Litigation Interuptis

[pms]

Saturday they were trying to raise $million down at Centennial Park(and a
pathetic patch of unshaded ground it is) for NY relief.    It was carried on
all channels including our PBS station, for several hours.  John
Lennon-centric fund-raiser Tues pm on WB.  How will they spin Vietnam?  Will
it insite Main Street?



October 1, 2001
Fund for Victims' Families Already Proves Sore Point
By DIANA B. HENRIQUES and DAVID BARSTOW
he compensation fund created by Congress 10 days ago, which could pay the
families of victims in the Sept. 11 terrorist attacks more than $1 million
each, has begun to generate both resentment and confusion about its ultimate
fairness and effectiveness.

Senior budget analysts for House Democrats say that the fund, established as
part of legislation to rescue the airline industry, could cost taxpayers as
much as $15 billion to compensate the direct victims of the attacks - at
least 6,000 killed or missing and another 8,700 injured.

But already, even as the Justice Department works to establish the fund,
some victims of past terrorism, from the Oklahoma City bombing to the
destruction of two American embassies in Africa, are upset to be excluded.

As well, charities and relief agencies, which have raised more than $675
million so far, are worried that the federal fund may go only to families of
those killed or injured in the attacks, who are already the main recipients
of private charity. The fund would exclude many families who have suffered
mental trauma and have lost homes, jobs or businesses.

Legal scholars have raised questions about the fund's even- handedness and
accountability. They cite, in particular, the extraordinary power of the
fund's "special master," the person to be appointed by Attorney General John
Ashcroft to make the fund's awards. Inevitably, they say, the special
master, who is not subject to Senate approval and whose decisions cannot be
appealed to any court, will have to balance the economic losses and
emotional anguish of each family against the total burden on taxpayers.

The fund, which still has an undetermined price tag, was adopted as part of
legislation to save the airline industry from bankruptcy after the
hijackings. Devised to shield the industry from litigation, it is open to
the families of anyone who suffered death or physical harm in the hijackings
or the attacks.

Those who apply for relief waive their right to sue for damages sustained in
the attacks in any federal or state court. But the applicants are promised a
decision within 120 days, far less time than a lawsuit would take. They are
also excused from having to prove who is to blame for their losses, as they
would be required to do in court.

The amounts paid out by this fund must be reduced by the amount any family
has received from its own private insurance, death benefits or government
assistance. It is not clear whether awards from private charity would be
subtracted from federal awards, something that has those involved in private
fund-raising deeply puzzled about how best to distribute their money.

Stephan Landsman, a law professor at DePaul University who is advising the
American Bar Association on the compensation fund, warned that a special
master whose focus has to include the country's taxpayers could be, in fact,
"an adversary to the claimants - and it does not seem fair to have an
adversary also making the final decision."

The early estimates prepared by the members of Congress involved in the
fund's creation are, they admit, preliminary. But they agreed that the fund
was structured to compensate families roughly in line with what they might
expect from a court award. In cases of death and severe injury, such awards
routinely exceed $1 million. "Those kinds of numbers were clearly being
contemplated," said one official involved in the negotiations.

The fund's framers said their aim was to offer families an avenue for relief
that would be faster and more certain than litigation. But the concerns
already raised about how it will operate and whom it will serve suggest it
may need refining.

The emerging questions and unhappiness about the fund were, in effect, born
in compromises made to achieve its passage, according to interviews with a
half-dozen Republican and Democratic participants in the process.

The basic architecture of the fund was designed in less than 24 hours, with
the final passages written at 4 a.m. on Friday, Sept. 21, just hours before
the measure was passed by both chambers. Negotiators for both parties said
the rush was driven by the demands of airline executives, who had bluntly
warned that they would be out of business without immediate financial aid
and protection from lawsuits.

Senate Majority Leader Tom Daschle and House Minority Leader Richard A.
Gephardt had made it clear that there would be no deal for the airlines
without compensation for victims. But a disagreement about how best to
construct such a system of compensation surfaced.

A plan proposed by the White House would have had all victim claims
consolidated for trial in federal court in Manhattan, with the government
stepping in to pay claims only after the airlines' insurance was exhausted.
If victims failed to prove who was to blame for their losses, they would get
nothing.

Ultimately, though, the real wrangling over the nature of the fund took
place when leaders of the Senate and House met in the offices of House
Speaker J. Dennis Hastert on the night of Sept. 20.

The Democrats wanted an open- ended victims compensation fund presided over
by a senior judge, subject to Senate confirmation, who would be empowered to
award any amount of money to cover both economic losses, such as lost wages,
and noneconomic losses, such as pain and suffering and mental anguish.

But they met fierce resistance from three Republicans: Senator Don Nickles
of Oklahoma, Representative Tom DeLay of Texas and Representative Roy Blunt
of Missouri. The Republicans demanded to know how much the fund would cost.

"Nobody had any idea of the liability we were assuming for the government,"
Mr. Blunt recalled in an interview. But to questions of cost, Mr. Daschle
responded, "Can any of you value these lives right now? I can't."

Mr. Nickles had another concern: fairness to his own state's terrorism
casualties, who had not been so generously compensated after the 1995
bombing of the Oklahoma City federal building, according to two participants
in the meeting.

With pressure building from the airlines, the Republican negotiators
ultimately agreed to much of what Mr. Daschle and Mr. Gephardt proposed, but
not without extracting two important concessions.

First, they insisted that the federal fund had to reduce any award it made
to a family by the amount of other compensation the family received, such as
life insurance or death benefits. Second, they wanted Attorney General John
Ashcroft to pick who would run the fund.

The Democrats say they agreed in part out of a "leap of faith" born of
bipartisan spirit and in part because they saw the commitment to pay for
noneconomic losses such as pain and suffering as a boon to the families of
victims who earned little or had spotty employment histories. In cases
involving similarly horrific deaths, awards for pain and suffering can be
very large. In recent cases involving three American students killed in
suicide bombings in Israel, their families received a total of $54 million
in compensatory damages.

"It is expensive," Senator Hillary Rodham Clinton said. "But how do you put
a price tag on a life?"

Whatever its virtues, the final agreement on the fund, signed by President
Bush on Sept. 22, struck some victims of previous terrorist attacks as far
from inclusive enough. No equivalent fund was established to compensate
those victims or their families.

"To me, you have to equalize the playing field or it's just not fair," said
Kathleen R. Flynn, the mother of John Patrick Flynn, a college student who
was killed in the 1988 bombing of Pan Am Flight 103 over Lockerbie,
Scotland.
Suzanne Breedlove, director of victims services for the Oklahoma District
Attorneys Council, which administers the state's compensation plan for crime
victims, said that some in Oklahoma City resent the notion of "making
millionaires out of people." It is an equity issue, she added. "Are we going
to raise half a billion dollars for every terrorist attack in America?"

Edith Bartley's father and brother were among the 224 people killed in the
1998 bombings of two American embassies in Africa. Ms. Bartley, like other
victims of past terrorist attacks, said she felt enormous sadness for the
newly traumatized families, but also a growing anger at the vast sums of
public relief and private charity now being directed toward those families.

Ms. Bartley and the families of 10 other Americans killed in the Nairobi
attack have been quietly asking Congress to provide $1.5 million to each
family to compensate them for their anguish. They picked the figure because
that was the amount the United States government paid to the families of
those killed in the accidental bombing of the Chinese embassy in Serbia in
1999.

Ms. Bartley said their pleas had been greeted with sympathy - notably from
Representative Blunt, whose daughter went to law school with Ms. Bartley -
but no action. Now, seeing the details of this new victims' compensation
fund, these families find themselves feeling forgotten and heartbroken all
over.

"They weren't thinking about us, and it's because it happened in their
backyards, not thousands of miles away," Ms. Bartley said. "And yet all of
these victims are victims of the same terrorist group."

Told of Ms. Bartley's comments, Mr. Blunt said, "Well, a lot of things in
life are not fair, and this may turn out to be one of them. Some unlucky
victims are more unlucky than others."

The creation of the fund, and the ambiguity in some of the language defining
its mission and obligations, have also posed problems for the scores of
charitable and philanthropic groups trying to help the current victims.

A key unanswered question for charities is whether the money a family has
received or will receive from philanthropic sources, such as the Twin Towers
Fund for uniformed personnel or the Windows of Hope fund for food industry
workers, will be deducted from the federal fund's awards.

If so, the new government fund could help even out the flow of aid to those
who have not benefited from specialized fund-raising efforts. But that would
also oblige charities, as a matter of full disclosure, to begin advising
families of the effect their aid may have on future federal awards, several
lawyers said.

The fund also would make it more important for private philanthropy to steer
more of its aid to the thousands of affected families excluded from the
federal fund, several lawyers and charity executives agreed. Yet many donors
have specified that their gifts are to be used only for direct victims - the
same people who will benefit from the new fund.

"It doesn't feel that it has been coordinated with the other relief work
very well," said Kathy Bushkin, president of the AOL Time Warner Foundation.

The fund's effect on private charity was "clearly something they never
thought about," said Robert A. Clifford, the chairman of the A.B.A. Task
Force on Terrorism and the Law. "The attorney general should immediately
speak to that question, so that the giving does not come to a halt." Several
authors of the legislation acknowledged that this was a question that was
overlooked in their haste to create the fund.

While many lawyers praise the fund, they note that its shape is a sharp
departure from previous federal efforts to compensate victims of widespread
disasters.

The fund, for instance, differs from past practice in the amount of power
vested in its special master. Special masters who oversee other federal
funds are typically subject to court review. In this case, there is no
appeal from the special master's decisions.

The tension between providing compensation to families and limiting the
government's financial exposure is already surfacing. Mr. Blunt said the
special master would have "a unique responsibility to arrive at a fair
settlement from all perspectives."

Still, lawyers seem to agree that the fund, if its flaws can be mended, will
serve the affected families far better than lawsuits.

Mr. Clifford, a specialist in aviation lawsuits, called the bill a
"necessary piece of legislation." He added, "We need to try to turn what
would otherwise be a quagmire of litigation into something that melds
together and helps victims."