In 33 years of designing, implementing and administering private and public compensation programs, Kenneth Feinberg said he has learned a few key lessons.
“What I’ve learned is the substantive job of deciding who gets what is not that complicated,” Feinberg told the Review-Journal. “It’s the emotion that is very, very difficult to deal with. … and that emotion is dealt with by transparency, empathy, trying to do the right thing, and through pro bono service. That’s what this is all about.”
Feinberg, 71, has volunteered as a consultant to the Las Vegas Victims Fund, a Nevada non-profit established to oversee the consolidation and distribution of funds raised for victims and families of the Oct. 1 Las Vegas shooting.
“Ken provided the original draft of the protocol” that lays out who will be eligible for funds, said Scott Nielson, chairman of the Las Vegas Victims Fund. “What Ken has said over and over is that this is going to be a difficult process, that you will not make everybody happy and that no good deed goes unpunished.”
Feinberg would know. He’s been helping to decide who gets what and to administer compensation after disasters and tragedies since 1984.
‘Mediators are born, not made’
It all started in 1984 when a federal judge in Brooklyn, Jack Weinstein, appointed Feinberg to mediate a class-action lawsuit brought by 250,000 Vietnamese War veterans against seven manufacturers of a chemical, Agent Orange, that they were exposed to during the war.
Weinstein, 96, told the Review-Journal Tuesday that Feinberg “was the most proficient person I could find who had the knowledge and the energy and the will to handle this kind of case.”
Feinberg said Weinstein appointed him to the role because “he thought I had the right legal and political instincts.”
Weinstein said Feinberg’s sense of humor is an asset as well.
“He could get to the heart of a problem, and instead of being guileful or rough about it, he could make people laugh with each other and get together to solve it,” he said.
But more than that, Weinstein said he saw great promise in Feinberg.
“It was part of a great American possibility of a person who was great on the merits but had not yet been discovered,” he said.
Weinstein and Feinberg had both been law clerks to the same judge, Stanley Fuld, 30 years apart.
Weinstein said he had gotten to know Feinberg and knew he had worked for Sen. Ted Kennedy.
Feinberg was Kennedy’s chief of staff from 1975-1980.
Zachary Meltzer, 82, was a friend of Kennedy’s.
“Teddy Kennedy thought the world of him (Feinberg),” Meltzer said.
Weinstein said that was certainly the case.
“The Kennedy family thought very highly of him, and all of the brothers depended on him for advice and help,” Weinstein said.
When Weinstein approached Feinberg about mediating the Agent Orange case, he said he told Weinstein that he didn’t have any mediation training.
“He (Weinstein) said, ‘That’s all right. Mediators are born, not made,’” Feinberg said. “I managed to forge a settlement. In eight weeks we settled that dispute for $250 million. And that was the beginning of my work in this area.”
After that, he said he started “getting calls from everybody.”
Compensating 9/11 victims
In 2001, his mounting experience — and reputation with a few key people in very high places — led him to oversee an $11 billion pot of taxpayer money to compensate the victims’ families of 9/11.
“Kennedy was the one who got him appointed,” Meltzer said.
Feinberg said Kennedy as well as former Sen. Chuck Hagel urged former Attorney General John Ashcroft to appoint him to that role.
It was pro bono work for 33 months, Feinberg said. In that time, the fund paid out more than $7 billion to 5,560 people. The average award for a death claim was just over $2 million, and the average award for a physical injury claim was more than $400,000.
“And from there he branched out to take care of many, many disasters,” said Meltzer, whose daughter-in-law was one of the recipients of the victim compensation. Meltzer’s son, Stuart, died in the terrorist attack.
Those disasters include the 2007 Virginia Tech shooting, the 2012 Sandy Hook shooting, the 2012 Aurora shooting, the 2013 Boston Marathon bombing, and the 2016 Pulse nightclub shooting.
Each time, the emotional impact to Feinberg is “very debilitating.”
‘Not rocket science’
Nadine Smith, executive director at Equality Florida, worked with Feinberg to administer funds in the aftermath of the Pulse nightclub shooting.
“He is very direct. He doesn’t waste your time,” she said. “His temperament and confidence that he inspires in people is really important to keep the process moving forward.”
Feinberg said what he does “is not rocket science.”
“There’s no magic to this,” he said. “I tell you, there are plenty of American citizens and plenty of people in Las Vegas that could do exactly what I do.”
The question of who gets what is based on a formula.
“Every day in every court in Las Vegas and in every court in the United States there is a formula that determines who gets what,” Feinberg said. “If you’re hit by an automobile, if you fall off a ladder, if you get food poisoning. … What would a victim have earned over their work life and something for pain and suffering for emotional distress.”
Feinberg said the most important thing is to be upfront with people about what can and cannot be provided.
“The other thing I must say is, getting the money out the door is very important. For all the words in the world, there is no substitute for the speed of making payments.”
Nielson, the Las Vegas Victims Fund chairman, said Feinberg has been “extremely helpful.”
“From the very first meeting, Ken had very good advice for the committee in terms of what to think about and how to think about giving this charitable gift.”