Mr. Feinberg won renown with his saintly handling, working pro bono, of the September 11 Victim Compensation Fund, a high-profile task of ultrasensitivity. He personally conducted more than 900 hearings in which he gave survivors the chance to argue their claims, to rant, or simply to grieve.
He told that tale in an earlier book, “What Is Life Worth?”It is just one chapter in his thoughtful new book, “Who Gets What: Fair Compensation After Tragedy and Financial Upheaval” (PublicAffairs, $26.99), which chronicles his role across three decades serving as a kind of Solomon after times of national crisis.
The first case he discusses is the historic Agent Orange settlement in 1984, which broke the mold for huge lawsuits and benefited several million Vietnam veterans and their families. There are also chapters on his more recent stints: He shaped payments to families of victims of the Virginia Tech massacre in 2007. He acted as the Treasury Department’s special master in 2009 in reducing the pay of some top Wall Street executives after the TARP bailouts. And, finally, he devised and ran the extraordinary, $20 billion fund that BP, pushed by President Obama, set up to compensate Gulf Coast residents and businesses after the Deepwater Horizon disaster in 2010.
Mr. Feinberg is made for moments of national catastrophe that threaten to swamp the courts with thousands, even hundreds of thousands, of lawsuits by victims or their survivors. His task is to create a practical way to assess and pay claims, promptly and fairly, and in that way spare everyone the torture of endless litigation.
So what is fair recompense for a wrongful death or a tragic loss? In America, he says, we’ve accepted that money is the medium, as unsatisfying as it may be. His bias is toward equal payments for every deceased victim. That has a root fairness to it — morally, every life is priceless — not to mention being much easier to administer. But with Sept. 11, he was reluctantly obliged to honor tort law, with the wrenching task of affixing an exact dollar value to each life lost.
Mr. Feinberg has concluded that the success of any public compensation fund lies in generosity — and in getting money out the door as quickly as possible. The Gulf Coast fund attracted more than a million claims and, over 16 intensive months, disbursed $6.14 billion to 575,000 claimants. Mr. Feinberg concedes that under pressure, the fund relaxed its criteria and honored some claims that “would have been laughed out of court.” But the fund also denied 420,000 claims, mostly for lack of documentation, and referred 4,000 claims for prosecution for fraud.
The Gulf Coast fund required no small feat of virtuoso administration. Mr. Feinberg assembled and directed a staff of 1,500. But it proved the maxim that no good deed goes unpunished. For the first time, he writes, his efforts did not enjoy broad national approval. The fund and Mr. Feinberg personally were targets of invective on opening day and every day thereafter. He chose, quite reasonably, not to work pro bono — but having BP pay his firm millions in fees invited grousing that he was in BP’s pocket.
Critics in the plaintiffs’ bar accused Mr. Feinberg of devising terms that practically forced people to settle quickly and on the cheap. Nonsense, he says. Human beings have a wish for closure, to get on with their lives.
Mr. Feinberg is compassionate, tough, legally creative, highly persuasive and politically shrewd. He has an endless appetite for work, an admirable taste for public service and a zest for butting heads in high-stakes negotiations. He understands that he takes the heat for the public officials who call him in. He expects no one to be happy with how he slices the pie, at least not at first, and no one to be in a reasonable mood.
Perhaps as befits a prudent mediator, he is also amazingly magnanimous, with harsh words for no one — or maybe a few, very restrained ones, for the Gulf Coast politicians who flayed him alive over the BP fund. Every lawyer, government official or Wall Street executive he ever encounters is outstanding. “Smart and combative” is a typical label for a stubborn Wall Street adversary. Mr. Feinberg not only grasps his adversaries’ motives, he cedes them principled ones. Apparently there are no dopes or dunces, no knaves, in public life.
The book starts slowly, almost throttled in its cradle, with 21 pages of unrelieved homage to four mentors, most notably Jack B. Weinstein, the federal district judge in Brooklyn who presided over the Agent Orange case, and Senator Edward M. Kennedy, whom the author served as chief of staff. It’s a hymn so lavish that it is embarrassing to read.
For an accomplished legal innovator and outstanding public servant, Mr. Feinberg seems overly respectful of his political betters. If our national political and legal life were reduced to “Upstairs, Downstairs,” he would be the imperturbable butler who runs the household.
Mr. Feinberg is remarkably cool-eyed in assessing the worth of his own labors. He says he believes that the BP fund was a showpiece of enlightened corporate response to disaster, but he does not contend that his yeoman work for the Treasury Department in restraining Wall Street compensation had any lasting impact. Small beer, he says, compared with the Dodd-Frank legislation and other reforms. “As symbolic gestures go,” he said, his work was effective — “and this, of course, was exactly what Congress intended.”