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Kenneth Feinberg, newly appointed to run the federal Sept. 11 victim compensation fund, says that one of his goals is to avoid the huge disparities between poor and rich victims that often result from tort lawsuits. “I don’t want a system that gives $6 million to the stockbroker on the 38th floor and $38,000 to the waiter at Windows on the World,” he says in an interview. Working against a statutory deadline of Dec. 21, Feinberg is preparing regulations that will resolve this and other thorny questions left open by Congress in legislation passed less than two weeks after the attacks. The compensation plan — part of a larger airline bailout bill — commits the government to paying victims and families of the 4,000 killed and as many as 10,000 injured in the Sept. 11 terrorist attacks. But it is silent on many important details. “The problem, as everyone knows, is what does the statute mean?” says Feinberg, a Washington, D.C., lawyer and law professor. Differences between families, including need, lost earnings, life insurance and the like need to be considered. Still, as Feinberg acknowledges, extreme disparities in the amounts that different families receive would be criticized as unfair. At the same time, Feinberg must walk a fine line. Awards that are too generous will likely draw fire from Congress and the administration. Awards that are too stingy may drive many victims to take their chances in court, an outcome that the fund was designed, in part, to avoid. To solve these problems, he is consulting lawyers, victims and charities. He is also drawing on years of experience bringing parties together in mass-tort litigation. “I think he’s about as experienced a mediator and negotiator as there is,” says John C. Coffee Jr., a Columbia University Law School professor and expert in securities law and mass litigation. “He’s skillful, clever, intelligent and flexible.” For all those attributes, though, Feinberg’s career may not have led him to this point if not for a well-executed joke almost 30 years ago. Brooklyn federal Judge Jack B. Weinstein says he first noticed the young lawyer at a party for current and former law clerks to Stanley Fuld, the former chief judge of New York State’s highest court. Feinberg, then the judge’s law clerk, put on a short skit lampooning Fuld’s notoriously meticulous manner. “He had us all rolling around on the floor,” says the judge. “If you’re as good a law clerk as you are a vaudevillian, you’ll go far,” Weinstein told him afterward. Feinberg’s relationship with Weinstein, a judge who has had a huge influence over mass tort litigation, would help shape his career. After the clerkship, Feinberg served a stint as an Assistant U.S. Attorney in New York and then as an aide to Senator Edward M. Kennedy, D-Mass., during the latter half of the 1970s. He would later help his friend and fellow Senate staffer Stephen Breyer through Senate confirmation after President Clinton nominated him to the U.S. Supreme Court in 1994. Feinberg joined Kaye Scholer as a partner in 1980, where he stayed until 1993, when he left to start his own firm. AGENT ORANGE In 1984, after Weinstein had taken over a huge and politically knotty class action by Vietnam veterans against the manufacturers of Agent Orange, he called on Feinberg to help him settle the case. It was the first of several cases the two would work on together. As Weinstein’s special settlement master, Feinberg helped put together a deal that required the makers of Agent Orange to pay $180 million to veterans, then devised a plan to distribute the money to them. The case provided a template for mass-tort settlements — as well as a target for critics — for years to come. In some ways, the Sept. 11 fund may be easier to administer than Agent Orange, says Yale Law School Professor Peter H. Schuck, author of “Agent Orange on Trial: Mass Disasters in the Courts.” For one thing, Feinberg won’t have to wrestle with the causation problems of Agent Orange and other toxic exposure cases. And the number of people killed and injured is manageable, by the standard of mass torts, Feinberg says. But this time Feinberg’s decisions will be followed even more closely than in other highly emotional cases, including Agent Orange. “As emotional as the Vietnam War was, the emotions where Sept. 11 cases are concerned — there’s never been anything quite like this,” Feinberg says. He says he hopes to meet the Dec. 21 deadline for issuing regulations for the plan. “We’re doing our best,” he says. The law says that claims must be processed within 120 days of their filing. How much will Sept. 11 compensation cost the American taxpayer? The answer is surely in the billions of dollars. Feinberg takes issue with an estimate in The New York Times that set the figure at “at least $11 billion.” But he acknowledges, “I have no idea what it will cost.” PAST CASES In the years since Agent Orange, Feinberg has had a hand in almost all of the important mass torts. He has mediated asbestos cases, as well as a class action over the closing of the Shoreham nuclear power plant on Long Island, N.Y. He served on a presidential commission that looked into secret government radiation experiments on Americans. Most recently, he was one of three arbitrators who settled on the value of the Zapruder film of the assassination of President John F. Kennedy, awarding the family $16 million.

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