Kenneth Feinberg: a mediator balancing lives with dollars

Kenneth Feinberg has appeared at nearly every scene of tragedy and disaster in the US in the past two decades.

In the aftermaths of the BP oil spill to the Sandy Hook elementary school massacre, the Boston Marathon bombing, the Penn State sexual abuse scandal and the Orlando nightclub shooting, the mediator has been an enduring presence.

This week, Feinberg and his business partner Camille Biros were selected to administer the $500m fund for families of victims of the dual crashes of Boeing 737 Max planes that killed a combined 346 people.

Politicians and companies have turned to Feinberg and Biros to design and administer compensation plans for victims of mass disaster since he was selected to oversee the September 11 victim compensation fund 20 years ago. The 75-year-old attorney has written two books about his work valuing human life in dollars.

One book was adapted into a film. Worth, starring Michael Keaton as Feinberg, screened at the Sundance Film Festival last year and was acquired by Barack and Michelle Obama’s production company. It will play on Netflix this autumn to mark the 20th anniversary of the deadliest terrorist attack on US soil.

“Money is a very poor substitute for loss,” Feinberg said. In cases involving death or debilitating injury, “I try never to use words like ‘fairness’ or ‘justice’ because I think those words have no applicability.”

The 737 Max fund was established as part of a $2.5bn deal between Boeing and the US Department of Justice to settle a criminal charge against the company. Boeing has already had the compensation experts distribute $100m it voluntarily agreed to.

“The two of us brainstorm and design the criteria eligibility qualifications, the process and with agreement with the parties, we implement,” said Biros, who these days is busy processing sexual abuse claims against 24 US Catholic dioceses. “These programmes, they sound like they’re simple to implement, but they’re really not.”

The Boeing case has involved identifying appropriate family representatives and adhering to relevant local law in countries around the world. The two-person firm has had legal documents translated into Chinese, Italian, French, German, Spanish and Indonesian.

Feinberg, who lives in Washington DC, was born in Brockton, Massachusetts, to a book-keeper and a tyre salesman. He earned degrees in history and law, then went to work for senator Ted Kennedy in 1975, eventually becoming his chief of staff. He met Biros when he hired her as his administrative assistant in 1979.

The pair left Kennedy’s office in 1980 when Feinberg joined private law firm Kaye Scholer, and stayed together 13 years later when Feinberg set up his own law business. He gained experience in victim compensation in the 1980s when he dealt with cases involving Vietnam war veterans affected by the defoliant Agent Orange.

Following the September 11 attacks in 2001, former president George W Bush tapped Feinberg to distribute public funds to families of the 3,000 victims. The fund needed 80 per cent participation to succeed, but accepting compensation meant forgoing a lawsuit against the airlines. Meetings with surviving families boiled with grief and anger.

Feinberg would attend these meetings with a huge tub of Twizzlers, said Bob Clifford, a longtime friend of the mediator and the lead attorney for families of the second Max crash who are suing Boeing. He would talk from the stage, eating Twizzlers, and eventually catch someone’s eye and offer a handful of the sweets.

“The next thing you know, the lady next to the widow or dad or son had one, and then the next and next, until the entire place was chewing on Twizzlers,” Clifford recalled. “Pretty soon things had calmed down a bit, and he went on to do what he could to discuss and heal their pain. The man is a genius.”

“He’s a terrific listener, and he’s highly organised,” Clifford added. “He seemingly has an endless capacity to listen and to absorb and to be compassionate.”

Feinberg and Biros worked on that job pro bono for nearly three years. Ultimately, 97 per cent of eligible families enrolled in the fund.

The law firm is paid a flat fee to design the compensation programme, and another to administer it. That fee structure, rather than a scale that ties the firm’s compensation to the number of claims or how quickly they are processed, is critical to gaining the trust of surviving loved ones.

Feinberg said he had no plans to retire. Companies and government officials continue to ask the firm to take on cases “because the last time we were asked, it worked”.

But the measure of a successful programme is never in thanks. The losses he sees cannot be righted with compensation, no matter how generous. A law degree is little use in his work, Feinberg said. A degree in psychology or divinity might have prepared him better.