Profile: Kenneth Feinberg
How can anyone assign a dollar value to human life? There is no formula, but in the aftermath of 9/11 the nation’s top legal mediator accepted that challenge.
Just weeks after the four airplanes crashed into the World Trade Center towers, the Pentagon and a field in rural Pennsylvania, at a time when the American people were deep in shock and mourning, Kenneth Feinberg was offered the opportunity to be part of the effort to bind the nation’s wounds.
Standing at the helm of the federal September 11th Victim Compensation Fund of 2001, Feinberg bore witness to the survi-
vors’ pain and decided the fate of 5,300 families of the dead and injured, dispersing a total of $7 billion. For 33 months, facing the grief-stricken, the scarred and the burned consumed nearly every waking hour.
His salary for the job he has described as “extremely difficult”? Not a penny.
“Anyone would have done the same thing,” he says with a shrug during a recent visit to his home state of Massachusetts.
In the days following September 11, 2001, all eyes were on Washington. Just 12 days after the attack, while the site was still smoking, President Bush signed a law creating the victim’s fund to protect the airlines from multiple lawsuits by compensating the bereaved and the injured.
Beltway insiders must have thought it an odd choice for the administration to put a Democrat—Feinberg was once Sen. Edward Kennedy’s chief of staff—in the seemingly impossible job of assigning a dollar value to thousands of 9/11 victims.
But maybe they shouldn’t have been surprised. After all, the man tapped as fund special master came with an impressive problem-solving dossier. And while like most lawyers he projects an air of confidence, at the same time he is remarkably down to earth and warm.
A former prosecutor and member of two presidential commissions, his law firm, The Feinberg Group, is a leader in negotiating resolutions of complex legal disputes. Indeed, Feinberg, a pioneer in alternative dispute resolution (ADR), has left his fingerprints on headline-making settlements, including those relating to the closing of the Shoreham Nuclear Plant, Agent Orange and issues-of-the day for women such as the Dalkon Shield and DES. He was also key in determining the market value of the Abraham Zapruder film of the John F. Kennedy assassination and legal fees for Holocaust slave-labor litigation. “A mediator must synthesize enormous amounts of information, assess the merits of each party’s position and get to the nub of the dispute,” Feinberg says. “A mediator keeps everyone’s feet to the fire.”
In addition to his professional accomplishments, something else may have been at work in making the selection. When then-Attorney General John Ashcroft appointed Feinberg, “many people wondered why a Republican attorney general would appoint a Democrat,” Sen. Kennedy recently told a crowd at the Kennedy Library in Boston. “My best guess was that it was mission impossible and better to let someone like Ken be on it.”
Feinberg has his own theory: He feels his own working-class background may have been a plus.
Feinberg, 59, grew up in the close-knit Jewish community of Brockton, where his father ran a tire store and his mother was the bookkeeper at the Jewish Community Center. After completing Brockton High, he left for the University of Massachusetts Amherst and after graduation attended New York University Law School. In his first job out of law school, he clerked for the New York Court of Appeals, work that soon led to his role in untangling the Agent Orange quagmire.
“My Jewish and blue-collar upbringing gave me a better sensitivity toward the underdog, to try to put myself in other peoples’ shoes,” he says.
But it was a challenging fit during his nearly three years with the 9/11 fund. Feinberg solicited the help (also pro bono) of his firm’s 15 lawyers and worked with 400 PricewaterhouseCoopers professionals who had a multimillion-dollar contract with the Department of Justice.
Still, many of the tough cases landed on his desk. “I had the unenviable task of calculating awards,” he recently told a group of Jewish lawyers and accountants in Boston. “But 9/11 was a unique historical event that required a national response.”
The federal law mandated the awards be determined by such factors as the age of the victim, his or her projected future earnings and the number of dependents. But Feinberg added his own sense of justice: He increased the amount for loss and suffering. “I didn’t want a system that gave $6 million to the stockbroker on the 38th floor of the World Trade Center and $38,000 to the waiter at Windows on the World,” he says.
The average award to surviving families was $2.1 million, with the 2,880 payouts ranging from $500,000 to $7.1 million. The fund also paid an average of $400,000 for 2,680 injuries, from $500 to $8.6 million. In addition, many families also received charitable donations and life insurance payments.
Early on, Feinberg pledged to meet with every bereaved or injured person who requested it, crisscrossing the country and traveling to London to meet with families of foreign victims. In all, he heard the stories of 916 families.
Patti Quigley, whose husband Patrick was killed aboard United Flight 175, says Feinberg “came across as someone doing the best he could within the rules given. There are a lot of emotions involved and he had to administer a specific practical program.
“It was a tough job to balance that, but he did,” adds the mother of two from Wellesley, Massachusetts.
In the meetings, families shared home movies, photos and tapes of “I love you, good-bye” phone messages. Among the stories was that of a firefighter who rescued 30 people only to be killed while walking in the path of someone jumping to his death from the crumbling towers.
“In hearing these stories,” Feinberg says, “not only was I learning from the families, but I could put a human face on the fund and show that someone was trying to be sensitive to their feelings and needs.”
Grief, however, sometimes mingled with avarice as family feuds erupted—the woman pitted against her fiancé’s parents who insisted the engagement was off; the gay man wrangling with his partner’s parents; the man who swore his brother hadn’t spoken to their sister in years.
And in one case particularly reminiscent of King Solomon’s, there was a deceased man who appeared to have three children—until his mistress showed up with two more. “We cut two checks, one for the wife, one for the girlfriend, and we never told the wife,” Feinberg says. “Why hurt her unnecessarily?”
Since “nowhere in the statute was there one word on who gets the money or who files the claim,” Feinberg’s years of mediating served him well. Bringing together the warring parties nearly always resulted in compromise settlements. Eventually, 97 percent of all those who lost loved ones opted to participate in the fund.
But his biggest regret isn’t the 65 families who rejected the fund’s offer and opted to sue (by receiving a settlement from the federal government, families had to agree not to litigate). It was the 13 he was unable to convince to apply to the fund: “They were paralyzed by grief and depression, unable to even fill out the application.”
Feinberg revealed another regret in his final report last November: the required calculations based on lost earnings. “I had the firefighter’s widow saying to me, ‘Mr. Feinberg, why am I getting a million dollars less than the husband of the stockbroker who was pushing a pencil on the 103rd floor and my husband died a hero?’”
Wrestling with this “deceptively simple but hideously complex” program took its toll. Living so much on the road, witnessing the grief, Feinberg was plagued with insomnia. “I never have slept a great deal, but now that’s exacerbated by thinking about these families,” he said at the peak of his work with the fund.
It was times like these that Feinberg sought solace from his family—his wife, Dede, and children Michael, 28; Leslie, 26; and Andrew, 23—as well as his beloved classical music. He has a collection of 6,000 recordings, attends concerts whenever he can and is a trustee of the Washington National Opera.
His family belongs to the Conservative Congregation Beth El in Bethesda, Maryland. “My Jewish heritage had a strong influence on my ability to meet with the families and begin to appreciate their pain,” he says. “I believe that my background helped make me more sensitive.”
Feinberg is also proud of the millions of dollars donated by Jews to 9/11 charities. “We are a people who understand the principle of social responsibility and helping those in need,” he says.
Indeed, Jewish and community commitment is a family tradition. Dede, former president of the Jewish Federation in Washington, D.C., is active in Jewish causes. The couple also sponsors the Feinberg Family Distinguished Lectures series at his alma mater, UMass Amherst.
This month, Feinberg’s What Is Life Worth? The Inside Story of the 9/11 Fund and Its Efforts to Compensate the Victims of September 11th will be published by PublicAffairs. In the meantime, he has gone back to his regular caseload and is teaching at the law schools of the University of Pennsylvania and Columbia University.
When he reflects on his fund years, he can see he’s changed, grown more fatalistic: “I don’t plan more than two weeks in advance,” he says with a laugh. But he’s also become “a much better listener and more empathic.”
And though the experience was vexing, draining and sad, the fund “renewed my faith in humanity and the American people.”
“Ken went above and beyond the call of duty, treating the 9/11 families with great compassion,” says Sen. Kennedy. “At a time when so many are asking what the country can do for them, it’s hard to think of a more perfect example of someone who asked what he can do for our country.”
But Feinberg harbors no illusions. “Anybody who expects that by cutting a U.S. Treasury check you are going to make 9/11 families happy is vastly misunderstanding this program,” he says. “There is not one family I’ve met who wouldn’t gladly give back the check, or their own lives, to have that loved one back. ‘Happy’ never enters into this equation.”