyster bed owner? Here it is.

00:28:23 – We had a methodology based on statistical information about tips in that area of business.

I can’t make payments. On your representation, well, we do a handshake down here if you can’t document your damage. You’re not getting paid now. There are very rare exceptions to that.

If you’re a waiter at a restaurant that is closed on the Gulf. Because of the there’s no clientele.

No one’s coming to the rescue. We will assume that there is a standard. Payment made to a waiter as a as. For sure this is red. And whether that’s 15 %, twenty percent, 22 and a half percent % did develop some sort of algorithms formulas. For certain.

Businesses that you don’t expect corroboration like waiting in a in a restaurant and what should the tip be at the end of the meal, we had a methodology based on statistical information about tips in that area of business and we applied that.

In our economic model. We didn’t require corroboration because there is no corroboration when somebody leaves extra cash on the table.

00:34:47 – We’re not going to subsidize the taxpayer, we’ll just sit on the money.

That’s correct. Now that you have raised a very difficult issue in the nine eleven fund.

The Statute required me. To offset collateral sources of income, you could say charity. The statute said that. Well, I went and spoke to the charities and they said if you do that, if you’re going to offset charitable contributions, we’re going to hold on a lot of money for the next two years while you spent a while, you pay out your money.

We’re not going to subsidize the taxpayer, we’ll just sit on the money. Didn’t want that, so we carved out an exception, just as you said just now, and we did not deduct.

Charitable contributions to each family, even though a strong argument could be made that I should have.

00:40:16 – That’s it. It’s not rocket science.

What would the victim have earned over a work life but for the tragedy? Add something for pain and suffering. Emotional distress equals.

That’s it. It’s not rocket science.

You could do it, and I’m sure many Americans could do it as well as well, what’s really tough. In valuing lives, is not the algorithm, not the formula. It’s the emotion you see.

It’s the emotion of dealing with survivors. Who comes to see you? In grief. To explain the impact of a lost loved one that is debilitating the actual calculations.

Not so difficult in nine eleven in BP. Everybody received a different amount of money.

00:48:46 – Is a policeman considered a victim of the 911 attacks well?

You have to make certain assumptions now. They’re not hard to make because 911  involved a traumatic horror. Where the causal connection between the conduct and the injuries and deaths is pretty clear. So if there were cases if a policeman for example. Let’s say the policeman. You know I’m making this up 52 years old.

The policeman sees that 20 people are trapped in the World Trade Center and he rushes in and he saves all 20. At great risk to his life, and he brings them to the.

Manhattan ferry. And gets on the ferry with them and takes them out of harm’s way to Staten Island. And as he gets off the boat with the 20 people covered with soot and ash. The policeman drops dead of a heart attack.

Is a policeman considered a victim of the 911 attacks well? Let’s look at his medical records. Does he have a heart condition? Was he warned about the condition? Was he warned that he ought to retire?


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