2021 | News

Bethesda man made decisions on how to distribute 9/11 victims fund

Feinberg first helped with Agent Orange class-action lawsuit

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Ken Feinberg

Courtesy Nicole Rosen

The story of how Ken Feinberg of Bethesda was selected to oversee a fund to compensate the victims of the Sept. 11, 2001, terrorist attacks starts nearly two decades earlier.

In 1984, Feinberg was practicing law in Washington, D.C., as a partner at Kaye Scholer. He got a call from Jack Weinstein, then a federal judge in the U.S. Eastern District in Brooklyn.

Weinstein was in charge of litigation involving Vietnam veterans and the damage caused by Agent Orange, a chemical used in the war that could cause serious health problems.

“He called and said, ‘I have an assignment for you. I want you to help mediate a resolution of this massive Agent Orange class action, and then I want you to design and administer a compensation program to compensate eligible victims,’” Feinberg, 75, said. “And that was the singular event that changed my entire professional career, beginning in April of 1984.”

Feinberg has done similar work multiple times since then. He has headed some important funds, including:

  • He helped determine the value of the Zapruder film that captured President John F. Kennedy’s assassination
  • He determined allocation of legal fees in the Holocaust slave labor litigation
  • He was chief administrator of the Hokie Memorial Fund, helping determine compensation for victims in the Virginia Tech mass shooting in 2007
  • He ran a $20 billion fund to pay claims related to the BP oil spill, which started in April 2010
  • He aided in the settlement of personal injury claims for dozens of cases involving the sex abuse scandal at Penn State with former football assistant coach Jerry Sandusky

Congress created the September 11th Victim Compensation Fund 13 days after the attack. Feinberg was tasked with leading a panel of attorneys and other staff to help determine compensation for each of the victims’ families and others affected by the day’s events.

Feinberg said U.S. Sens. Ted Kennedy, a Democrat, and Chuck Hagel, a Republican, recommended to then-Attorney General John Ashcroft that Feinberg head the fund, as he was apolitical and would work in a bipartisan manner.

“[Ashcroft] offered me the position, and I accepted it on the condition that I would design and administer the fund without compensation pro bono for 33 months,” Feinberg said.

There were several challenges in setting up the fund, he added. Who would be eligible for death claims or personal injury claims? What were the geographic and time limits on the fund? What proof should families provide to substantiate their claims? What methodology should be used to determine claims for death or personal injury?

According to the official statute passed by Congress, there were several delineations. The fund was available, but was not limited to, families of anyone on any of the flights that crashed, excluding the terrorists.

It also included anyone who “was present at the World Trade Center, (New York, New York), the Pentagon (Arlington, Virginia), or the site of the aircraft crash at Shanksville, Pennsylvania at the time, or in the immediate aftermath, of the terrorist-related aircraft crashes of September 11, 2001.”

Feinberg and his team had 120 days to provide a written determination to anyone who submitted a claim, which included information and any documentation from the claimants. 

Feinberg said all of the funds he has worked on have been tragic, but the 9/11 fund was the toughest. There was a lot of emotion from families because the fund was created so shortly after the attacks, he said. 

“When you create these programs, so soon after the event triggering the tragedy, you better brace yourself for what you’re going to hear,” Feinberg said.

Still, as taxing as it was, Feinberg said that emotion became part of his role, months and years after Sept. 11, 2001. He met with over 900 families of victims and acted like a rabbi or a priest, trying to be as empathetic as he could, he said.

Looking back 20 years after the attacks, Feinberg said that as seriously as he took the job, and as difficult as the legal work was, meeting with victims was most difficult.

“The hardest part of the 9/11 fund was not calculating awards or damages,” he said. “The hardest part was sitting with the individual family members who lost loved ones, or physically injured victims who survived, horribly injured, and confronting the emotion and trying to be as empathetic as I could.”

Feinberg was scheduled to speak on Saturday with Rabbi Corey Helfand and Ohr Kodesh Congregation members about 9/11 and his work.

Steve Bohnel can be reached at steve.bohnel@bethesdamagazine.com