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When Attorney General John Ashcroft announced Nov. 26 that Kenneth Feinberg was his pick for special master of the Sept. 11 victims fund and rattled off congressional supporters, he did not mention that it was conservative Sen. Chuck Hagel, R-Neb., who first put the name of the longtime Democratic insider in his ear. “I was the one who initiated the action to have the White House and Ashcroft look at him,” says Hagel. “It wasn’t a matter of someone calling and saying, ‘Do you know this guy?’ I was making the calls.” Hagel’s esteem, which Feinberg won as special master of the Agent Orange product liability litigation in 1984, is only one example of bipartisan respect for the hyperconnected mediator and former staffer to Sen. Edward Kennedy, D-Mass. With key ties on Capitol Hill and in New York, Feinberg, 56, has been in the center of many storms — from unwieldy mass tort settlements to the confirmation of U.S. Supreme Court Justice Stephen Breyer. Feinberg came to the Senate Judiciary Committee as special counsel in 1975 after clerking for New York State Court of Appeals Chief Judge Stanley Fuld from 1970 to 1972, forging two major connections early in his career. One was with Judge Jack Weinstein of the U.S. District Court for the Eastern District of New York, who had also clerked for Fuld. The other was with Sen. Kennedy, who then chaired the Senate Judiciary Committee and whose staff Feinberg joined in 1977. As special counsel to the committee and administrative assistant to Kennedy, Feinberg became part of what would prove to be an illustrious network of judiciary staffers. Breyer served as chief counsel to the Democratic staff, and was followed by future litigation star David Boies. Philip Bakes Jr., later president of Continental Airlines, was a Kennedy aide and in 1979 was deputy campaign manager for the senator’s presidential bid. Several staffers resurfaced in 1988 as an expensive set of lobbyists for the Texas Air Corp. Chairman Frank Lorenzo, who was battling labor unions. Lorenzo’s lieutenant was Bakes, who signed Boies and Feinberg on to the project. At the time, Feinberg was a partner at New York’s Kaye, Scholer, Fierman, Hays & Handler, which had tapped him in 1980 to open a D.C. office. The former Democratic aides caught criticism for taking an ostensibly anti-labor position, but Feinberg has maintained strong ties to the left. Michael Posner, executive director of the Lawyers Committee on Human Rights — where Feinberg is a board member — says Feinberg advises the group on legislative matters, partially because of his still-close connections on Capitol Hill. “He knows how to build consensus and that’s what makes him so effective,” says Posner. “He’s still very close to Sen. Kennedy, but he’s been very good at reaching out to the Hagels and the Orrin Hatches on the other side of the aisle.” Feinberg has also remained close to Breyer. He was among the friends, including Robert Pitofsky (later the chairman of the Federal Trade Commission), who helped Breyer prepare for nomination hearings after President Bill Clinton appointed him to the Court in 1994. Feinberg, labeled Breyer’s “first friend” at the time, played a key role in quelling the controversy over Breyer’s financial ties to the giant insurance cartel Lloyd’s of London. Critics said Breyer’s status as a Lloyd’s “name” — a lifetime fiduciary relationship — posed a conflict because he had ruled on environmental cases involving companies insured by Lloyd’s while on the 1st U.S. Circuit Court of Appeals. Feinberg fielded media questions on the Lloyd’s issue and explained how Breyer extricated himself by buying a costly reinsurance policy that freed him of financial ties to Lloyd’s. When critics said Breyer had gotten special treatment in ending the relationship, Feinberg said, “Any American investor foolish enough to want to do this can do it.” By that time Feinberg was already well-known as a mediator, having served as special master for the $180 million Agent Orange product liability agreement and later negotiating several rounds of asbestos settlements and the 1988 shutdown of the Long Island Lighting Co.’s Shoreham nuclear facility on Long Island. Judge Weinstein, now a senior judge for the Eastern District of New York, appointed Feinberg in all three cases. “He’s got a good understanding of how people work, how institutions work,” says Weinstein. “Ken’s got a very fertile, flexible mind, but his great skill is working with people, getting them to agree.” In 1993, Feinberg opened his own alternative dispute resolution shop, the Feinberg Group, with offices in Washington, D.C., and New York. Feinberg has been involved in several major cases since starting the firm, most recently as a representative for Dow Corning when the company agreed to pay the bulk of a $4.25 billion breast implant litigation settlement, and as the Zapruder family’s advocate on a three-person arbitration panel that arranged for the U.S. government to pay $16 million for Abraham Zapruder’s famous film of President John Kennedy’s assassination. Walter Dellinger, the government’s representative on the Zapruder panel, says Feinberg is “an extraordinarily good choice” to oversee the Sept. 11 Victim Compensation Fund. “I don’t ever recall a situation where an individual was given so much discretion over such a large sum of money,” he says. “Ken is going to have to draw upon his own sense of justice.” Working against a statutory deadline of Dec. 21, Feinberg is preparing regulations that will resolve 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?” Feinberg says. He adds that one of his goals is to avoid the huge disparities between poor and wealthy victims that often result from tort suits. “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. American Lawyer Media Supreme Court correspondent Tony Mauro and National Law Journal reporter Bob Van Voris contributed to this article.

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