Interesting new article in the ABA Journal this month about Ken Feinberg, administrator of the Gulf Coast Claims Facility. (By way of full disclosure, the ABA Journal has a special place in our little heart, having declared this humble blog one of the top 100 legal blogs for the last three years, so we kinda like them over there!)
We were glad that the article at least touched, albeit lightly, on some of the serious conflict of interest issues that the Center for Justice & Democracy raised about the BP/Feinberg deal, in a letter to all five state AG’s last week (copying the state bar associations). The ABA Journal’s Terry Carter writes:
Now he’s handling the BP fund on basically a handshake, with Oil Pollution Act guidelines as a malleable template.
“It seems we’ve moved into a new universe of problematic dispute resolution where people really are unrepresented,” says Linda Mullenix, a professor at the University of Texas School of Law who knows and admires Feinberg. “All they have is Ken Feinberg saying, ‘This is good for you; come on in and it’s in your best interest.’
“As you move from each model to the next, there’s less oversight. Who’s guarding the guardian?”
Joe Rice, a founding member of Mount Pleasant, S.C.-based Motley Rice who represents clients in the MDL …says, “You have a guy out of work nine months in the Gulf who thinks his claim is worth much more than they might offer, but he looks at his wife and two kids and he’s doing what he can to put food on the table as Christmas approaches. He’s more likely to take the settlement money. We’ve seen this kind of thing before from defense lawyers.”
Many or most plaintiffs’ lawyers involved are convinced Feinberg is doing BP’s bidding.
Says Stephen Herman of New Orleans’ Herman Herman Katz & Cotlar, a member of the MDL plaintiffs’ executive committee: “It’s extremely dangerous for someone who has the imprimatur of being an independent special master in the past to now be cloaked in this specter of independence, when in fact he’s nothing more than a defense lawyer trying to settle cases for BP.”
“He likes to say yes,” says Jeffrey Breit of Norfolk, Va.’s Breit Drescher Imprevento & Walker, who is a member of the plaintiffs’ steering committee in the MDL. “Then later you find out that it’s no. He says what the audience wants to hear.”
Another interesting thing in the piece is that, despite some false comparisons Feinberg has made between the BP situation and the 9/11 compensation fund that he administered, he isn’t re-writing history despite how much the Chamber of Commerce and tort reform groups would like him to. Carter writes:
In October, he praised [plaintiffs lawyers] in his keynote speech at a summit hosted by the U.S. Chamber of Commerce’s Institute for Legal Reform. The institute’s website lists as its first aim: “Neutralize plaintiff trial lawyers’ excessive influence over the legal and political systems.”
Feinberg bearded the lion in its den after he was introduced by chamber president Thomas Donohue, who noted Feinberg’s deft handling of the 9/11 fund was done “without the involvement of massive numbers of lawsuits involving thousands of trial lawyers.”
Feinberg stepped to the dais and quipped: “I’m pleased to know that Tom’s going to shoot out of here and not listen to what I say. I don’t want to spoil his lunch.”
Feinberg proceeded by Rolfing his audience—rubbing them the wrong way to ease their tension. He explained, for example, that he believes the “legal system works pretty well,” that all claimants in the 9/11 fund were represented by lawyers, and that it “would never have succeeded as it did without the firm, committed support of the trial bar.”
He also pointed out that the 9/11 fund was tacked on as a compromise for legislation whose main purpose was statutorily “placing barriers to litigate against the airlines and the World Trade Center.”
(As, by the way, we noted earlier.)
In fact, after 9/11, plaintiffs lawyers not only helped work out this congressional compromise to ensure that 9/11 victims received some kind of help after the airlines ran to Congress for immunity, they also formed a nonprofit organization called Trial Lawyers Care, “to provide free legal representation to all 9/11 families" to help them navigate Feinberg's fund. This became "the largest single pro bono project in the history of American jurisprudence. Over 1,100 lawyers provided representation to over 1,700 victim families-over $200 million in legal services provided absolutely free of charge.” (See the bizarre description of this incredible trial lawyer effort by our friends at the right-wing Manhattan Institute. C’mon, guys, give up the hate. It can't be good for your own personal health!!)