Kenneth Feinberg
Kenneth Roy Feinberg is an American attorney specializing in mediation and alternative dispute resolution. He served as the Chief of Staff to Senator Ted Kennedy, Special Master of the U.S. government's September 11th Victim Compensation Fund and the Special Master for TARP Executive Compensation. Additionally, Feinberg served as the government-appointed administrator of the BP Deepwater Horizon Disaster Victim Compensation Fund. Feinberg was also appointed by the Commonwealth of Massachusetts to administer the One Fund—the victim assistance fund established in the wake of the 2013 Boston Marathon bombing. Feinberg was also retained by General Motors to assist in their recall response and by Volkswagen to oversee their U.S. compensation of VW diesel owners affected by the Volkswagen emissions scandal. Feinberg was hired by The Boeing Company in July 2019, to oversee distribution of $50 million to support 737 MAX crash victim families. Feinberg is also an adjunct professor at the Columbia University School of Law, University of Pennsylvania Law School, Georgetown University Law Center, New York University School of Law, the University of Virginia School of Law and at the Benjamin N. Cardozo School of Law.
Life and career
Feinberg was born to a Jewish family in Brockton, Massachusetts. He received a Bachelor of Arts from the University of Massachusetts-Amherst in 1967 and a J.D. degree from the New York University School of Law in 1970. He worked for five years as an administrative assistant and chief of staff for U.S. Senator Ted Kennedy and as a prosecutor for the U.S. Attorney General. Before founding his own firm The Feinberg Group in 1993, he was a founding partner at the Washington office of Kaye Scholer LLP.Feinberg has served as Court-Appointed Special Settlement Master in cases including Agent Orange product liability litigation, Asbestos Personal Injury Litigation and DES Cases. Feinberg was also one of three arbitrators who determined the fair market value of the Zapruder film of the Kennedy assassination and was one of two arbitrators who determined the allocation of legal fees in the Holocaust slave labor litigation. He is a former Lecturer-in-Law at a number of U.S. law schools.
Feinberg was the Chairman of the Board of Directors for the John F. Kennedy Library Foundation.
September 11 Victim Compensation Fund
Appointed by Attorney General John Ashcroft to be Special Master of the fund, Feinberg worked for 33 months entirely pro bono. He developed the regulations governing the administration of the fund and administered all aspects of the program, including evaluating applications, determining appropriate compensation and disseminating awards.History of participation
Early in the process he was described as aloof and arrogant. Feinberg was subjected to some very public criticism at meetings, in the media and on Web sites. "I underestimated the emotion of this at the beginning", Feinberg has said. "I didn't fully appreciate how soon this program had been established after 9/11, so there was a certain degree of unanticipated anger directed at me that I should have been more attuned to."It was up to Feinberg to make the decisions on how much each family of a 9/11 victim would receive.
"It's a brutal, sort of cold, thing to do. Anybody who looks at this program and expects that by cutting a U.S. Treasury check, you are going to make 9/11 families happy, is vastly misunderstanding what's going on with this program," said Feinberg. "There is not one family member I've met who wouldn't gladly give back the check, or, in many cases, their own lives to have that loved one back. 'Happy' never enters into this equation."
Feinberg was able to change the mind of some of his harshest critics. Charles Wolf, whose wife died in the north tower, renamed his highly critical Web site called "Fix the Fund" to "The Fund is Fixed!" At first he called Feinberg "patronizing, manipulative and at times, even cruel." He later remarked, "To have one of your sharpest critics follow through on a promise and not only join the program he was criticizing, but promote it to his peers, says a lot about you and the way you have adjusted both the program and your attitude...Today, I have complete faith in you."
In 2005 his book, titled What is Life Worth?: The Unprecedented Effort to Compensate the Victims of 9/11 was published.
Feinberg wrote that a widow of one firefighter cursed him, saying "I spit on you, and your children," for being unfair in his compensation awards.
The eight-part Feinberg plan
In his book titled What is Life Worth?, Feinberg described the eight-part plan which was applied to approaching the September 11 Victim Compensation Fund.- Identifying someone with sufficient and exceptionally broad experience in mass tort action mediation, litigation, and settlement, which Feinberg possessed through his previous personal experience as a political activist and his work in the Agent Orange compensation settlement.
- To support and follow the law regarding the proportional compensation of victims based on estimated losses from future earnings, by hiring a full staff of accountants and attorneys to track and service each claim individually.
- Accumulate all the reports and applications, along with counter-claims to gauge and initiate the direct compensation process.
- The value of informed discretion in compensating claimants under the formula of keeping compensation under the rule of thumb that 85% of the money should not go to 15% of the 'richest' claimant families, by narrowing the gap between the largest and the smallest compensations paid to claimants.
- With a mind to the future, the process of the program should be maintained and serviced as a precedent for future courts to use in future compensation cases as needed. The actions taken should be uniform in their approach.
- There would be "no substitute for hard work and legal craftsmanship" of rigorous intellectual honesty.
- The support of Senator Edward Kennedy would be recognized throughout the process.
- Lawsuits were to be discouraged as contrary to the spirit of the law establishing the compensation fund.
Hokie Spirit Memorial Fund
Special Master for Executive Compensation
On June 10, 2009, Feinberg was appointed by the U.S. Treasury Department to oversee the compensation of top executives at companies which have received federal bailout assistance. As part of his policies, he has suggested to many bank executives that they emphasize long-term stock compensation rather than cash payments.Treasury Secretary Timothy Geithner, in a statement about Feinberg's rulings on executive pay, said, "We all share an interest in seeing these companies return taxpayer dollars as soon as possible, and Ken today has helped bring that day a little bit closer."
BP oil spill fund
On June 16, 2010, it was reported that Feinberg was to run a $20 billion fund to pay claims for the BP oil spill. President Obama said that the $20 billion from BP "will not be controlled by either BP or by the government. It will be put in an escrow account administered by an impartial, independent third party." Obama said he and BP's chairman, Carl-Henric Svanberg, agreed on having Feinberg administer the fund. Feinberg was also selected by Obama to oversee the compensation of top executives at bailed out banks.BP is agreed to pay Feinberg's six-lawyer Washington, D.C., firm, Feinberg Rozen, a flat fee of $1,250,000 a month for labor and overhead costs, but the full details of compensation are unknown. Feinberg has come under harsh criticism from public interest groups for refusing to disclose the amount of his compensation or the details of his arrangement with the company.
On December 6, 2010, the Center for Justice & Democracy sent a letter to Robert Dudley, the CEO of BP, concerning "serious new issues raised about the lack of transparency and potential conflicts of interest related to the administration of the Gulf Coast Claims Facility." In the letter, CJ&D pointed out actions taken by Feinberg in the administration of the compensation fund that point to serious conflicts of interest:
Mr. Feinberg, employed by BP, has decided on his own authority that all claims recipients must release all companies who caused this disaster from any and all legal responsibility, no matter how grossly negligent they were. This sweeping release, which assigns victims' claims to BP, benefits only one actor: BP – the company that happens to pay Mr. Feinberg's salary.
In January 2011, Judge Barbier, the federal judge over the oil spill litigation, after hearing evidence and arguments of the attorneys, ruled that Kenneth Feinberg was not independent of BP and could no longer claim to be so. Feinberg had been telling victims he was their lawyer and did not answer to BP.
The letter also criticized Feinberg's lack of transparency in the matter of compensation:
Despite repeated calls for the release of documents establishing the formal relationship between BP and Feinberg Rozen, as well as its subcontractors who are reviewing and adjudicating claims, almost nothing has been publicly released. And now we learn, as reported by Reuters on November 22, 2010, that BP and Feinberg Rozen consider their arrangement 'verbal,' i.e., they have not committed to writing the firm's compensation arrangement so there can be no public examination of it. Is the public to believe that there is no paper evidence at all documenting a $10 million per year financial arrangement between BP and Feinberg Rozen? What about the contracts between BP, Feinberg Rozen and the subcontractors who are advising and adjudicating claims and also being paid directly by BP? Surely these contracts must be in writing and released. This failure to release the terms of all these financial arrangements under circumstances of tremendous historic and public significance is simply unacceptable.