The BP Oil Spill and the Future of Mass Tort Litigation

Annual Institute on Mineral Law

Volume 58 The 58th Annual Institute on Mineral Law Article 7

3-24-2011

The BP Oil Spill and the Future of Mass TortLitigationLinda S. Mullenix

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Repository CitationMullenix, Linda S. (2011) "The BP Oil Spill and the Future of Mass Tort Litigation," Annual Institute on Mineral Law: Vol. 58 , Article7.Available at: http://digitalcommons.law.lsu.edu/mli_proceedings/vol58/iss1/7

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The BP Oil Spill and theFuture of Mass Tort Litigation

Linda S. MullenixMorris & Rita Atlas Chair in Advocacy

University of Texas School of LawAustin, Texas

I. IntroductionIn the well-known Greek myth, Prometheus stole fire from the Greek

god Zeus and gave it to humanity. In return for this arrogance, Zeus hadPrometheus chained to a rock in the Caucasus mountains, wherePrometheus was punished by an eagle eating away at his liver, whichwas regenerated every night. Because Prometheus was immortal, he wascondemned to eternal torture by the voracious eagle's pecking. Afterthirty years of this punishment, however, Hercules appeared, killed theeagle, and liberated Prometheus from his unending torment. In return forfreeing him, Prometheus rewarded Hercules with the secret tocompleting the eleventh of his famous Herculean labors.'

On April 20, 2010, an explosion on the Deepwater Horizon rig killedeleven workers and unleashed the reputed worst oil spill in Americanhistory. Less than two months later, on June 16th, 2010, BP Oil-aftermeeting with President Barack Obama-agreed to set up a $20 billiondollar fund to compensate victims of the disaster. Shortly thereafter, BPselected Kenneth Feinberg to oversee the compensation fund and claimsprocess.

In the morality play of the Deepwater Horizon oil spill, BP Oilassumed the Promethean role of modern energy-bringer to mankind. Inits arrogance for attempting to expropriate energy from miles below theocean floor and bring oil to mankind, BP precipitated a massivecalamity. As a consequence, BP faced the eternal punishment of beinglashed to the American Caucasus of never-ending civil litigation,perpetually to be pecked away by claimants. Rather than endure thisinterminable retribution, BP instead chose to terminate its own agony asquickly as possible by creating a Fund. And, Hercules-in the form ofthe heroic Ken Feinberg-appeared to BP just in time to slay the civillitigators and liberate BP. For his efforts at enabling the BP rescue, BPrewarded Ken Feinberg.2

Prometheus gave Hercules the secret to stealing the golden apples from the Hesperides.2 By my somewhat inexpert count, Ken Feinberg might well be performingapproximately his seventh Herculean labor, with his preceding feats consisting of hisparticipation as a special master in: (1) negotiating the Agent Orange class actionsettlement, (2) as a trustee charged with disbursing Dalkon Shield settlement payments,(3) assisting Judge Jack Weinstein of the Federal District Court for the Eastern District ofNew York in the Brooklyn Navy Yard asbestos cases, (4) managing the WTC Victim'sCompensation Fund, (5) determining Wall Street executive salary compensation underTroubled Assets Relief Program, (6) supervising the Hokie Spirit Memorial Fund after

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Mullenix: The BP Oil Spill and the Future of Mass Tort Litigation

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The appearance of Ken Feinberg as the heroic savior in the Gulf oilcalamity was, in no small measure, a consequence of a persona whosereputation has indeed assumed mythic proportions in the publicconsciousness.3 As is well-known, Ken Feinberg served as the specialmaster administering the World Trade Center Victims' CompensationFund in the aftermath of the terrorist attack on the Twin Towers onSeptember 11, 2001.4 As is equally well-known, Ken Feinberg also hashad an extended career serving as a mediator, special master, settlementnegotiator, claim3 administrator, and more recently, as President BarackObama's Wall Street executive compensation czar.

The selection of Ken Feinberg to administer the Gulf Coast ClaimsFacility immediately commanded comparison to the World Trade CenterVictims' Compensation Fund. Indeed, Feinberg himself announced thatin administering :he Gulf Coast Claims Facility, he would be drawing onhis vast knowledge and experience in administering the World TradeCenter Victims' Compensation Fund.6 Many of Feinberg's initialinitiatives-such as town hall meetings and outreach to Gulf fishermenand other claimants-duplicated techniques that Feinberg had developedduring his supervision of the World Trade Center Fund.

the Virginia Tech campus shootings, and (7) administering the Gulf Coast ClaimsFacility. See Jeff McDermott, Kenneth Feinberg: A Profile in Public Service, 55 Fed.Law. 38 (May 2008).

See Steven Brill, Wiat's a Bailed-Out Banker Really Worth?, N.Y. Times Mag. 32 (Jan.2010) (profile of Ken Feinberg's role as executive pay czar under the federal TroubledAsset Relief Program); Terry Carter, The Master of Disasters: Is It Just Him, or isKenneth Feinberg Canging the Course of Mass Tort Resolution, ABA J. 33 (Jan. 2011);Kimberley A. Strassel, Mr. Fairness: The Pay Czar, BP Claims Administrator, and 9/11Victims Fund Manager Talks About How He Makes Decisions That Alter Lives, W.S.J.(Aug. 7, 2010), avai able at http://online wsj.com/article (comparing Feinberg to KingSolomon).

4 See Kenneth R. Feinberg et al., FINAL REPORT OF THE SPECIAL MASTER FOR THE

SEPTEMBER I ITH VICTIM COMPENSATION FUND OF 2001 (2004), available athttp://www.usdoj.gov/finalreport.pdf (hereinafter "FINAL REPORT OF THE SPECIALMASTER").

s Janet Cooper Alexander, Procedural Design and Terror Victim Compensation, 53DePaul L. Rev. 621, 667 (2003); Martha Chamallas, The September 11th VictimCompensation Fund: Rethinking the Damages Element in Injury Law, 71 Tenn. L. Rev.51, 56 (2003); Charles J. Faruki, What Is a Life Worth?: The Unprecedented Effort toCompensate the Victims of 9/11, Fed. Law. 52 Oct. 2005 (book review); McDermott,Kenneth Feinberg, supra; Strassel, Mr. Fairness, supra n. 3.6 See Strassel, Mr. Farness, id.

7 See Kenneth Feinterg, Transparency and Civil Justice: The Internal and ExternalValue of Sunlight, 53 DePaul L. Rev. 473 (2003); Feinberg Says BP Fund Will BeGenerous, Better Than Lawsuits, Bloomberg News (July 15, 2010), available athttp://businessweek.com/news/2010-07-15/feinberg-says-bp-fund-will-be-generous (localmeeting in Jefferson Parish, Louisiana); Wendy Kaufman, Feinberg Vows QuickResponse on Gulf Oil Spill Claims, NPR Interview (Aug. 19, 2010), available athttp://www.npr.org/ (Feinberg meeting in Houma, Louisiana).

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But, the BP Gulf Coast Claims Facility-apart from its superficialdesignation as a compensation fund-bears little resemblance to theWorld Trade Center Victims' Compensation Fund. Although these two"fund" mechanisms have in common the same all powerfuladministrator, the two funds are entirely unlike one another. And thiscomparison bears scrutiny and debate, for several compelling reasons.

First, the World Trade Center Victims' Compensation Fund waswidely acknowledged as a sui generis, one-time endeavor to compensatevictims of a national terrorist disaster.8 Indeed, the special master KenFeinberg repeatedly stressed in numerous speeches and writings that theWorld Trade Center Victims' Compensation Fund was neither a modelfor tort reform, nor a model for any future terrorist or other disaster.9 KenFeinberg was fairly and consistently insistent that the WTC Fund was not

8 See e.g., Feinberg et al., FINAL REPORT OF THE SPECIAL MASTER at 83-84; Ackerman,The September 11th Victim Compensation Fund; An Effective Administrative Response toNational Tragedy, 10 Harv. Negotiation L. Rev, 135, 205 (2005) ("Because the Fund issui generis, it is unlikely to have a profound impact on developments in the law of torts);Chamallas, The September 11th Victim Compensation Fund at 53 (2003) ("Perhaps themost repeated observation made about the September 1 Ith Compensation Fund, like thehorrible events which brought it into being, is that it is unique and has no close parallel inthe history of United States injury and compensation law."): Erin G. Holt, Note: TheSeptember 11th Victim Compensation Fund: Legislative Justice Sui Generis, 59 N.Y.U.Ann. Sur. Am. L. 513, 539-40 (2004); Robert S. Peck, The Victim Compensation Fund:Born From a Unique Confluence of Events Not Likely to Be Duplicated, 53 DePaul L.Rev. 209 (2003) (comparing the World Trade Center events to the attack on Pearl Harboron December 7, 1941); Robert L. Rabin & Stephen D. Sugarman, The Case for SpeciallyCompensating the Victims of Terrorist Acts: An Assessment, 35 Hofstra L. Rev. 901, 907(2007) ("9/11 was the quintessential once-in-a-lifetime disaster'); Robert L. Rabin, TheSeptember 11th Victim Compensation Fund: A Circumscribed Response or an AuspiciousModel?, 53 DePaul L. Rev. 769, 771 (2003). But see Michele Landis Dauber, The War of1812, September 11th, and the Politics of Compensation, 53 DePaul L. Rev. 289 (2003)(arguing that the WTC Victim Compensation Fund was not unprecedented; the federalgovernment historically has been involved in compensating victims of various types ofcalamities, including other victims of terror).

9 Feinberg et al., FINAL REPORT OF THE SPECIAL MASTER at 84-84; Kenneth R. Feinberg,WHAT IS LIFE WORTH? THE UNPRECEDENTED EFFORT TO COMPENSATE THE VICTIMS OF9/11 (2005) at 178 ("It would be a mistake for Congress or the public to take the 9/11fund as . . . a model in the event of future attacks"); Kenneth Feinberg, The BuildingBlocks of Successful Victim Compensation Programs, 20 Ohio St. J. Dispute Res. 273,276-77 (2005); Q & A: Kenneth Feinberg, Special Master of the 9/11 VictimCompensation Fund (C-SPAN television broadcast July 10, 2005) (stating that the 9/11Fund was an aberration and unique); Kenneth R. Feinberg, Negotiating the VictimCompensation Fund of 2001: Mass Tort Resolution Without Litigation, 19 J. Law &Policy 21, 29 (2005) ("9/11 was unique and gave rise to a unique response. That is theonly way, I think, to explain it."); Feinberg, Transparency and Civil Justice, supra n. 7.

See also, Peter T. Elikann, Book Review, What Is Life Worth?: The Unprecedented EffortTo Compensate the Victims of 9/11, 90 Mass. L. Rev. 48 (2006); Robert L. Rabin, BookReview, September 11th Through the Prism of Victim Compensation, 106 Columbia L.Rev. 464 (2006); James E. Rooks, Book Review, Compensation for Victims of Terrorism,42 Trial 74 (March 2006).

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a model for anyth ing.'o And many, if not most, academic commentatorsagreed with this assessment." And yet, the World Trade Center Victims'Compensation Fund, 2 in its implementation and design, is now touted asthe model for the Gulf Coast Claims Facility.'3 It should give us somepause that the special master who repeatedly disavowed his ownmasterwork should now be relying on his work product again, but in adifferent and anomalous context.

Second, almost every aspect of the Gulf Coast Claims Facility isunlike the World Trade Center Victims' Compensation Fund. Amongnumerous features, the funds differ in the nature of the events giving riseto creation of the fund; authorization, rulemaking, review mechanisms,transparency, election of remedies, applicable law, assistance of counsel,litigation alternatives, as well as the role of the prospective defendants.The Gulf Coast Claims Facility has raised challenging ethical andprofessional responsibility issues, as well as questions relating to thefund's transparency. Hence, any citations to the WTC Fund as aprecedent for the Gulf Coast Claims Facility-by the special master orothers-should b. viewed with guarded skepticism.

Third, and p -rhaps most important, the Gulf Coast Claims Facilityrepresents an unnoticed incremental trend towards the lawless, privateresolution of mass claims, which resolution (in the case of the Gulf CoastClaims Facility) is created by a culpable defendant, unbounded by legalnorms, and administered by a heroic "special master" with limitlessunreviewable discretion, who also is in the employ of the malefactor.Whatever else ray be argued on behalf of the Gulf Coast ClaimsFacility, this cannot be a good development.

10 Feinberg et al., FII AL REPORT OF THE SPECIAL MASTER at 84; Feinberg, WHAT IS A LIFEWORTH, supra n. 9 zt 178; see also Rabin, September 11th through the Prism of VictimCompensation, suprc n. 9 at 479 (contending that the thrust of Feinberg's argument thatthe September I Ith Victim Compensation Fund would be a mistake as a precedent forfuture programs, is p izzling).

" See e.g, Rabin & Sugarman, The Case for Specially Compensating the Victims ofTerrorist Acts, supra n. 8 at 913 (" . . . an ad hoc fund by its very nature runs a substantialrisk of being myopic in design-fixated with excessive particularity on the event at hand.In this regard, the 9/11 Fund provides a cautionary note."); Robert L. Rabin, The Questfor Fairness in Comoensating Victims of September 11, 49 Cleveland St. L. Rev. 573,588 (2001); Larry S. Stewart et al., The September 1 1th Compensation Fund: Past orPrologue?, 9 Conn. Ins. L.J. 153, 171 (2002) (Fund will not likely serve as model forfuture reform of American civil justice system).2 See Air Transportation Safety and System Stabilization Act, IV, Pub. L. No. 107-42,

115 Stat. 230 (2001) (codified at 49 U.S.C.A. § 40101 (West 2003) (hereinafter"ATSA").13 See e.g., Charles E. Lavis, Interview with Ken Fienberg, The IndependentAdministrator of the BP Oil Spill Victim Compensation Fund (June 20, 2010), availableat http://www.bpoilspiIlliawblog.com/2010/06/ken-feinbergs-interview-on-mee.html?utm-sou. (Feinberg drawing on the lessons of the WTC Fund to guide his implementation ofthe GCCF).

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The World Trade Center Victims' Compensation Fund has beenwidely viewed as a tremendous accomplishment in expeditiouslyresolving the claims of thousands of grieving victims of anunprecedented terrorist attack.14 On the other hand, with more considereddistance, several scholars have raised probing questions relating to theprinciples underlyinf the WTC Fund's compensation scheme, as well asits implementation.

A number of scholars have suggested that the World Trade CenterFund represented a hybrid, hodge-podge of conflicting principles drawnfrom tort law, private and governmental insurance models, and socialwelfare schemes.16 At least one scholar has suggested that the model for

14 See Feinberg et al., FINAL REPORT OF THE SPECIAL MASTER at I (" I am pleased toreport that, in my view, the fund was an unqualified success"); Ackerman, The September1lth Victim Compensation Fund, supra n. 8 at (praising the WTC Victim CompensationFund); Peck, The Victim Compensation Fund, supra n. 8; Kenneth R. Feinberg,Negotiating the September 11 Victim Compensation Fund of 2001: Mass Tort ResolutionWithout Litigation, 19 J. Law & Policy 21, 29 (2005); Mike Steenson & Joseph MichaelSayler, The Legacy of the 9/11 Fund and the Minnesota 1-35W Bridge-Collapse Fund:Creating a Template for Compensating Victims of Future Mass- Tort Catastrophes, 35Wm. Mitchell L. Rev. 524, 559 (2009) ("By almost all measures, the Fund was asuccess.").

15 See generally Alexander, Procedural Design, supra n. 5 at 627 (2003) (future disastercompensation systems should focus on institutional design, suggesting several factors toensure substantive and procedural fairness); Chamallas, The September 11th VictimCompensation Fund at 79 (noting that the Fund neither reflects a consistent social visionnor furthers a coherent compensation philosophy; "[i)stead, the Fund is a blended schemethat combines features of a tort-like system of individualized justice with a no-faultinsurance system."); Matthew Diller, Tort and Social Welfare Principles in the VictimCompensation Fund, 53 DePaul L. Rev. 719 (2003); Jean Macchiaroli Eggen, Toxic Tortsat Ground Zero, 39 Ariz. St. L. J. 383 (2007) (proposing management plans for futuremassive toxic tort exposure claims); George L. Priest, The Problematic Structure of theSeptember 11th Victim Compensation Fund, 53 DePaul L. Rev. 527 (2003)("Nonetheless, the September 11th Fund has generated remarkable controversy."); RobertL. Rabin, Indeterminate Future Harm in the Context of September 11, 88 Va. L. Rev.1831 (2002); Rabin & Sugarman, The Case for Specially Compensating the Victims ofTerrorist Acts, supra n. 8 at 913-15; Rabin, The September 11th Victim CompensationFund, supra n. 8; Tom R. Tyler and Hulda Thorisdottir, A Psychological Perspective onCompensation for Harm: Examining the September 11th Victim Compensation Fund, 53DePaul L. rev. 355, 358 (2003) (WTC Fund dialed to create either distributive justice orprocedural fairness amongst recipients of the Fund); But see Brian Walker, Lessons thatWrongful Death Tort Law Can Learn from the September 11th Victim CompensationFund, 28 Rev. Litig. 595 (2009) (arguing lessons from the WTC Fund for reformingwrongful death law).16 See e.g., Alexander, Procedural Design, supra n. 5 at 636-39 (different compensationmodels); Chamallas, The September 11th Victim Compensation Fund, supra n. 5 at 53-55, 58 (describing mixed features of the WTC Fund, and describing the rules andregulations adopted to govern the Fund as a "curious hybrid system"); Diller, Tort andSocial Welfare Principles, supra n. 15 at 721, 724, 726-66 (describing the Fund as anamalgam of tort and social welfare schemes); Priest, The Problematic Structure, supra n.15 at 532-539; Rabin, The Quest for Fairness, supra n. 11 at 576-81; Rabin &

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the WTC Fund is the class action settlement mechanism--with KenFeinberg in the. role of settlement negotiator and administrator-butotherwise lackng the attributes of a settlement class.' 7 Others havequestioned the wisdom of permitting a single, powerful administrator toso completely dominate the creation and implementation of acompensation fund.'8 Surveying this range of criticism, several scholarshave suggested that although the WTC Fund commendably compensatedsome 2700 claimants in a short period of time, and avoided litigation, theWorld Trade Center Victims' Compensation Fund nonetheless lackedlegitimacy in a Jemocratic society.' 9

The serious. challenges that scholars have raised with regard to thelegitimacy of tl e World Trade Center Victims' Compensation Fund haveeven more powerful resonance in relation to the Gulf Coast ClaimsFacility. If the WTC Fund represented a movement towards the embraceof fund-mechanisms for resolving mass tort claims, then the Gulf CoastClaims Facility not only has expanded on this model, but advanced themodel in an even more radical, less lawful direction. In this view, it isdifficult to discern any basis for legitimacy for the Gulf Coast ClaimsFacility. For :hose concerned with the rule of law, equity, andfundamental fairness, the Gulf Coast Claims Facility ought to be a causefor concern.

The arc of Ken Feinberg's career neatly demonstrates the evolutionof at least three different fund models, progressing from arguably themost legitimate to the arguably the least legitimate (and most lawless).This evolution illustrates a seamless progression from (1) a judicially-approved and managed class action fund to (2) a Congressionally-

Sugarman, The Cae for Specially Compensating the Victims of Terrorist Acts, supra n. 8at 913; See Rabin, rhe September 11th Victim Compensation Fund, supra n. 8 at 770 (theWTC Fund is not one model, but three).

17 See Diller, Tor' and Social Welfare Principles, supra n. 15 at 721, 745-47, 757("Feinberg's conccption of his role draws on the model of the Fund as a mass tortsettlement mechanism.")

18 See Elizabeth B -rkowitz, The Problematic Role of the Special Master: Underminingthe Legitimacy of tMe September 11th Victim Compensation Fund, 24 Yale Law & PolicyRev. 1, 3-4 (2006) (arguing that Kenneth Feinberg's role as the special master inadministering the WTC Fund should not serve as a model for the future; "Never before inmodem times has Congress created a position with so much discretion and so littleoversight."); Diller, Tort and Social Welfare Principles, supra n. 15 at 726, 766-68(critical of Feinbe-g's overweening central role in design and implementation of theFund);

9 See Ackerman, The September 11th Victim Compensation Fund, supra n. 8 at 206,citing Richard C. Reuben, Democracy and Dispute Resolution: The Problem ofArbitration, 67 Duke J. of Law & Contemp. Probs. 279, 285-86 (2004); Berkowitz, id. at24-26 (suggesting that the WTC Fund's provision for a litigation alternative was illusoryand another ground for ATSA's illegitimacy); Priest, The Problematic Structure, supra n.15 at 545; Elizabe h M. Schneider, Grief Procedure, and Justice: The September 11thVictim Compensalian Fund, 53 DePaul Law Rev. 457, 489 (2003) (undemocratic processin establishment of the Fund and selection of the Special Master).

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mandated and supervised fund, to (3) a defendant-created and directedfund. In the haste to embrace the fund approach to mass claim resolution,little attention has focused on how these "funds" have evolved fromentities governed by the rule of law to a model essentially unconstrainedby law.

In the ensuing sections, this paper compares several dimensions ofthe World Trade Center Victims' Compensation Fund with the GulfCoast Claims Facility. By focusing on various aspects of fund creationand implementation, the purpose of theses sections is to draw attention tothe ways in which the Gulf Coast Claims Facility is unlike the WTCFund.

After this lengthy exploration of these two funds, the articleconcludes with a discussion of the concept of a "fund approach" to theresolution of mass tort litigation, and raises concerns about this model.This final assessment considers the Gulf Coast Claims Facility in thecontext of other fund resolutions of mass claims, returning to the themethat the Gulf Coast Claims Facility represents a radical and troublingdeparture from other fund resolutions of mass claims, about which rule-of-law advocates ought to be concerned.

II. A Comparison of the World Trade Center Victims'Compensation Fund and the BP Gulf Oil Fund

The World Trade Center Victims' Compensation Fund was creatednearly a decade ago, and with the passage of time, scholars havegenerated an enormous body of historical, analytical, and criticalliterature examining almost every aspect of the WTC Fund.20 The studyof the WTC Fund has been aided by the fact that, as the consequence ofCongressional legislation and rulemaking, as well as the transparencyafforded by the Fund's special master, much information about the WTCFund is in the public domain. In addition, in numerous speeches,articles, books, and media appearances, the WTC Fund special masterKen Feinberg has been unusually active in publically explaining anddefending the WTC Fund. In contrast, the Gulf Coast Claims Facility is

20 See generally Ackerman, The September 11th Victim Compensation Fund, supra n. 8;Alexander, Procedural Design, supra n. 5; Elizabeth Berkowitz, The Problematic Role ofthe Special Master: Undermining the Legitimacy of the September 11th VictimCompensation Fund, 24 Yale Law & Policy Rev. 1 (2006) (criticizing Feinberg's role asspecial master); Robert A. Katz, Too Much of a Good Thing: When Charitable GiftsAugment Victim Compensation, 53 DePaul L. Rev. 547 (2003) (discussing collateralsource rule); Rabin, The Quest for Fairness, supra n. 11 at 576-87; Steenson & Sayler,The Legacy of the 9/11 Fund, supra n. 14 at 530-60 (2009).21 See e.g., Feinberg et al., FINAL REPORT OF THE SPECIAL MASTER, supra; U.S. Dept. ofJustice, Compensation for Deceased Victims: Award Payment Statistics, available athttp://www.usdoj.gov/victimcompensation/payments-injury (reporting that the meanaward for death claims was approximately $1.8 million, with a high of $6.9 million and alow of $250,00, after offsets).22 See e.g., Feinberg, WHAT Is LIFE WORTH?, supra n. 9; Feinberg, The Building Blocks,supra n. 9 (commenting on how he designed a successful compensation system for the

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not the creature of federal legislation. Consequently, and informationrelating to the Gulf Coast Claims Facility has been, at this point, lessaccessible than information relating to the WTC Fund.23

It is not the purpose of this paper to again recite the history of theWTC Fund, which has been explained in great detail in numerous otherarticles.24 Rather, the ensuing sections of this paper focus on variousaspects of the WTC Fund, in comparison to the Gulf Coast ClaimsFacility.A. Events Giving Rise to Creation of the Funds

The events giving rise to the creation of the WTC Fund and the GulfCoast Claims Facility differ in significant ways that bear on thelegitimacy of utilizing a fund approach to compensate alleged victims ofthose events.2 5 Indeed, commentators on the WTC Fund have pointed tothe unique nature of the events giving rise to creation of the WTC Fundas a reason for not extending the fund approach to other types ofcalamitous events.26 On the other hand, the Gulf Coast Claims Facilitywas created in the context of events that scholars have suggested are notespecially suitable for a fund approach to victim compensation.27 As willbe discussed, the events that gave rise to the WTC Fund are unlike thosethat events tha: undergird the Gulf Coast Claims Facility, in significantways for assessing the legitimacy of a fund approach to resolving claims.

9/11 victims); Feirberg, Negotiating the Victim Compensation Fund, supra n. 9.23 The Gulf Ccast Claims Facility website is located at http://gulfcoastclaimsfacility.com. The website includes a "Frequently Asked Questions" section, located athttp://gulfcoastclaimsfacility.com/faq.24 See e.g., Feinberg et al., FINAL REPORT OF THE SPECIAL MASTER, supra; Ackerman, TheSeptember 11th Victim Compensation Fund, supra n. 8 at 143-55 (establishing the WTCFund); Alexander, Procedural Design, supra n. 5 at 627-28, 630-33 (legislative historyof ATSA); Berkowitz, The Problematic Role of the Special Master, supra n. 18 at 5 - 9(same); Conk, WiF the Post 9/11 Worldbe a Post-Tort World?, 112 Penn St. L. Rev. 175,182-88 (2007); Eggen, Toxic Torts at Ground Zero, supra n. 15 at 413-20; Katz, TooMuch of a Good 7hing, supra n. 20 at 576-580 (discussing the Fund program); Rabin,The Quest for Fairness, supra n. II at 576-87;25 Alexander, Procedural Design, supra n. 5 at 718; Rabin & Sugarman, The Case forSpecially Compenrating the Victims of Terrorist Acts, supra n. 8 at 913; see also MichaelCooper, Spill Fund May Prove as Challenging as 9/11 Payments, N.Y. Times (Aug. 21,2010) (comparing the 9/11 events and the Gulf oil spill and the consequences forevaluating comper sation).26 See e.g., Feinberg et al., FINAL REPORT OF THE SPECIAL MASTER at 83-84; Rabin &Sugarman, The Case for Specially Compensating the Victims of Terrorist Acts, supra n. 8at 913 (terrorist attacks not solid foundation for creating a fund; 9/11 Fund offers noprinciple upon which to base publically funded compensation mechanism).27 See e.g., Rabin, The September IIth Victim Compensation Fund, supra n. 8 at 780-81,798, 799-803 (suggesting that responsible defendants ought to be charged with the lossesreflecting what is required to make a deserving plaintiff whole; "I remain unconvincedthat any future special recognition of victims of terrorism outside tort would, or should,depart from the norm.").

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Almost every narrative of September 11, 2001 focuses on the nearlyunprecedented terrorist attack on American soil, comparable perhapsonly to the December 7, 1941 surprise attack on Pearl Harbor.2 8 Thus, innumerous accounts the WTC attacks typically are characterized as aterrorist act of war, and central to this narrative are descriptions of atraumatized country in the wake of the attacks. 29 Thus, manycommentators have reiterated the central theme of national trauma, and aresulting need for unified healing as a compelling rationale for the swiftcreation of a compensation fund.

The September llth WTC terrorist attacks also raised severalfundamental legal quandaries which became central to the WTCnarrative. For example, it quickly became evident that identifyingculpable defendants, in a traditional sense, would raise challengingproblems.' Cleary, the terrorists who seized and piloted the airplanesthat crashed into the World Trade Center towers, the Pentagon, andShankesville, Pennsylvania, would not be defendants.32 The terrorists'countries of origin also raised difficulties as prospective defendants,including sovereign immunity defenses. Federal law circumscribed

28 See Alexander, Procedural Design, supra n. 5 at 653-57 (September 11th programformulated as an ad hoc response to events of single terrible day); Feinberg, Negotiatingthe Victim Compensation Fund, supra n. 9 at 29; Peck, The Victim Compensation Fund,supra n. 8 at 209; Rabin & Sugarman, The Case for Specially Compensating the Victimsof Terrorist Acts, supra n. 8 at 913 (invoking the analogy to Pearl Harbor); Rabin,Indeterminate Future Harm, supra n. 15 at 1843 (Pearl Harbor analogy).29 Ackerman, The September 11th Victim Compensation Fund, supra n. 8 at 140-42(shared national tragedy); see also Peck, id.; Rabin & Sugarman, The Case for SpeciallyCompensating the Victims of Terrorist Acts, supra n. 8 at 913; Steenson & Sayler, supran. 14 at 531.30 See Ackerman, The September 11th Victim Compensation Fund, supra n. 8 at 222("But only the most jaded cynic would not see in the Fund the heartfelt desire to aid one'sneighbor in time of need."); Alexander, Procedural Design, supra n. 5 at 639, 653. Insounding this theme, Professor Alexander has explained:

Or the attacks might be viewed as acts directed symbolically against the entirecountry and its government, making the victims emblematic surrogates for allAmericans. On this view, the expressive content of the act might call for anexpressive act of national generosity towards the victims, who should be treateddifferently from other victims of torts, crimes, or disasters as a way of showingdefiance to the perpetrators-in the words of one commentator, "to serve as anational expression of unity in the face of a tragedy unique in American history, aswell as to help survivors.

Alexander, id. at 639, citing Michael 1. Meyerson, Losses of Equal Value, N.Y. Times atD4 (March 24, 2002).Cf Rabin & Sugarman, The Case for Specially Compensating the Victims of TerroristActs, supra n. 8 at 913 (suggesting that the fact that the 9/11 Fund emerged from thecollective conscience of the nation as a response to calamity "does not seem to offer asolid foundation for the future, offering nothing by way of principle.").31 Alexander, Procedural Design, id. at 637.32 Alexander, Procedural Design, id. at 637.

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airline liability, and airport screening companies were as yet untesteddefendants. In the immediate aftermath of the attacks, other potentialdefendants suc.h as the Twin Tower architects, builders, the PortAuthority, anc. other agencies seemed remote possible defendants. Inaddition, causation problems loomed large.

As has been recited in every account of the WTC Fund, Congressresponded to ihis unique set of events by enacting federal legislationwithin eleven days of the Trade Center attacks. 3 The enabling legislationhad two well-recognized goals: to limit the airlines' liability for theattacks and thereby save the airline industry, and to create fund tocompensate innocent victims of the attacks." The Act's second goal wasintended to spcedily heal the wounds of the unprecedented attacks and tocompensate victims of the terrorist attack out of the national treasury. Inthis view, the entire country responded to the WTC attacks bycommunally providing aid to innocent victims, against the background ofuncertain responsible party culpability.36

The events giving rise to creation of the Gulf Coast Claims Facility,in contrast, were not the result of a terrorist attack on American soil, butrather an explosion on a deep-water oil rig platform in the Gulf ofMexico.37 Eleven oil rig workers were killed, in contrast to the nearly3,000 people who died or were injured in the collapse of the World TradeCenter Towets and the airplane crashes into the Pentagon andShankesville, Pennsylvania.38 Thus, the WTC attacks gave rise to a

3 See generally ATSA, supra n. 12. The Act subsequently was amended by Pub. L. No.107-71 § 124, 115 Stat. 631 (2001) and Pub. L. No. 107-134 § 114, 115 Stat. 2435(2002); Feinberg et al., FINAL REPORT OF THE SPECIAL MASTER at 3-4. For accounts ofATSA's enactment, see e.g., Ackerman, The September Ilth Victim Compensation Fund,supra n. 8 at 143-148; Eggen, Toxic Torts at Ground Zero, supra n. 15 at 413-420.

34 Feinberg el al., FINAL REPORT OF THE SPECIAL MASTER at 3; Ackerman, The Septemberl ith Victim Comprnsation Fund, supra n. 8 at 143; Alexander, Procedural Design, supran. 5 at 630-3 1; Be rkowitz, The Problematic Role ofthe Special Master, supra n. 18 at 1;George W. Conk, Will the Post 9/11 World be a Post-Tort World?, 112 Penn State L.Rev. 175, 181 (2007).3 Feinberg ei al., FINAL REPORT OF THE SPECIAL MASTER at 3; Ackerman, The September11th Victim Compensation Fund, supra n. 4 at 144; Alexander, Procedural Design, id. at631-32; Feinberg, Negotiating the September 11 Victim Compensation Fund, supra n. 9at 21; Steenson & Sayler, The Legacy of the 9/11 Fund, supra n. 14 at 532.3 6 See e.g., Ackenian, The September 11th Victim Compensation Fund, supra n. 8 at 144("The Fund reflec led the national outpouring of grief and sympathy in the wake of theunprecedented attacks of September 11th); Conk, Will the Post 9/11 World be a Post-TortWorld?, supra n. 24 at 181; Feinberg, id.3 BP, Deepwatrr Horizon Accident Investigation Report-Executive Summary,http://www.bp.corn/liveassets/bp-internet/globalbp/globalbp-uk-english/incident-response/STAGING/local-assets/downloads-pdfs/Deepwater-Horizon-Accident-Investiagtion-Report-Executive-summary.pdooperf; Cooper, Spill Fund Could Prove asChallenging as 91 I Payments, supra n. 25.3 See Colaio v. Feinberg, 262 F. Supp. 2d 273, 278 (S.D.N.Y. 2003)(background eventsgiving rise to W 3rld Trade Center litigation); Cooper, Spill Fund Could Prove as

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relatively limited universe of personal injury and death claims, while theBP oil spill largely gave rise to environmental pollution, propertydamage, and business interruption claims from claimants in all fiftystates. In comparison to potential claims arising out of the WTCattacks, the scope of potential BP claimants and liability was enormous.Whereas the WTC attacks implicated problematic defendants enmeshedin complicated causation issues, in contrast, the BP oil spill involved anidentifiable responsible party with more readily apparent culpability.40

At least one primary justification for creation of the WTC Fundcentered on the idea that the World Trade Center claimants wereinnocent victims of a national traumatic event.4 1 In light of this rationale,a number of scholars, as well as Ken Feinberg, have argued that theWTC Fund experience should be cabined to the unique terrorist eventsgiving rise to creation of the WTC Fund.42 Consequently, these scholarshave argued that the WTC Fund experience should not be extended toprovide relief in the wake of other calamitous events such as naturallyoccurring hurricanes, earthquakes, or the like.43 Commentators have usedthis theory to rationalize the federal failure to create a relief fund in theaftermath of Hurricane Katrina, for example.4 4 And, extending thisargument, commentators have suggested that compensation fund

Challenging as 9/11 Payments, id39 Jim Snyder, BP Spill Claims From 5O States Confront Administrator Feinberg,Bloomberg Businessweek (Aug. 16, 2010), available athttp://www.businessweek.com/news/2010-08-16/bp-spill-claims-from-fifty-states-confront-administrator-feinberg (reporting that BP had received more than 142,400claims from all fifty states; most claims based on economic losses, rather than death orinjury); Cooper, Spill Fund Could Prove as Challenging as 9/11 Payments, id.40 The Coast Guard almost immediately designated BP as a "responsible party under theOil Pollution Act of 1990, Pub. L. No. 101-380, § 102, 104 Stat. 484, 489 (codified at 33U.S.C. § 2702 (2006) (hereinafler "OPA"). The OPA states: "each responsible party for avessel or a facility from which oil is discharged, or which poses the substantial threat of adischarge of oil, into or upon the navigable waters or adjoining shorelines or theexclusive economic zone is liable for the removal costs and damages specified insubsection (b) of this section that result from such incident."The OPA includes a $75 million cap for oil spill-related environmental damage. In theaftermath of the Deepwater Horizon explosion and spill, legislation was introduced in theSenate to end this cap. See Barry Meier, Calls to Update Maritime Laws, N.Y. Times(July 5, 2010), available at http://www.nytimes.com/2010/07/07/business/06seas.html?.41 Ackerman, The September 11th Victim Compensation Fund, supra n. 8 at 144; Conk,Will the Post 9/11 World be a Post-Tort World?, supra n. 24 at 18 1.42 See Feinberg et al., FINAL REPORT OF THE SPECIAL MASTER at 83-84; Feinberg, TheBuilding Blocks, supra n. 9; Rabin & Sugarman, The Case for Specially Compensatingthe Victims of Terrorist Acts, supra n. 8 at 913.43 See Rabin & Sugarman, The Case for Specially Compensating the Victims of TerroristActs, supra n. 8 at 914.44 d

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approaches seem entirely unsuitable where a mass tort occurs and thereis a readily ascertainable culpable defendant. 5

In contrast to these limiting arguments, other scholars have arguedthat there is no reasoned basis for distinguishing between innocentvictims of the WTC attacks and the innocent victims of other similardisasters which also have caused national trauma.46 If the concepts of"innocent victim" and "national trauma" have meaning, then there islittle rationale basis for choosing among types of claimants for fundrelief.4 7 Thus, in this view, the creation of the WTC Fund was inherentlyunfair to victims of the first attack on the World Trade Center in 1993,the victims of the Oklahoma federal office bombing (a domestic terroristevent), the victims of the attacks on the Navy ship Cole in Yemen, andthe victims of the embassy bombing in Kenya.48 In this same vein, thesecritics argue that there is no reasoned basis for not extending fundcompensation :o innocent victims of natural disasters, such as theinnocent victims of Hurricane Katrina.49

Despite the debate concerning the nature of the events that supportcreation of a fund approach to compensation (or not), thosecommentators who have addressed this issue do seem to agree on thispoint: that a mass disaster traceable to the actions of a responsible party,that gives rise to legal liability, is not the sort of scenario that justifiescreation of a fund.50 In other words, the events surrounding the BP Gulfoil spill rather precisely characterize the type of disaster that mostcommentators agree should not lead to creation of a fund.B. Authorization for the Funds

Just as the events that gave rise to the WTC Fund and the Gulf CoastClaims Facility differ, so do the authorization for each of these funds.Congress authorized the creation of the WTC Victims' Compensation

45 See Rabin, The September 11th Victim Compensation Fund, supra n. 8 at 780-81, 798,799-803 (suggesting that responsible defendants ought to be charged with the lossesreflecting what is required to make a deserving plaintiff whole; "I remain unconvincedthat any future special recognition of victims of terrorism outside tort would, or should,depart from the nonn.").46 See Feinberg et al., FINAL REPORT OF THE SPECIAL MASTER at 79 (suggesting that thestatus of victims cannot be used to justify the enactment of a unique compensationstatute); Alexander, Procedural Design, supra n. 5 at 653-54; Rabin, The Quest forFairness, supra n. 11 at 588.47 Alexander, Procedural Design, id.; Rabin & Sugarman, The Case for SpeciallyCompensating the Victims of Terrorist Acts, supra n. 8 at 914; Rabin, The SeptemberII th Victim Compensation Fund, supra n. 8.41 See Feinberg ei al., FINAL REPORT OF THE SPECIAL MASTER at 79; Alexander,Procedural Design, id.; Rabin, id.49 Rabin & Sugarmian, The Case for Specially Compensating the Victims of TerroristActs, supra n. 8 at 914.

5o Rabin, The September IIth Victim Compensation Fund, supra n. 8 at 798, 801 ("Tortdefendants ought not to be difficult to identify').

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Fund by a federal statute enacted eleven days after the World TradeCenter attacks.5' The enabling statute performed several functions: itlimited the liability of the airlines, 52 created the compensation fund," andauthorized the appointment of a special master to administer the fund.-Although Congress enacted the legislation with unprecedented speed,ssthe relevant Congressional committees nonetheless entertained witnesstestimony and received legislative suggestions from various interestedgroups and individuals.s6

In creating the World Trade Center VCF, the theme of nationaltragedy was central to the legislation's purpose.57 Hence, the source ofcompensation funds for World Trade Center victims was to come fromthe federal treasury and taxpayer monies; 8 the concept of a nationaltragedy was used to justify calling upon all American citizens tocontribute in a communal fashion to help innocent fellow Americans in atime of calamity.59

s1. See Feinberg et al., FINAL REPORT OF THE SPECIAL MASTER at 3-4; Ackerman, TheSeptember 11th Victim Compensation Fund, supra n. 8 ; Alexander, Procedural Design,supra n. 5 at 627-28, 630-633 (legislative history of ATSA); Steenson & Sayler, TheLegacy of the 9/11 Fund, supra n. 14 at 534 et seq.52 Feinberg et al., FINAL REPORT OF THE SPECIAL MASTER at 3-4; Ackerman, TheSeptember 11th Victim Compensation Fund, supra n. 8; Alexander, Procedural Design,id. at 636-38; 5. According to the caption of the ATSA, the Act was designed "[t]opreserve the continued viability of the United States transportation system." Id.Berkowitz, The Problematic Role of the Special Master, supra n. 18 at 1.s3 Feinberg et al., FINAL REPORT OF THE SPECIAL MASTER at 3-4; Ackerman, TheSeptember 11th Victim Compensation Fund, supra n. 8 ; Alexander, Procedural Design,id. at 630-31. Title IV of the Act, which created the Victims' Compensation Fund, wasdesigned to reduce lawsuits against the airlines for their alleged failure of due care inpreventing or reducing the harm from terrorist attacks.54 Feinberg et al., FINAL REPORT OF THE SPECIAL MASTER at 3-4; ATSA at § 404.Attorney General John Ashcroft appointed Kenneth Feinberg to the post of specialmaster. See September 11th Victim Compensation Fund of 2001, 66 Fed. Reg. at 66,275.See also Alexander, Procedural Design, supra n. 5 at 666-67; Berkowitz, TheProblematic Role of the Special Master, supra n. 18 at 2; Feinberg, Negotiating theVictim Compensation Fund, supra n. 9at 22-23; Steenson & Sayler, The Legacy of the9/11 Fund, supra n. 14 at 534-35.

ss See Berkowitz, The Problematic Role of the Special Master, supra n. 18 at 2.Berkowitz criticizes the haste with which Congress enacted the legislation, suggestingthat "Despite its practical and noble intentions, the ATSSSA, and the Fund in particular,is a hastily constructed legislative patchwork that fails on a variety of counts." Id.56 See Feinberg et al., FINAL REPORT OF THE SPECIAL MASTER at 80; See Ackerman, TheSeptember 11th Victim Compensation Fund, supra n. 8 at 146-47 (describingCongressional House and Senate hearings on the proposed legislation); Berkowitz, TheProblematic Role of the Special Master, supra n. 18 at 5 (describing the contributions andsuggestions put forward by the Association of Trial Lawyers of America to Congress);Peck, The Victim Compensation Fund, supra n. 8 at 14 (same).57 Alexander, Procedural Design, supra n. 5 at 655-56.ss Feinberg et al., FINAL REPORT OF THE SPECIAL MASTER at 4.

s9 See ATSA, 115 Stat. 230, 240 (2001). In creating the Fund, Congress stated that

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The Gulf'Coast Claims Facility, in contrast, has a less clear and moreambiguous genesisW Indeed, it is difficult to pinpoint the precise legalauthorization fir the Gulf Coast Claims Facility, and the parties involvedand commentitors have suggested different sources of authority.6'Shortly after the oil rig explosion on April 20, 2010, the Coast Guarddesignated BP as a "responsible party" under the Oil Pollution Act.62This designation as a "responsible party" triggered a duty on the part ofBP to pay for all costs related to the oil spill and its clean-up.

Pursuant to this designation, BP set up numerous claims officesthroughout the Gulf Coast states, hired hundreds of claims processors,and paid walk-in claims for approximately two months." Little is knownor publicized about the hiring and training of these claims adjusters. TheOil Pollution Act does not, by its terms, require creation of a claimsfacility or a fud or any other mechanism for victim compensation; theAct is entirely vague concerning how a responsible party must satisfy itsduties under the Act.65 Thus, against the backdrop of this vague statutory

whatever compemation awards the special master granted were "the obligation of theFederal Government."60 See Kate Baxter-Kauf and Brett Mares, Environmental Justice Implications of theEfforts to Provide Compensation for Victims of the BP Oil Spill at 6 (Nov. 1, 2010)(submitted to the National Commission on the BP Deepwater Horizon Spill and Offshoredrilling) ("It remains unclear whether the GCCF was instituted under the regulatorypurview of the OPA. Though it shares many characteristics with the fund structureestablished by federal regulations, neither BP nor the federal government has definitivelystated that the OPA. controls the GCCF's function."61 See e.g., Statement of Kenneth Feinberg, Full Hearing on Recovery in the Gulf Whatthe $20 Billion VP Claims Fund Means for Small Business, Hearing before theCommittee on Sm.all Business, United States House of Representatives, I 11th Cong. 2dSession (June 30, 2010) ("This is a purely private facility. It is not a facility of the federalGovernment or a subfacility of an agency. It is a private conpact creating thisindependent facility which I will design and administer.").62 See Gulf Coast Claims Facility, Protocol for Emergency Advance Payments (Aug. 23,2010) (hereinafter GCCF Protocol for Emergency Advance Payments); Baxter-Kauf andMares, Environmer, tal Justice, supra n. 60 at 7.

6 Id. The Coast Guard "directed BP to maintain a single claims facility for allResponsible Parties to avoid confusion among potential claimants."" See BP Press Release, BP to Appoint Independent Mediator to Ensure Timely, FairClaims Process (May 26, 2010), available at http://www.bp.com/genericarticle.do?-categorylD=2012968&contentlD=7062448; BP Press Release, How to Claim Moneyfrom BP's $20 BAllion Fund (June 18th, 2010), available at http://walletpop.com-/2010/06/18/how-to-claim-money-from-bps-20-billion-fund/ (describing BP's priorprocessing of clairrs through the auspices of its contractor ESIS, and that BP made thedetermination wheiher to pay claims; indicating that under new ICF facility awarddecisions would be made available to hear appeals from award determinations.); BPCreates Special Tecm to Speed Up Claim Payments, ABC News (Aug.3, 2010), availableat http://abcnews.gi.Business (reporting that BP was encouraging businesses to contacttheir adjuster or BP to process claims).6 See GCCF Protocol for Emergency Advance Payments, supra n. 62 ("Under the OPA,Responsible Parties must establish a claims process to receive certain claims by eligible

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mandate, various commentaries have suggested that this initial BP claimsprocess between May and August 23, 2010 was chaotic, ad hoc,unsystematized, and largely unregulated. 6 And, these initial BP claimsefforts ex erienced numerous complaints by frustrated and angryapplicants.

Nearly two months after BP had created an ad hoc claims processingeffort in the Gulf States, executives from BP and President Obamaagreed on June 16, 2010 that BP would contribute $20 billion to rectifyclaims as a consequence of the rig explosion and resulting oil spill. 6 Thissum was to be paid into an escrow account to cover BP's ongoing andfuture liabilities. Although the $20 billion amount was widely reported inthe media,69 BP did not actually place this entire amount into escrow. 70

Instead, only $ 3 billion was transferred to an account.Through a controversial but little noticed agreement with the

President, BP's remaining obligations ipursuant to this $20 billioncommitment are to be funded, in the future, by BP's ongoing oil drillingrevenues, largely derived from its offshore drilling efforts in the Gulf.

claimants. USCG ... directed BP to maintain a single claims facility . . .").66 But see Strassel, Mr. Fairness, supra n. 3 (praising BP's initial compensation efforts).Feinberg took over the GCCF from BP on August 23, 2010. See BP to Stop HandlingClaims Relating to Gulf Spill on Wednesday, AP (Aug. 17, 2010) (BP announces it hadpaid approximately $368 million to individuals and businesses, excluding governmentalentity claims).67 BP Creates Special Team to Speed Up Claim Payments, ABC News (Aug.3, 2010),available at http://abcnews.go.Business (reporting that BP was encouraging businesses tocontact their adjuster or BP to process claims); Kaufman, Feinberg Vows Quick responseon Gulf Oil Spill Claims, supra n. 7 (irate criticisms of Louisiana residents to BPpayouts); See Campbell Robertson, As Claims for Oil Spill Losses Shift to Administrator,Queries Follow, N.Y. Times (Aug. 23, 2010) ("Dealing with BP . . . has been anightmare.").68 Thomas Perrelli, Associate U.S. Attorney General, purportedly led negotiations withBP to set up the, claims facility. See Jim Snyder, Feinberg to Meet U.S. Senator asComplaints Mount Over BP Claims, Bloomberg Businessweek (Sept. 28, 2010).69 See Press Release, BP Establishes $20 Billion Claims Fund for Deepwater HorizonSpill and Outlines Dividend Decisions (June 16, 2010), available at http://www.bp.com/-genericaruicle.do?categorylD=2012968&contentld=7062966. The BP Press releaseannounced that Ken Feinbergi would administer the Independent Claimi Facility;, thatfunds would be available to satisfy "legitimate claims," that the ICF w~duld adjudicate allOPA calims and tort claims, ekcluding federal and state claims. BP also indicated that thefund did not cap its liability, but that money left over in the fund once all legitimateclaims were resolved would revert to BP. See also, White House Blog, A New Processand a New Escrow Account for All Oil Spill Claims from BP (June 17, 2010), available athttp://www.whitehouse.gov/blog/2010/06/17/a-new-process-and-a-new-escrow-account.The White House blog indicated that the facility would develop standards for recoverableclaims that would be published, and that a panel of three judges would be available tohear appeals of the administrator's decisions.70 BP Press Release (June 16, 2010), id.7' BP Press Release (June 16, 2010), id.n See Monica Langley, U.S., BP Near Deal on Fund, W.S.J. (Aug. id, 2010), available

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This largely urnoticed arrangement has made the federal government, ineffect, future partners with BP in assuring continued offshore oil drillingin the Gulf.73 Indeed, when the federal government subsequently soughta moratorium on offshore oil drilling in the Gulf,74 the government'sside-deal with BP regarding funding of the escrow account placed thefederal government in conflict with the interests of future claimants inseeking compe:lsation, because continued funding of those compensationobligations are contingent on BP's ability to continue deep-sea offshoreand other drilling in the Gulf."

Although there was extensive media coverage of BP's agreementwith President Obama to place $20 billion in escrow, the precise legalbasis for this a3reement is unclear. There is no Executive PresidentialOrder creating the fund; nor is there any official governmental orderauthorizing the Gulf Coast Claims Facility. It is difficult to ascertainwhat parties were present when President Obama consummated this deal.Unlike the Woild Trade Center VCF, there is no Congressional statutoryenactment undergirding the GCCF. In fact, Congress held no hearings tolay the groundwork for creation of a fund, nor was Congress involved atall in the creatin of the GCCF. In the same vein, there is no ExecutiveOrder or Congressional legislation creating a fund administrator or

at http://online.wsj.:om/article (discussions between Obama administration and BP to usefuture revenues from BP's Gulf of Mexico operations to guarantee its $20 billion cleanupand compensation fund; speculation that deal could produce backlash in Congress).7 See Langley, BP1 Near Deal on Fund, id. ("If this unusual deal is inked, it wouldrepresent a new level of interaction between BP and the federal government. Both sideshave been tied tog.ether, for good or bad, since the Deepwater Horizon rig sank inApril."). This BP agreement with the President is highly similar to the pact that the stateAttorney Generals cntered into with tobacco company defendants in settling the state AGlawsuits against tobacco companies for reimbursement for tobacco-related health injuriesas a consequence (if the sale of tobacco products to citizens. Under the terms of theMaster Settlement Agreement with the tobacco companies, the tobacco defendants'ongoing financial liabilities to state treasuries are to be paid out of future tobacco salesrevenues. It has largely gone unnoticed that the tobacco Master Settlement Agreementwith the States has c ffectively made the States stakeholders in the future well-being of thetobacco companies, with regard to the manufacture and sale of tobacco products. Thestate treasuries get paid their settlement shares as long as the tobacco companies can sellcigarettes and other tobacco products in those states. Similarly, BP has promised to fundthe GCCF from future, ongoing oil production revenues.74 See Clifford Kraiss and John M. Broder, BP Says Limits on Drilling Imperil SpillPayouts, N.Y. Times (Sept. 2, 2010) (BP signaled its reluctance to cooperate with finesand fund payments unless it is able to continue to operate in the Gulf of Mexico; concernover drilling overhaul bill passed by House on July 30, 2010).

76 See Neil King Jr., Feinberg Ramps Up $20 Billion Compensation Fund, W.S.J. (June21, 2010), available at http://online.wsj.com/article/SB100014240527487042563-04575321, noting that fund was created as a "voluntary compact" but without any act ofCongress, executive order, or other legal anchor).

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appointing a special master to oversee, manage, and administer theGCCF."

The legal basis for the Gulf Coast Claims Facility remains obscure,murky, and uncertain. In Congressional hearin s after BP selected KenFeinberg as the attorney to oversee the fund, Feinberg explained to aCongressional subcommittee that he was operating pursuant to a"compact."79 Feinberg was not asked, nor did he explain, what he meantby this "compact," and indeed, there is no evidence in any public orprivate records of a "compact" authorizing creation of the GCCF orappointing Feinberg. And, in subsequent colloquies, Feinberg abandonedthis "compact" conceit and instead vaguely suggested that he wasoperating under the authority of the Oil Pollution Act.80 But, at the timeof his selection to oversee the GCCF, Feinberg seemed unaware of theOPA, and he certainly did not indicate that his authority derived fromthat Act.C. Implementing Standards and Regulations

Because the statute authorizing the creation of the WTC Fund lackedspecific detail with regard to implementing standards, one of KenFeinberg's first tasks after his appointment as the special master tooversee the Fund was to create standards and regulations to governclaimant compensation.82 Over the course of the Fund's existence, twodifferent approaches to creating standards and regulations emergedduring the WTC Fund experience. The first approach embodied legalformalism; the second embraced a free-form, ad hoc discretionarypattern.

Thus, the initial promulgation of rules and standards to govern theWTC Fund was subject to the federal rulemaking process, complete with

" Id. See Strassel, Mr. Fairness, supra n.3 (reporting that, according to Feinberg, "theadministration and BP got together . . . and decided, both, that coming up with aguaranteed sum to pay eligible claims was a creative alternative to years of protractedlitigation.").79 See Graves: Small Businesses Affected by Oil Spill Need Fast, Fair Compensation(June 30, 2010) (report of Feinberg's testimony before the House Small BusinessCommittee), available at http://republicans.smallbusiness.house.gov/News/documents

7 See Statement of Kenneth Feinberg, supra n. 61.so See Brian J. Donovan, BP Oil Spill Victims: Gulf Coast Claims Facility, Litigation orOil Spill Liability Trust Fund?, Countercurrents.org (Nov. 16, 2010),http://www.countercurrents.org/donovan161110.htm.

81 See Statement of Kenneth Feinberg, supra n. 61 at 4.82 Feinberg et al., FINAL REPORT OF THE SPECIAL MASTER at 4-7; ATSA, § 407 (2001).See Ackerman, The September 11th Victim Compensation Fund, supra n. 8 at 148-I56(describing administrative rulemaking process after enactment of ATSA); Alexander,Procedural Design, supra n. 5 at 661; Berkowitz, The Problematic Role of the SpecialMaster, supra n. 18 at 2: "Congress failed to set bright-line rules, enunciate exclusionarydefinitions, or articulate a principled system of compensation. There is simply no"rationale, restraint, ethic or coherence" in the definition of awards, leaving the SpecialMaster unilaterally responsible for filling in nearly every detail of the program." Id.

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a standard "Notice and Comment" period for proposed regulations. Inthis capacity, Feinberg and his staff worked with Congressionalsubcommittees and , other experts to draft proposed standards andregulations to govern the claims process. 84 Interim proposed standards,regulations, governing criteria, as well as sample compensation scales,were published for prospective claimants to review.85 During this noticeand comment period, the Justice Department received more than eighthundred comments on the proposed regulations to implement the Fund.After the comir ent period had expired, and all comments purported werereviewed by Fe inberg's staff, Feinberg issued final regulations governingthe claims process.87

. However, tie resulting standards that were issued as a consequenceof this federal rulemaking turned out to be less firm and "final" incomparison to other federal rulemaking.88 In commenting on Feinberg's

113 See generally :einberg et al., FINAL REPORT OF THE SPECIAL MASTER at 4-7;September IIth Victim Compensation Plund, 66 Fed. Reg. at 55,901 (Nov. 5, 2001)(Notice of Inquiry ad Advance notice of Rulemaking); Administrative Procedure Act, 5U.S.C. § 553 (200). The Interim Final Rule was published on December 21, 2001.September 11th Victim Compensation Fund of 2001, 66 Fed. Reg. 66,274 (Dec. 5, 2001).The Final Rule was published on March 13, 2002. September 11th Victim CompensationFund of 2001, 67 Fed. Reg. 11, 233 (March 13, 2002). See Ackerman, The September11th Victim Compensation Fund, supra n. 8 at 149-55 (describing the notice-and-comment rulemaking process for development of the interim and final rules); Dauber,The War of 1812, supra n. 8 at 342-48 (detailing numerous submissions during the noticeand comment peri d); Katz, Too Much of a Good Thing, supra n. 20 at 577-78(describing notice and comment procedure).

8 Feinberg et al., FINAL REPORT OF THE SPECIAL MASTER at 4-5.8s Feinberg et al., FINAL REPORT OF THE SPECIAL MASTER at 5-7; Ackerman, TheSeptember 11th Victim Compensation Fund, supra n. 8 at 149-55, 210-11; see e.g.,September 11th V ctim Compensation Fund, Presumed Economic Loss CalculationTables (2002), http://www.usd6j.gov/archive/victimcompensation/vc matrices.pdf. Seealso Berkowitz, The Problematic Role of the Special Master, supra n. 18 at 11(describing the process of generating the tables).86 Feinberg et al., FINAL REPORT OF THE SPECIAL MASTER at 5-6; Ackerman, TheSeptember 11th Victim Compensation Fund, supra n. 8 at 149, 210-11. See September11th Victim Compensation Fund of 2001, 66 Fed. Reg. 66,275 (Dec. 21, 20010(codifiedat 28 C.F.R. pt. 104.87 Feinberg et al., FINAL REPORT OF THE SPECIAL MASTER at 5; September 11th VictimCompensation Fund of 2001, Final Rule, 67 Fed. Reg. 11,233 (March 13, 2002) (codifiedat 28 C.F.R. pt. 104), available at http://www.usdoj.gov/archive/victimcompensation/finalrule.pdf. But see Schneider, Grief Procedure, and Justice, supra n. 19 at 489(criticizing establishment of the Fund and appointment of Special Master asundemocratic; noting that September 1Ith families were given little opportunity to shapethe process and the selection of the administrator, although there were many commentson the Interim Final Rule posted on the website).

88 See Ackerman, The September 11th Victim Compensation Fund, supra n. 8 at 152,commenting on the final rule for calculating awards: "The Special Master thereby gavehimself flexibility to depart from his formulaic methodology where he felt thecircumstances warranted."

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rules, one critic noted that "All of Feinberg's regulations,, whetherrestrictive or expansive, exhibited his vast discretion. He construed hisgrant of authority to include few governing standards and pointedlyrejected the idea that he was obligated to provide reasoned explanationsfor his decisions."

Thus, a second discernable characteristic of the WTC Fund was thatthe "final rules" governing the Fund turned out to be rather elastic andchangeable. Indeed, as will be seen below, a signal characteristic of theFund's implementation was Ken Feinberg's frequent modification ofannounced rules and standards, often in response to angry challengesfrom different aggrieved claimants. 90 When confronted with newcomplaints and grievances, Feinberg then arrogated to himself therulemaking process, which rule modifications were not subject to thenotice-and-comment procedure that had occurred at the outset of theFund. Hence, although the WTC Fund was launched with a formalismbefitting a federal statutory program, it quickly deteriorated, intosomething resembling ad hoc, on-the-fly rulemaking by its specialmaster.9'

The different ways in which standards, rules, and regulations weregenerated to govern WTC Fund have bearing on an assessment of theWTC Fund's ultimate legitimacy.92 At the outset, the federal notice-and-comment rulemaking approach provided the WTC Fund with an aura ofparticipatory democracy and legality.93 However, as implementation of

89 Berkowitz, The Problematic Role of the Special Master, supra n. 18 at 13.

90 Ackerman, The September 111h Victim Compensation Fund, supra n. 8 at 155 ("Somevictims' families seemed to fault the Special Master for failing to arrive at a[n award]figure that could actually represent the monumental loss they had suffered . . ."); Diller,Tort and Social Welfare Principles, supra n. 15 at 739-40.

91 Berkowitz, The Problematic Role of the Special Master, supra n. 18 at 11. Incommenting on regulations promulgated pursuant to his delegated authority, Berkowitzhas suggested of Feinberg: "He can act sua sponte, devising his awards as he pleases,disregarding the economic and emotional needs of vulnerable families, and issuingregulations to enforce is discretion." Id. at I1.92 Cf Ackerman, The September 11th Victim Compensation Fund, supra n. 8 at 149(contending that Feinberg's rulemaking process reflected several values of democraticgovernance) with See Ackerman, The September 11th Victim Compensation Fund, supran. 8 at 206, citing Richard C. Reuben, Democracy and Dispute Resolution: The Problemof Arbitration, 67 Duke J. of Law & Contemp. Probs. 279, 285-86 (2004); Priest, TheProblematic Structure, supra n. 15 at 545 ("The September l Ith Fund will remaincontroversial because the source of the definition of its awards-however able andcommitted-is not in any sense democratic. Coupled with the lack of an internal rationaleor constraint, the awards granted by the Fund will continue to remain problematic.").Other commentators have suggested that the WTC Fund signaled the beginning of a"broad regressive trend." See Conk, Will the Post 9/11 World be a Post-Tort World?,supra n. 24 at 253.9 Ackerman, The September I1th Victim Compensation Fund, id. at 149, 208; Feinberg,Transparency and Civil Justice, supra n. 7 at 474-75 (outreach to victims duringrulemaking process).

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the Fund progressed, the formalistic rulemaking processes werejettisoned in favor of ad hoc, discretionary decision-making by a singleall-powerful special master, subject to weak (if non-existent) review.94

In implementing the WTC Fund, at least four forces converged as theimpetus to abaridon formal rulemaking and acquiescence in the specialmaster's ad hoc rulemaking. First, the special master realized that theuniverse of potential Fund claimants was relatively small, and that hissource of comupensation funding-the entire federal Treasury9s-wasessentially infinite. Thus, the special master realized he would be ableto satisfy any and all claims, including expanded grounds for thoseclaims. Against this backdrop, Feinberg could operate as a heroic specialmaster by capitulating to the demands of angry claimants that he modifyor change announced standards in liberal favor of the claimants.

9 See generally Ackerman, The September 11th Victim Compensation Fund, supra n. 8 at156-179 (describing and analyzing various criticisms of the WTC Fund and itsadministration); Chamallas, The September 11th Victim Compensation Fund supra note5, at 57 ("Under the broad Congressional mandate, the Special Master of the Fund hasenormous discretion, more than usually given to a judge or jury"); cf George L. Priest,The Problematic Siructure of the September 11th Victim Compensation Fund, 53 DePaulL. Rev. 527, 545 (2003) (criticizing the standards of WTC Fund awards as non-democratically promulgated); Steenson & Sayler, The Legacy of the 9/11 Fund, supra n.14 at 534 (Feinberg's untrammeled discretion not subject to Congressional oradministrative ove-sight). In commenting on his sizeable discretion, Feinberg noted:"And Congress in its infinite wisdom added a fourth requirement: the Special Master willexercise his discretion to see that justice is done. Congress delegated to me: "Make surethat this works. U:;e your discretion to make it work. We do not know what we aregetting into, so takc it from here." Feinberg, Negotiating the Victim Compensation Fund,supra n. 9 at 23. Se? also Alexander, Procedural Design, supra n. 5 at 667-68, criticizingFeinberg's expansive rulemaking authority in administering the WTC Fund:Nevertheless, this structure should not be adopted for future compensation programs.

Combining legislative and adjudicative powers in a single person, and making that personexempt from any administrative or judicial review, can lead to conflicts of interest, blindspots, poor organization, and the appearance of arbitrariness or bias. Institutional designshould not depend, on finding a single individual with a unique set of talents andexperience; rather, it should assist whoever is assigned to the institution to make gooddecisions.9 Chamallas, The September 11th Victim Compensation Fund supra note 5, at 55; Rabin& Sugarman, The Case for Specially Compensating the Victims of Terrorist Acts, supran. 8 at 907, 909.96 Priest, The Problematic Structure, supra n. 15 at 544 .. . there is no constraint underon awards under th: September Ilth Fund. Its budget is unlimited, and its definitionalprinciples vague. It is therefore not surprising that many victim families have argued forlarger awards."); RE bin & Sugarman, The Case for Specially Compensating the Victimsof Terrorist Acts, sura n. 8 at 907-08 (". . . funding of the 9/11 plan was open-ended sothat the Special Maiter was not provided with any aggregate limit on the compensi. Ionthat might be paid out to victims of the disaster.").9 Diller, Tort and Social Welfare Principles, supra n. 15 at 747; Priest, The ProblematicStructure, id. Commenting on this phenomenon, Professor Diller observed:

Whether due to settlement or the actual threat of bankruptcy of defendants,administrators of mass tort settlement funds are placed in the position of allocating

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Second, Feinberg also recognized that virtually none of his actionswould be subject to meaningful judicial or Congressional review.9' Assuch, he could modify existing promulgated rules and standards withoutsignificant fear of challenge, repercussions, or review. Third, with everyprogressive rule modification that the special master announced thatwent unchallenged, the special master became further empowered to dowhatever he thought best, expedient, or just, in his own view. Withunlimited funding, the special master became the dispenser of generouslargesse.99 In turn, Feinberg also understood that capitulation to claimantdemands, and the provision of compensatory largesse, effectivelybought-off claimant dissatisfaction. 00

Finally, during administration of the WTC Fund claims process, theuniverse of claimants discovered that Feinberg was willing to acquiesceand capitulate to their demands if those demands were pressed insistentlyenough in the public domain as well as other forums.' ' Thus, over timethe WTC Fund processes locked its claimants and the special master inan interesting psychological synergy, whereby the claimants couldachieve their liberal compensation goals and Feinberg could emerge asthe empathetic, heroic special master,10 2 without consequence to eitherparty. Although scholars have discussed the psychological ramifications

a fixed amount among a large number of claimants. The Fund does not present thisproblem, as it has no cap. Ironically, the open-ended nature of the Fund makes itsadministration more difficult because the Special Master cannot parry discontentabout awards with claims that he would have liked to have awarded more but thatthe Fund is simply inadequate. Absent such a limit, he cannot play claimants offagainst each other, but must be prepared to justify each award as an appropriateamount of compensation on its own terms.

Diller, Tort and Social Welfare Principles, at 747.98 Alexander, Procedural Design, supra n. 5 at 667; Berkowitz, The Problematic Role ofthe Special Master, supra n. 18 at 14-16 (noting that Eeinberg had the ability to overseethe review of his own awards, both theoretically and operationally); Steenson & Sayler,The Legacy of the 9/11 Fund, supra n. 14 at 534-35.

9 Feinberg, The Building Blocks, supra n. 9 at 276 (noting the average WTC Fund awardwas $1.8 million: "Just give every victim $1.8 million of the taxpayers' money, tax free.There won't be any mass torts."); Rabin & Sugarman, The Case for SpeciallyCompensating the Victims of Terrorist Acts, supra n. 8 at 907-08.

1o Id.

101 Describing his program for the success of the WTC Fund, Feinberg indicated:

So that, in capsulized form, is the way the program worked. The recipe for successwas pretty clear: make very generous payments; outreach to families; keep goingafter them and corral them; let them know that there are no tricks, and that there isnothing hidden here. This is a transparent attempt by the American people to help.Offer due process considerations. Give everybody the opportunity to be heard.Make yourself available. Reach out to these people. It worked."

Feinberg, id. at 27.

102 A good deal of Feinberg's reflection on his efforts is devoted to his descriptions ofdemonstrating empathy for the WTC claimants' concerns. See Feinberg, Negotiating theVictim Compensation Fund, supra n. 9 at 27.

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of the World TrE de Center events for victims of the disaster,'0 3 scarceattention has been paid to the motivations driving a much-heralded,singular justice-provider, who possesses increasingly god-like powers.

The WTC Fund experience with the promulgation of standards andregulations governing claim compensation provides an interestingcontrast to that of the Gulf Coast Claims Facility. Because the GCCFwas not authorized pursuant to Congressional enactment or Executivebranch oversight, the creation of criteria governing the GCCF claimprocess was subject neither to formal or informal rulemaking. 0 Simply,the GCCF is a largely privatized enterprise not subject to publiclegitimacy constrmints.

As best as can be ascertained, Ken Feinberg and his staff'" made nobackground study of proposed standards for the GCCF prior to theannouncement of rules, or if they did, they made scant effort to publicizetheir efforts. Indeed, due to a lack of transparency,10 7 it is difficult toknow who has bceen responsible for drafting the GCCF protocol rules,what sources have been relied on in drafting standards, and which partieshave participated (if any) in the process. 0 8 The administrator made scant

103 See generally Elizibeth M. Schneider, Grief Procedure, and Justice: The September11th Victim Compensation Fund, 53 DePaul L. Rev. 457 (2003); Tom R. Tyler and HuldaThorisdottir, A Psychological Perspective on Compensation for Harm: Examining theSeptember 11th Victim Compensation Fund, 53 DePaul L. Rev. 355 (2003).

04 See discussion and criticisms of Feinberg as an unfettered, unaccountableadministrator, infra at Part ll.D.3.1os Strassel, Mr. Fairness, supra n. 3 (reporting that Feinberg expected to issue groundrules for claims by the middle of August; still "noodling" over specifics").106 See White House Elog, A New Process and a New Escrow Accountfor All Oil SpillClaims from BP (June 17, 2010), available at http://www.whitehouse.gov/-blog/2010/06/17/a-new -process-and-a-new-escrow-account. The White House blogindicated that the facil.ty would develop standards for recoverable claims that would bepublished, and that a ?anel of three judges would be available to hear appeals of theadministrator's decisions.Among the numerous iransparency issues enmeshed in the GCCF, there is no indicationin the public domain concerning who has staffed Feinberg's offices or facilities, and whohas been involved with drafting standards, settling claims, or reviewing internal appeals.Nor is there any documentation concerning the credentials and experience of GCCF staff.In addition, there is no documentation of the nature and level of training afforded personsworking under Feinberg's supervision in administering the GCCF. See Alexander,Procedural Design, supra n. 5 at 669, criticizing the lack of transparency in the selectionof Feinberg's staffers to administer the WTC Fund: "There were no published criteria forthe selection of Spec: al Master's subordinate adjudicators. Though the individualsselected had impressive resumes, the list was criticized for including "too many corporatedefense lawyers and to) many people plucked from Mr. Feinberg's Rolodex of friends,former colleagues, and:'ellow mediators."107 See discussion of la -k of transparency in implementation of the GCCF, infra at PartII.C.2. See also Neil King Jr., Feinberg Criticizedfor Spill-Compensation Terms, W.S.J.(Aug. 24, 2010) (contention that Feinberg was laying down rules for the claims fund withlittle input from the statos most affected).10 King, Feinberg Criicized, id. See also, The Gulf Claims Racket; The Lawyers Are

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effort to publish proposed protocol rules and regulations in advance oftheir implementation.'09 And, although Feinberg made well-publicizedtours of Gulf coast towns in the weeks after the oil spill and held several"town hall" meetings,"o he nonetheless did not provide for a formalpublic notice-and-comment on proposed standards. " Instead, he seemedto suggest that these "town meetings" somehow served as a surrogate fora notice-and-comment regime. In the absence of formal rulemaking,Feinber 's staff issued emergency and final protocol rules governing theGCCF. 2

On the other hand, following the arc of his experience with the WTCFund, Feinberg in administering the GCCF quickly segued into therulemaking model that evolved in administering that WTC Fund. Thus,skipping over any formal rulemaking process for the GCCF, Feinbergresorted to the same ad hoc decision-making model that characterized hissupervision of the WTC Fund in its later stages. And, similar to the WTCexperience, once a set of rules were set forth in the public domain,Feinberg repeatedly defaulted to a pattern of concessions, amendments,

Upset They Aren't Getting more of the Action, W.S.J. (Aug. 26, 2010) (reporting that theState Attorneys General for Alabama, Mississippi, and Florida had taken "Mr. Feinbergbehind the woodshed for a couple of hours to express our concerns about the draft claimsprotocol he had circulated.").10 Kaufman, Feinberg Vows Quick Response on Gulf Oil Spill Claims, supra n. 7(Feinberg promises local Louisiana residents that he would quickly make public a ten-page document detailing how calculations for awards would be made); lan Urbina, BPSettlements Likely to Shield Top Defendants, N.Y. Times (Aug. 20, 2010), available athttp://nytimes.com./2010/08/20/us/20spill.html? (reporting on proposed protocol foremergency payments from internal documents from lawyers at the fund).110 Kaufman, Feinberg Vows Quick Response, id.(town meeting in Houma, Louisianawhere local residents complain of fuzzy details of Feinberg's claims-processingstandards: "I've seen your little paper and stuff, but it doesn't say what will be deducted". . . "Just the same thing BP did, when it came to the claim, no one knows how it works.And there is not paper stating how. I would like something in my hand."); FeinbergReleases "Emergency Protocol' for BP Oil Spill Claims, al.com (August 20, 2010),available at http://blog.al.com. (reporting Feinberg's early release of emergency paymentprotocol; Feinberg stating that the guidelines were the result of many town hall meetingsthroughout the Gulf, listening to people affected by the disaster.").." Neil King Jr., Feinberg Criticized for Spill-Compensation Terms, W.S.J. (Aug. 24,2010) (noting that Feinberg's dozens of town hall meetings hadn't shielded him fromaccusations of secrecy and coziness with BP; criticism from Alabama State AttorneyGeneral Troy King, accusing Feinberg of acting as a "corporate shill").112 See Gulf Coast Claims Facility, Protocol for Emergency Advance Payments (August23, 2010), supra n. 62; Press release, Gulf Coast Claims Facility now Processing Oil SpillClaims (Aug.23, 2010), available at http://www.gulfcoastcaims facility.com/pressl.php.See also, Angel Gonzalez, Oil-fund Czar Vows Ample Payouts, W.S.J. (Aug. 23, 2010)(criticisms from Florida State Attorney General Bill McCollum, arguing that protocolsfell far short of p:otections mandated by OPA and were even less generous to Floridiansthan the prior BP process); Neil King Jr., Feinberg Criticized for Spill-CompensationTerms, W.S.J. (Aug. 24, 2010) (criticism from Alabama State Attorney general TroyKing, accusing Feinberg of acting as a "corporate shill").

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and modifications in response to constituent challenges."'3 However, incontrast to the WTC Fund, Feinberg's on-the-fly rule modifications inadministering the GCCF have been made in response to objections andrequests not only from claimants,' 14 but from BP itself."'

The reasons fbr the administrator's decisions to act in this fashion arespeculative, but follow the trajectory of the WTC Fund experience. Onceagain, Feinberg is functioning in a setting where he believes he has.unlimited financial resources to compensate the universe of claimants.And, even more pronounced than the WTC Fund setting, Feinberg isaccountable to no one"' and subject to virtually no review."' In thissetting, the psy-hological motivation to prevail as the celebrityadministrator of the Gulf Coast oil calamity presents an enormous ego-driven temptation, which in turn is conducive to heroic gestures ofsympathy, largesse, and ad hoc justice.

As discussed above, the WTC Fund and the GCCF providecontrasting models of rulemaking to implement the funds' compensationschemes. The thi ee following examples illustrate the ways in whichFeinberg, as the special master overseeing the WTC Fund and asadministrator of the GCCF, developed and implemented detailedprogrammatic rules for each fund.

1. EligibilityThe federal legislation authorizing creation of the WTC Fund

provided only ge:neral guidance concerning who would be an eligibleclaimant to the fund." 8 The statute provided compensation from the fundfor any person who had suffered physical harm or death at the scene ofthe crashes, aboard the planes, at the time or in the immediate aftermathof the crashes." After Congress enacted the enabling statute, however,

.' See Campbell Robertson, As Claims for Oil Spill Losses Shift to Administrator,Queries Follow, N.Y Times (Aug. 23, 2010) (noting shifting pqlicies on real estatereimbursement and loit property values; change from BP position); Campbell Robertsonand John Schwartz, Rethinking the Process for BP Spill Claims, N.Y. Times (Sept. 15,:2010) (Feinberg rethinking parts of his process)."4 Robertson and Schwartz, Rethinking the Process, id., (Gulf Coast claimant suggesting:"How they churned out these checks I don't know ... BP took care of us way better thanthis man did.").: See Urbina, BP Settlements Likely to Shield Top Defendants, supra n. 109 (BP

influence on scope of waiver and release, requiring GCCF fund claimants to waive rightto sue not only BP, bui all other major defendants involved with the spill).116 Feinberg has made repeated protestations of his complete independence inadministering the GCCF. See discussion of Feinberg's independence and conflict-of-interest challenges, infra at Part II.D.4.' See discussion of Feinberg's lack of accountability and review in administering the

GCCF, infra at Part 11. D.3-4.11 See generally Feinberg et al., FINAL REPORT OF THE SPECIAL MASTER at 18-29;Feinberg, Negotiating the Victim Compensation Fund, supra n. 9 at 22; Steenson &Sayler, The Legacy of ihe 9/11 Fund, supra n. 14 at 540-41.119 Feincerg ei al., FIhAL REPORT OF THE SPECIAL MASTER at 19-22; ATSA at § 405(c)

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the general eligibility requirements were further refined through a noticeand comment rulemaking process. 12 Over the months of debatesurrounding eligibility requirements, Special Master Feinberg concludedthat the Fund had to align its eligibility requirements with state law toavoid conflicts with the administration of a decedent's estate.121

Pursuant to the rulemaking process, eligibility requirements formaking a claim in the WTC Fund were refined to embrace definitions ofwho was a legal re resentative122 and what constituted the "vicinity" ofthe disaster sites.' Regulations also refined the statutory criteria of"immediate aftermath"-limiting claims to a twenty-four hour reportingperiod after the incidents-and "physical harm." 24 As a consequence ofvarious regulations, eligibility was thus both geographically andtemporally circumscribed. The types of claims eligible for compensationalso were limited to personal injury and wrongful death causes ofaction.125 Future claimants for exposure-only injuries (such as respiratoryailments) were notably excluded.12 6 In addition, property damage,

(2) (A)-(C); 66 Fed. Reg. 66,282, § 104.2(c) (1), (2) (Dec. 21, 2001). The Act originallyprovided for compensable economic loss, which embraced pecuniary loss, including theloss of earnings or other benefits related to employment, medical expense loss,replacement services loss, burial costs, and loss of business or employment opportunities.Compensable non-economic loss included physical and emotional pain, suffering,inconvenience, physical impairment, mental anguish, disfigurement, loss of enjoyment oflife, loss of society and companionship, loss of consortium, hedonic damages, injury toreputation, and all other non-pecuniary losses of any other kind or nature. See ATSA at§§ 402(5), (7). See also Alexander, Procedural Design, supra n. 5 at 684-86; Peck, TheVictim Compensation Fund, supra n. 8 at 224. The statute excluded compensation forpure mental or emotional distress. See Feinberg, Negotiating the Victim CompensationFund, supra n. 9 at 22.

120 Feinberg et al., FINAL REPORT OF THE SPECIAL MASTER at 18-29; Alexander,Procedural Design, supra n. 5 at 684.121 Alexander, Procedural Design, id.122 See Feinberg et al., FINAL REPORT OF THE SPECIAL MASTER at 24-29; 67 Fed. Reg.66,283, § 104.4 (Dec. 21, 2001). The regulations rely on state law to determine whocould file as a "personal representative."123 See Feinberg et al., FINAL REPORT OF THE SPECIAL MASTER at 19-22; 67 Fed. Reg.11,242 (Mar. 13, 2002).124 See Feinberg et al., FINAL REPORT OF THE SPECIAL MASTER at id.; 66 Fed. Reg. at66,282, §§ 104.2(b), 014.2(c) (1), (2).125 Feinberg et al., FINAL REPORT OF THE SPECIAL MASTER at 18-24; ATSA at § 405(b)(2).126 Ackerman, The September 11th Victim Compensation Fund, supra n. 8 at 160-61;Alexander, Procedural Design, supra n. 5 at 684-85. See also Conk, Will the Post 9/11World be a Post-Tort World?, supra n. 24 at 198-206 (describing the potentialrespiratory claims for rescue.and other workers at the Ground Zero site); Eggen, ToxicTorts at Ground Zero, supra n. 15 at 415-16; Rabin, Indeterminate Future Harm, n. 15 at1833-34; Steenson & Sayler, The Legacy of the 9/11 Fund, supra n. 14 at 542. In theensuing decade, the claims of first-responders and other workers on the WTC sites forexposure-type injuries would lead to heated contention and eventually resulted in federalenactment of an additional compensatory-relief statute in December 2010. See James

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business interruption, otheri non-tortious claims were excluded,"27 as wellas claims for emotional traumna and distress.128

The WTC Fund quickly became enmeshed in several disputesconcerning the definition of eligible claimants, focusing on whoconstituted a legal representative eligible to pursue and recover aclaim.'29 Numerous disputes emerged among contending family and non-family members.130 The legal status of unmarried partners, non-residentaliens, as well as illegal aliens to recover under the WTC Fund was hotlycontested.' 3' Futhermore, competing family members argued overallocation of awards among family members.' 2 Some people objected tothe under-inclusiveness of the Fund in failing to provide for victims ofother terrorist acts. 33 As indicated above, despite the existence ofpromulgated rules that restricted claimant eligibility, Special MasterFeinberg-on his own authority and in response to publicchallenges-relaxed these eligibility requirements, most notably forunmarried partners and undocumented aliens.134

In contrast, eligibility for making a claim in the GCCF has not beensubject to broad authorization by federal statute creating the facility, norby Executive Order. Eligibility is only remotely derived from the OPA,which does not by its terms indicate which parties or entities are eligiblefor compensation after the Coast Guard desinates a "responsible party"as the consequence of an oil spill disaster.'3 In this legislative vacuum,Feinberg as the GCCF administrator has arrogated to himself and hisstaff the power and authority to determine eligibility for compensation.

Zadroga 9/11 Health and Compensation Act of 2010, Pub. L. No. 111-347, 124 Stat.3623 (2011).'" Alexander, Procedural Design, supra n. 5 at 686 ("ATSA provided victimcompensation only for person injury and death. In order to file a claim, however,claimants had to waive all claims against everyone other than the terrorists, even propertydamage claims that were not covered by the Fund."); Steenson & Sayler, The Legacy ofthe 9/11 Fund, supra n. 14 at 540.

128 Steenson & Saylei, The Legacy of the 9/11 Fund, supra n. 14 at 542.129 Feinberg et al., FINAL REPORT OF THE SPECIAL MASTER at 24-29; Berkowitz, TheProblematic Role of the Special Master, supra n. 18 at 13; Feinberg, Negotiating theVictim Compensation Fund, supra n. 9 at 24-25.130 id

' Id. See also Chainallas, The September 11th Victim Compensation Fund at 63-67(describing the disp irate treatment of upmarried partners and single-sex couples);Steenson & Sayler, Tue Legacy of the 9/11 Fund, supra n. 14 at 540-41;132 Id. Feinberg refus sd to become enmeshed in intra-family disputes over allocation ofWTC awards among family members, instead referring them to state court and applicablestate law to resolve such disputes.13 Ackerman, The September 11th Victim ('ompensation Fund, supra n. 8 at 156-57.Steenson & Sayler, The Legacy of the 9/11 Find, supra n. 14 at 541.134 See Feinberg et al. THE FINAL REPORT OF tHE SPECIAL MASTER at 29-30.135 See GCCF Protocolfor Emergency Advance Payment, supra n. 62 ("whether or not aclaim has been presented shall be governed by OPA and applicable law.").

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From the outset, eligibility for compensation from the GCCF hasbeen governed by a combination of published standards' 36 and shiftingpronouncements from the administrator. Before the formal opening ofthe GFFC in August 2010, BP handled claims on a walk-in ad hoc basisat various locations on the Gulf Coast. 37 The ad hoc nature of the BPclaims processing efforts inspired numerous com laints about the lack ofstandards and inconsistency in claim processing.

The formal commencement of the GCCF marked an effort to bringorder to claims processing, including eligibility criteria. From the outset,and as early as August 16, 2010, administrator Feinberg publicly mulledover eligibility criteria for claimants,139 with considerable controversycentered on the concept of "proximity." 40 Initially, Feinberg announcedthat he was skeptical that remote inland claims would be eligible forcompensation from the facility.141 Indeed, Feinberg reflected that hisWTC Fund efforts had been simplified by the geographic constraintsimposed on eligibility for that fund. 42

136 See id. The protocol for emergency payments indicated:

The GCCF will only pay for harm or damage that is proximately caused by theSpill. The GCCF's causation determination of OPA claims will be guided by OPAand federal law interpreting the OPA and the proximate cause doctrine.Determination of non-OPA claims will be guided by applicable law. The GCCFwill take into account, among other things, geographic proximity, nature of theindustry, and dependence upon injured natural resources.

"See discussion of BP's initial handling of claims from May through August 23, suprann. 66-67; Kaufman, Feinberg Vows Quick Response on Gulf Oil Spill Claims, supra n. 7(criticism of BP compensation program and inconsistent awards).138 Id. See also Mike Tolson, A Storm Brews in Alabama Over BP's Promise; MonthsAfter the Oil Giant Promised to Pay for Losses, Many Say They Have Seen Little orNothing, Houston Chron. (Dec. 13, 2010) (complaints over pace and extent ofcompensation payments; inconsistent awards).139 See John Pacenti, Plainiffs' Attorneys Knock BP Fund Administrator, Daily BusinessReview (July 26, 2010) (Feinberg faces tough decisions on eligibility; claimants whoworked on cash basis; businesses miles from the coast); Snyder, BP Spill Claims From 50States Confront Administrator Feinberg, supra n. 39 (Feinberg reflecting on geographicstandards to govern claim eligibility).140 Snyder, BP Spill Claims From 50 States, id.; see also Urbina, BP Settlements Likely toShield Top Defendants, supra n. 109 (discussing geographic proximity standards inproposed protocol for emergency payments); Cooper, Spill Fund Could Prove asChallenging as 9/11 Payments, supra n. 25 (emergency protocols place premium ongeographic proximity to spill).141 Snyder, BP Spill Claims From 50 States, id; (suggesting that hotel operators 50 milesinland were unlikely to be compensated for tourism losses); Urbina, BP SettlementsLikely to Shield Top Defendants, supra n. 109 (suggesting that ice cream parlors or golfcourses miles from the affected shore would probably not be eligible for compensation).

142 Urbina, BP Settlements Likely to Shield Top Defendants, supra n. 109 (noting that akey difference between the spill fund and the Sept. 11th victim compensation fund is thematter of geographic proximity).

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In contrast, the GCCF presented Feinberg with a large universe ofclaimants spread over an extensive geographic area, including the fiveGulf States; but which also potentially extended beyond the Gulf Statesto more remote quarters. 43 The classic example he summoned to explainhis dilemma waLs whether a restaurant owner in Boston, Massachusetts,who relied on Grulf shrimp supplies, should be eligible for compensationfrom the Fund for the increased costs associated with a depleted fishsupply.'" Feinberg repeatedly informed the media that he thought not.145

In absence of clear guidelines, the argument over eligibility based onproximity did not abate.'" Initially, the GCCF appeared to resolve theclaims of the most obvious, directly-affected Gulf persons and businessesthat had been a:Tected by the oil spill.14 7 But as it became apparent thatthis was not a sufficient response, Feinberg's staff attempted to addressthe proximity issue with the use of charts and maps delimiting theboundaries of alleged contamination and damage, as it related to claimeligibility." This approach engendered further conflict and animosity,and Feinberg and his staff eventually abandoned the charts.149

As was true for the WTC Fund, over the course of several weeksFeinberg changed his mind several times about proximity eligibility, stillwithout issuing clear standards or the rationales for those standards. 50

14 See Strassel, M. Fairness, supra n. 3 (reporting that tens of thousands of claimantswith potential claims against the fund); Snyder, BP Spill Claims From 50 States ConfrontAdministrator Feiniberg, supra n. 39; Cooper, Spill Fund Could Prove as Challenging as9/11 Payments, supra n. 25.

' See Anna Fifilec., Mediator Purs Fairness at the Centre of BP Fund, Financial Times(June 25, 2010).

'" Neil King Jr., F'einberg Criticized, supra n. 107 (proximity issue big in Florida;Florida Attorney General criticizes proximity rules as completely unacceptable); JohnSchwartz, Final Se dement Phase Starts for BP Oil Spill, N.Y. Times (Nov. 24, 2010)(Feinberg attempts to resolve proximity issue in new rules).o Urbina, BP Setalements Likely to Shield Top Defendants, supra n. 109 (proposed

protocols give top priority to persons or businesses in communities or municipalitiesadjacent to beach siioreline, marsh, bay, tributary, or the gulf where oil or oil residuescame ashore or appe ared in waters).4 Neil King Jr., Feinberg Criticized, supra n. 107 (reporting that Feinberg and staffbeginning to sketch in rough boundary lines on maps to help guide decisions).14 See Jim Snyder, Feinberg to Meet U.S. Senator as Complaints Mount Over BPClaims, Bloomberl; Businessweek (Sept. 28, 2010) (Feinberg to ease proximityrequirements).150 See Marc Caputo, BP Claims Czar Kenneth Feinberg Drawing Fire From AttorneyGeneral Bill McCohum, St. Petersburg Times (July 6, 2010) (noting'that Feinberg had yetto provide details atout who would receive compensation and who vould not; reportingthat Feinberg prom sed to come up with "expansive" eligibility definition in comingweeks); Robertson and Schwartz, Rethinking the Process, supra n. 113 (Feinbergrethinking his position on proximity rule); ); Bryan Walsh, Oil Spill. Kenneth FeinbergMakes the Final Rules for Spill Settlement, But Are They Fair? (Nov. 24, 2010), availableat http:'/ecocentric.t'logs.time.com.2010/11/24/ (noting that Feinberg had "flip-flopped

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Gulf residents, their lawyers, and local politicians severely criticizedFeinberg's proposed eligibility criteria as based on restrictive state lawconcepts of "zones of eligibility," as opposed to following the OPA.'5

The initial draft protocols for emergency payments also listed anumber of claims that the GCCF would not reimburse.'52 These includedclaims for loss of property values, persons adversely affected by theObama administration's moratorium on Deepwater drilling in the Gulf,mental health claims, or lost tourism revenue because of governmentpredictions that the oil slick was headed in the direction of thebusiness.'" Other potential claimants excluded from eligibility includedgovernmental entities, real estate agents and brokers, and businesses orindividuals with a property damage claim that occurred during the"Vessels of Opportunity" program.154 In addition, certain non-OPAclaims could not be recovered through the GCCF.'ss

Although eligibility exclusions were gradually layered onto thefacility's criteria, administrator Feinberg-similar to the evolution of theWTC Fund-pursued a course of increasing claimant appeasement byfurther extending eligibility, including increasingly remote proximityclaims.'56 Moreover, several eligibility claims had absolutely nothing todo with proximity, at all. For example, Feinberg eventually capitulated tothe interest group lobbying of the professional real estate agents, whoinitially were excluded from the fund. ' After considerable pressure,

several times on the proximity issue).' Urbina, BP Settlements Likely to Shield Top Defendants, supra n. 109; but see Jim

Snyder, Feinberg to Meet US. Senator as Complaints Mount Over BP Claims,Bloomberg Businessweek (Sept. 28, 2010) (Feinberg to ease proximity requirements).152 See generally GCCF Protocol for Emergency Advance Payment, supra n. 62 (listingamong eligible claims: removal and clean-up costs, real or personal property, lost profitsand earning capacity, subsistence use of natural resources, physical injury or death). Butsee Urbina, BP Settlements Likely to Shield Top Defendants, supra n. 109 (listingproposed claim exclusions).153 Urbina, BP Settlements Likely to Shield Top Defendants, id.

'4 See GCCF Protocol for Emergency Advance Payment, supra n. 62. The "Vessels ofOpportunity" program was the BP program which utilized fishing vessels owned by GulfCoast fishermen to assist in the clean-up efforts. See also Ryan Dezember, Safety NetEludes Some Oil Workers, W.S.J. (Oct. 8, 2010) (reporting that shallow-water rigworkers, unlike deep-water counterparts, were ineligible to receive compensation underthe fund). Rig-workers were required to apply through a separate entity, the Rig WorkerAssistance Fund, a BP set-aside of $100 million for workers who lost their jobs after thefederal government enacted a six-month moratorium on deep-water drilling.55 id.

156 See e.g., Press Release, Feinberg Announces Clarification Regarding GeographicProximity (Oct. 4, 2010), available at http://www.guldcoastclaimsfacility.com-/press7.php. ("After listening to these concerns, I have concluded that a geographic test todetermine eligibi!ty regarding economic harm due to the oil spill is unwarranted"); BPCzar: Proximity Has No Role in Payment, The Wash. Post (October 4, 2010);'s7 See Snyder, BP Spill Claims From 50 States Confront Administrator Feinberg, supran. 39 (indicating that as early as August 16, 2010, Feinberg had set aside a "modest

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Feinberg-as the result of a special, political deal-carved out specialtreatment for the real estate agents who had been pressing claims basedon the diminution of their business revenues as a consequence of adownturn in the real estate market.'58 On the other hand, by December2010, Feinberg in exasperation indicated that he could not and would notfind anyone and everyone eligible.'59

Moreover, eligibility requirements were intricately intertwined withproof of business claims and authentication of alleged business orproperty losses. The facility lacked clearly defined criteria relating towhat different types of individuals and entities were entitled to relief, andwhat burden o:' production was needed to establish a basis forcompensation.' In numerous town meetings and media interviews,

amount", which he did not disclose, to compensate Gulf State realtors, whose tradeassociation had met with Feinberg the week before. "The realtors have "suffered a greatdeal" in lost sales, rnt, and commissions, [Feinberg] said."); Snyder, Feinberg to MeetU.S. Senator as Complaints Mount Over BP Claims, supra n. 68 (special deal forrealtors).' Urbina, BP Settlements Likely to Shield Top Defendants, supra n. 109 (reporting on

political deal struck with governors of Alabama and Mississippi, setting asideapproximately $60 million from the fund in a special pool to compensate negativelyaffected real estate brokers in the gulf region who were otherwise ineligible forcompensation from the fund. 'this money was not to be distributed by Feinberg, butrather by the National Association of realtors in Washington D.C. or local chapters inAlabama, Florida, Louisiana, Mississippi and Texas. In addition, the national associationwas to set eligibility requirements-not Feinberg-although Feinberg would view thosecriteria): Snyder, Feihberg to Meet US. Senator, id.

15 Mike Tolson, A .torm Brews in Alabama Over BP's Promise; Months After the OilGiant Promised to Py for Losses, Many Say They Have Seen Little or Nothing, HoustonChron. (Dec. 13, 2010) ("He said there is no strict policy on what type of claim is beinghonored, only that h:s accountants evaluate how the loss was connected to the spill. Hedid note that lawyer.;, doctors, dentist, and veterinarians were out of luck. "I can't findanyone and everyone eligible. . . I'm doing what BP and the administration have asked ofme.').16 But see GCCF Protocol for Emergency Advance Payment, supra n. 62 (listing whattype of information needed to be submitted as proof of claims). Criticisms ofimplementation of the CGGF evaluation and award determinations have continued evenafter the GFCC promulgated protocols for final settlement of claims. See SusanBuchanan, Fisherme,7 Dismayed Over Low Payouts in Spill Claims, Louisiana Weekly(Jan. 18, 2011):

Kevin Dean, attorney in charge of BP litigation at Motley Rice LLC in Charleston,South Caroline, pointed to similar problems faced by his firm's clients, whichinclude charter and commercial fishermen from Louisiana and other Gulf states."Many of thern with documented and legitimate claims have had their GCCFclaims denied," he said. On attempts by Motley Rice, which assists clients withtheir clams, to contact GCCF, "there's been no one there to explain why they wererijected, so yoi are shooting in the dark as to how to correct or supplement theclaim."Dean said "many of the claims adjusters seem to be temporary contractors," lackingthe will, experience or guidance to handle simple claims. Feinberg changes therules almost daly, he said. "There's no consistency as to how claims are processed,

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administrator Fenber reiterated that burdens of production and proof onpersons seeking relief were de minimus, 61 and he repeatedly stated thatin the cash economy of the Gulf states, fishermen, shrimp haulers, andothers similarly situated could establish their claims if their local priestvouched for them.162

However, in the same fashion that the QCCF staff abandoned theirproximity charts and maps, 'the staff also resisted actual claims-processing based on little more than vouching-in by the parish priest. Asit turned out, proof of claims proved difficult for many claimants,ts3 andFeinberg repudiated his prior statements about accepting letters fromlocal pastors as sufficient proof of clainants'. losses.6

In addition, the staff gradually abandoned the ad hoc model ofclaims processing on an individualized basis. In order to provide at leastsome consistency across categqries of claimants,16 5 on September 25,2010 Feinberg announced that claimants would now be "grouped" by

and much of it depends on which adjuster your claim was assigned to."Claims can be denied because of mihor omissions, Dean said. "We did find out thatone of our client's claims-wich had been under review for over eightweeks-was rejected because of I simple clerical mistake in the Social Securitynumber. But instead of calling my -office for verification or correction, they deniedthe claim," he said.

161 Kaufman, Feinberg Vows Quick Response on Gulf Oil Spill Claims, supra n. 7(Feinberg informs Louisiana town hall participants: I don't need reams and reams ofstuff. I don't need a tax return, Do you have something you can show me? Well, the shipcaptain will vouch for me - fine. Well, my priest will - fine.").162 John Schwartz, For Kenneth Feinberg, More Delicate Diplomacy, N.Y. Times (July16, 2010) (Feinberg indicating that the captain of the boat or the local priest could vouch-in a claimant's work history); Kaufman, Feinberg Vows Quick Response on Gulf Oil SpillClaims, id.163 See e.g., Ylan Q. Mui, Louisiana Offic als Urge BP to Speed Claims Payments, Wash.Post (July 6, 2010), available at http://www.washingtonpost.com/wp-dyn/content/article/2010/07/05 (describini difficulty of claimants in supplying proof ofclaims); Marc Caputo, BP Claims Czar Kenneth Feinberg Drawing Fire From AttorneyGeneral Bill McCollum, St. Petersburg Times (July 6, 2010) (same); David A.Fahrenthold and Kimberly Kindly, Six Months After the Spill, BP's Money Is Changingthe Gulfas Much as Its Oil, The Wash. Post (Oct. 20, 2010) (difficulties in implementingemergency payments); Dionne Searcey, Bumpy Start to BP Fund Puzzles Gulf W.S.J.(Oct. 20, 2010) (documenting many problems and frustration with claims processing);see also Press Release, Gulf Coast Claims Facility Marks One-Month Anniversary (Sept.23, 2010) (indicating that as of September 23, 2010, approximately 24,000 claims hadbeen submitted with insufficient or no documentation).

164 See Are Victims of the Gulf Oil Spill Getting What They Deserve?, The Wash. Post(Nov. 25, 2010) (reporting that 175,000 people had submitted claims with inadequatedocumentation; Feinberg says he will not accept letters from local pastors attesting toclaimants losses as proof they deserve payment; won't replace off-the-books income inthe Gulf Coast's unofficial cash economy).165 See Mike Tolson, A Storm Brews in Alabama Over BP's Promise; Months After theOil Giant Promised to Pay for Losses, Many Say They Have Seen Little or Nothing,Houston Chron. (Dec. 13, 2010) (complaints over inconsistent awards).

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similar businesses or professions, to ensure some constancy andreliability across awards.'66 But again, no announcements wereforthcoming concerning the structure or administration of these groups inthe claims process

Eligibility for compensation through the GCCF entailed not onlydefinition of eligible claimants, but also eligible claims. 6 7 In this regard,the facility announced that it would handle claims relating to removaland clean-up costs, damage to real or person property, lost earnings orprofits, loss of subsistence use of natural resources,'6 8 and physical injuryor death.'69 The universe of potentially eligible claims, then, wassubstantially exp nded beyond the claims resolved in the WTC Fund.

Finally, the eligibility problem had resonance in the arena offraudulent claims. While Feinberg encouraged any and all claimants toresolve their claims through the enticement of quick and easy payments,he simultaneously began a rear-guard action against the proliferation offraudulent claim,.170 In administering the WTC Fund, Feinberg involvedthe Department of Justice to investigate and prosecute fraudulentclaims. ' Indeed, it was a point of pride in his Final Report that only asmall percentage of attempted WTC Fund claims were found to befraudulent.172 Similarly, with the onset of thousands of GCCF claims,Feinberg initiated outreach to the Justice Department to assist ininvestigating fraudulent claims. 73 However, in administering the GCCF,the problem of liberalizing eligibility requirements expanded the

66 Press Release, Feinberg Announces Faster and More Generous Payments FromGCCF (Sept. 25, 2010), available at http://www.gulfcoastclaimsfacility.coom/press6.php(compensation program to cluster claims by industry, such as fishing, tourism, smallbusinesses, large businesses; uniform standard methodologies to be applied to eachindustry); see also Harry R. Weber, BP Fund Czar Promises Bigger, Faster Claims,Wash. Times (Sept. 26, 2010) (new procedures for claims processing by industrygroups); BP Fund Czar Promises Bigger, Faster Claims, Houston Chron. (Sept. 25,2010) (reporting on new clustering methodology; claims will still be reviewedindividually).67 See GCCF Protocol for Emergency Advance Payment, supra n. 62.

16 Id. (available for individuals only).169 Id.170 Feinberg et al., FINAL REPORT OF THE SPECIAL MASTER at 69.71 Feinberg et al., FINAL REPORT OF THE SPECIAL MASTER at 65-69.

172 Id. (documenting extremely small numbers of cases forwarded to the Department ofJustice for fraud investigation); see also Cooper, Spill Fund Could Prove as Challengingas 9/11 Payments, supra n. 25 (of 7,300 claims processed only 35 were fraudulent).173 See BP Victims' Fund to Fight Bogus Claims, Feinberg Says, Interview with Al Hunt,"Political Capital with Al Hunt," Bloomberg New (June 25, 2010), available athttp://www.bloomberg.com/news/2010-6-25/bp-victim-s-fund; see GCCF Protocol forEmergency Advance Payment, supra n. 62 (provision governing false or fraudulentclaims); see also Robertson and Schwartz, Rethinking the Process, supra n. 113(Feinberg reporting oi proliferation of fraudulent claims in the GCCF).

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potential for fraud, and as such challenged Feinberg's administration ofthe GCCF in ways he had not encountered in the .TC Fund.' 74

2. ValuationThe standards and metrics for evaluating claims in the WTC Fund

and the GCCF stand in marked contrast. Early in the development of theWTC Fund, Feinberg and his staffers created compensation grids largelybased on actuarial models used in insurance and tort litigation.'7 5 Thesecompensation grids were subject to the notice and comment rulemakingprocess and published for review by prospective claimants.'76 Certainmeasures of damages, such as pain and suffering, were universallyexcluded from all claims, but the Fund subsequently determined to awarda flat $250,000 award non-economic award for each deceased victim,and an additional $100,000 non-economic award for the spouse anddependents of deceased victims.' The proposed grid controversiallysupplied award valuations only for persons making up to $250,000; forpersons with earnings in excess of that amount (approximately 3% of theeligible pool of claimants), the WTC compensation chart provided noguidance for the determination of a compensation award, but imposed apresumed income cap of $231,000 a year. 78

The grid valuations formed the basis for an offer from the Fund toclaimants, which they either could accept or request an individualizedhearing.'79 In assessing the WTC Fund standards for award valuation,one commentator has suggested that not only did the Sppcial Master notexplain the basis for the schedule, but that is definition of economic loseslacked an underlying rationale. 80

174 See David A. Fahrenthold and Kimberly Kindly, Six Months After the Spill, BP 'sMoney Is Changing the Gulf as Much as Its Oil, The Wash. Post (Oct. 20, 2010)(reporting large number of fraudulent claims).I7s Ackerman, The September 11th Victim Compensation Fund, supra n. 8 at 184 ("Whatoccurred in the frenzy of legislative drafting and the maelstrom of post-September 1Ithevents was a default to familiar language. To the extent it was given any thought at all, atort-based damages formula was a capitulation to the routine, rather than an embrace ofsomething new and imaginative to address an unprecedented challenge"); Berkowitz, TheProblematic Role of the Special Master, supra n. 18 at 11-12.176 Feinberg et al., FINAL REPORT OF THE SPECIAL MASTER at 5-9; Ackerman, TheSeptember 11th Victim Compensation Fund, supra n. 8 ; Berkowitz, The ProblematicRole of the Special Master, supra n. 18 at 11.'77 Feinberg et al., FINAL REPORT OF THE SPECIAL MASTER at 40-41.

17' Feinberg et al., THE FINAL REPORT OF THE SPECIAL MASTER at 8; Ackerman, TheSeptember 11th Victim Compensation Fund, supra n. 8 at 161165 (describing problemsrelating to calculation of awards for higher-earners, and grievances and criticismsengendered by these claimants); Berkowitz, id.; Chamallas, The September 11th VictimCompensation Fund at 67-69.179 Walker, Lessons That the Wrongful Death Law Can Learn, supra n. 15 at 610-612(describing the hearing process).Iso Priest, The Problematic Structure, supra n. 15 at 540 (" ... there is no coherentjustification for the Fund's definition of economic loss."). See also Priest, id. at 543-44

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As the WTC Fund claims process evolved, and in response toincreasing pressure, Feinberg modified the evaluation process to permitclaimants to make individualized presentations to hearing officers basedon particular circumstances.'"' Many WTC Fund claimants requestedindividualized hearings, and as a consequence, WTC Fund claimsadministrators frcquently modified the initial grid value to account forspecific circumstances and special pleading.'82 This especially was truefor those claimants whose deceased relatives had high earning

183capacity.In the final analysis, the WTC Fund valuation process combined a

grid-based approach with highly individualized evaluation of numerousparticular claims and special pleading.'" Some have suggested that thisprocess not only yielded some very generous awards, but also some"strikingly inconsistent" sums. 85 In retrospect, special master Feinbergrepeatedly stated that if he had to do the WTC Fund experience over

(arguing that the awards had no defining or constraining logic, and that the definition ofthe awards had been placed entirely in the hands of a special master); Rabin, September11th through the Prism of Victim Compensation, supra n. 9 at 474 (describing Feinberg'sultimate compromise rules).181 Feinberg et al., FINAL REPORT OF THE SPECIAL MASTER at 15-16; Rabin & Sugarman,The Case for Specialy Compensating the Victims of Terrorist Acts, supra n. 8 at 909(indicating that Feiiberg conducted nearly 1,000 individual hearings); Feinberg,Transparency and Civil Justice, supra n. 7 at 475 (stating that Feinberg personallyconducted 1,500 individual hearings).182 See Feinberg et cl., FINAL REPORT OF THE SPECIAL MASTER at 17; Ackerman, TheSeptember I1th Victim Compensation Fund, supra n. 8 at 218 ("The Fund's individualdeterminations lacked several of the formal trappings that many Americans equate withdue process.").183 See Schneider, Grief Procedure, and Justice, supra n. 19 at 477 (commenting oncomplaints from the Cantor Fitzgerald families on the unfairness of the discretionaryfactors that could enter into a determination of awards).184 See Ackerman, The September 11th Victim Compensation Fund, supra n. 8 at 215(suggesting that Feinberg's ad hoc approach "ended up crafting a compromise that hadelements of distributive justice (and perhaps practical politics) at the high and low ends,but which for the gre;it majority of claims employed a corrective justice model."); Rabin,The Quest for Fairness, supra n. 11 at 583-84 (describing the compromise the SpecialMaster reached with regard to calculating economic loI s); Rabin, September 11th throughthe Prism of Victim Compensation, supra n. 9 at 474 (describing Feinberg's ultimatecompromise rules);.185 Rabin & Sugarm;n, The Case for Spec ially Compensating the Victims of TerroristActs, supra n. 8 at 909 (" . . . the upshot is that claimants received both extraordinarilylarge awards and at the same time strikingly different sums: Death benefit awardsaveraged $2.1 million, and ranged from $250,00 to $7.1 million."); see also Schneider,Grief Procedure, andi Justice, supra n. 19 at 477:

Feinberg has made the program "his," and the fact that there is one decision makerwith so much discretion increases perceptions of unfairness. Making the program"his" has all sorts of problematic dimensions. It leads to a sense that he will makeindividualized "deals," and indeed, he does. Lawyers can claim to trade on"insider" access to, or contact with, him.

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again, he would not have allowed for individualized compensationvaluations, but would have preferred the imposition of a uniformpayment for every claimant.'

Feinberg's insistence that a flat-rate compensation award to WTCFund claimants would better have accorded with the dual goals of justiceand efficiency is interesting in light of his subsequent administration ofthe GCCF. In essence, Feinberg has had the opportunity to do it again.However, to date, his resolution of Gulf claims has been a hodge-podgeof individualized interim emergency payments, combined with a finalsettlement program that offers claimants three possible options.' 87 Inaddition, even before Feinberg assumed responsibility for administeringthe GCCF, there was evidence that Feinberg was giving preferentialtreatment to certain groups of special pleaders, such as Gulf Coastrealtors with whom he met prior to taking over management of theGCCF.*

The emergency payment period for initial GCCF claims closed onNovember 23, 2010. Although there is little information available toassess the nature of these emergency payments, these payments seem tohave been accomplished on an individualized, ad hoc basis.'" 9 In thisinitial phase of the GCCF, the facility paid out an aggregate $3.3 billionto approximately 251,000 claimants.190 However, roughly half of the

186 Feinberg et al., FINAL REPORT OF THE SPECIAL MASTER at 82; Feinberg, WHAT IS ALIFE WORTH, supra n. 5 atl83; Kenneth R. Feinberg, Address on InsuranceCompensation after September 11, at the American Association of Law Schools AnnualMeeting (2003); see also Chamallas, The September 11th Victim Compensation Fund at79; Rabin & Sugarman, The Case for Specially Compensating the Victims of TerroristActs, supra n. 8 at 910 (suggesting that by rewarding families differently when theirrelatives had very different earning histories, Feinberg moved sharply away from aprinciple of treating each life as of equal value.). But see Rabin, September 11th throughthe Prism of Victim Compensation, supra n. 9 at 479-482 (noting the irony in Feinberg'sendorsement of this proposal, when in fact he tailored WTC Fund awards to individualcircumstances).187 See discussion of GCCF final settlement payment option program, infra at notes 192-98.188 But see Snyder, BP Spill Claims From 50 States Confront Administrator Feinberg,supra n. 39 (indicating that as earlj as August 16, 2010, Feinberg had st aside a "modestamount", which he did not disclose, to compensate Gulf State realtors, whose tradeassociation had met with Feinberg the week before. "The realtors have "suffered a greatdeal" in lost sales, rent, and commissions, [Feinberg] said.").

'8 Urbina, BP Settlements Likely to Shield Top Defendants, supra n. 109 (Feinberg todetermine on a case-by-case basis what qualifies as beach-front property and howpayments would be adjusted on a sliding scale based in part on geographic proximity tospill). The emergency protocols provided no information on how awards would becomputed. See GCCF Protocol for Emergency Advance Payment, supra n. 62.

19 Brian Skoloff, 91,000 Gulf Oil Spill Claims, Just 1 Final Payment,http://news.yahoo.com/s/ap/20110131/ap on-bi ge/us gulf oil spill-claims (lastaccessed on February 1, 2011).

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484,000 claims filed were denied because of ineligibility of lack ofdocumentation. These claimants received nothing from the GCCF.'9'

Feinberg's final payment program includes three options.' 92 Thus,claimants may elect to receive a quick, one-time flat cash payment of$5,000 for individuals and $25,000 for businesses.' 93 As of February 1,2011, some 80,000 claimants filed and were paid pursuant to thisoption.194 Claimarts receiving the flat payments gave up their rights toreceive any additional money and also released their rights to sue BP orany other responsble party. s

Those claimants who do not wish to elect the flat payment optionmay pursue individualized evaluation of their claims.'9 6 Based on as yetunspecified procedures and valuation methods, claimants who receivefinal settlement offers also would release their rights to sue BP and otherresponsible parties.'9 7 Finally, residents and business owners who areunwilling to accept the flat payment offer, but who also are unready tomake a final settlement claim, may file for interim quarterly paymentsthrough August 2013, provided they show proof of continued businesslosses.'98

191 Id. See also John Schwartz, Administrator of BP Fund Offers Bonuses to Spill VictimsWho Bypass Suits, N.Y. Times (Dec. 12, 2010) (reporting that more than 200,000 claimsdenied because of poor or no documentation), available athttp://www.nytimes.com/2010/12/13/us/I3fund.html?192 See David Hammer. New Gulf Oil Spill Claim Rules Announced by Ken Feinberg, TheTimes Picayune (Nov. 23, 2010) (Gulf Coast attorneys criticize that Feinberg madeprocess more confusing with release of new payment protocols; two page release form);John Schwartz, Final Settlement Phase Starts for BP Oil Spill, N.Y. Times (Nov. 24,2010); Bryan Walsh, Oil Spill: Kenneth Feinberg Makes the Final Rules for SpillSettlement, But Are They Fair? (Nov. 24, 2010), available athttp://ecocentric.blogs.time.com.2010/11/24/.193 See GCCF Frequently Asked Questions #15, #23, #24 (describing release provisionsfor quick payment option), available at http://gulfcoastclaimsfacility.com/fac. SeeFeinberg Refuses to Remove Rights Waiver from Quick Pay Option (Jan. 19 2011),available at http://bp-claim.com/. See John Schwartz, Final Settlement Phase Starts forBP Oil Spill, N.Y. Tines (Nov. 24, 2010) (attorneys critical of general release of allparties).There is no appeal from quick payment awards. See Walsh, Oil Spill, id.

194 Brian Skoloff, 91,000 Gulf Oil Spill Claims, Just 1 Final Payment,http://news.yahoo.com's/ap/20110131/ap on-bige/usgulf oil spill-claims (lastaccessed on February 1, 2011).

'" See GCCF Frequently Asked Questions #16-30 (describing procedures for quickpayment option), available at http://gulfcoastclaimsfacility.com/fac.

'" See GCCF Frequently Asked Questions #31-50, (describing procedures for fullreview of final settlement payments, available at http://gulfcoastclaimsfacility.com/fac.

197 See GCCF Frequently Asked Questions 44-45, 47 (describing release provisions forfull settlement payment option), available at http://gulfcoastclaimsfacility.com/fac. SeeJohn Schwartz, Final Settlement Phase Starts for BP Oil Spill, N.Y. Times (Nov. 24,2010) (attorneys critical of general release of all parties).

19 See GCCF Frequenily Asked Questions #51-70 (describing procedures for full reviewof interim settlement payments, available at http://gulfcoastclaimsfacility.com/fac

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Thus, notwithstanding Feinberg's endorsement of flat, standardizedpayments to claimants after his experience with the WTC Fund, Feinbergchiefly has pursued a course of individualized compensation for theGCCF settlement of claims.

Moreover, in contrast to the WTC Fund, the valuation methods usedto determine the emergency or final settlement awards for GCCFclaimants are shrouded in mystery as well as uncertainty.'" Nocompensation grid comparable to the WTC Fund has been published toguide GCCF claimants in assessment of their potential recovery fordifferent types of claims. 200 No valuation standards have been publishedto the public. There is no publicly available information concerning theidentity, experience, or training of staff claims administrators, or themethodology by which staff adjusters evaluated emergency paymentsand will determine final settlement offers.20 1 There has been someindication that entities or groups with special access either to BP orFeinberg are able to cut special deals for themselves as a consequence of

202this special access.

19 Kaufman, Feinberg Vows Quick Response on Gulf Oil Spill Claims, supra n. 7(Feinberg promises Louisiana town hall meeting to quickly reveal basis for his awardcalculations); see GCCF Protocol for Emergency Advance Payment, supra n. 62 (novaluation method indicated). The GCCF's protocol for final settlement payments doesinclude sample calculation for individuals and businesses. See Gulf Coast Claims FacilityAnnouncement of Payment Options, Eligibility and Substantiation Criteria, and FinalPayment Methodology (February 2, 2011), available at http://www.gulfocastclaims-facility.com/_Methodology. Feb.2. final DRAFT.pdf., with Attachment A (SampleCalculation for Individual Claimant), and Attachment B (Sample Calculation for aBusiness Claimant).200 Feinberg has made a number of ad hoc pronouncements, on-the-fly. See e.g., FeinbergSays BP Fund Will Be Generous, Better Than Lawsuits, Bloomberg News (July 15,2010), available at http://businessweek.com/news/2010-07-15/feinberg-says-bp-fund-will-be-generous (Feinberg indicates victims could be compensated for lost healthinsurance or tourism revenue, not solely for direct damage from spilled oil); see alsoKaufman, Feinberg Vows Quick Response on Gulf Oil Spill Claims, id.; GCCF Protocolfor Emergency Advance Payment, supra n. 7(no computation information indicated).201 But see GCCF Protocol for Emergency Advance Payment, supra n. 62 (indicatingclaims to be evaluated by an unspecified claims evaluator).202 See e.g., Snyder, BP Spill Claims From 50 States Confront Administrator Feinberg,supra n. 39 (indicating that as early as August 16, 2010, Feinberg had set aside a "modestamount," which he did not disclose, to compensate Gulf State realtors, whose tradeassociation had met with Feinberg the week before. "The realtors have "suffered a greatdeal" in lost sales, rent, and commissions, [Feinberg] said."); see also [add cite toreported $10 million final payment made to BP business partner); Urbina, BP SettlementsLikely to Shield Top Defendants, supra n. 109 (reporting on political deal struck withgovernors of Alabama and Mississippi, setting aside approximately $60 million from thefund in a special pool to compensate negatively affected real estate brokers in the gulfregion who were otherwise ineligible for compensation from the fund. This money wasnot to be distributed by Feinberg, but rather by the National Association of realtors inWashington D.C. or local chapters in Alabama, Florida, Louisiana, Mississippi andTexas. In addition, the national association was to set eligibility requirements-notFeinberg-although Feinberg would view those criteria).

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In addition, as indicated above, Feinberg has become aware of theproblem of inconsistent awards, and has now embarked on program of

203grouping claimants by similar business enterprises. However, there isno publicly a-vailable information concerning how award determinationbased on these clusters are to be implemented, or the standards by whichstaff are to be determine final settlement awards in the context of thesegroupings.

On February 1, 2011 media reported that the GCCF had issuedexactly one fir al settlement payment out of thousands of claimants, for a$10 million award to a BP business partner.204 BP acknowledged that ithad intervened and lobbied for the settlement on behalf of theunidentified company, and ordered the facility to make the payment. 205

Feinberg reported that BP had struck outside deal with the business andtold the GCCF to make the payment. In addition, Feinberg stated that theGCFF had never reviewed the business's claim for merit.

The $10 million payment out of GCCF funds to a BP businesspartner as the result of a private settlement negotiation with BP, withoutthe review and participation of the GCCF, precipitated further questionsabout the GCCF's lack of transparency and independence from HP, aswell as of claims being short-changed and paid too slowly, or not atall.207

3. Collatetal SourcesThe application of the "collateral source" rule to compensation

awards played a role in the administration of both the WTC Fund and theGCCF. The At authorizing creation of the WTC Victim CompensationFund provided for the reduction of awards by collateral source benefitssuch as insurance, pension funds, and other government payments. 208 Notsurprisingly, Feinberg drew on his experience with the WTC Fund toguide his decisions about the applicability of the collateral source rule inadministering t:he GCCF.

The collateral source rule is a doctrine most commonly used in tortlaw. 209 Pursuant to this rule, when a person successfully prevails on a tort

203 See discussion of Feinberg changing valuation rules to group claimants by industry,supra at note 166.204 Brian Skoloff, 91,000 Gulf Oil Spill Claims, Just 1 Final Payment,http://news.yahoo.com/s/ap/201 101 31/ap onbige/usgulf oilspill-claims (lastaccessed on Febn ary 1, 2011).205 Id20

6 id.

207 id

208 Feinberg et al, FINAL REPORT OF THE SPECIAL MASTER at 43-44; ATSA at § 405(b)(6). See Alexant er, Procedural Design, supra n. 5 at 675-680; Peck, The VictimCompensation Fuid, supra n. 8 at 224.209 See Richard A. Epstein, TORTS 436 (1999); Robert A. Katz, Too Much of a GoodThing: When Chcritable Gifts Augment Victim Compensation, 53 DePaul L. Rev. 547,548, 563-66 (200 3).

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claim in court, the collateral source rule mandates that any othercompensation from other sources should not be deducted to diminish theclaimant's award. Thus, insurance proceeds and similar benefits that aclaimant may receive for the same injury are not subtracted from aprevailing party's award.210

The application of the collateral source rule played a highlycontroversial and much-publicized role in the administration of the WTCFund.2 11 At the outset, Feinberg determined thai any monies or benefitsthat WTC claimants received from collateral soorces would be deductedfrom an award that was determined by the WT Fund staff.212 The factthat any collateral source funds would be deducted from WTC Fund

.awards engendered the ire of claimants, who raised an array of fairnessarguments concerning application of this rule." For example, claimantsprotested that the deduction of collateral source benefits penalized thoseclaimants who had worked hard throughout their lives and hadaccumulated pensions,214 or taken prudent steps to protect their familymembers by purchasing insurance.

Over the course of administering the WTC Fund, Feinberg Waffledon the application of the collateral source rule.2 16 Similar to his debision-making pattern with regard to other Fund criteria, Feinberg graduallysoftened his initial absolutist rule. 1 Under increasing protest andpressure, Feinberg repeatedly modified his stance on what "collateralsources" would be deducted from Fund awards, and what collateralsources would not.218

210 id

211 Feinberg et al., FINAL REPORT OF THE SPECIAL MASTER at 43-44; Alexander,Procedural Design, supra n. 5 at 676-77; Priest, The Problematic Structure, supra n. 15at 543-45; Rabin & Sugarman, The Case for Specially Compensating the Victims ofTerrorist Acts, supra n. 8 at 08-09; Steenson & Sayler, The Legacy of the 9/11 Fund,supra n. 14 at 557-58.212 Feinberg et al., FINAL REPORT OF THE SPECIAL MASTER, id.213 Feinberg et al., FINAL REPORT OF THE SPECIAL MASTER , id.214 Feinberg et al., FINAL REPORT OF THE SPECIAL MASTER, id.

21s Feinberg et al., FINAL REPORT OF THE SPECIAL MASTER, id.216 Feinberg et al., FINAL REPORT OF THE SPECIAL MASTER at 43-44; Rabin, The Quest forFairness, supra n. 11 at 582-83 (commenting on the Special Mater's responding tocriticism on the collateral source rule and modifying his views; concluding that in the endFeinberg reached a compromise on what collateral source bpnefits to deduct, and whichto allow claimants to retain); Rabin, September Ith Th-ough the Prism of VictimCompensation, supra n. 9 at 473 (same).217 Feinberg et a!., FINAL REPORT OF THE SPECIAL MASTER at 45-52; Alexander,Procedural Design, supra n. 5 at 676 ("Though the statutory language appears quiteclear, its application has been substantially narrowed in practice.").218 Feinberg et al., FINAL REPORT OF THE SPECIAL MASTER at 45-52.

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In the end, Feinberg determinea that almost all collateral sources ofbenefits would be deducted from WTC Fund awards.219 On the otherhand, to appease his critics, Feinberg also determined that collateralsource benefits would not be used to reduce any claimant's award below$250,000.220 hi addition, Feinberg ultimately determined that charitabledonations that claimants received from various organizations also wouldnot be deducted from WTC awards.221

There are two salient points about Feinberg's resolution of thecollateral source rule in the context of the WTC Fund. First, the approachused in administering the WTC Fund basically rejected the traditionaltort rule: if WTC claimants had pursued tort claims in court, they wouldnot have been subject to reduction of their awards by any insurance,pension, or similar benefits. Second, Feinberg's decisions with regard tothe collateral source rule changed over time and typically in response toheated public pressure. Thus, Feinberg engaged in his pattern of on-the-fly rule modifcation based on claimant pressure, rather than resolvingthis issue through deliberative rulemaking. As a consequence, at leastone critic has suggested that there is no principled rationale for thedistinctions that the Special Master accorded to different collateralsource benefits.222

With his installment as the GCCF administrator, Feinberg wasentirely familiar with the issue of the collateral source rule in the contextof fund-approaches to victim compensation. Taking a page from theWTC Fund p laybook, Feinberg determined that GCCF awards alsowould be reduced by any monies or benefits that GCCF claimantsreceived from other sources.223 Again, the imposition of collateral sourcereduction of awards stirred controversy, 224 in no small part because BPlobbied Feinberg to include a collateral source deduction.

219 Feinberg et al., FINAL REPORT OF THE SPECIAL MASTER at 43-44.220 Feinberg et al., FINAL REPORT OF THE SPECIAL MASTER at 51.221 Feinberg et al.. FINAL REPORT OF THE SPECIAL MASTER at 47; Alexander, ProceduralDesign, supra n. : at 676-77; Berkowitz, The Problematic Role of the Special Master,supra n. 18 at 13; Katz, Too Much of a Good Thing, supra n. 20 at 548.222 Priest, The Problematic Structure, supra n. 15 at 542 ("Because the only reason forignoring collateral benefits is deterrence, there is no rationale whatsoever for the variousdistinctions now e Tected under the Fund.").223 Kaufman, Feiiberg Vows Quick Response on Gulf Oil Spill Claims, supra n. 7(reporting that Feinberg was considering collateral source deductions as early as August19, prior to his assaming the office of administrator of the GCCF).224 Kaufman, Feirberg Vows Quick Response on Gulf Oil Spill Claims, id. (citing iratelocal resident in rtgard to the offset: "You have no clue as to what we did, and then youare going to act like we should just be grateful for what we got. . . Are you kiddingme?"); Neil King Ir., Feinberg Criticized, supra n. 107 (fishermen angry about decisionto deduct amounts paid by BP in clean-up to boat owners and others who aided in clean-up efforts); Urbira, BP Settlements Likely to Shield Top Defendants, supra n. 109(reporting on emergency payment protocols to deduct collateral source payments,including any earnings or profits people received from another job or other source of

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One of the most controversial applications of the collateral sourcerule in administration of the GCCF was the announcement thatclaimants' awards would be reduced by any monies that they earnedwhile participating in the Gulf clean-up.226 Hundreds of fisherman andboat owners had been hired by BP to assist in the oil spill clean-up, andwere paid for these efforts. These claimants protested that the oil spillhad prevented them from engaging in their usual employment, and it wasunfair to deduct clean-up earnings from their fund awards, because thiswould be tantamount to working for BP for free in the clean-up efforts.227

In response to these criticisms, and similar to the pattern he followedin supervising the WTC Fund, Feinberg modified his position on thecollateral source issue. In regard to the clean-up efforts, Feinberg back-tracked and announced that any monies earned by local participating inthe Gulf cleai-up would not be deducted from GCCF awards.228

In the absence of publicly available information, it is difficult toascertain what other collateral sources have been and will be deductedfrom GCCF awards. The absence of advance notice places claimants inan uncertain universe. Exacerbating this problem, claimants lacking legalrepresentation may be unaware that their awards will be reduced bycollateral sources, how those amounts will be determined, and that ifthey pursued relief in court their awards might not be reduced bycollateral sources.

The modification of jury awards by collateral source funds has longbeen a staple of tort reform advocates, typically corporate defendants.2

income during the period for which they were claiming lost earnings).225 Urbina, BP Settlements Likely to Shield Top Defendants, id. (BP's successful lobbyingof Feinberg to include collateral source deductions).226 See GCCF Protocol for Emergency Advance Payment, supra n. 62 (deductions ofclean-up earnings); Kaufman, Feinberg Vows Quick Response on Gulf Oil Spill Claims,id. (Feinberg stating, on August 19, 2010, that he intended to reduce awards by BPpayments to those who were hired to assist in the clean-up efforts, contending thatalthough the claimants couldn't do their regular job, they were paid: "It seems to meeminently fair, and I think that's what any court would do."); Neil King Jr., FeinbergCriticized, supra n. 107 (Feinberg indicates that it was not unusual under state law todeduct such earnings from final damage settlements).227 Kaufman, Feinberg Vows Quick Response on Gulf Oil Spill Claims, id.228 Press Release, Gulf Coast Claims Facility Marks One-Month Anniversary (Sept. 23,2010), available at http://www.gulfcoastclaims facility.com/press5.php (GCCF would notdeduct earnings from Vessels of Opportunity Program from payments made toclaimants); Robertson and Schwartz, Rethinking the Process, supra n. 113 (Feinbergreconsidering decision to deduct money fisherman earned as temporary employees in theclean-up operation from their claims payments); BP Fund Czar: No Deduction for SpillCleanup Wages, Houston Chron. (Sept. 20, 2010), available athttp://www.chron.com/disp/story.mpl/business/7210041.html. (Feinberg announces hewill waive requirement that wages earned by spill cleanup workers be subtracted fromtheir claims of lost revenue).229 See Priest, The Problematic Structure, supra n. 15 at 532 n. 15.

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Fund resolution of corporate legal liabilities, therefore, embraces thisdimension of tort reform, and favors defendants. As the WTC Fund andnow the GCCF Fund demonstrate, in order to receive a quick resolutionof the claims, participants must agree to reduce their awards by collateralsource funds. Fund resolution of mass tort claims, then, embodies anend-run around the collateral source rule that applies in judiciallyadjudicated tort litigation.

Against this, backdrop, a problematic issue with the application of thecollateral source rule in the context of the GCCF-and unlike the WTCFund experience-is that the responsible party BP required that collateralsources be deducted from awards.230 Although the GCCF websitedeclares that the GCCF is a neutral claims facility23' and Feinberg hasrepeatedly stated that he is functioning as an independentadministrator,23: the reduction of awards by collateral source funds is theconsequence of BP's insistence. The fact that a "responsible party" has arole in determining a significant criterion in calculating awards istroubling.D. Appointmeint of the Special Master/Administrator

Ken Feinbe::g has assumed the central role in implementing both theWTC Fund as well as the GCCF. However, these two fund experiencespresent contrasting examples with regard to the designation of fundmanager. In ac dition, the designation of the fund manager in bothsituations has iraplicated important issues regarding authorization of themanager, scope of duties, accountability, and professional ethics.

In comparing the two, then, the GCCF experience suggests asignificant, reketively unguided expansion of the role of the fundmanager, raising troubling questions about professional ethics andultimately fund legitimacy. As will be discussed, until recently theappointment of a "special master" was based on legal rules andprinciples.233 Hcwever, with the advent of the WTC Fund and the GCCF,the concept of a special master has been transformed from a court-appointed surrogate, circumscribed by delegated duties, into an all-powerful, quasi-lawless, free-wheeling demi-god.

1. Appointmnt Authorization

The federal statute creating the WTC Victims' Compensation Fundauthorized the appointment of A special master.234 The concept of a

230 See discussion cf BP's role in the development of the collateral source rule in thecontext of the GCCF, supra at Part II.C.3.231 See GCCF Frequently Asked Questions #1 (describing the GCCF as a neutral facilityand Feinberg as a neutral administrator), available at http://gulfcoastclaims-facility.com/fac23 2 See discussion of Feinberg as an independent administrator, infra at 288.233 See discussion of special master function under Fed. R. Civ. P. 53, infra at note 235.Berkowitz, The Problematic Role of the Special Master, supra n. 18 at 19 - 22.234 Feinberg et al., FINAL REPORT OF THE SPECIAL MASTER at 3; ATSA at § 404(a), 115

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"special master" is well-known in federal courts and Federal Rule ofCivil Procedure 53235 authorizes federal judges to appoint special mastersto assist the court in the resolution of certain types of cases.236

Historically, federal judges used Rule 53 sparingly to appoint specialmasters to assist in complex commercial litigation, where the specialmaster might assist the court in conducting an independent audit offinancial records.3

In the past thirty years, some federal judges have considerablyexpanded the use of special masters, particularly in the resolution of

238mass tort cases.28 In the mass tort litigation arena, special masters havebeen appointed to prepare trial plans, organize and evaluate the universeof potential claims, create compensation award grids, and to negotiateand implement settlements, among many functions.2 39 As is widelyreported, Ken Feinberg began his career as a professional special masterassisting Judge Jack Weinstein in the Agent Orange litigation.240

Ken Feinberg's appointment as the special master to oversee theWTC Fund was not made by a federal judge pursuant to the authority ofRule 53. Instead, Attorney General John Ashcroft appointed Feinbergdirectly pursuant to the federal statute that created the Fund.24 1 From theoutset, then, as an Executive branch appointee, Feinberg's appointmentas "special master" was outside the ordinary judicial understanding of a

242special master.

Stat. 230 (2001).

"3 Fed. R. Civ. P. 53. See generally, Wayne D. Brazil, Special Masters in ComplexCases: Extending the Judiciary in Reshaping Adjudication, 53 U. Chi. L. Rev. 394(1986): Margaret G. Farrell, The Role of Special Masters in Federal Litigation, SE99A.L.I.-A,B.A. 837 (2000).236 Alexander, Procedural Design, supra n. 5 at 663.237 See David 1. Levine, The Authority for the Appointment of Remedial Special Mastersin Federal Institutional Reform Litigation: The History Reconsidered, 17 U.C. Davis L.Rev. 753 (1984).238 See generally Margaret G. Farrell, The Function and Legitimacy of Special Masters:Administrative Agencies for the Courts, 2 Widener L. Symp. J. 235 (1997); James S.DeGraw, Rule 53, Inherent Powers, and Institutional Reform: The Lack of Limits onSpecial Masters, 66 N.Y.U.L. Rev. 800, 800 (1991); Linda Silberman, Judicial AdjunctsRevisited: The Proliferation of Ad Hoc Procedure, 137 U. Pa. L. Rev. 2131, 2138-42(1989).239 Alexander, Procedural Design, supra n. 5 at 663.240 See Peter H. Schuck, AGENT ORANGE ON TRIAL: MASS Toxic DISASTERS IN THECOURTs (1986) at 144-45.241 Press Release, Department of Justice, Attorney General Ashcroft Names SpecialMaster to Head September 11th Compensation Program (Nov. 26, 2001),http://www.usdoj.gov/archive/victimcompensation/dojpr2.pdf.; Berkowitz, TheProblematic Role of the Special Master, supra n. 18 at 7.242 Alexander, Procedural Design, supra n. 5 at 663. Commenting on this unusualarrangement, Professor Alexander observes:

There is no point to calling an administrator within the Justice department a special

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Feinberg vclunteered for the job and pursued appointment as thespecial master through Washington D.C. contacts he acquired whileworking on Caritol Hill.24 3 General Ashcroft appointed Feinberg basedon his experience as a special master in the Agent Orange settlement, hiswillingness to administer the WTC Fund without pay,244 and hisfamiliarity with various Congressmen and staffers. The appointment didnot require Congressional approval. 245 As a consequence of the unusuallegal basis for his appointment, Feinberg in his role of "special master"technically was not answerable to any branch of government.246

Whereas Fe:nberg's appointment to oversee the WTC Fund had anascertainable legal basis in a federal statute, his appointment toadminister the GCCF did not. In his supervision of the GCCF, Feinbergis not serving as a "special master" although that label sometimes ismisapplied to his efforts. Rather, Feinberg is the designated fund"administrator." His appointment as the fund administrator seems to beresult of closed door negotiations between BP and Feinberg,subsequently endorsed by the President.247 Congress had no role in thecreation of the GCCF or Feinberg's appointment as its administrator. 24 8

Public records indicate that as early as May 2010, BP summonedFeinberg to Houston for private discussions concerning his possibleappointment to take over responsibility for overseeing resolutions of

master, other than to invoke the authority of special masters within the federalcourts in order to lend legitimacy to the adjudicative determinations made by theadministrator. If a special master does not derive his or her authority from acoort-and in fact the decisions of a special master are not even subject to judicialreview-then the title takes on a completely different meaning from its normalusage.

In attempting to make some sense out of unique Feinberg's appointment by Attorneygeneral Ashcroft as a "special master" to administer the WTC Fund, Berkowitz hasconcluded: "Feinberg simply has no analogue, leaving us once again with the question ofhow to characterize :he position of Special Master." Berkowitz, The Problematic Role ofthe Special Master, -rupra n. 18 at 22. She additionally opines: "Congress failed to definethe Special Master's position." Id.243 Berkowitz, The Problematic Role of ihe Special Master, supra n. 18 at 7. Feinbergreportedly lobbied fc r the position with his Congressional friend Senator Chuck Hagel.244 See Ackerman, The September 11th Victim Compensation Fund, supra n. 8 at 197;Feinberg, Negotiating the Victim Compensation Fund, supra n. 9 at 29.245 Berkowitz, The P oblematic Role ofthe Special Master, supra n. 18 at 6246 Alexander, Procedural Design, supra n. 5 at 663 ("The Special Master has bothlegislative and adjudicative functions bui operates within no specified procedural orinstitutional structur:"); Berkowitz, id. at 40 ("But it cannot be denied that Congressenacted a statute ride led with litigation inadequacies and constructed a fund controlled bya "Tsar."").247 John Schwartz, )Tor Kenneth Feinberg, More Delicate Diplomacy, N.Y. Times (July16, 2010) (appointment of Feinberg as administrator).249 id.

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Gulf claims against BP.24 9 This arrangement seemed in place by the timethat BP met with President Obama in June 2010, when BP agreed tocontributing $20 billion to a compensation fund.250 Shortly thereafter, theWhite House 2 uickly agreed to and announced Feinberg as the fund'sadministrator.

Unlike his appointment to the WTC Fund, there is no legal basis forFeinberg's appointment as the GCCF administrator. The appointmentwas not made by a federal judge pursuant to Rule 53, nor was theappointment made pursuant to federal statute, although FeinberAsubsequently would claim authority remotely from the OPA.Feinberg's appointment as administrator was the consequence of aprivate negotiation and deal with BP, the designated responsible party forthe Gulf disaster. There is no public record whether any other actor wasconsidered to undertake the role of fund administrator. In the heat ofexponentially expanding public outrage, the President quickly rubber-stamped BP's preference for Feinberg.

2. Scope of DutiesA special master who is appointed by a federal judge is subject to

duties and responsibilities set forth in Rule 53.2sa Typically, a judge whoappoints a special master does so by court order which sets forth aspecific task the master is to accomplish, a time period in which tocomplete the special master duties, as well as the scope of the master'sauthority.

In many instances where a judge contemplates the appointment of aspecial master, the judge will consult with attorneys involved in thelitigation for suggestions regarding possible candidates for theappointment, as well as assistance in delimiting the scope of specialmaster's duties. Counsel may object to the appointment of a special

249 id.250 See Press Release, BP Establishes $20 Billion Claims Fundfor Deepwater HorizonSpill and Outlines Dividend Decisions (June 16, 2010), available athttp://www.bp.com/genericarticle.do?categorylD=2012968&contentld=7062966. The BPPress release announced that Ken Feinberg would administer the Independent ClaimsFacility; that funds would be available to satisfy "legitimate claims," that the ICF wouldadjudicate all OPA claims and tort claims, excluding federal and state claims. BP alsoindicated that the fund did not cap its liability, but that money left over in the fund onceall legitimate claims were resolved would revert to BP; Strassel, Mr. Fairness, supra n. 3.251 White House Blog, A New Process and a New Escrow Account for All Oil SpillClaims from BP (June 17, 2010), available at http://www.whitehouse.gov/-blog/2010/06/17/ a-new-process-and-a-new-escrow-account. The White House blogindicated that the facility would develop standards for recoverable claims that would bepublished, and that a panel of three judges would be available to hear appeals of theadministrator's decisions. See also Strassel, Mr. Fairness, supra n. 3.252 See Gulf Coast Claims Facility Protocolfor Interim and Final Claims (Nov. 22, 2010)(authorization under OPA), available at http://www.gulfcoatclaimsfacility.com/-protocol.253 Fed. R. Civ. P. 53.

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master, the definition of the special master's assigned project, or thescope of the master's authority."4

As indicated above, Feinberg's appointment as the special master tooversee the WTC Fund was not made by a federal judge pursuant to Rule53. No judicial order specified the tasks Feinberg was to perform,described the scope of his authority, or limited his discretion.Consequently, Feinberg rapidly assumed expansive supervision, control,and discretion over all matters involved in lidministering the WTC Fund.As has been dis-,ussed above, after an initial round of formal notice-and-comment ruleraking, Feinberg increasingly assumed vast powers tomodify and change rules and standards governing administration of theWTC Fund.

Similar to his experience with the WTC Fund, Feinberg'smanagement of the GCCF facility has not been subject to a Rule 53 courtorder, or any other judicially-created mandate. Basically, Feinberg'ssupervision and control of the GFFC has been a relatively unguided andunbounded exercise of power by a single administrator.2s

3. AccountaoilitySpecial masters who are judicially-appointed pursuant to Rule 53 are

accountable to the court that appointed them to undertake some task. Inessence, special masters are not free agents. Rule 53 requires that thespecial master, upon completion of the master's work, submit a report tothe court.2s6 The judge may then utilize the special master's work productin any fashion the court deems appropriate. Parties involved in thelitigation may submit comments or challenges to the special master'sfindings and co:aclusions. The court may accept, modify, or reject aspecial master's findings, and adopt the master's report in whole orpart.257

Feinberg was not appointed special master pursuant to Rule 53 andtherefore, in administering the WTC Fund, he technically Was not subjectto the requirements of Rule 53 nor was Feinberg answerable to a federaljudge for whom he was working. Because of his unusual status as aCongressionally- authorized, executively-appointed Special Master,Feinberg has been criticized for being uniquely unaccountable in theexercise of his of ice.2s8

254 See DeGraw, Rule 53, supra n. 238 at 811.23s Berkowitz, The Problematic Role of the Special Master, supra n. 18 at 20: "Despitethe independence granted by the expansion of the court-appointed special master's role,special masters are always answerable to the judges who appoint them for a particularcase and are further mupervised by the rigors of the adversarial process. No such checksexist over the Fund's Special Master, making Feinberg a rare, and tenuous, judh-ialcreature."156 Fed. R. Civ. P. 53(f).257 See Federal Judicial Center, MANUAL FOR COMPLEX LITIGATION FOURth at § 11.52(2004).238 See Ackerman, Th? September IIth Victim Compensation Fund, supra n. 8 at 211 ("It

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Nonetheless, in implementing and administering the Fund, Feinbergwas loosely accountable to various constituencies. Thus Feinberg wasremotely was answerable to Attorney General Ashcroft. s In addition,because Congress had authorized the WTC Fund, Feinberg wasaccountable to various Congressional committees, the WTC Fundclaimants, and the public. After the WTC Fund was closed, Feinbergissued a report on his work to Congress.260

During his tenure as special master, Feinberg also developed aninteresting synergy with federal Judge Alvin Hellerstein, who wasassigned the cases of claimants who had elected not to receivecompensation through the WTC fund.26' Feinberg apparently initiatednumerous conference calls with Judge Hellerstein, in order to coordinatetheir efforts and to impart information about the relative risks of seekingcompensation either through the Fund or litigation.262 Judge Hellerstein,acting in concert with Feinberg, required that individuals pursuingjudicial relief in the tort system to have first weighed and assessed the

is in this particular area where the Fund's most serious procedural shortcoming isapparent. Were we to grade the Fund's accountability on the upstream end, we wouldgive it a "C" . . . But with major gaps to fill, some of the most significant rule-makingwas left to an appointed Special Master with no direct accountability to the electorate...It is on the downstream end, however, where accountability all but disappeared."); Diller,Tort and Social Welfare Principles, supra n. 15 at 726 (Fund vested too much discretionin the Special Master with little means of accountability and oversight); Schneider, GriefProcedure, and Justice, supra n. 19 at 477 (vesting so much discretion in one decision-maker increases perceptions of unfairness); Tyler and Thorisdottir, A PsychologicalPerspective, supra n. 15 at 384 (large amount of discretionary authority of Special Masterraised suspicions that biases and person preferences would shape allocation decisions).Highly critical of Feinberg's role, Professor Diller has concluded:

Feinberg's conduct highlights the central weakness of the Fund as an administrativemechanism-its operation rests on the personal choices of a single individual, withlittle means of accountability and oversight. As Feinberg has construed his grant ofauthority, there are few governing legal standards, no real requirement that likeclaims be treated alike, no obligation to provide reasoned explanations, no limits onthe amount that may be spent, and no means of judicial review.

Diller, id. at 767.259 Alexander, Procedural Design, supra n. 5 at 663 ("Thq only statutory officer of theFund is the Special Master, who reports directly to the Attorqey General");26 FINAL REPORT OF THE SPECIAL MASTER, supra n. 4.261 In re September 11th Litig., 280 F. Supp. 279 (S.D.N Y 2003); see also Conk, Willthe Post 9/11 World be a Post-Tort World?, supra n. 24 at 1p9 (array of September 11thcases assigned to Judge Hellerstein).262 Steven Brill, AFTER: How AMERICAN CONFRONTED THE SEPTEMBER 12 ERA (2003) at537-38 (suggesting that Feinberg tried to posture this as Judge Hellerstein's idea, "butplaintiffs lawyers immediately saw his [Feinberg's] fingerprints on it, and they wereoutraged. How could he and a judge interfere this way in an attorney-clientrelationship?"); see also Berkowitz, The Problematic Role of the Special Master, supra n.18 at 27-28 (describing the relationship of Feinberg and Judge Hellerstein in urgingvictims to take their relief from the Fund).

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alternative remedy of receiving compensation from the Fund.263 In thisfashion, Judge Hellerstein, in concert with Feinberg, pressured claimantsnot to pursue tort litigation, but instead to take an award from the WTCFund.2

In addition, as will be discussed below, Judge Hellerstein otherwisedid not oversee or review Special Master Feinberg's various decisionsrelating to implemeritation and administration of the WTC Fund.265

Although some claimants challenged to WTC Fund criteria in court,Judge Hellerstein ruled that while he could review the legality of thosecriteria, he would not review any individual challenges in the applicationof those standards and rules. 266 And, Judge Hellerstein upheld the legalityof Feinberg's siandards for administration of the Fund,267 including thedecision that Feinberg had not impermissibility created a cap on awardsfor high-end earners.2 6

8

In contrast, in implementing and administering the GCCF, Feinbergappears to be accountable to no one, except possibly BP.269 BecauseFeinberg is not functioning as a court-appointed special master underRule 53, he is not accountable to any federal judge or the judicial system.Feinberg's independence from BP has been repeatedly challenged.270

263 See Milo Geyeli n, Judge Wants Victims of September II Who Sue to Know the RisksofAction, Wall St. J. at B2 (April 11, 2002).264 Berkowitz, The Problematic Role of the Special Master, supra n. 18 at 27-28.265 Feinberg et al., F INAL REPORT OF THE SPECIAL MASTER at 12-13.266 Feinberg et al., id.; see discussion at note 262 of Judge Hellerstein's decisions in theWTC litigation.267 Colaio v. Feinberg, 262 F. Supp. 2d 273 (S.D.N.Y. 2003). See also Schneider v.Feinberg, 345 F.3d 135, 143 (2d Cir. 2003) (upholding Judge Hellerstein's decision). SeeAckerman, The September 11th Victim Compensation Fund, supra n. 8 at 165-174Hellerstein's Colaio decision and the Second Circuit affirmation); James P. Krindler andBrain J. Alexander, September 11th Aftermath: A Perspective on the VCF and Litigation,18 Air & Space Lavyer (Winter 2004) (commenting favorably on the Colaio decision assending a message to Feinberg not to cap awards).261 Colaio, id.1269 Feinberg's relationship with BP has raised numerous ethical issues; see discussioninfra at note 276. As early as June 20th, Feinberg's independence from BP wasquestioned. See Cf arles E. Lavis, Interview with Ken Fienberg, The IndependentAdministrator of the BP Oil Spill Victim Compensation Fund (June 20, 2010), available,it http://www.bpoilspilliawblog.com/2010/06/ken-feinbergs-interview-on-mee.html?utm-pou. (noting that Feinberg was being paid by BP); see also Campbell Robertson, AsClaims for Spill Losses Shift to Administrator, Queries Follows, N.Y. Times (Aug. 23,f 010) (Gulf Coast resident querying Feinberg: "If you're not with BP and you're not withhe government, wlo are you with?"); Urbina, BP Settlements Likely to Shield Top

befendants, supra n. 109 (reporting BP's successful lobbying effort with Feinberg to1equire deduction of collateral benefits from GCFF awards).70 See discussion cf Feinberg's independence from BP, at note 116. See Kaufman,

Feinberg Vows Quick Response on Gulf Oil Spill Claims, supra n. 7 (reporting on townhall meeting in Houna, Louisiana: "I feel that you have a serious conflict of interest,"one audience member charged. "The Bible states one man should not serve two

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Similarly, because his work as fund administrator is not derived fromspecific Congressional authorization, Feinberg is not accountable to anylegislative oversight, although he voluntarily appeared before Housesubcommittees shortly after his designation as the GCCFadministrator.27' Finally, because the Attorney General did not appointFeinberg-as the Attorney General did for the WTC Fund-Feinberg isnot subject to Executive branch oversight, either.

In the context of the GCCF, Feinberg is operating basically as anentirely free agent, accountable ultimately to no one. He has completeauthority to make rules and standards, to change those rules andstandards, to issue awards, and to provide or deny whatever procedureshe deems appropriate. As will be discussed, claimants have limitedopportunities to appeal decisions of the fund administrator. 272 Thus,Feinberg is the original and ultimate arbiter of both substantive andprocedural due process in administering the GCCF.

It remains to be seen what relationship will develop betweenFeinberg's administration of the GCFF and the Gulf Coast Oil SpillMDL 2179 created in the Eastern District of Louisiana under themanagement of federal Judge Carl J. Barbier.274 Plaintiffs attorneys fileda motion in that MDL proceeding to enjoin Feinberg from encouragingclaimants to seek their compensation solely from the Fund, which JudgeBarbier granted in February 2011.275 In the context of the WTC Fund,

masters."); Robertson, As Claims for Spill Losses Shift, id.271 See also Jim Snyder, Feinberg to Meet U.S. Senator as Complaints Mount Over BPClaims, Bloomberg Businessweek (Sept, 28, 2010) (reporting that Feinberg had testifiedbefore four Congressional panels on July 22, 2010; Feinberg summoned to meeting withSenator Tom Carper to answer criticisms from Gulf Coast residents about claimsprocess); Jim Snyder, Carper Says Gulf Claims System Needs Work, Vouches forFeinberg, Bloomberg News (Sept. 29, 2010) (Senate Government Affairs Subcommitteemonitoring claims process); Carper Statement on Meeting With Kenneth Feinberg (Sept.29, 2010), available at http://carper.senate.gov/press/record.cfn?id=328035.272 See discussion on appellate review of GCCF award decisions, infra at notes 324-28.The protocol for emergency payment provided no means for appeal, at all. See GCCFProtocol for Emergency Advance Payment, supra n. 62.

273 But See GCCF Protocol for Emergency Advance Payment, supra n. 62 (providing forthe GCCF to institute periodic audits to evaluate the accuracy of submissions andpayments, but seemingly not to monitor the administration or determination of awards).274 See discussion of the Deepwater Horizon Oil Spill MDL 2179, infra at notes 486-88;Big Gulf Spill Gets Sent to the Big Easy, W.S.J. (Aug. 10, 2010), available athttp://blogs.wsj.com/law/2010/08/10/big-gulf-spill-gets-sent-to-the-big-easy (creation ofOil Spill MDL and transfer to federal court in New Orleans; assigned to Federal JudgeCarl Barbier; viewed as plaintiff attorneys victory).275 Order and Reasons, In re Oil Spill by the Oil Rig "Deepwater Horizon" in the GulfofMexico, on April 20, 2010, MDL 2179 (Feb. 2, 2011) (granting plaintiffs' motion tosupervise ex parte communications with putative class); see Tom Hals, Judge FindsFeinberg Not Independent of BP, Yahoo. Finance (February 2, 2011, available athttp://finance.yahoo.com/news/; see Tom Hals, Judge Finds Feinberg Not Independent ofBP, Yahoo. Finance (February 2, 2011, available at http://finance.yahoo.com/news/; John

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Judge Hellerstrin appeared to attempt to coordinate his judicial effortswith Feinberg. At this writing, it is unclear what approach the Louisianafederal court %ill adopt with regard to coordination, interference, or non-interference with Feinberg's parallel efforts.

4. Professional EthicsFeinberg's continued role as the GCCF administrator, over time, has

raised a myriad of controversial and unresolved issues relating toprofessional etbics. Although in administering the WTC Fund Feinbergmade a number of contentious decisions, and angered variousconstituencies, there were few reported ethical challenges to hisadministration of that Fund.276 That has not been true in Feinberg'sadministration of the GCCF.

The most trenchant ethical challenge asserted against Feinberg'smanagement of the GCCF centers on Feinberg's perceived conflict-of-interest.277 In addition, others have questioned BP's continuedintervention and interference with various aspects of the GCCF'soperations.278 Critics repeatedly have pointed out that BP selectedFeinberg to administer the Fund, BP is paying Feinberg and his law firm,and BP has influenced a number of decisions relating to the Fund'simplementation and administration, such as the deduction of collateralsource funds and releases for final claims awards.279

Schwartz, Commerts By Overseer of BP Fund Irk Lawyer, N.Y. Times (Dec. 21, 2010)(reporting plaintiff lawyers' motion to enjoin Feinberg from communicating with putativeclass claimants); B ian Skoloff and Harry Weber, Judge to GulfClaims Czar: Don't SayYou're Independen t, MSNBC News (Feb. 2, 2011), available at http://www.msn.com/.276 But see Diller, Tort and Social Welfare Principles, supra n. 15 at 759-61 (raisingethical issues about Feinberg's judgment).277 See Kaufman, Feinberg Vows Quick Response on Gulf Oil Spill Claims, supra n. 15(town hall meeting participants challenge Feinberg's independence and note conflict-of-interest).278 Brian Skoloff, 91,000 Gulf Oil Spill Claims, Just I Final Payment,http://news.yahoo.com/s/ap/20110131/apon bi ge/usgulf oil spill claims (lastaccessed on February 1, 2011); Daniel Fisher and Asher Hawkins, BP's Legal Blowout,Forbes.com (July .4, 2010) (reporting that Feinberg asked BP to draft releases thatexempt BP from any future liability for the spill, but not to include other defendants),available at http:hwww.forbes.com/2010/07/14/bp-oil-spill-settlement-business-energy-lawsuits; see also Neil King Jr., Feinberg Criticized for Spill-Compensation Terms,W.S.J. (Aug. 24, 2010) (criticism from Alabama State Attorney general Troy King,accusing Feinberg cf acting as a "corporate shill").279 Daniel Fisher ar d Asher Hawkins, BP's Legal Blowout, Forbes.com (July 14, 2010)(reporting that Feinberg asked BP to draft releases that exempt BP from any futureliability for the spill, but not to include other defendants), available athttp://www.forbes.cDm/2010/07/14/bp-oil-spill-settlement-business-energy-lawsuits;Urbina, BP Settlemnts Likely to Shield Top Defendants, supra n. 109 (reporting BP'ssuccessful lobbying Feinberg to include collateral source deductions from GCCFawards); see also In Advance of Hearing, Parties in BP Litigation Already Feuding,W.S.J. (Sept. 14, 2010) (plaintiffs' attorneys motions in MDL seeking all contracts andcommutations betwcen BP and Feinberg Rozen, Feinberg's firm administering the $20

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Moreover, Feinberg was appointed as administrator after privatenegotiations with BP, well in advance of creation of the GCCF, andseemingly without the consultation of any other affected parties.280

Feinberg has been reported traveling around the Gulf coast states in BPprivate jets and meeting with BP executives.281 In addition, for severalmonths Feinberg resisted disclosure of BP's compensation to him,repeatedly telling the press that this information would beforthcoming. 282 To date, Feinberg has not disclosed his BP compensation(other than information relating to an alleged $850,000 monthly paymentto Feinberg's law firm).283

Further enflaming and exacerbating the conflict-of-interest debate,on February 1, 2011 the media reported that the GCCF had made its firstfinal settlement award to a BP business partner in the amount of $10million.284 The payment of this final settlement moved BP's businesspartner to the head of the queue of approximately 91,000 otherindividuals and businesses that have filed for final settlement

million fund).280 John Schwartz, For Kenneth Feinberg, More Delicate Diplomacy, N.Y. Times (July16, 2010) (appointment of Feinberg); John Pacenti, Plaintiffs' Attorneys Knock BP FundAdministrator, Daily Business Review (July 26, 2010) (Feinberg picked by BP).281 See Neil King Jr., Feinberg Ramps Up $20 Billion Compensation Fund, W.S.J. (June21, 2010), supra n. 76 (Feinberg's meetings with BP executives); John Schwartz, ForKenneth Feinberg, More Delicate Diplomacy, N.Y. Times (July 16, 2010) (Feinbergflying around Gulf Coast states on BP jets); John Pacenti, Plaintifs' 'Attorneys Knock BPFund Administrator, Daily Business Review (July 26, 2010) (same).282 Daniel Fisher and Asher Hawkins, BP's Legal Blowout, Forbes.com (July 14, 2010)(Feinberg not disclosing salary from BP), available at http://www.forbes.com-/2010/07/14/bp-oil-spill-settlement-business-energy-lawsuits.; John Schwartz, ForKenneth Feinberg, More Delicate Diplomacy, N.Y. Times (July 16, 2010) (Feinbergrefusal to disclose salary compensation from BP to him); John Pacenti, Plaintifs'Attorneys Knock BP Fund Administrator, Daily Business Review (July 26, 2010) (same);Feinberg to Disclose Compensation for Administering BP Fund, Mass Tort LitigationBlog (July 29, 2010), available at http://www.lawprofessors.typepad.com/mass_tortlitigation/2010/07/feinberg-to-disclose-comepnsation-for-adminstering-bp-fund(AP reports Feinberg announces he will disclose BP's compensation to him; previouslystated that such information would be confidential and "between him and BP.");Kaufman, Feinberg Vows Quick Response on Gulf Oil Spill Claims, supra n. 7 (town hallmeeting participants challenge Feinberg's independence while he is being paid by BP;Feinberg suggests he will reveal salary next month (September 2010)); Urbina, BPSettlements Likely to Shield Top Defendants, supra n. 109 (Feinberg's earnings from BPunknown).283 See Charles E. Lavis, Interview with Ken Fienberg, The Independent Administrator ofthe BP Oil Spill Victim Compensation Fund (June 20, 2010), available athttp://www.bpoilspilllawblog.com/2010/06/ken-feinbergs-interview-on-mee.html?utm-sou. (noting that Feinberg was being paid by BP).284 Brian Skoloff, 91,000 Gulf Oil Spill Claims, Just I Final Payment,http://news.yahoo.com/s/ap/20110131/apon-bi ge/usgulf oilspill claims (lastaccessed on February 1, 2011).

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payments. BP acknowledged that this payment was privatelynegotiated between BP and its partner and that BP had ordered the GCCFto make the payment.16 In response to questions about this arrangement,Feinberg indicated that BP had struck an outside deal, had told the fundto make the payment, and that the claims facility had never made its ownindependent review of the merits of the claim. 287 These events clearlybelie repeated assertions from both BP and Feinberg that BP has beenand is acting independently from the GCCF.

In response to his critics, Feinberg repeatedly has avowed that hefunctions as an impartial administrator, 88 and the GCCF websitedeclares that the facility is a "neutral" fund and that Feinberg is a neutralfund administrator. 289 He has repeatedly indicated that he was promisedtotal independence from both BP and the White House.290

As questions about Feinberg's conflict-of-interest and other ethicalissues have continued unabated, Feinberg retained Professor StephenGillers of New York University Law School to render an expert opinionregarding varicus ethical challenges.' In late December 2010, ProfessorGillers issued an expert report concluding that Feinberg was not violatingany professional responsibility standards.292 Professor Gillers was paidfor this work out of BP funds, at the rate of $950.00 an hour, raisingfurther questions about the independence of Feinberg, Gillers, and BP.29

The issues relating to Feinberg's independence and neutrality inimplementing the GCCF are intricately interwoven with questionsconcerning the capacity in which Feinberg and his law firm are serving.

285 id.

M id.287 id.

m See e.g., Neil King Jr., Feinberg Ramps Up $20 Billion Compensation Fund, supra n.76 W.S.J. (June 21, 2010) (reporting that Feinberg repeatedly indicated that he would nottake orders from EIP or the White House); Robertson, As Claims for Spill Losses Shift,supra n. 67 (Feinberg vowing that his decisions were strictly his own); John Schwartz,For Kenneth Feinberg, More Delicate Diplomacy, N.Y. Times (July 16, 2010) (Feinberg:"I am not beholden to the Obama administration, I am not beholden to BP - I am anindependent admin strator, calling the shots as I see them.").2m9 See Frequenth; Asked Questions at 1, available at http://www.gulfcoastclaimsfacility.com/faq.290 Strassel, Mr. Foirness, supra n. 3 (Feinberg promised total independence and neitherBP nor the adminisration "want to get near this. And that's appropriate.")2' Harry R. Weber, Ken Feinberg Paying Stephen Gillers, NYU Professor, With MoneyFrom BP Oil Spill Claims Fund for Legal Ethics Advice, Huffington Post (December 30,2010), available at http://huffingtonpost.com/2010/12/30.292 Stephen Gillers, Letter Report to Kenneth Feinberg, New York University School ofLaw (December 28, 2010)[on file with the Louisiana Law Review]; Press Release, Experton Legal Ethics: Feinberg and the Gulf Coast Claims Facility are Independent and MeetAll Appropriate Ethical Standards (December 30, 2010), available athttp://www.gulfcoastclaims facility.com/press 11.php.29 Weber, Ken Feirberg Paying Stephen Gillers, supra n. 291.

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Professor Giller's ethical analysis is grounded in his conclusion thatFeinberg is not functioning as an attorney, within the bounds of anordinary attorney-client relationship.294 Simply, Feinberg and his lawfirm, and the GCCF facility it is managing, are not acting as a "lawyerfor BP," and consequently BP is not Feinberg's client.2" By defining thethreshold capacity question in this fashion, Professor Gillers effectivelyhas insulated Feinberg from all professional standards, rules, andaccountability.

As indicated above, the plaintiffs' bar has sought, in the MDL 2179proceedings, to enjoin Feinberg from various actions in administering theGCCF, particularly seeking judicial supervision over communications byFeinberg with potential civil litigants. 9 Professor Geoffrey Hazard hassubmitted an expert Declaration in support of this request,29 opining thatFeinberg's law firm either is acting as a lawyer for BP, or if not, then asan agent for BP.298 In contrast to Professor Giller's conclusions,Professor Hazard suggests the GCCF is not an entirely independentfacility, because its substantial 'operating expenses are being paid byBP. Professor Hazard points out that the attorneys hired to assist in theGCCF claims process are not working pro bono (as they did inadministering the WTC Fund), but are being paid by BP. As such,Professor Hazard suggests that they are ethically bound to inform anyclaimant that they may assist in the GCCF process, of that compensationarrangement.3 " In addition, Professor Hazard suggests that the GCCF isnot functioning as a mediation enterprise, because it was establishedunilaterally by BP and not with the agreement of opposing claimants.30'

In contrast to Professor Giller's expert opinion, Professor Hazardfurther concludes that Feinberg is an attorney representing the GCCF,

294 Gillers, Letter Report at 4 ("You are not in an attorney-client relationship with BP.You are an independent administrator and owe none of the attributes of the attorney-client relationship (e.g., loyalty, confidentiality) to BP.295 Id. ("By "independent" I mean (and I think the context is clear) that you areindependent of BP. You are not subject to its direction or control."). See Jim Snyder andCarol Massar, Feinberg Says Half of $20 Billion BP Fund Should Cover Claims,Bloomberg News (Jan. 1, 2011) (Giller's conclusions on Feinberg's independence).296 Order and Reasons, In re Oil Spill by the Oil Rig "Deepwater Horizon" in the Gulf ofMexico, on April 20, 2010, MDL 2179 (Feb. 2, 2011) (granting plaintiffs' motion tosupervise ex parte communications with putative class); see Tom Hals, Judge FindsFeinberg Not Independent of BP, Yahoo. Finance (February 2, 2011, available athttp://finance.yahoo.com/news/; Brian Skoloff and Harry Weber, Judge to Gulf ClaimsCzar: Don't Say You're Independent, MSNBC News (Feb. 2, 2011), available athttp://www.msn.com/.297 Declaration of Geoffrey C. Hazard Jr., In re Oil Spill by the Oil Rig "DeepwaterHorizon" in the GulfofMexico, on April 20, 2010, MDL 2179 (E.D. La.) (Jan. 15, 2011).298 Hazard Jr. Declaration., id. at 11.299 Hazard Jr. Declaration., id. at 7 c.3 Hazard Jr. Declaration., id. at 7 f.301 Hazard Jr. Declaration., id. at 7 c.

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and that his actions and statements may properly be evaluated under theLouisiana Rules of Professional Conduct and the counterpartprofessional rules of other jurisdictions. 30 2 Subjected to this scrutiny,Professor Hazard suggestions that many of Feinberg's actions andstatements might be considered professionally improper under the codesof professional re sponsibility.303

On February 2, 2011, Judge Barbier issuet his opinion enjoiningFeinberg.'" Judge Barbier's Order required that the Defendant BP,through its agents Ken Feinberg, Feinberg Rozen LLP, and the GulfCoast Claims Facility, and any of their representatives, in any of theiroral or written conmunications with claimants, shall:

(1) Refrain from contacting directly any claimant that they knowor reasonably should know is represented by counsel, whether ornot said claimant has filed a lawsuit or formal claim; (2) Refrainfrom referrin3, to the GCCF, Ken Feinberg, or Feinberg Rozen,LLP (or their representatives), as "neutral" or completely"independent' from BP. It should be clearly disclosed in allcommunications, whether written or oral, that said parties areacting for and on behalf of BP in fulfilling its statutoryobligations as the "responsible party" under the Oil Pollution Actof 1990. (3) Begin any communication with a putative classmember with the statement that the individual has a right toconsult with an attorney of his/her own choosing prior toaccepting any settlement or signing a release of legal rights. (4)Refrain from giving or purporting to give legal advice tounrepresented claimants, including advising that claimantsshould not hire a lawyer.(5) Fully disclose to claimants theiroptions under OPA if they do not accept a final payment,including filing a claim in the pending MDL 2179 litigation.(6)Advise claimants that the "pro bono" attorneys and "communityrepresentatives" retained to assist GCCF claimants are beingcompensated directly or indirectly by BP.305

In addition to the conflicts-of-interest issue, Feinberg also has comeunder heated attack for urging potential Gulf Coast claimants to seekremediation through the GCCF, rather than the judicial system.o 6 In this

102 Hazard Jr. Declaraion., id. at 10 a. See John Pacenti, Plaintffs'Attorneys Knock BPFund Administrator, laily Business Review (July 26, 2010) (Feinberg may have violatedFlorida Bar rules by giving legal advice to those affected by spill without being licensedin the Gulf States).So3 Hazard Jr. Declara ion., id.

-'0 Order and Reasons. In re Oil Spill by the Oil Rig "Deepwater Horizon" in the Gulf ofMexico, on April 20, 2010, MDL 2179 (Feb. 2, 2011) (granting plaintiffs' motion tosupervise ex parte communications with putative class).30sId.306 See e.g., Strassel, Mr. Fairness, supra n. 3 (Feinberg's urging potential claimants tosign up with the GCCF riles tort-law community; tort bar and state attorneys general raise

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regard, Feinberg has repeated the course he followed in administering theWTC Fund. Then, Feinberg created controversy by his publicadmonitions that claimants take their relief exclusively through his fund,famously declaring at one point that the WTC Fund "was the only gamein town.,307 Although WTC claimants criticized Feinberg for his oftenblunt demeanor in urging them to act quickly, Feinberg did not raisemany objections from the practicing bar. In the context of the GCCF,however, Feinberg has engendered the considerable ire of the plaintiffs'bar, which attorneys have successfully enjoined Feinberg from hisrepeated public urgings that claimants take their exclusive relief throughthe GCCF.aos

In contrast to Professor Giller's over-arching conclusion, Feinberg'scritics believe that he is an attorney subject to professional responsibilitystandards and that he is accountable as an attorney for his actions.Hence, Feinberg's critics have contended that Feinberg's repeatedstatements urging Gulf Coast claimants to take their exclusive remediesin the GCCF constitute providing legal advice, notwithstandingFeinberg's protestations to the contrary.3'0 In this regard somecommentators have argued that Feinberg is not authorized to practice inthe Gulf States, and as a consequence Feinberg is engaged in theunauthorized practice of law.3' In this vein, some have questioned whatcode of professional conduct governs Feinberg's actions in administeringthe GCCF.312 In his Declaration in support of an injunction ProfessorHazard has opined that under the Louisiana Code of ProfessionalResponsibility, many of Feinberg's public pronouncements conveyinaccurate and misleading statements, constituting further breaches ofprofessional ethics.

The swirling professional responsibility issues relating to Feinberg'scapacity and ethical duties are yet unresolved. Nonetheless, Feinberg's

very legitimate policy issues about releasing BP from liability before all damage from thespill is known).30 Berkowitz, The Problematic Role of the Special Master, supra n. 18 at 27; Carter, TheMaster of Disasters, supra n. 2 at 37.3 Order and Reasons, In re Oil Spill by the Oil Rig "Deepwater Horizon" in the Gulf ofMexico, on April 20, 2010, MDL 2179 (Feb. 2, 2011) (granting plaintiffs' motion tosupervise ex parte communications with putative class); see Tom Hals, Judge FindsFeinberg Not Independent of BP, Yahoo. Finance (February 2, 2011, available athttp://finance.yahoo.com/news/; Brian Skoloff and Harry Weber, Judge to Gulf ClaimsCzar: Don't Say You're Independent, MSNBC News (Feb. 2, 2011), available athttp://www.msn.com/.30 See Pacenti, Plaintiffs' Attorneys Knock BP Fund Administrator, supra n. 139(Feinberg violating Florida Bar rules by giving legal advice to those affected by the spillwithout being licensed in the Gulf States).310 See Pacenti, Plaintiffs' Attorneys Knock BP Fund Administrator, supra n. 139.311 See Pacenti, Plaintiffs'Attorneys Knock BP Fund Administrator, id.312id.

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unusual appointment status and his controversial administration of theGCCF have exposed novel ethical fault-lines in the administration ofsuch funds. If Feinberg is deemed as acting as an attorney, then he issubject to as-yet-determined rules of professional responsibility.However, if Feirberg is not acting in the capacity of an attorney, thenlegitimate questions exist regarding the capacity in which he functions,and what standards constrain his actions. It is worth noting that attorneys,mediators, arbitrators, and even insurers are all subject to professionalcodes of conduc.m Feinberg's administration of the GCCF raisesproblematic questions whether he is in any way bound by anyprofessional standards.

Finally, it is worth noting that, as a matter of common sense,Feinberg cannot be the final judge and arbiter of his own neutrality,impartiality, and independence. His repeated self-serving statements tothis effect should be accorded little weight. It might be added, moreover,that Feinberg's often tone-deaf responses to ethical challenges in thecontext of his administration of the GCCF have not served him well inaddressing these serious issues.E. Reviewability of the Special Master's/Administrators Decisions

An enterprise's legitimacy may be measured, in part, by the degreeto which its decis:.ons are subject to independent appeal and review. Boththe WTC Fund and GCCF have, in similar fashion, permitted limitedreview of its standards and award decisions. Arguably, the GCCF hasprovided even mcre circumscribed review of the facility's administrativedecisions than did the WTC Fund.

As indicated above, Feinberg's management of the WTC Fund wasaccountable in several ways, including the notice-and-comment periodaccompanying the development of standards at the outset of the fund.3 14On the other hand, substantial aspects of Feinberg's administration of theWTC Fund were subject to only limited, independent judicial review.315

For example, several claimants brought a challenge in federal court to the

313 See, e.g., Model Rules of Professional Conduct, A.B.A., http://www.americanbar.org/groups/professionalresponsibility/publications/model_rules of professional_ conduct/model rules of professional conduct table ofcontents.html (last vi!ited Apr. 8, 2011) (attorneys); Model Standards of Conduct forMediators, A.B.A., attp:// www.americanbar.org/content/dam/aba/ migrated/dispute/documents/model standards_ con-duct-april2007.authcheckdam.pdf (last visited Apr. 8,2011) (mediators); Code of Professional Responsibility, Nat'l Acad. Arb., http://www.naarb.org/code.html (last visited Apr. 8, 2011) (arbitrators); Code of ProfessionalConduct, Am. Inst. CPAs, http:/ www.aicpa.org/Research/Standards/CodeofConduct/Pages/default.aspx (last visited Apr. 8, 2011) (accountants).314 See discussion of HATC notice-and-comment rulemaking, supra at Part II.C.'1 Alexander, Procedural Design, supra n. 5 at 683-84 (ATSA expressly provides that

the Special Master's decisions on claims to the September 11th Fund are not subject tojudicial review"); Steenson & Sayler, The Legacy of the 9/11 Fund, supra n. 14 at 546-47;

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WTC Fund's promulgated criteria."' Judge Hellerstein held that he hadjurisdiction to entertain these legal challenges,317 and he upheld theconstitutionality of the rules.3" Nevertheless, Judge Hellersteinadditionally held that he did not have authority to consider judicialchallenges to Feinberg's awards made pursuant to the WTC Fundstandards.319 Thus, after the court determined the constitutionality of thestandards, claimants had no further recourse in federal court to challengeFeinberg's administrative awards.320

Instead, in managing the WTC Fund, Feinberg instituted an internalhearing process for so-called "Track B" claimants. 321 Thus, claimantswho did not wish to accept the offer of a WTC Fund award could requestan individualized hearing before a WTC staff member, and could presentparticularized information in support of an increased award. 2 Thedecision of the WTC Fund staff was final, and a claimant had no furtherrecourse to any judicial or non-judicial review.323

In developing plans for the GCCF, Feinberg considered an appealsprocess early on, indicating that he intended to provide for review byappointing three judges to oversee this process. 324 During ensuingmonths, with an appeals process still not in place, Feinberg modified hisearlier pronouncements and indicated that he would appoint a three-person panel, not necessarily consisting of judges, but persons of similarprofessional credentials, such as law professors or local, knowledgeable

325wise men.The entire GCCF appeals process and the mechanisms for appellate

review are unclear. The protocol for emergency payments made no

316 Alexander, Procedural Design, id. at 683-84;317 Colaio v. Feinberg, 262 F. Supp. 2d 273, 285 (S.D.N.Y. 2003).

3' Colaio, id., 262 F. Supp. at 286, 288, 300-01.3 Colaio, id.320 ATSA at § 405(b) (3) (stating that all decisions reached by the Special Master are finaland not subject to review). See Steenson & Sayler, The Legacy ofthe 9/11 Fund, supra n.14 at 546-547;321 Feinberg et al., FINAL REPORT OF THE SPECIAL MASTER atlS-17; Feinberg, TheBuilding Blocks, supra n. 9 at 275 ("If you don't like your award that has been computedby some green eye-shade person, you have the right to appeal administratively within theprogram and see the Special Master or his designee.").322 Feinberg et al., FINAL REPORT OF THE SPECIAL MASTER at 15-17.323 id,324 See discussion of Feinberg' early representation that GCCF claims would involvethree-judge appeal panels, at note 327.325 See David Hammer, New Gulf Oil Spill Claim Rules Announced by Ken Feinberg, TheTimes Picayune (Nov. 23, 2010) (Feinberg adds limited appeals process for applicantswho dispute interim or final determinations; possibility of appeal to Coast Guard;Feinberg to select distinguished retired judge or law professor to appoint several appealjudges).

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provision for appeal of awards. 326 Feinberg's publication of rules forfinal awards indicate the opportunity for an appeal before a three-personreview panel,327 but implementation of this process has remained vague.There has been no public disclosure of the creation or identity ofFeinberg's panels of three wise reviewers. However, the guidelines forfinal settlement awards permit dissatisfied claimants to reject offeredawards and bring suit in court or seek remediation from the NationalPollution Funds C nter.328

The lack of a review mechanism for GCCF awards gained theattention of the Department of Justice, which urged Feinberg to put sucha mechanism in flace.329 In this vacuum, Feinberg also endorsed anappeals process through the auspices of the United States Coast Guard,presumably operating under the authority of the OPA. To date, the CoastGuard has processed 264 out of 507 appeals, and in every case hasagreed with the GCCF.330

The mechanisms available for review of WTC Fund and CGFFdecisions raise a number of legitimacy questions. To begin, the WTCFund did not prov de for independent judicial review of awards and thismade the WTC Fund the ultimate arbiter of its own compensationdecisions. In a similar vein, Coast Guard appellate review of GCCF

326 See GCCF Protocoi for Emergency Advance Payment, supra n. 62.

.See Are the Victims of the Gulf Oil Spill Getting What They Deserve?, The Wash. Post(Nov. 24, 2010) (appeal to coast Guard or three-judge panel); The representation thatFeinberg's decisions would be subject to a three-judge panel appeared as early as June17, 2010, on a White House blog reporting Feinberg's appointment. See White House[log, A New Process cnd a New Escrow Account for All Oil Spill Claims from BP (June17, 2010), available a: http://www.whitehouse.gov/blog/2010/06/17/a-new-process-and-a-new-escrow-account. The White House blog indicated that the facility would developstandards for recoverat le claims that would be published, and that a panel of three judgeswould be available to hear appeals of the administrator's decisions.328 See Gulf Coast Claims Facility Protocol for Interim and Final Claims at V. D, E (Nov.22, 2010), available at http://www.gulfocastclaimsfacility.com/protocol (indicating that aclaimant could elect or reject an interim final payment determination and, as permitted bylaw, or sent a claim either to the National Pollution Funds Center or commence an actionin court. Claims for physical injury or death are not claims under the OPA and thereforecannot be presented to the National Pollution Funds Center. In addition, if an interim orfinal payment is denied, the claimant may present a claim either to the National PollutionFunds Center or institute a suit in court.329 Letter from Thomas J. Perrelli, Office of Associate Attorney General, U.S.Department of Justice to Kenneth Feinberg (Nov. 19, 2010); see also John Schwartz,Final Settlement Phase Starts for BP Oil Spill, N.Y. Times (Nov. 24, 2010);(Perrelliletter to Feinberg). See also Press Release, Mr. Feinberg and the Spill (Nov. 25. 2010)(Feinberg agrees to set up appeals process), available athitp://www.gulfcoastclaimsfacility.com/press8.php.33D Brian Skoloff, 91,000 Gulf Oil Spill Claims, Just I Final Payment,hitp://news.yahoo.com/l/ap/20110131/aponbige/usgulf oilspill claims (lastaccessed on February 1, 2011); Are Victims of the Gulf Coast Oil Spill Getting What TheyDeserve?, The Wash. Post (Nov. 25, 2010) (referencing possibility of appeal to CoastGuard a: well as to three-member appeals panel).

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awards also does not constitute a judicial review, and to date the CoastGuard has validated every GCCF decision. Second, the provision forinternal staff review of the WTC Fund and GCCF awards effectivelymakes the fund the auditor its own decisions-a questionable source forindependent review. Third, although the GCCF's webpage indicates thatclaimants may seek a panel review of awards, the reality of this avenuefor appellate review may be illusory. Finally, Feinberg's sweepingdeclaration of his authority to appoint judges to review GCCF awards isan unsettling assertion of power, and Feinberg's subsequent decision toappoint persons of various, unspecified credentials as appellate reviewersis equally questionable.F. Transparency

Feinberg's management of the WTC Fund afforded a relatively gooddegree of transparency in the creation and administration of the fund.33'This transparency was due, in no small measure, to the fact that Feinbergwas answerable to numerous constituencies. Thus, the WTC Fund wascreated by federal statute, subject to federal rulemaking processes, underthe jurisdiction of both the Attorney General of the United States, theJustice Department, and several Congressional committees. Feinberg hada reporting duty to Congress and was answerable to several influentiallegislators with affected constituencies. In addition, the highly public andtraumatic nature of the events giving rise to the creation of the WTCFund, as well as the heightened emotional volatility of the claimants, allconverged to impel maximum transparency in the WTC Fund's

332implementation.Transparency was manifested in several ways throughout the

administration of the WTC Fund. 3 Both the enabling statute authorizingcreation of the WTC Fund and the rulemaking process it triggered wereopen and publicly available to any interested person. Feinberg and hisstaff read and responded to thousands of comments and proposals duringthe rulemaking process,3 34 and continued to respond to constituentquestions and demands throughout the life of the fund.

The WTC Fund staff created an extensive website with informationand posted data concerning claims processing. Famously, Feinberg

331 See Ackerman, The September 11th Victim Compensation Fund, supra n. 8 at 214("The Special Master did provide a degree of transparency on a cumulative basis.");Rooks, Compensation for Victims of Terrorism, supra n. 9 ("Despite its imperfections,the victim compensation fund was a model of economy and transparency.").332 Feinberg et al., FINAL REPORT OF THE SPECIAL MASTER at 64-65. In commenting onhis experience in administering the WTC Fund, Feinberg noted the importance oftransparency: "Process. Openess. Sunshine. Sunlight. All very important." See Feinberg,The Building Blocks, supra n. 9 at 275.3 See Feinberg, Transparency and Civil Justice, supra n. 7 at 475-478.

334 id

33s Id.336 Feinberg et al., FINAL REPORT OF THE SPECIAL MASTER at 14-15 (describing outreach

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held numerous town meetings in several klcations to directly respond toprospective claimant's concerns.337 Feinberg's staff also undertookextensive initiatives to contact every potential claimant to the fund, toprovide advice and encouragement to participate in the fund.338 Feinberghimself participated in numerous public appearances and mediainterviews to explain and defend the ongoing fund actions.339 When theWTC Fund effectively closed, Feinberg prepared and presented a FinalReport to Congress, setting forth in significant detail the creation,implementation, and closure of the WTC Fund.340

Although the implementation of the WTC Fund accorded a highdegree of transparency, in other respects the operation of the Fund wasopaque.34' Thus, in making award determinations, Feinberg relied on thestaff analysis and recommendations supplied by the accounting firmPrice, Waterhouse. 342 Feinberg refused to provide claimants with theexpert reports prepared by his office as part of the claims evaluationprocess, 3 and. therefore claimants were denied access to criticalinformation concerning how their awards were determiined. 3" Inaddition claimants were not supplied with written decisions or a hearingrecord.?r

In contrast to the operation of the WTC Fund, the administration ofthe GCCF has been shadowed by multiple public charges of a lack oftransparency as well as delay. 346 The Department of Justice, cognizant of

efforts).33 Feinberg et al., FINAL REPORT OF THE SPECIAL MASTER, id33n Feinberg et al., FINAL REPORT OF THE SPECIAL MASTER , id.

3 Diller, Tort and Social Welfare Principles, supra n. 15 at 757-760 (describingFeinberg's outreach -fforts, comparing these to the role of mediator or arbitrator).No See FINAL REPOR7 OF THE SPECIAL MASTER, supra.

341 See Feinberg et al., FINAL REPORT OF THE SPECIAL MASTER at 64-65 (balancingtransparency and corfidentiality concerns).342 id

- Diller, Tort and Social Welfare Principles, supra n. 15 at 761 (failure to provideexpert reports to claimants is "troubling"); see also Diller, id. at 767 ("Because the[award] resolution ii each case occurs in a confidential proceeding that generates nowritten decision and is not subject to review, it has no means of filtering back up thesystem through a process of oversight or accountability."); Schneider, Grief Procedure,and Justice, supra n. 19 at 477-78.34 Diller, Tort and Scial Welfare Principles, id at 761, 767.34s Id. at 761. Diller suggests that these omissions may be analogized to arbitrationprocedures, but critically notes that Fund claimants were not engaged in arbitration andhad not waived their due process rights by electing a remedy through the Fund.m6 See e.g., Ylan Q. Mui, Louisiana Officials Urge BP to Speed Claims Payments, Wash.Post (July 6, 2010), available at http://www.washingtonpost.com/wp-dyn/content/article/201)0/07/05; But see Snyder, BP Spill Claims From 50 States ConfrontAdministrator Feinberg, supra n. 39 (indicating that as early as August 16, 2010,Feinberg had set aside a "modest amount", which he did not disclose, to compensate GulfState realtors, whose trade association had met with Feinberg the week before. "The

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these charges, contacted Feinberg to request that he take i nmediatemeasures to improve transparency in the implementation of the QCCF.347

Feinberg responded to the Justice Department, indicating that he wouldundertake such additional measures, and defensive14 arguing that hisadministration of the GCCF already was transparent. 8 It is difficult toascertain what additional measures Feinberg has pursued, in response tothe Justice Department request, to enhance transparency' in hisadministration of the GCCF.

On balance, at least some events surrounding administratidi of theGCCF have been transparent, similar to the WTC Fund. Forexample-and drawing on his WTC Fund experience-Feintherg hasmade a number of well-publicized trips throughout the Gulf Coa t regionand held a number of "town meetings."349 On the other hand, far fromsatisfying local potential claimants, many have objected to the window-dressing nature of such meetings, which locals characterized as lackingin substance to address their questions and needs.3 0 Similar to the WTCFund experience, Feinberg's staff has created and posted aninformational website to assist potential claimants, 3 ' with daily updatessupplying claims data.352

Notwithstanding these outward manifestations of transparency, muchinformation about the creation and the operation of the GCCF remainsopaque. Feinberg's designation and appointment as the fund'sadministrator was completely non-transparent. His selection of staff to

realtors have "suffered a great deal" in lost sales, rent, and commissions, (Feinberg]said.").347 See Letter from Thomas J. Perrelli, Office of Associate Attorney General, U.S.Department of Justice to Kenneth Feinberg (Nov. 19, 2010).348 See Letter from Kenneth R. Feinberg, Administrator, Gulf Coast Claims Facility toThe Honorable Thomas J. Perrelli (Nov. 30, 2010). See also John Schwartz. FinalSettlement Phase Starts for BP Oil Spill, N.Y. Times (Nov. 24, 2010) (attorneys criticalof general release of all parties). Feinberg has endorsed the important value oftransparency in accomplishing his work. Feinberg, Transparency and Civil Justicel, supran. 7. Thus, in discussing his administration of the WTC Fund, Feinberg has indicated:"Transparency-giving people in this case due process-I think was extremelyvaluable." Feinberg, id. at 475.349 See Brian Baxter, Feinberg Talks of Criteria for Gulf Claims, Says Lawyers NotNeeded, AmLaw Daily (June 21, 2010), available at http://amlawdaily.typepad.com-/anlawdaily/2010/06/feinberg-bp-claims.htmI (reporting on Feinberg's self-proclaimedrepresentation that the GCCF process would be a very transparent process); BP Victims'Fund to Fight Bogus Claims, Feinberg Says, Interview with Al Hunt, "Political Capitalwith Al Hunt," Bloomberg New (June 25, 2010), available athttp://www.bloomberg.com/news/2010-6-25/bp-victim-s-fund (comparison ;o WTC Fundexperience in providing transparency and privacy; discussion with House JudiciaryChairman John Conyers with regard to release of information); Strassel, Mr. Fairness,supra n. 3.3s0 See various criticisms of town hall meeting attendees, supra at notes 110-12.3 See www.gulfcoastclaimsfacility.com/faq.352 Id. at www.gulfcoastclaimsfacility.com (GCCF Program Statistics).

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run the numerous regional claims offices-their identity, numbercredentials, training, and experience-is unknown and unavailable.31

The process of developing rules, standards, and guidelines forcompensation awards was accomplished without formal contributionsfrom interested parties, and largely consummated in private by Feinbergand his staff, with the selected input from some attorneys, BP, or otherlobbyists on behalf of special interests.354

In addition, although the GCCF website provides data on thenumbers and types of claims processed, it fails to provide anyinformation specifying the value of individual awards. 355 In contrast tothe WTC Fund ard its publicly available compensation gird, claimants tothe GCCF have scant information upon which to make a reasonedestimate concerning the amounts they might be expected to receive as anemergency payment or final settlement award. Information relating to thereview of awards has not been available, nor is there any publiclyavailable information about the nature and identity of Feinberg's reviewpanels. If three-person panels have been appointed, there has been nopublic disclosure f these entities.

Moreover, Feinberg's interactions with BP officials and executiveshave not been trainsparent, nor has the funding of Feinberg's firm, theGCCF, experts, other law firms, local officials, and entities retained byFeinberg.3 6 The revelation in early February 2011 that BP had secretlynegotiated a $10 million final settlement with one of BP's businesspartners, without the participation of GCCF staffers or Feinberg, raisedfurther questions about the facility's lack of transparencr particularlyregarding BPis intervention into GFFC decision-making. In essence,with the excdpticn of his town hall meetings, virtually all Feinberg'sactions have been non-transparent. If any BP or GCCF actions have been

353 See Neil King Jr., Feinberg Ramps Up $20 Billion Compensation Fund, W.S.J. (June21, 2010), supra n.76 (referring to a team of nearly 1,000 clerks and adjusters processingclaims in 33 field offices from Louisiana to Florida).314 See Urbina, BP Settlement Likely to Shield Top Defendants, supra n. 109(documenting changes in proposed protocols for emergency payments as a consequenceof lobbying by BP, plaintffs' attorneys, and state attorneys general on behalf of real estateagents).35s See GCCF Prot9col for Emergency Advance Payment, supra n. 62 (privacyprovision).336 See Feinberg, Transparency and Civil Justice, supra n. 7 at 477, where Feinbergnotes: "The defendar t does not want transparency. The defendant wants ninety-ninepercent of everybody to participate, but again, we're counting on the plaintiff lawyer tomake sure everybody is on board." See also See Urbina, BP Settlement Likely to ShieldTop Defendants, supra n. 109 (BP's lobbying for application of the collateral source ruleto GCCF payments)... Brian Skoloff, 91,000 Gulf Oil Spill Claims, Just 1 Final Payment,http://news.yahoo.com/s/ap/20110131/ap onbi ge/us gulf oil-spillclaims (lastaccessed on Februarf 1, 2011); See Urbina, BP Settlement Likely to Shield TopDefendants, supra n. 109.

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disclosed, they have been disclosed only after-the-fact and asaccomplished reality.358

A final note about transparency and fund approaches to resolvingmass tort claims. Although the WTC Fund was characterized by anunusual level of public transparency in its creation and implementation,in the final analysis the WTC Fund experience failed to impart perhapsthe most useful data this experiment could have provided for futureclaims resolution.3s9 Because the WTC statute put claimants to anelection of remedies between the WTC Fund and the tort litigationsystem, the WTC Fund accidentally created a naturally-occurringempirical experiment concerning whether claimants would be better offpursuing remediation through a fund or the tort system. 3

As Feinberg repeatedly boasted in the aftermath of the WTC Fund,only 3% of eligible claimants eschewed the fund and instead chose tohire attorneys, file lawsuits, and pursue litigation in federal court.36' Todate, all those claims have been settled; the final remaining lawsuitarising out of the World Trade Center events is scheduled for a jury trialin June 2011.362

Against this statistical backdrop, both the WTC Fund363 and thefederal court overseeing the independent lawsuits have refused todisclose any information concerning individual awards to claimantsthrough the fund or judicial settlement, citing privacy concerns.Although the claimants' privacy concerns are well-grounded, thisresulting lack of transparency has impeded the assessment of thefundamental question whether resolving a claim through a fund

358 Id. See also David Hammer, New Gulf Oil Spill Claim Rules Announced by KenFeinberg, The Times Picayune (Nov. 23, 2010) (Gulf Coast attorneys criticize Feinbergfor lack of transparency).359 Although Feinberg purports to support he values of transparency, he apparentlybelieves in only limited transparency. Thus: "On the other hand, query, can you even getthe deal done is the public has a right to know? Or does that cloud the opportunity to evenget the deal done, if I know it's going to be in the newspapers the next day?" Feinberg,Transparency and Civil Justice, supra n. 7 at 478.360 See Linda S. Mullenix, The Future of Tort Reform: Possible Lessons From the WorldTrade Center Victim Compensation Fund, 53 Emory L. Rev. 1315 (2004) (suggestingthat the WTC Fund provided such a natural empirical experiment).361 See Feinberg et al., FINAL REPORT OF THE SPECIAL MASTER at 1.362 Colin Moynihan, Timetable Is Set for the Only Civil Trial in a 9/11 Death, N.Y. Times(Oct. 20, 2010).363 Feinberg, Transparency and Civil Justice, supra n. 7 at 477 ("We announced rangesso that the New York Times couldn't figure out who received what: "Last week tenpeople received a total of twelve million," and we fudged it all up so that there's someinformation available, total amount spent of the taxpayer's money, but not so muchtransparency and sunshine so that the New York Times can knock on the lady's door andprint an article the next day.").36 See Feinberg et al., FINAL REPORT OF THE SPECIAL MASTER at 64-65 (balancingtransparency and confidentiality concerns).

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mechanism is preferable to an adjudicated claim in the legal system.Because of the ack of transparency in disclosing actual award andsettlement amour ts, commentators will never be able to meaningfullyevaluate the competing arguments whether fund approaches are superiorto the litigation system. Nonetheless, as GCFF administrator, Feinbergpersists in urging claimants to seek compensation through the GCCF, asa better means fot resolving their claims.G. Election of Romedies/Waiver/Release

The WTC Fund statute famously required that claimants to the fundrelinquish their right to pursue relief through litigation in the tortsystem.6 In tht aftermath of the WTC Fund, commentators havevariously debated whether this election of remedies requirementconstituted a benign paternalism on the part of Congress, or ratherembodied a stealth tort reform initiative designed to protect corporatedefendants from thousands of tort claims. Without addressing orresolving this debate, it is sufficient for the purpose of comparison tosimply note that claimants to the WTC Fund had to elect their remedies.

Several problems arose in the context of the WTC Fund experienceregarding the election of remedies. At first, claimants became concernedthat the mere filing of a potential claim with the WTC Fund wouldeffectuate election of the fund remedy, and would foreclose a subsequentdecision to pursue- litigation. 3 Consequently, many potential claimantsdelayed filing with the WTC Fund out of fear that the decision mightpreclude the ability to file a lawsuit.36' To deal with this problem,Feinberg announced that the mere filing of a claim with the fund wouldnot preclude a subsequent decision to abandon the fund claim.369

36' ATSA at § 405(c) (2) (A) (ii), (3) (B) (ii). The Fund compensated only for personalinjury and death, bu: required claimants to waive their right to sue for all damages,including property damages. See Alexander, Procedural Design, supra n. 5 at 671-72. Indiscussing the election of remedies feature of ATSA, Professor Ackerman has suggested:

Had the Fund simply been an option that the victims and their families couldpursue, it would have been hard to complain about its legal consequences. Instead,the Act forced victims and their families to choose between the Fund and whatappeared to be i whittled down tort remedy, thereby adding strength to argumentsthat the Fund w is inadequate in substance or deficient in procedural protections.

Ackerman, The September 11th Victim Compensation Fund, supra n. 8 at 183.366 See Alexander, Procedural Design, supra n. 5 at 672 ("Waiver of tort claims was anessential part of the slatutory purpose of protecting the airlines from massive liability ...the necessity of shielding the airlines from tort liability in excess of their insurancecoverage was deemed more important than preserving victims' right to sue.").367 See In re September 11th Litig., 2003 WL 231455579 (S.D.N.Y. 2003) (mere filing ofa preliminary application with the Victim Compensation Fund would not constitute anelection of remedies cr a defense to a claimant's right to proceed with litigation).368 Id

369 Id. at *2.

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Instead, Feinberg developed a standard by which a WTC Fund awardwould have to be "substantially complete" in order to trigger theexclusive remedy provision.370 In this fashion, claimants could decidewhether to elect the fund remedy, armed with particularized informationconcerning the amount of their award. In accepting and finalizing anaward, WTC claimants released any and all claims for futurecompensation as a consequence of the events surrounding the SeptemberI lh disaster.37'

In addition, the WTC Fund's election of remedies provision alsoraised statute of limitations problems for Feinberg. Relying on state lawstatutes of limitation,372 Feinberg discovered that some local statutes oflimitations might expire before potential fund claimants could decidewhether to file a claim with the fund or with relevant jurisdictions.7 Toavoid the possibility that some claimants might elect judicial remedies inthe face of expiring statute of limitations, Feinberg sought judicial relieffrom such statutes in order to encourage claimants to participate in thefund rather than pursue litigation.374

In administering the GCCF, Feinberg from the outset made clear thatthe GCCF would operate in the same fashion as the WTC Fund, andrequire claimants to waive their rights to litigate in the judicial arena.375

In promoting the GCCF, Feinberg repeatedly has urged claimants toparticipate in the fund and to forego filing lawsuits in the courts, muchto the irritation of the plaintiffs' bar. 7 However, a Gulf Coast claimant'swaiver of the right to litigate does not apply to emergency payments inthe first phase of the GCCF;3 11 the waiver is a requirement of a finalsettlement award.379

3701d.

371 Feinberg et al., FINAL REPORT OF THE SPECIAL MASTER at 85 n.7 ("The Act provides

that '[u]pon submission of a claim to the Fund, a claimant waives the right to file a civilaction (or to be a party to the action) in any Federal or State court for damages sustainedas a result of the terrorist-related aircraft crashes of September 11th, 2001."' See ATSAat § 405(c) (3) (B) (i).372 See e.g., In re September 11 Litig., 2004 WL 1320897 (S.D.N.Y. June 10,2004)(statute of limitations decision); In re September 11 Litig., 2003 WL 23145579(S.D.N.Y. 2003)(same).

37 Id.; see also Schneider, Grief Procedure and Justice, supra n. 19 at 475-476, 480-84(discussion of problem of statutes of limitation and approaches taken in WTC Fund andlitigation).

374 id37s See Lavis, Interview With Ken Feinberg, supra n. 13 (Feinberg implies that claimantswill be required to give up their rights to sue to receive full compensation).376 See e.g., Strassel, Mr. Fairness, supra n. 3 (Feinberg's urging potential claimants tosign up with the GCCF riles tort-law community; tort bar and state attorneys general raisevery legitimate policy issues about releasing BP from liability before all damage from thespill is known).3 id.

378 See Urbina, BP Settlement Likely to Shield Top Defendants, supra n. 109 (discussion

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The GCCF [as published a sample of the waiver and release form forfinal settlement of claims.380 The GCCF waiver is more far-reaching andextensive than the release used in the WTC Fund; the GCCF releaseextends to any and all claims arising out of the Deepwater Horizonexplosion, spill, and consequent contamination.3 8' Public reports havesuggested that EP had a hand in drafting and reviewing the nature andscope of the GCCF release,382 thereby contradicting assertions that BPhas played no ro.e in the GCCF's administration.

Although the GCCF release has not yet been subjected to judicialscrutiny, the release would seem to apply to waive claims under anexpansive array of statutory and common law causes of action. Inaddition, the GCCF release includes an Attachment A listing anastonishing number of corporate entities, individuals, and businessassociations who are released from liability, in addition to BP.384 In yetanother problem relating to the lack of transparency in implementation ofthe GCCF, this long list of released entities raises questions concerningwhy non-parties to the GCCF are included in the release, as well as howthese entities came to be included.

Feinberg has yet to address the intersection of federal and localstatutes of limita:ions, on various causes of action, with the GCCF's finaldeadlines for filing a final settlement claim with the facility. In addition,the facility's website seems to suggest that claimants may withdraw their

of BP's involvemen' with drafting the settlement waiver and release as early as August20, 2010)." See Want to Be Part of the BP Fund? Better Be Prepared to Drop Claims, W.S.J.(Aug. 20, 2010), available at http://blogs.wsj.com/law/2010/08/20 (oil spill victimscompensated from the fund will have to waive all legal caims against not only BP butother defendants such as rig-owner Transocean; critics howl about how other companiesbesides BP can be shielded from suit when they are not contributing to the fund).

380 See Gulf Coast C.aims Facility Sample Release and Covenant Not to Sue, available atwww.gulfcoastclaim;facility.com. See also See David Hammer, New Gulf Oil Spill ClaimRules Announced by Ken Feinberg, The Times Picayune (Nov. 23, 2010) (harsh criticismof proposed release; Gulf Coast attorneys criticize that Feinberg made process moreconfusing with relea;e of new payment protocols; two page release form); Bryan Walsh,Oil Spill: Kenneth Feinberg Makes the Final Rules for Spill Settlement, But Are TheyFair? (Nov. 24, 2010), available at http://ecocentric.blogs.time.com.2010/11/24/.(attorney criticisms of release).381 id

382 Daniel Fisher and Asher Hawkins, BP's Legal Blowout, Forbes.com (July 14, 2010)(reporting that Feinherg asked BP to draft releases that exempt BP from any futureliability for the spill, but not to include other defendants), available athttp://www.forbes.ccm/2010/07/14/bp-oil-spill-settlement-business-energy-lawsuits; SeeUrbina, BP Settlement Likely to Shield Top Defendants, supra n. 109.383 See Attachment A, Gulf Coast Claims Facility Sample Release and Covenant Not toSue, available at wwv.gulfcoastclaimsfacility.com.384 See Urbina, BP Sitlement Likely to Shield Top Defendants, supra n. 109 (reporting onextensive scope of de fendants waiver an release of claims in future litigation).

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claims at any time from the GCCF facility, and seek a remedy in the385judicial system.

H. The Future Claimant ProblemBoth the WTC Fund and the GCCF facility have implicated issues

relating to future claimants: that is, persons exposed to toxic substanceswho have not yet manifested injury, but may do so in the future. Theresolution of future claims has been a central problem in resolving masstort litigation.8 Generally, defendants involved in mass tort litigationdesire "global peace" or the complete resolution of all current andpotential future claims that might be asserted against them. 8 Theestimation and valuation of future claims, representation for futureclaimants, and waiver issues have complicated the resolution of manylatent injury mass torts.

The WTC Fund made no provision for future claimants.389 Hence,the only claimants eligible to pursue relief through the fund consisted ofthe legal representatives of people who had died or were injured in thetwenty-four hour period after the Twin Towers were struck,9 O or withinninety-six hours after the crashes for rescue workers who assisted inefforts to search for and recover victims.3 9' Moreover, for the most part,the WTC Fund compensated eligible claimants only for physical injuryand death;. the Fund did not compensate for claims of psychologicalinjury or trauma.392 The WTC Fund also made no provision for the futureclaims of first responders to the disasters, or persons who worked at thedisaster sites during the extensive clean-up operations afterwards.3 93

After closure of the WTC Fund, various individuals came forwardwith classic latent injury claims, chiefly consisting of an array ofrespiratory impairments alleged as a consequence of exposure to thetoxic soup of substances generated when the Twin Towers collapsed, and

3 See Gulf Coast Claims Facility Protocol for Interim and Final Claims at V. D, E (Nov.22, 2010), supra n..252.386 See e.g., George Rutherglen, Future Claims in Mass Tort Cases: Deterrence,Compensation, and Necessity, 88 Va. L. Rev. 1989 (2002); Rabin, Indeterminate FutureHarm, n. 15 at 1861-65 (surveying case law on latent injury claims).387 See e.g., Ortiz v. Fibreboard Corp., 527 U.S. 815 (1999); Amchem Prods., Inc. v.Windsor, 521 U.S. 591 (1997).3 See e.g., Stephenson v. Dow Chemical Co., 273 F.3d 249 92d Cir. 2001).

389 Alexander, Procedural Design, supra n. 5 at 684-85; Eggen, Toxic Torts at GroundZero, supra n. 15 at 415-16; Rabin, Indeterminate Future Harm, n. 15 at 1850-1853.39 67 Fed. Reg. 11,242 (March 13, 2002); Rabin, id.

3' 28 C.F.R. § 104.2(b) (2002).392 Alexander, Procedural Design, supra n. 5 at 685 ("There may be other types ofinjuries that should be compensated as well-people who were held hostage but notphysically injured, or persons who were not physically injured but suffered emotionaltrauma"); Eggen, Toxic Torts at Ground Zero, supra n. 15 at 415-16.3 Alexander, Procedural Design, id; Rabin, Indeterminate Future Harm, n. 15 at 1850-1853.

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in the months of ensuing site clean-up. Included among these claimantswere first responders, construction workers, and individuals who werepresent in lower Manhattan on September 1 1 h 394

Several commentators criticized the WTC Fund for its failure toaddress the future claimant problem, 395 and the increasing publicdemands of various affected constituent groups eventually causedCongress to address these claims through legislation enacted inDecember 2010.316 Similar to the stated rationale for the original WTFFund, the 2010 Act was predicated on the unique events that gave rise toWorld Trade Center calamity, coupled with the stated need for a nationalresponse to the claims of these affected parties.3 97

The GCCF also has not addressed the issue of future claimants andhow future claimants either may be compensated for latent injuries, orprecluded from se-eking recovery for latent injuries because of a waiverand release in a final settlement through the GCCF.9 Many Gulf Coastworkers - especially fisherman and boat owners who were idled afterthe oil spill -- were hired by BP to assist in various, clean-up efforts inthe Gulf waters, as well as on land.399 During the clean-up, numerousmedia stories documented insufficient health and protective measuresafforded many clean-up workers.400 Similar to the claims by WTC firstresponders and construction workers, many Gulf Coast clean-up workers

' See In re World Trade Ctr. Disaster Site Litig., 270 F. Supp. 2d 357, 360 (S.D.N.Y.2003); see also Eggcn, Toxic Torts at Ground Zero, supra n. 15 at 417; see generallyRabin, Indeterminate Future Harm, n. 15.3s Alexander, Procedural Design, supra n. 5 at 685; Eggen, Toxic Torts at Ground Zero,supra n. 15 at 453-59 (proposing alternative options to address the concerns of victimsexposed to toxic substances and dust in similar scenarios to the WTC events);3 9/11 Health and Compensation Act of 2010, Pub. L. No. 111-347, 11 th Cong. 2d Sess.(2010) (to provide medical monitoring and treatment to responders, residents, buildingoccupants and area workers who were directly impacted and adversely affected by theSeptember 11th attaccs). See also Eggen, Toxic Torts at Ground Zero, supra n. 15 at 457(possible legislation to compensate persons exposed to toxic substances).3979/11 Health and Compensation Act of 2010, id.3 See Cooper, Spill Fund Could Prove as Challenging as 9/11 Payments, supra n. 25(noting long-term eTects of spill might be much worse than anticipated, creatingproblems in the future); Campbell Robertson, As Claims for Spill Losses Shift toAdministrator, Queries Follow, N.Y. Times (Aug. 23, 2010) (skeptical crowd at bingohall expresses concern over August 2013 deadline for final settlement of claims; deadlinemay fall before true extent of damage is known); John Schwartz, For Kenneth Feinberg,More Delicate Diplornacy, N.Y. Times (July 16, 2010) (Feinberg indicates he plans towork with experts to project long-term effects, but noting that most people will acceptlump-sum payment oce it is offered).3 Dapiel Fisher and Asher Hawkins, BP's Legal Blowout, Forbes.com (July 14, 2010)(commenting on potential future claimants), available at http://www.forbes.com/-2010/07/14/bp-oil-sp: l-settlement-business-energy-lawsuits4 See Round Two orBP Litigation: The Clean-Up Suits Begin, W.S.J. (July 20, 2010),available at http://blogs.wsj.com/law/2010/07/20/round-two-of-bp-litigation-the-clean-up-suits-begin/ (state suit seeking medical monitoring for volunteers and workers).

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complained that they were not supplied with sufficient respiratorequipment and other protective gear to insulate against toxic fumes andsubstances.40'

Consequently, it is entirely possible that some Gulf Coast claimantswho file claims with the GCCF for property and business losscompensation may subsequently manifest future illnesses or disease fromexposure to toxic substances because of these claimants' participation inthe clean-up efforts. In seeking a final settlement of their claims, GCCFparticipants are required to sign an all-encompassing waiver and release,which conceivably embraces any future personal injury claims.402 Hence,participation in a final settlement with the .GCCF may preclude theseclaimants from subsequently seeking further recovery.

Gulf Coast claimants, then, are put to a hard choice, as is always theproblem with latent injury mass torts. Thus, claimants must choosebetween accepting current compensation and waiving future recovery, ordeclining immediate payment and preserving the right to pursue relief forfuture manifestation of injury. Because potential Gulf Coast claimantsmust file with the GCCF facility within before August 2013, many maynot have not manifested any latent injury or know the extent of theirdamages before this deadline. Hence many claimants in desperate needfor immediate compensation may forego relief for future claims, whileothers may opt out of the process and sue.403

Finally, the problem of future latent injury relief is furthercomplicated by notice and due process issues .404 It is entirely unclear theextent to which GCCF claimants are advised, either by GCCF staffers orby independent attorneys, of the potential waiver of their claims forfuture latent injury if they seek final settlement of their current claims.The GCCF website is unclear on this issue, 405 and to date many GulfCoast claimants have not received independent counsel in seekinginterim emergency relief.406 Again, lack of transparency frustrates effortsto determine whether adequate due process measures are in place to

401 Id. (noting lack of proper gear and respirators for clean-up workers).402 See e.g., Strassel, Mr. Fairness, supra n. 3 (Feinberg's urging potential claimants tosign up with the GCCF riles tort-law community; tort bar and state attorneys general raisevery legitimate policy issues about releasing BP from liability before all damage from thespill is known).403 Robertson, As Claims for Spill Losses Shift to Administrator, Queries Follow, supra n.67 (claimants may opt out and sue due to uncertain nature of extent of damage).404 See Stephenson v. Dow Chem. Co., 273 F.3d 249 (2d Cir. 2001).405 See Information Regarding Free Legal Assistance, available athttp://www.gulfcoastclaimsfacility.com/probono.406 Dionne Searcey, BP Oil-Spill Claims Get Fast Track, W.S.J. (Dec. 13, 2010)(Feinberg to announce that anyone who wants lawyer to help them sort through newoptions can have one for free; Feinberg plans to hire firm to offer free legal services);Dominic Massa, Feinberg Hires Gulf Coast Law Firms to Assist BP Claims Processing,WWLTV (Dec. 28, 2010), available at http://www.wwltv.com/news/local/.

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educate Gulf Coast claimants to the full consequences of their election ofremedies through the GCCF, and the possible forfeiture of future latentinjury claims.I. Applicable Law

The September 11th events as well as the Deepwater Horizonexplosion and Gulf oil spill involved claimants from multiplejurisdictions. Consequently, both incidents implicated complicatedquestions relating to the law that might apply to the victims' subsequentclaims. The WrC Fund provided one template for dealing with choice-of-law issues.407 And, to a somewhat similar extent, in administering theGCCF Feinberg has loosely followed the choice-of-law decisions heapplied in managing the WTC Fund. On the other hand, applicable lawproblems relating to the Gulf oil spill are much more complicated thanfor the WTC Fund, and to date, these applicable law problems have notbeen resolved with any consistent approach.

The statute authorizing creation of the WTC Fund embodied twodifferent apprcaches to the choice of law problems inherent in theSeptember 11 tt events, with one choice-of-law regime for persons whoelected comper sation through the WTC Fund, and another choice-of-lawregime for clainants who elected to seek relief through litigation in thecourt system.40 5 Persons who died or were injured in the World TradeCenter Tower3, the Pentagon, or the United Airlines crash inPennsylvania came from a number of different states and countries. 4 09 Alarge number cf victims who died in the WTC building collapses camefrom the New York, New Jersey, and Connecticut metropolitan area.410Similarly, victims of the Pentagon attack were concentrated in theWashington D.C. metropolitan area, embracing claimants from Virginia,Maryland, and the District of Columbia.

In administering the WTC Fund, then, Special Master Feinbergconceivably faced the resolution of personal injury and wrongful deathclaims pursuant to the laws of many jurisdictions.4 1 ' The WTC enablinglegislation did not mandate any choice-of-law principles to guideFeinberg's implementation of the fund.4 12 Because the overridingpurpose of the WTC Fund was to remove victims' claims from the tort

407 ATSA at § 401(b) (2); see Eggen, Toxic Torts at Ground Zero, supra n. 15 at 440-443.408 See Feinberg et al., FINAL REPORT OF THE SPECIAL MASTER at 4; ATSA, supra n. 12 at§ 408(b) (2).49 Feinberg et al., FINAL REPORT OF THE SPECIAL MASTER at 1-2; 54-55.410 See Feinberg et al., FINAL REPORT OF THE SPECIAL MASTER at 55; Alexander,Procedural Design, supra n. 5 at 630 n.7; Eggen, Toxic Torts at Ground Zero, supra n.15 at 387-89.411 See e.g., Cham illas, The September 11 Victim Compensation Fund, supra n. 5 at 63-67 (describing the varying states' laws relating to the status of unmarried and same-sexcouples).412 See Feinberg et al., FINAL REPORT OF THE SPECIAL MASTER at 4; ATSA, supra n. 12.

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litigation system and provide expeditious resolution, it made no sense tocomplicate the administration of the WTC Fund by the application ofdifferent legal standards depending on where claimants were from, or thehappenstance of their presence at a particular disaster site. Therefore,Feinberg was given relatively free rein to design a compensation modelwithout being tethered to any state's legal principles.

During Feinberg's administration of the WTC Fund, commentatorsand claimants frequently raised the issue of what law would apply toresolve various issues relating to the design and implementation of thefund, 1 including but not limited to eligibility criteria, statutes oflimitation,4 14 claim valuation, collateral sources, and award allocationamong competing claimants. In response to these various challenges,Feinberg responded that he would be guided by, but not bound by, statelaw principles. 4 15 In some instances--for example with regard to awardallocation issues-Feinberg refused to resolve the problem at all butinstead admonished WTC Fund recipients to litigate such disputes instate court pursuant to state legal standards.

During the course of WTC Fund proceedings, Feinberg never clearlyindicated which states' laws he relied on in making his various decisionsaffecting the fund's standards and administration.4 17 In the end, in anexercise not unlike the creation of federal common law, Feinbergessentially created his own common law standards to governimplementation of the WTC Fund, based loosely on unidentifiedprinciples and precedents.4 18

The WTC Fund's enabling statute more clearly resolved theapplicable law issue for those persons who chose litigation in the courtsystem. 4 19 Hence, the enabling statute mandated that any lawsuits arising

413 See Schneider, Grief Procedure, and Justice, supra n. 19 at 480-84 (statutes oflimitation issues).414 See Schneider,.id.415 See e.g., Feinberg, Negotiating the Victim Compensation Fund, supra n. 9 at 22(referring to the fact that in calculating economic loss he vaguely would look to generalprinciples of state tort law: "That is simply tort law, a surrogate for what juries in St.Louis do every day.").416.For example, Feinberg refused to decide allocation issues among contending familymembers, instead telling them that they would have to resolve such disputes in statecourt.417 See e.g., Chamallas, The September 11 Victim Compensation Fund, supra n. 5 at 75-76 (noting that the availability of survival damages differs among states); Conk, Will thePost-9/11 World Be a Post Tort-World?, supra n. 24 at 186 ("Rather there was a sense ofrough equity, informed by tort and by legislative reference points); Walker, Lessons ThatWrongful Death Law Can Learn From the September 11 Victim Compensation Fund,supra n. 15 at 602-03 (describing how Feinberg departed from state law in defining whowas an eligible personal representative to receive an award from the fund: "Unlike thestates, Feinberg combined the role of the personal representative and beneficiary."418 id.

419 ATSA at § 408(b) (2); See Alexander, Procedural Design, supra n. 5 at 673-74;

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out of the September 1 1th events were required to be brought in the U.S.District Court for the Southern District of New York, 0 and furthermandated that applicable law would be the law of the state in which thecrash occurred, unless it was inconsistent with or preempted by federallaw.4 21 Although providing clarity to prospective claimants, the statutorylimitation of litigants' choice of venue and law also cabined conventionallitigation strate,:' and served as an additional deterrent to electing thelitigation optior..422 Pursuant to this statutory mandate, the lawsuits of theclaimants who elected the litigation option were consolidated in theSouthern District of New York, subject to the case management of JudgeAlvin Hellerstei n under New York law.423

. In contrast, the GCCF was created pursuant to only vague andambiguous sta:utory authority under the OPA--questionably if atall-nd therefore which federal or state legal rules ap 17 in theadministration of the GCCF fund have been equally murky. Relyingon a page from his WTC Fund playbook, however, Feinberg hasindicated in me dia interviews that the standards and criteria governingimplementation of the GCCF would be derived with reference to statelaw.425 The protocol for emergency advance payments merely stated thatthe GCCF would evaluate all claims "guided by applicable law." 426 And,similar to his administration of the WTC Fund, Feinberg has not yet

Eggen, Toxic Torts at Ground Zero, supra n. 15 at 440-443; Kreindler and Alexander,September l1th Aft.ermath, supra n. 267.420 ATSA at § 408(b) (2).421 Id. See also Egg.-n, Toxic Torts at Ground Zero, supra n. 15 at 440-43.422 See Berkowitz, l'he Problematic Role of the Special Master, supra n. 18 at 24-26, 29(analyzing how ATSA statute served as a deterrent to litigation).423 See Conk, Wih the Post 9/11 World be a Post-Tort World?, supra n. 24 at 189(describing array of September 1Ith cases assigned to Judge Hellerstein).424 GCCF Protocol for Emergency Advance Payments, supra n. 62 at I.B.425 See Brian Baxter, Feinberg Talks of Criteria for Gulf Claims, Says Lawyers NotNeeded, AmLaw 1)aily (June 21, 2010), available at http://amlawdaily.typepad.com/amlawdaily/2010/06/feinberg-bp-claims.html (citing his 9/11 experience, stating that hewould look to state law where a claimant lives to determine applicable law); Neil KingJr., Feinberg Rampv Up $20 Billion Compensation Fund, W.S.J. (June 21, 2010), supran. 76 (indicating that Feinberg stated that he would turn to state law for guidance onwhich types of claims to honor and which to dismiss); Anna Fifiled, Mediator PutsFairness at Centre of BP Fund, Financial Times (June 25, 2010), available athttp://www.fl.com/cms/s/f39cf900-807-d- 1I df-be5a-00 I 44feabdcO (citing 9/11experience; indicating that Feinberg would look to state law to recognize claims;commenting on how he might deal with different states' laws); Daniel Fisher and AsherHawkins, BP's Leg 21 Blowout, Forbes.com (July 14, 2010) (Feinberg indicates he plansto rely on state toit principles), available at http://www.forbes.com/2010/07/14/bp-oil-spill-settlement-business-energy-lawsuits; See e.g., Neil King Jr., Feinberg Criticized,supra n. 107 (Feirberg suggesting that deductions for BP clean-up payments wasn'tunusual under state law); Strassel, Mr. Fairness, supra n. 3 (suggesting that payout ruleswould be broadly based on federal oil-spill law and Gulf-state tort law).426 GCCF Protocol for Emergency Advance Payments, supra n. 62 at I.B.

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clarified what state law, if any, he is applying in his administration of theGCCF.

The applicable law problem in the context of the BP DeepwaterHorizon disaster, moreover, is much more complicated than the legallandscape presented by the September 11th events. Unlike the September11th claims, no statute determines applicable law for those Gulf Coastclaimants who elect litigation remedies, and therefore applicable law inthe litigated cases will be determined by MDL court presiding over theconsolidated lawsuits. 4 27 Moreover, the Gulf Coast Deepwater Horizondisaster implicates a broader array of possible federal and state statutoryclaims, including claims under the OPA,428 securities laWS, 429 the Jones*Act,430 various federal environmental statutes, 431 general maritime law, aswell as state common law causes of action.432

The breadth of potential bases for recovery in the Gulf Coastdisaster, then, has bearing on a claimant's evaluation of the election ofremedies. Unlike the WTC Fund which involved only personal injuryand death claims, Gulf Coast victims conceivably have multiple theoriesof recovery for an assortment of personal, property, business, contract,

427 The MDL court determines applicable law for the cases transferred and consolidatedbefore it. See e.g., Menowitz v. Brown, 991 F.2d 36 (2d Cir. 1993); In re Lou Levy &Sons Fashions, Inc., 988 F.2d 311 (2d Cir. 1993).428 Feinberg sought the expert advice of Professor John C.P. Goldberg concerninglimitations of recovery under the OPA and parallel state laws. Professor Goldbergconcluded that under the OPA and parallel state laws, only some of economic losses wererecoverable from those responsible for the spill. Thus, to recover under the OPA foreconomic losses caused by the spill, a claimant must establish that his or her loss was dueto damage of loss of property or resources, which damage or loss prevents the claimantfrom exercising the right to put that property or those resources to commercial use. SeeJohn P.C. Goldberg, Liability for Economic Loss in Connection with the DeepwaterHorizon Spill at 3, 48 (Nov. 22, 2010)[on file with the Louisiana Law Review]. But seeBryan Walsh, Oil Spill: Kenneth Feinberg Makes the Final Rules for Spill Settlement, ButAre They Fair? (Nov. 24, 2010), available at http://ecocentric.blogs.time.com.2010/11/24/ (noting-that hotel groups might attempt to sue BP rather than gothrough the claims process, but that Feinberg believed they wouldn't have much luck,relying on the expert opinion of Professor John C.P. Goldberg of Harvard Law Schoolregarding applicable law).429 See In re BP p.l.c. Securities Litig., MDL No. 2185 (J.P.M.D.L. Nov. 30, 2010);Daniel Fisher and Asher Hawkins, BP s Legal Blowout, Forbes.com (July 14, 2010)(commenting on securities cases), available at http://www.forbes.com/2010/07/14/ bp-oil-spill-settlement-business-energy-lawsuits.43 46 U.S.C. § 30104. See Christopher Bauer, Injured Deepwater Horizon Oil RigWorkers and Widow File Jones Act Personal Injury Wrongful Death Lawsuit Against BPin Galveston (May 6, 20100, available at http://www.lexisnexis.com/Community.emergingissues/blogs/gulf oilspill/archiev/2010/05/06.431 See e.g., the National Environmental Policy Act [add citation].432 See Paul H. Rubin, A Gulf Spill Primer: Why BP Should Be Held Fully Liable for AllEconomic Damages, W.S.J. (August 2, 2010) (analyzing possibly applicable tort law;arguing little justification for limiting economic or punitive damages), available athttp://online.wsj.com/article.

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tort, and environmental injuries. Several securities lawsuits also havebeen filed as a consequence of the BP disaster.433 There are compellingreasons, then, why a Gulf Coast claimant might sensibly choose tolitigate their claims rather than seek an award from the GCCF.434

Finally, the embedded applicable law problems in relation to theGCCF raise important questions concerning the adequacy of notice thatGCCF claimanits receive about applicable law in making an informeddecision about their election of remedies, as well as implications inagreeing to a comprehensive release upon a GCCF final settlement.J. Assistance f Counsel

A much-roted and admired attribute of the WTC Fund was theactions of the plaintiffs' bar to the September 1Ith events.435 In theimmediate aftermath of the disaster, the leading organization of theplaintiffs' bar, the Association of Trial Lawyers of America (ATLA),notified its membership and requested that plaintiffs' attorneys notexploit the tragic events as an opportunity to solicit potential clients.436

One day after the disaster, ATLA issued a call for a moratorium on alllawsuits.4 37 TI.is organizational self-restraint by ATLA stood in markedcontrast to the reaction of the plaintiffs' bar in the aftermath of the masstoxic disaster at the Union Carbide plant in India,438 when hundreds ofAmerican lawyers descended on the scene in an attempt to retain asmany clients as possible-which solicitation brought considerableworldwide disrepute on the American bar.439

Not only did ATLA immediately counsel restraint among itsmembership after September 11th, but ATLA also sponsored an

4n Daniel Fisher and Asher Hawkins, BP's Legal Blowout, Forbes.com (July 14, 2010)(securities cases), available at http://www.forbes.com/2010/07/14/bp-oil-spill-settlement-business-energy- lwsuits; see also [add citation for securities MDL supra]4 But see Bryar Walsh, Oil Spill: Kenneth Feinberg Makes the Final Rules for SpillSettlement, Bur Are They Fair? (Nov. 24, 2010), available athttp://ecocentric.tlogs.time.com.2010/11/24/ (noting that hotel groups might attempt tosue BP rather than go through the claims process, but that Feinberg believed theywouldn't have much luck, relying on the expert opinion of Professor John C.P. Goldbergof Harvard Law School regarding applicable law, supra n. 428).43 See Feinberg er al., FINAL REPORT OF THE SPECIAL MASTER at 70-73.436 Peck, The Victm Compensation Fund, supra n. 8 at 214-25.437 Id. at 214; Carrie Johnson, Lawyers Group Wants Moratorium on Attack Lawsuits,Wash. Post at E3 (Sept. 14, 20010; Abdon M. Pallasch, For Once, Lawyers Reluctant toSue: Victims' Relatives Seek Legal Action, but Moratorium Urged, Chi. Sun Times at 22(Sept. 17, 2001). Robert Peck notes that the moratorium held for a long time, and wasonly breached by a handful of lawsuits. See Peck, id at 215.438 See generally David Weir, THE BHOPAL SYNDROME (1987).439 See David T. Austern, Is Lawyer Solicitation ofBhopal Clients Ethical?, Legal Times,Jan. 21, 1985 at 16; Deborah L. Rhode, Solicitation, 36 J. Legal Educ. 317 (1986)(California trial lawyers vote to censure attorneys who solicited clients in the wake of theBhopal disaster).

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enormous effort to organize the voluntary participation of hundreds ofattorneys in providing legal assistance to claimants who wished to pursuecompensation through the WTC Fund.4 40 ATLA incorporated the "TrialLayers Care" (TLC) program to provide pro bono representation tovictims before the Fund. The TLC opened offices in New York andtrained hundreds of volunteer attorneys to represent victims.442

Special Master Feinberg welcomed the participation of thesevoluntary attorneys, who assisted any claimant who desired an attorneyto help prepare the paperwork necessary in filing a claim." 3 From theoutset of his efforts, Feinberg widely publicized the availability of freecounsel to any potential WTC Fund claimant who desired an attorney.Feinberg stressed the fact that no potential WTC claimant would gowithout counsel if they desired an attorney.4" Feinberg's Final Report toCongress documented the thousands of hours of pro bono workperformed by voluntary attorneys in assisting WTC Fund claimants."' Inaddition to the ATLA attorneys, Feinberg worked pro bono and alsocontributed the assistance of the attorneys at his firm, which recoupedonly its expenses in implementing the WTC Fund.44 6

Apart from the attorneys who acted pro bono on behalf of WTCclaimants, at least some plaintiffs' attorneys undertook representation ofclaimants who rejected compensation through the WTC Fund and insteaddecided to pursue litigation. The role of the assistance of counsel, as wellas the outcomes in the WTC litigated cases, is discussed below.However, it is significant to note that, for the most part, the plaintiffs' bareschewed a campaign to discourage WTC victims from pursing reliefthrough the WTC Fund. Very few plaintiffs' attorneys attempted to

440 Peck, The Victim Compensation Fund, supra n. 8 at 225-26.441 See Feinberg et al., FINAL REPORT OF THE SPECIAL MASTER at 71; Peck, id. at 225. Seealso Steenson & Sayler, The Legacy of the 9/11 Fund, supra n. 14 at 548-49;442 Id.

443 But see Diller, Tort and Social Welfare Principles, supra n. 15 at 762-765 (analyzingthe role of pro bono and non-pro bono attorneys in assisting claimants in the Fund;critically suggesting that Feinberg's controversial role in administering the Fund createda "market for expertise" in the operation of the Fund, benefitting some claimants but notothers. In addition, Diller critically notes that attorneys with personal relationships toFeinberg were able to trade on those connections, favorably for the persons theyrepresented); Schneider, Grief Procedure, and Justice, supra n. 19 at 477 (Feinberg'sunbridled discretion lead to perceptions of unfairness; "It leads to a sense that he willmake individualized "deals," and indeed, he does. Lawyers can trade on "insider" accessto, or contact with, him.")444 sut see Schneider, Grief Procedure, and Justice, supra n. 19 at 479 (suggesting thatthe Fund's processes actually were very complex and intimidating, requiring not onlylawyers to assist them, but also economists in many cases).445 Feinberg et al., FINAL REPORT OF THE SPECIAL MASTER, supra n. 4 at 71.446 Feinberg et al., FINAL REPORT OF THE SPECIAL MASTER, id.

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dissuade claimants from filing with Fund, or attempted to persuadeclaimants to file lawsuits in the civil justice system instead. 7

The Deepwater Horizon explosion presents a striking contrastregarding the role of attorneys in pursuing relief for the victims of theGulf Coast disaster. First, the organized plaintiffs' bar did not issue anycommuniqu6 ccunseling restraint in the aftermath of the oil spill events,similar to ATLA's public pronouncement after September 11th. Second,the plaintiffs' "ar did not organize to provide voluntary, pro bonoassistance to any claimant requesting legal advice in navigating therequirements to seek emergency or final awards in the GCCF. And third,the plaintiffs bar has, since June 2010, publicly protested various actionsby the GCCF ar.d Feinberg in implementing the facility.

In addition, in the early days of the GCCF, Feinberg publically statedthat claimants wouldn't need lawyers to help them navigate the claimsprocess," 9 and consistently has urged potential claimants to seek awardsfrom the GCCF4 50 In response to Feinberg's seeming discouragement ofretaining coun el, and in contrast to the WTC experience, manyplaintiffs' attort eys have publicly advocated that Gulf Coast victims notto seek relief through the GCCF.451 In addition, as discussed above,

"7 See discussion of plaintiffs' attorneys' role in aftermath of WTC events, at notes 435-36.44 See Dionne Sear:ey, Lawyers Scramble for BP Funds, W.S.J. (July 1, 2010), availableat http://online.wsj.com/article/SB1000142405274870334604575339; John Pacenti,Plaintiffs' Attorney? Knock BP Fund Administrator, Daily Business Review (July 26,2010) (various complaints about Feinberg); cf Mr. Feinberg and the Gulf Settlement,N.Y. Times (Aug. .9, 2010) (critical of private attorneys actions as against the GCCF);Gulf Claims Pillata W.S.J. (Nov. 26, 2010) (plaintiff' lawyers criticism of Feinberg andhis administration of the GCCF).44 Brian Baxter, Fcinberg Talks of Criteria for Gulf Claims, Says Lawyers Not Needed,AmLaw Daily (June 21, 2010), available at http://amlawdaily.typepad.com/-amlawdaily/2010/06/feinberg-bp-claims.html (Feinberg indicating that "this will be avery transparent process where you will walk into one of numerous office throughout thegulf, file a claim, even electronically if you want, and we will immediately be able toprocess that claim.'); Feinberg Says BP Fund Will Be Generous, Better Than Lawsuits,Bloomberg News (July 15, 2010), available at http://businessweek.com/news/2010-07-15/feinberg-says-bp-fund-will-be-generous (Feinberg indicates not necessary to hireattorney because his office will have attorneys on staff to provide free legal services)450 John Schwartz, iFor Kenneth Feinberg, More Delicate Diplomacy, N.Y. Times (July16, 2010) (reporting Feinberg's urging claimants to sign up: "It's my opinion you arecrazy if you don't participate;" discouraging potential claimants from litigation becauseof years of uncertainty in the courts and "big cut for the lawyers."); see also BP CreatesSpecial Team to Speed Up Claim Payments, ABC News (Aug. 3, 2010), available athttp://abcnews.go.Blisiness (reporting that BP was encouraging businesses to contacttheir adjuster or BP1 to process claims); Strassel, Mr. Fairness, supra n. 3 (Feinbergstating that the ovenll message is this: "If we're not going to pay, nobody's going to pay.That's my philosophy on this thing."); Robertson and Schwartz, Rethinking the Process,supra n. 113 (Feinberg announces that lawyers around the country can play an importantrole in the GCCF by helping claimants package their claims).45 See Amanda Bro:istead, Oil Spill Fund Won't Deter Litigation, N.L.J. (Aug. 30, 2010)

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attorneys involved in the parallel Gulf Coast Oil Spill MDL litigationsuccessfully enjoined Feinberg from advocating that victims of the GulfCoast oil spill seek relief exclusively through the GCCF.452 No similarefforts were made to enjoin Feinberg in his administration of the WTCFund.

Building on his experience in administering the WTC Fund,Feinberg has made several efforts to enlist the assistance of voluntaryattorneys to assist claimants who wish to file with the GCCF.sa Unlikethe WTC Fund experience, though, few attorneys have been enlisted tosupply pro bono legal assistance to Gulf claimants.454 Against thebackdrop of this failure, Feinberg has made repeated publicannouncements that the GCCF would provide counsel to any personneeding legal assistance.455 It is uncertain the extent to which thispromise has been fulfilled,4 56 and media reports indicate that manyclaimants have filed for benefits without the assistance of counsel,because many victims cannot afford to hire an attorney and the facilityhas not made counsel available to them.457 In late fall 2010, Feinberg

(describing plaintiffs' attorneys views on the GCCF versus the litigation option).452 Order and Reasons, In re Oil Spill by the Oil Rig "Deepwater Horizon" in the Gulf ofMexico, on April 20, 2010, MDL 2179 (Feb. 2, 2011) (granting plaintiffs' motion tosupervise ex parte communications with putative class); see Tom Hals, Judge FindsFeinberg Not Independent of BP, Yahoo. Finance (February 2, 2011, available athttp://finance.yahoo.com/news/; John Schwartz, Comments By Overseer of BP Fund IrkLawyer, N.Y. Times (Dec. 21, 2010) (reporting plaintiff lawyers' motion to enjoinFeinberg from communicating with putative class claimants); Brian Skoloff and HarryWeber, Judge to Gulf Claims Czar: Don't Say You're Independent, MSNBC News (Feb.2, 2011), available at http://www.msn.com/.453 See David Hammer, New Gulf Oil Spill Claim Rules Announced by Ken Feinberg, TheTimes-Picayune (Nov. 23, 2010) (Feinberg's desire for network of national attorneys toassist claimants).454 Hammer, New Gulf Oil Spill Claim Rules Announced by Ken Feinberg, id. (Feinbergstating that "national legal organizations have not stepped up to the plate.")455 Feinberg Says BP Fund Will Be Generous, Better Than Lawsuits, Bloomberg News(July 15, 2010), available at http://businessweek.com/news/201,0-07-15/feinberg-says-bp-fund-will-be-generous (Feinberg indicates not necessary to hire attorney because hisoffice will have attorneys on staff to provide free legal services); Id. See also JohnSchwartz, Administrator of BP Fund Offers Bonuses to Spill Victims Who Bypass Suits,N.Y. Times (Dec. 12, 2010) (reporting that Feinberg's team would make free legal adviceavailable and would add staff at local centers for the fund to help people fill out theirforms for final claims), available at http://www.nytimes.com/2010/12/13/us/13fund.html?456 See Gulf Coast Claims Facility Announces Next Phase of the Compensation Programfor Victims of the BP Oil Spill (December 13, 2010) (announcing program for free legalassistance would be made available soon and made available to any claimant seekinghelp), available at http://www.gulfcoastclaimsfacility.com/pressB.php.457 See David Hammer, Most BP Oil Spill Claimants Opt for One-Time 'Quick Payment,'nola.com (Jan. 26, 2011), http://www.nola.com/news/gulf-oil-spill/index.ssf/201 1/01/most bpoilspill claimants op.html (fewer than 3% of those filing claims hadattorneys); Moira Herbst, BP Claims Process Enters New, Uncertain Phase, Reuters (Feb.10, 2011), http: //www.reuters.com/article/2011/02/10/us-oilspill-feinberg-idUSTRE-

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announced that the GCCF would be retaining the assistance of severalprivate law firms to assist claimants, presumably on a paid-basis.However, the details of these arrangements with private firms to supplyassistance of counsel to claimants have not been publicly disclosed,signifying yet ;mother aspect of GCCF administration that is lacking intransparency.45"

One of the major factors justifying the WTC Fund as a preferablemeans for resolving mass tort claims was the fact that a claimant'scompensation would not be diminished by a sizeable attorney-feeaward. 5 This rationale justifying the preference for a fund solution tomass disaster remediation has been undermined by developments in theGCCF. Thus, in late January 2011, several plaintiffs' attorneys in theGulf region broke ranks with the MDL plaintiffs' attorneys and changedcourse, publicly urging Gulf Coast claimants to seek compensationthrough the GCCF.4

These attorneys have indicated their willingness to representresidents and businesses in seeking GCCF awards, based on contingentfee arrangements for this representation. ' This has pitted one segmentof the plaintiffs' bar against the MDL attorneys. And, in contrast to theWTC Fund where plaintiffs' attorneys worked pro bono and did notcharge the WTC claimants fees for assistance with making a WTC Fundclaim, the Gulf attorneys undertaking representation for GCCF awardswill charge a )ercentage of a claimants' recovery from their GCCFaward. Hence, at least one major justification for the superiority of fundresolution of claims is not present for the GCCF claimants who electsuch representation.K. The Litigation Option

Although S 7% of eligible claimants elected compensation reliefthrough the W7C Fund, 3% of claimants retained private counsel and

71933X20110210 (same); Tracy X. Miguel, Naples Business Owner Says She'll Have toLive in Truck Aft.-r BP Denies Her Claim, naplesnews.com (Dec. 14, 2010), http://www.naplesnews.co)m/news/2010/dec/14/naples-business-live-truck-bp-denies-claim-candi/.4s See Gulf Coast Claims Facility Announces Next Phase of the Compensation Program,supra n. 456.49 Diller, Tort and 5'ocial Welfare Principles, supra n. 15 at 764; Steenson & Sayler, TheLegacy of the 9/11 Fund, supra n. 14 at 937-38; see also Preamble, September llthVictim Compensation Fund of 2001, 66 Fed. Reg. 66,280 (Dec. 21, 2001) (indicating thatcontingency fee arrangements for attorneys representing claimants before the Fund,exceeding 5% of a claimant's recovery of the fund, would not be in the best interests ofclaimants.").46 Dionne Searcey, Oil-Spill Lawyers Urge Clients to Settle; Move Would Shift GulfResidents' Claims Form Court to BP's Compensation Fund; "Most of These PeopleCan't Wait, " W.S.J (Jan. 28, 2010) (group of lawyers redirect dozens of claimants to BPFund).46 Searcey, Oil-Spill Lawyers Urge Clients to Settle, id.; Alliance of Lawyers ofFienberg: We'll Tale It; W.S.J. (Jan. 28, 2011).

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pursued litigation arising out of the September 11h events." 2 In all,ninety-five suits were filed, seeking recoveries for ninety-six claimants.The WTC Fund were filed in the federal district court for the SouthernDistrict of New York and were consolidated in the before Judge Alvin K.Hellerstein.4 63 Seventy-six of these cases ultimately settled; only oneunresolved September 11th lawsuit remains and is scheduled go to trialin June 2011. 4 Thirteen lawsuits settled quickly;465 and the remaining82 cases were settled through the auspices of experienced mass tortlitigator Sheila Birnbaum, who Judge Hellerstein appointed to serve as amediator to resolve these remaining suits."6 In order to spur settlementof the lawsuits, Judge Hellerstein ordered bifurcated bellwether trials."

In his administration of the September 1lth cases, Judge Hellersteinkept a fairly tight rein over the advocacy efforts of the plaintiffs'lawyers. In concert with special master Feinberg, and as a condition ofcontinuing litigation, Judge Hellerstein required that all individualplaintiffs discuss with their attorneys the alternative remedy in the WTCFund, and to weigh the risks and transaction costs of proceeding in thelitigation process.

The WTC victims who elected the litigation option proceeded withhad some advantages in comparison to pursuing relief through the WTCFund option.469 For example, in filing their lawsuits, the plaintiffs'

462 See Feinberg et al., FINAL REPORT OF THE SPECIAL MASTER at 1.463 In re September 11th Litig., 600 F. Supp. 2d 549 (S.D.N.Y.) (upholding exclusivejurisdiction of Southern District of New York as remedy for damages arising out of Sept.11th terrorist attacks). For a description of the array of types of cases consolidated inJudge Hellerstein's court, see Conk, Will the Post 9/11 World be a Post-Tort World?,supra n. 24 at 189.46 Colin Moynihan, Timetable Is Set for the Only Civil Trial in a 9/11 Death, N.Y. Times(Oct. 20, 2010).465 See Order Accepting Mediator's Report and Providing That It Be Filed, In reSeptember 11th Litig. at 5 (S.D.N.Y. March 4, 2009); Sheila Birnbaum, Report of theMediator on the Mediation and Settlement Efforts of the Parties in The Cases PreviouslyDocketed Under 21 MC 97 (March 3, 2009).46 See Order Accepting Mediator's Report and Providing That It Be Filed, In reSeptember 11th Litig., (S.D.N.Y. March 4, 2009); Sheila Birnbaum, Report of theMediator; see also Mark Hamblett, 9/11 Mediator Wraps Up Work; Only 3 Cases LeftUnsettled, American Law media law.com (March 6, 2009), available athttp://www.law.com/jsp/law.467 In re September IIth Litig., 2007 WL 1965559 (S.D.N.Y. July 5, 2007).468 Brill, AFTER: How AMERICA CONFRONTED THE SEPTEMBER 12 ERA, supra n. 262 at537. Berkowitz, The Problematic Role of the Special Master, supra n. 18 at 27; MiloGeyelin, Judge Wants Victims of September 11th Who Sue to Know the Risks of Action,Wall St. J. at B2 (April 11, 2002).469 Ackerman, The September 11th Victim Compensation Fund, supra n. 8 at 186-188;Rabin, The Quest for Fairness, supra n. 11 at 586-87 (weighing the relative risks andbenefits of the litigation option, including no collateral source offsets and the possibilityof punitive damage recovery).

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attorneys were able to identify a universe of defendants not relvant tothe WTC Fund's settlement of claims. Thus, the plaintiffs' attorneysnamed as party-defendants the security firms at the airports where theterrorists had boarded the aircraft, the building architects and firmsinvolved in the design and construction of the World Trade CenterTowers, the Port Authority, the owners of the Twin Towers, andnumerous othe-r defendants.4 70 In an interim MDL ruling, JudgeHellerstein upheld the designation of these entities as legitimatedefendants, thereby strengthening the plaintiffs' litigation posture.47'Judge Hellerstein also issued an interim order enabling discovery fromthe Transportation Security Administration.472 Judge Hellerstein's ordersalso spurred the settlement of several lawsuits on his September 11 thdocket.473

In addition, the collateral source rule did not apply to reduceclaimants' awards by the amount provided through these benefits. Intheory, then, WTC victims who chose the litigation option received botha settlement award and were able to retain their collateral source benefits.

On the oth.-r hand, the WTC claimants who elected civil litigationwere constrained by certain factors that had no relevance to those whoelected compensation through the WTC Fund, and that also would notordinarily constrain civil tort litigation.474 Thus, WTC enabling statutelimited the litigation plaintiffs' choice of venue to the federal districtcourt in New York City, and also limited the applicable law.47 Inaddition, the litigation plaintiffs had to pay attorney fees, and thus theirsettlement awards were reduced by this transaction cost, which was not afactor for WTC Fund claimants. Finally, the resolution of the civillitigation plaint:ffs' lawsuits took longer to resolve by settlement than ifthey had electec. to receive compensation for the WTC Fund.476

470 But see Ackemian, The September 11th Victim Compensation Fund, supra n. 8 at185-86 (suggesting that a finding of negligence on the part of the airlines, security firms,airports, or aircraft manufacturers was anything but certain in the private litigation).47 In re September 11th Litig., 280 F. Supp. 279, 289 (S.D.N.Y. 2003); see also In reSeptember IIth Litig., 2004 WL 1320897 (S.D.N.Y. 2004) (denying defendants' motionsto dismiss pursuan to the waiver provision of ATSA). See Ackerman, The September11th Victim Compensation Fund, supra n. 8 at 188 ("Still, by surviving the motions todismiss, the plaintiffs had surmounted a significant hurdle in the § 408 litigation.");Conk, Will the Post 9/11 World be a Post-Tort World?, supra n. 24 at 212.472 In re September 1 lth Litig., 236 F.R.D. 164 S.D.N.Y. 2006).

473 Conk, Will the Post 9/11 World be a Post-Tort World?, supra n. 24 at 213. See alsoSee Order Accepting Mediator's Report and Providing That It Be Filed, In re September1 Ith Litig. at 8 (S.D.N.Y. March 4, 2009).474 Ackerman, The September Ith Victim Compensation Fund, supra n. 8 at 183.475 In re September 11th Litig., 600 F. Supp. 2d 549 (S.D.N.Y.) (upholding exclusivejurisdiction of Southern District of New York as remedy for damages arising out of Sept.11th terrorist attack,.).476 The last mediated case was resolved in March 2009; the remaining jury trial case isscheduled for June: 011.

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In addition, Judge Hellerstein reviewed the individual proposedsettlements, to assure consistency with previous WTC awards. In atleast four hold-out cases, Judge Hellerstein rejected agreed settlementsthat he believed provided for excessive awards and attorney fees thatwere inconsistent with previous awards and settlements.478 The partiesinvolved in these rejected settlements re-negotiated and reduced thesettlements terms to Judge Hellerstein's final satisfaction.

As indicated above, Judge Hellerstein in his court opinions,480 andmediator Birnbaum in her report to the court'--citing privacyconcerns--bth declined to divulge any information relating to thevaluation of individual settlement awards. 8 Also citing privacyconcerns, Feinberg's Final Report to Congress only indicates aggregatesettlement vpluations, rather than individual awards. Consequently,there is no aVailable data to evaluate whether claimants who elected toretain counsI and pursue litigation in the aftermath of the September1Ith disaster received a financially more favorable outcome thanclaimants who elected relief through the WTC Fund.484

At this writing, the alternative litigation options for Gulf Coastclaimants who choose not to seek remediation through the GCCF arerelatively imm'ature and undeveloped. The litigation landscape, however,is much more complicated than the single litigation track that developedafter the September 1Ith events. In turn, administrator Feinberg hasactively discduraged potential claimants from pursuing litigation.

With regard to the Gulf Coast explosion and oil spill, there are atleast three simultaneous litigation tracks underway. The Judicial Panel onMultidistrict Litigation finally approved a Gulf Oil Spill MDL, and

477 See Order Accepting Mediator's Report and Providing That It Be Filed, In reSeptember 1Ith Litig. at 8 (S.D.N.Y. March 4, 2009).4 In re September llth Litig., 567 F. Supp. 611 (S.D.N.Y. 2008) (rejecting $28.5million settlement and disapproving $7,1250,000 in contingent attorney fees).479 See Order Accepting Mediator's Report and Providing That It Be Filed, In reSeptember 11th Litig. at 8 (S.D.N.Y. March 4, 2009).480 See In re September 1Ith Litig., supra.481 Sheila Birnbaum, Report of the Mediator, supra n.465.482 See Order Accepting Mediator's Report, supra n. 477; Sheila Bimbaum, Report of theMediator, supra n. 465.481 See Feinberg, et al., FINAL REPORT OF THE SPECIAL MASTER at 64-65.4 In spite of the absence of comparative data, one commentator nonetheless maintainsthat the option of electing the Fund remedy was preferable to pursuing litigation in thetort system. See Ackerman, The September 1 Ith Victim Compensation Fund, supra n. 8 at190-91 ("Even so, measured against the likely (rather than theoretical) outcome of aconventional tort action, even absent the constraints of [the MDL litigation], the Fundlooks like an excellent option for the overwhelming majority of eligible claimants.").485 John Schwartz, For Kenneth Feinberg, More Delicate Diplomacy, N.Y. Times (July16, 2010) (discouraging claimants from litigation because of uncertainty, delay, andattorney's fees).

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transferred and consolidated all oil-spill related cases in federal districtcourt in Louisiana.486 In January 2011, presiding Judge Barbier selectedthe lead counsel's committee to represent and develop the litigation.4 87

The Louisiana MDL does not include securities class actions, which havebeen transferred to the federal district court in Houston, Texas, foradjudication.488 In addition to these lawsuits, the Gulf State Attorneys-General anticipate filing litigation asserting governmental claims forvarious damage to the Gulf States, pursuant to an array of environmentalstatutes and conmon law theories. In addition, the federal governmenthas under consideration its own legal actions, including the possibilityfor criminal vic lations arising from the Deepwater Horizon explosionand oil spill.490

In addition to the collection of different pending litigation, thelawsuits relating to the Deepwater Horizon events implicate complicatedfederalism issues, a significant array of federal and state statutory andcommon law claims, 49 multiple defendants, and complicated choice-of-law problems. Unlike the WTC experience, the litigation arising out ofthe Gulf Coast 4vents is not statutorily cabined to one venue and oneapplicable law. Nor is it likely that one federal judge will overseeresolution of all pieces of Gulf Coast litigation relating to these claims,as Judge Hellerstein did in managing the WTC litigation. Indeed, Judge

486 Transfer Order, In re Oil Spill by the Oil Rig "Deepwater Horizon" In the Gulf ofMexico, on April 20, 1020, MDL No. 2179 (J.P.M.D.L. Aug. 10, 2010). BP's choice offorum was Houston. See Margaret Cronin Fisk and Laurel Brubaker Calkins, BP WantsGulf Oil-Spill Lawsu its Combined in Houston, Bloomberg Businessweek (May 10, 2010);John Schwartz, US. Judge in New Orleans Will Hear GulfSpill Cases, N.Y. Times (Aug.10, 2010), available at http://www.nytimes.com/2010/08 (creation of MDL and transferto New Orleans); Bg Gulf Spill Gets Sent to the Big Easy, W.S.J. (Aug. 10, 2010),available at http://b ogs.wsj.com/law/2010/08/10/big-gulf-spill-gets-sent-to-the-big-easy(creation of Oil Spill MDL and transfer to federal court in New Orleans; assigned toFederal Judge Carl Barbier; viewed as plaintiff attorneys victory).487 See Brian Baxter, David Boies Wants Lead Role in BP Litigation, N.Y. Lawyer (Sept.29, 2010); Dionne Searcey, Modesty is Out as Lawyers Vie for Key Spots in BP Suit,W.S.J. (Sept. 28, 2010) (hundreds of attorneys competing for selection for leadershipposts in the MDL and its steering committees).488 Transfer Order, I re BPp.l.c. Securities Litig., MDL No. 2185 (J.P.M.D.L. Aug. 10,2010).489 Evan Perez and Eionne Searcey, New Party to Suits in Gulf Spill: The U.S., W.S.J.(Dec. 15, 2010) (commenting on State Attorney Generals' suits); see also New AlabamaAG Boots Oil-Spill Lvwyers, Will Handle On His Own, W.S.J. (Jan. 27, 2010).4 Perez & Searcey. id. (Justice Department expected lawsuits under environmentalprotection statutes); John Schwartz, US. Sues Companies for Spill Damages, N.Y. Times(Dec. 15, 2010); John Schwartz, US. Sues Companies for Spill Damages, N.Y. Times(Dec. 15, 2010) (Department of Justice criminal investigation).49) See Barry Meier, Calls to Update Maritime Laws, N.Y. Times (July 5, 2010),available at http://www.nytimes.com/2010/07/07/business/06seas.html? (commenting onplaintiffs' attorneys turning down compelling potential cases because of statutorylimitations on recoverf).

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Barbier has signaled his willingness to rein in Feinberg and his staffwhen appropriate, as manifested in Judge Barbier's February 2, 2011order enjoining Feinberg and his law firm. 92

Finally, at this immature stage of the litigation, it is already clear thata fissure has developed in the plaintiffs' bar, with some attorneys seekingresolution of claims through the MDL auspices, others aligned to pursuesecurities violations through the class action mechanism, and a thirdgroup seeking to represent clients in the GCCF in return for percentage-based fees.49 Clearly, the MDL attorneys seeking to enjoin Feinberg inhis GCCF efforts are not aligned with the plaintiffs' attorneys who areadvocating claimant relief through this facility.L. Defendants

As indicated at the outset of this article, one important characteristicthat distinguishes the Deepwater Horizon events from the September 1 1hdisaster is that in the Gulf Coast case, it is readily apparent that there arelikely culpable defendants. The Coast Guard's immediate identificationof BP as a responsible party under the OPA supports this contention.494

As suggested above, several scholars have commented that one factorthat made the WTC Fund an attractive alternative to the tort litigationsystem was the problem-especially in the early weeks following theWTC events---of identifying potential defendants to sue in litigation.

Hence, the problematic nature of identifying culpable defendants,coupled with the difficulty of establishing legal liability for tort claims asagainst any of these potential defendants, was used to persuade WTCvictims that their better remedy was though the WTC Fund. Althoughthis argument proved persuasive for many in the context of the WTCFund, several commentators subsequently have argued that the WTCFund was unique in this regard, and the fund approach should not be

492 Order and Reasons, In re Oil Spill by the Oil Rig "Deepwater Horizon" in the GulfofMexico, on April 20, 2010, MDL 2179 (Feb. 2, 2011) (granting plaintiffs' motion tosupervise ex parte communications with putative class).493 See Tom Hais, Gulf Coast Attorneys to Lead US. Oil Spill Lawsuits, Reuters (Oct. 10,2010); Brian Baxter, Steering Committee Members Selected for Gulf Coast Oil SpillSuits, AmLaw Daily (Oct. 11, 2010); Searcey, Oil Spill Lawyers Urge Clients to Settle,supra n. 460.4 The Coast Guard almost immediately designated BP as a "responsible party under theOil Pollution Act of 1990, Pub. L. No. 10 1-380, § 102, 104 Stat. 484, 489 (codified at 33U.S.C. § 2702 (2006).495 Alexander, Procedural Design, supra n. 5 at 637 ("Although all the victims ofSeptember 11th appeared as "deserving" of large recoveries as anyone could possibly be,they could not recover damages from the real culprits, the, hijackers and theiraccomplices, who were either dead or out of reach."). As it turned out, the WTC plaintiffswho pursued litigation in federal court were able to identify and name numerousdefendants, and Judge Hellerstein upheld their potential liability in the litigation. Seenotes 470-71.

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replicated in situations where there were known, identifiable defendantsallegedly responsible for a mass tort disaster.

In addition, as the subsequent parallel September 11th litigationdemonstrated, the plaintiffs who chose to litigate their claims were ableto identify an array of defendants in their lawsuits, including the privateairport security firms (denominated the "Aviation defendants"), buildingarchitects and construction firms, the Port Authority, and other entities.In a challenge brought by the Aviation Defendants, Judge Hellersteindenied their motions to dismiss on the grounds that they owed no dutiesto the plaintiffs, and that the defendants could not reasonably haveanticipated that several terrorists would hijack jumbo jet aircraft andcrash those killing passengers, crew, and others on the ground.498

In contrast the WTC events, an array of potentially culpabledefendants exist regarding liability for the Deepwater Horizon disaster,including but certainly not limited to BP. Indeed, the GCCF final waiverform includes an Appendix listing several dozen entities seeking releasefrom litigation as a consequence of settling with the GCCF.4 99 Moreover,not only is there a substantial list of potentially liable parties, but thelegal theories that might support such claims are less attenuated than inthe WTC litigation. Hence, the "problematic defendant" argument, insupport of a fuid resolution of mass tort claims, has scant relevance inthe context of the GCCF.

III. The Evolution of Models of FundApproaches to the Resolution of Mass Claims

Historically, European and other western-industrialized countrieshave relied on fund resolutions of claims in resolving mass tort events.sooThus, for example, Germany, Japan, and the United Kingdom quicklyresolved the claims of the so-called "thalidomide babies" in the 1960s byproviding compensation and life-time support for children born withsevere birth defects as a result of their mother's ingestion of the

4 See e.g., Rabin, The September 11th Victim Compensation Fund, supra n. 8 at 780-81,798, 799-803 (sugiesting that responsible defendants ought to be charged with the lossesreflecting what is required to make a deserving plaintiff whole).497 See Eggen, Toxic, Torts at Ground Zero, supra n. 15 at 411, 432.4" In re September 11 Litig., 280 F. Supp. 2d 279, 287 (S.D.N.Y. 2003). See also In reSeptember llth Litig., 280 F. Supp. 279, 289 (S.D.N.Y. 2003). See Ackerman, TheSeptember 11th Victim Compensation Fund, supra n. 8 at 188 ("Still, by surviving themotions to dismiss, the plaintiffs had surmounted a significant hurdle in the § 408litigation."); Kreindler & Alexander, September 11th Aftermath, supra n. 267(commenting on def'endants in the September 11th litigated cases).4" See GCCF Final Settlement Release and Waiver, Attachment A, supra n. 380 (listingall potential deferdants released from liability and lawsuit under the settlementagreement).m See Rabin, The September 11th Victim Compensation Fund, supra n. 8 at 793-96(foreign compensation models for mass tort and terrorist events).

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pharmaceutical thalidomide in this era.50' These various funds were theproduct of the combined efforts of the respective governments and theculpable drug manufacturer, who jointly contributed to compensationfunds to provide relief for these claimants.so2 In this fashion, governmentand industry combined to provide claimants with expeditious reliefwithout the necessity for litigation, findings of causation, liability anddamages.

In the United States, by contrast, the use of funds to resolve mass tortlitigation has never gained comparable traction. There are many reasonsfor this, not the least of which is the embedded American legal culture ofadversarial justice and right to trial by jury. Nevertheless, a few historicalexamples of American experiments with compensation funds include theBlack Lung Program pursuant to the Black Lung Benefits Act,50 3 theNational Vaccine Injury Compensation Program,5 4 and the Price-Anderson Act, which provides for strict statutory liability in the case ofnuclear plant disaster.505 In addition, Congress enacted the NationalSwine Flu Act in 1976, creating a fund to compensate victims who diedor were injured from inoculations administered by a government-mandated program.5 06

Of the American historical funds, the Black Lung program often hasbeen cited as an ineffectual mechanism for compensating coal minerclaimants.507 Notably, all these funds are authorized by federal statute;moreover, the childhood vaccine program and the Price-Anderson Actauthorize funds that financially are supported by the industries engagedin the potentially hazardous activity that might give rise to liability.

501 See Anita Bernstein, Formed by Thalidomide: Mass Torts as a False Cure for ToxicExposure, 97 Colum. L. Rev. 2153, 2158 (1997).502 id.

s03 30 U.S.C. §§ 901-945 (2000). See also Peck, The Victim Compensation Fund, supran. 8 at 217-18 (discussing the Black Lung program).s0 42 U.S.C. § 300aa-11(a). The National Childhood Vaccine Injury Act of 1986established a program to compensate children injured by exposure to vaccines; it isinternally funded by a tax imposed on the sale of each dose of vaccine sold. See fordescription. of the implementation of this program, see Berkowitz, The Problematic Roleof the Special Master, supra n. 18 at 30.

'05 42 U.S.C. § 2210 (2000). See Peck, The Victim Compensation Fund, supra n. 8 at 218(commenting that ATLA considered the Price-Anderson Act as a promising model forcreation of a fund for September 1Ith victims).so' 42 U.S.C. § 247(j)-(1) (2000). Berkowitz, The Problematic Role of the Special Master,supra n. 18 at 31.507 See Peck, The Victim Compensation Fund, supra n. 8 at 218 (describing paltrycompensation benefits paid pursuant to the program); Brian C. Murchison, Due Process,Black Lung, and the Shaping of Administrative Justice, 54 Admin. L. Rev. 1025 (2002);William S. Mattingly, Black Lung Update: The Evolution of the Current Regulations andthe Proposed Revolution, 100 W. Va. L. Rev. 601, 601 (1998).sos Berkowitz, The Problematic Role of the Special Master, supra n. 18 at 30.

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Specifically, ihe Price-Anderson Act requires that entities engaged inthe production of nuclear energy contribute to a fund in case of aprospective disaster that might require remediation to victims of anuclear plant disaster.so9 The Act limits plants' liability to $560 millionfor all claims arising from a single nuclear accident.5' To be eligible toparticipate in this fund mechanism, nuclear licensees must maintain atleast $160 million in private insurance and contribute up to $10 millionannually to a pool of funds designed to total $47 billion dollars.51 In thecase of disaster, the Nuclear Regulatory Commission declares anextraordinary nuclear occurrence and the Act sets up a system of strictliability in which all defenses are waived. In order to receivecompensation, a claimant must only show that their injuries result from anuclear power plant accident.51 2

The September 11th events and the creation of the WTC Fundmarked the first significant American experiment with a fund approachto compensating large numbers of claimants for tortious injury, and theGCCF represents the second such large-scale compensation effortoutside the judicial system. As indicated above, because the WTC Fundand the GCCF share a common administrator, the GCCF has mimickedthe WTC Fund in many aspects of its creation and implementation. Onthe other hand, the GCCF represents a radical departure from the WTCFund, and the ways in which the GCCF differ from the WTC Fund arecause for great con cern.

The arc of Ke a Feinberg's career neatly demonstrates the evolutionof at least three different fund models, progressing from arguably themost legitimate to the arguably the least legitimate (and most lawless).This evolution illustrates a seamless progression from (1) a judicially-approved and managed class action fund to (2) a Congressionally-mandated and supervised fund, to (3) a defendant-created and directedfund. In the haste to embrace the fund approach to mass claim resolution,little attention has focused on how these "funds" have evolved fromentities governed by the rule of law to a model essentially unconstrainedby law.

Feinberg's init:al experience with the use of a fund to resolve massclaims involved his participation as a special master in the Agent Orangelitigation in the late 1970s and early 1980s.s' 3 Feinberg himselffrequently refers to this formative experience and as the basis fortechniques he engrafted onto his management of the WTC Fund and the

so' See generally Berkowitz, The Problematic Role of the Special Master, supra n. 18 at32-34; Peck, The Victim Compensation Fund, supra n. 8 at 218.

"o Id. at 219.

'"Id. at 218.s' See Peter H. Schuck, AGENT ORANGE ON TRIAL: MASS Toxic DISASTERS IN THECOURTS (1986) at 144-45.

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GCCF, such as the use of town hall meetings to address the victims'concerns and to make the claims process more personal for itsparticipants. 14

The Agent Orange fund model, however, is jurisprudentially light-years removed from the GCCF. First, the Agent Orange fund was createdto implement a negotiated class action settlement.515 The Agent Orangelitigation began with hundreds of lawsuits filed in state and federalcourts.5t6 Many years of contested litigation preceded the adversaries'ultimate agreement to settle a class action and create the Agent Orangefund.517

The Agent Orange litigation was managed under the closesupervision of Judge Jack Weinstein,518 and the Agent Orange fund was acreature of a Rule 23 class action settlement. 519 Whatever role Feinbergmay have played in the resolution of the Agent Orange litigation, he wasappointed as a special master in that litigation under the authority ofFederal Rule of Civil Procedure 53.520 Feinberg's authority and powersin the Agent Orange Fund were limited and circumscribed by law, and hewas answerable to the federal court.521

Moreover, it is important to emphasize that the Agent Orange fundwas the creature of a class action settlement.522 As such, before this fundmechanism could begin operation to provide compensation to Viet Namveterans, the Agent Orange settlement had to be judicially reviewed andapproved by Judge Weinstein pursuant to Federal Rule Civil Procedure23(3).2 The Agent Orange fund, then, was subject to an array ofsubstantive and procedural due process constraints, not the least of whichwas the requirement that Judge Weinstein find that class claimants hadbeen accorded adequate representation in settlement of their claimsthrough the fund.5 24

5 See discussion of Feinberg's town hall meetings to address claimants concerns in hisimplementation of the GCCF facility, supra at notes 106-12.515 Peter Schuck, AGENT ORANGE ON TRIAL, supra n. 240 at 149-65.516 In re Agent Orange Prod. Liab. Litig., 818 F.2d 145 (2d Cir. 1987).S17 id.sis Peter H. Schuck, The Role of Judges in Settling Complex Cases: The Agent OrangeExample, 53 U. Chi. L. Rev. 337 (1986).s19 See In re Agent Orange Prod. Liab. Litig., supra n. 516 (upholding class actionsettlement).520 See discussion of Rule 53, supra at notes 253-72; Schuck, AGENT ORANGE ON TRIAL at144-45.521 id.

$22 See In re Agent Orange Prod. Liab. Litig., supra n. 516 (upholding class actionsettlement).s2 In re Agent Orange Prod. Liab. Litig., 597 F. Supp. 740 (E.D.N.Y. 1984).524 id.

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Hence, the Agent Orange fund was created subject to an array oflegal constraints, and Feinberg, in his role as special master, did notfunction as a free-wheeling, unbounded law-giver. Moreover, in thelargely uncritical commentary lauding the Agent Orange fund,525 it isfrequently overlooked that the Agent Orange settlement successfully waschallenged nearly twenty-five years after Judge Weinstein's approval ofthe Agent Orange fund. 26 If the Agent Orange fund is the best exampleof a fund resolution of mass claims, then it is important to note that thebinding effect of the Agent Orange settlement successfully waschallenged on due process grounds for the failure to provide futureclaimants with adequate representation.527

Feinberg's second experience with a fund approach to resolvingmass claims was his administration of the WTC Fund. The WTC Fundrepresented an irnrovative approach to resolving mass tort claims againstthe backdrop of national tragedy. In terms of both substance andprocedure, the WTC Fund drew loosely from its class action cousins.But, as has been described at length above, the WTC Fund was not theresult of class litigation or the close judicial supervision entailed insettling class litigation.

Thus, the WTC Fund represents a fund archetype that is once-removed from tie class action model, although not without legalconstraints. Hence, the WTC Fund was a creature of federal statute, wassubject to Congressional oversight, and had a "special master" appointedby the Executive branch who remotely was accountable to Congress andthe Department of Justice. In addition, the WTC Fund incorporatedseveral features of the rule of law, including public notice-and-commentrulemaking and significant transparency.

Although the WTC Fund was undergirded with legal authorization,the WTC Fund signaled an expansive progression from the class actionfund model. The WTC Fund was not created within the scope ofauthority of the iederal judiciary, nor was the WTC Fund subject tojudicial oversight and management by a federal judge. Unlike the classaction context, decisions relating to the WTC Fund were not subject toreview for substantive or procedural due process. Moreover, as indicatedabove, the WTC Fund special master had liberal rulemaking and otherauthority, which he increasingly exercised in an ad hoc fashion duringthe course of the WTC Fund's history. And the special master's awarddeterminations were subjected to limited appellate review.

The GCCF represents the third fund model and illustrates an extremeand seemingly lawless expansion of the fund approach to resolving massclaims. To begin, it is difficult to discern the legal authorization for the

525 See e.g., Martha L. Minow, The Judge for the Situation: Judge Jack Weinstein, 97Colum. L. Rev. 2012 (1997).S26 Stephenson v. Dow Chem. Co., 273 F.3d 249 (2d Cir. 2001).27 id.

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fund, other than vague references to the OPA. The GCCF was notcreated as a mechanism to implement a contested class action settlement,nor did Congress authorize creation of this fund. Thus, the GCCF has notbeen subject to the scrutiny that would have accompanied a class actionsettlement or Congressional oversight.

Moreover, it is difficult to characterize exactly what the GCCF is,and what legal status this entity has, if any. Feinberg has described theGCCF as a "compact;', 528 federal Judge Barbier has described the GCCFas a "hybrid." 529 The GCCF is largely private claims-adjusting facilityacting in ad hoc fashion, run by a culpable party's retained autocrat. It isnot functioning as a mediation or arbitration center, with claimsresolution through the auspices of professional mediators or arbitrators.The persons administering claims have not been designated or selectedthrough adversarial processes, and the GCCF is functioning outsidejudicial scrutiny and seemingly not subject to any professional rules ofconduct.

Instead, the GCCF was the result of private, behind-closed-doornegotiations with unidentified participants. The fund was created andfunded by the primary malefactor, who picked the fund's administrator.The relationship between BP and Feinberg has raised numeroussignificant ethical issues, centrally relating to the administrator'sindependence. The administrator and his law firm are financiallyprofiting from their administration of the fund. There are numerousindicia that BP has not been operating independent of the fund, but ratherhas intervened in several crucial decisions relating to the fund'simplementation, which decisions favor BP's interests.

The GCCF has engaged in no public rulemaking and virtually all itsdecisions have been cloaked in secrecy, including its criteria andpersonnel. The fund has operated largely in a non-transparent fashion,with limited avenues for independent appellate review. There has been asignificant lack of information upon which Gulf Coast victims mightdetermine the possible valuation of their claims, and whether it makessense to seek remediation through the GCCF. In spite of promises toprovide legal assistance to Gulf Coast claimants, such provision ofcounsel has been non-existent or slow in being provided. Claimsadministration has been exceedingly protracted and multiple claims havebeen delayed or denied. Claimants have complained about inconsistentawards. The waiver required as a condition for the final settlement ofclaims releases a very large array of potential claims, as well as dozens

528 See e.g., Statement of Kenneth Feinberg, Full Hearing on Recovery in the Gulf Whatthe $20 Billion BP Claims Fund Means for Small Business, Hearing before theCommittee on Small Business, United States House of Representatives, I IIth Cong. 2dSession (June 30, 2010).529 Order and Reasons, In re Oil Spill by the Oil Rig "Deepwater Horizon" in the Gulf ofMexico, on April 20, 2010, MDL 2179 (Feb. 2, 2011) (granting plaintiffs' motion tosupervise ex parte communications with putative class).

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of potential defendants in addition to BP. Against this chaoticbackground, the GCCF's administrator has repeatedly urged Gulf Coastresidents and businesses to seek compensation in the GCCF as the bestmeans for receiving compensation, for which actions the federal court inLouisiana finally enjoined Feinberg.5 30

Hence, almost every hallmark supporting the legitimacy of analternative disput-. resolution facility, including important due processprotections for claimants, have been lacking in implementation of theGCCF.s3'

IV. Conclusion: The GCCF-A Fund Too FarNot all fund approaches to resolving mass claims are the same, and

not all funds are fungible. Nonetheless, "funds" are now invoked withalmost talismanic approval, as a preferred means for providincompensation to disaster victims outside the litigation system.5Moreover, the CCCF provides a stellar example of the unseemlypressure exerted on disaster victims to quickly seek relief through a fundmechanism, rathe than retaining counsel and filing a lawsuit. With theadvent of the GCCF, commentators ought to ask probing questionsconcerning who benefits from these mechanisms, and whether the GCCFmodel in particular serves the interests of justice, and for whom.5 33

The greatest justifications for fund resolution of mass claims aregrounded in values of efficiency and economy. 534 The theory underlyingfund resolution cf claims is that by avoiding the litigation system,claimants receive quick, easy payment of claims and eliminate the risks,transaction costs, and delays inherent in litigation. These themes havepervaded Feinberg's repeated appeals to claimants to settle with both theWTC Fund and the GCCF.

AO id.

A' Ironically, Feinber; himself has stated that an excellent alternative dispute resolutionfacility must satisfy three design variables: substantive criteria, due process protectionsand mechanics. See Foinberg, The Building Blocks, supra n. 9 at 275. See also n. 460,infra.132 One critic perceives the trend towards fund solutions to mass tort claims as erodingfindamental justice:

Yet, tort law will continue to be eroded by attrition, by lopping offremedies-especially by limiting damages and expanding immunities-unless weare able to grab hold of the public's conscience and consciousness to bring homethe point that lialility in tort is not some form of punishment, erratically inflicted.

Conk, Will the Post 9/11 World be a Post-Tort World?, supra n. 24 at 177.s33 See generally Ale:xander, Procedural Design, supra n. 5 (enumerating factors toconsider in the future design of compensation funds for victims of disaster and terroristattacks).534 See Ackerman, The September 11th Victim Compensation Fund, supra n. 8 at 220("'Efficiency was a major reason for the Fund, and because of both the manner in which itwas tailored and the laudable, professional efforts of the Special Master and his staff, theefficiency goal was me:.").

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However, one may legitimately question whether efficiency andeconomy ought to be the bellwether metrics of a successfulcompensation program. In contrast, other commentators have suggestedthat compensation programs ought to be evaluated by the coresubstantive values of democratic governance, which include the values ofparticipation, accountability, transparency, rationality, personalautonomy, equality, due rocess and other social capital values necessaryto promote civil society. Other commentators have suggested that fourelements of procedural justice include: (1) whether procedures allowpeople an opportunity to state their case, (2) whether authorities areviewed as neutral, unbiased, honest, and principles in their decision-making, (3) whether the authorities are seen as benevolent, caring, andtrustworthy, and (4) whether the people involved are treated with dignityand respect.s36

Against the backdrop of tragic events, Ken Feinberg has emerged asthe heroic figure in bringing expeditious and uncomplicated justice tothousands of disaster victims. In this repeated narrative, Feinberg isportrayed as the selfless, self-sacrificing benefactor bringingcompassionate relief to thousands of claimants.3 Because Feinberg'sheroic narrative has so pervasively dominated discussions of both theWTC Fund and the GCCF, less critical attention has been directed toevaluating whether these funds have achieved justice for their recipients,or what justice entails.538 And, because of Feinberg's media-created

s3s See Ackerman, The September 11th Victim Compensation Fund, supra n. 8 at 206,citing Richard C. Reuben, Democracy and Dispute Resolution: The Problem ofArbitration, 67 Duke J. of Law & Contemp. Probs. 279, 285-86 (2004); Priest, TheProblematic Structure, supra n. 15 at 545 ("The September 1lth Fund will remaincontroversial because the source of the definition of its awards-however able andcommitted-is not in any sense democratic. Coupled with the lack of an internal rationaleor constraint, the awards granted by the Fund will continue to remain problematic.").Other commentators have suggested that the WTC Fund signaled the beginning of a"broad regressive trend." See Conk, Will the Post 9/11 World be a Post-Tort World?,supra n. 24 at 253.536 Tyler and Thorisdottir, A Psychological Perspective, supra n. 15 at 380, 384(concluding that 'none of the aforementioned ways of creating perceptions of proceduralfairness were utilized when the Fund was initially established).13 Diller, Tort and Social Welfare Principles, supra n. 15 at 755:

The issue of procedural fairness centers on whether Feinberg has structured anadjudicatory system that bolsters rather than undermines confidence in the fairnessof the results it produces. One way or another, the question returns to Feinberghimself because the procedures are all focused on his decision-making process. Onthis score, Feinberg has handled himself in a manner that is not tikely to promote aperception of the Fund as a fair administrative mechanism. Feinberg has adopted ahigh profile approach with the media and the public. His tendencies tophilosophize, argue, console, and offer predictions and advice about the Fund allemphasize :iis own personal role in making decisions. As a result, awards appear asthe product of Feinberg's personal choices and preferences rather than as theproduct of dispassionate principled application of legal standards to facts.

s3s One critic has opined: "While the Fund creates the special Master, the Special Master

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persona, many commentators tactfully have refrained from questioningFeinberg's actionas, lest his critics seem ungracious.

It is impossible to evaluate the WTC Fund and the GCCF withoutdiscussion of Feinberg, because Feinberg has made himself synonymouswith these fundS. 539 In his defensive response to his critics, Feinbergtypically defaulls to the retort that "no good deed goes unpunished"-aself-serving response that deflects approbation onto his critics. While itmay be true that no good deed goes unpunished, it is perhaps relevant toquestion whethe-r Feinberg-especially in his administration of theGCCF-has been performing good deeds for thousands of grieving andoften desperate people.

We conclude by noting that in the myth of Prometheus, things turnedout very well for both Prometheus and Hercules, but not necessarily sofor mankind. While Prometheus and Hercules went on to greater glory,the gods continued to punish mankind for receiving the gift of fire.

As other mess torts have taught us, BP will survive and prosper inthe wake of the Deepwater Horizon disaster, as will Ken Feinberg.Feinberg will continue, in the future, to administer new disaster funds asthe need arises, and be lauded for his heroic efforts in administeringthese massive funds. However, with the GCCF, the precedent has nowbeen set for corporate malefactors who are caught up in the maelstrom ofmassive liability to discharge their legal responsibilities on their ownterms, and favorable to their own interests.

9;)09*V)- CQCCC

commands the fund. If the role of Special Master lacks legitimacy, then the Fund lackscredibility." Berkowitz, The Problematic Role of the Special Master, supra n. 18 at 40.539 See Ackerman, The September l ith Victim Compensation Fund, supra n. 8 at 197 ("Inlarge part due to his availability, Feinberg came to personify the Fund, and some of theresponses to the Fund reflected people's reactions to him."); Diller, Tort and SocialWelfare Principles, zupra n. 15 at 726, 755 ("In both the substantive standards and theprocedural model, the spotlight remains focused on the personal choices and values ofSpecial Master Feinberg himself. Regardless of how capable and well-intentioned theSpecial Master, the Fund vests too much discretion in a single individual with littlemeans of accountability and oversight.").

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The BP Oil Spill and the Future of Mass Tort Litigation

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