The title of Kenneth Feinberg’s 2012 book is: “Who Gets What: Fair Compensation After Tragedy and Financial Upheaval.” It is part memoir and part meditation on some of the well-known compensation systems he has administered during the course of his career, from the Agent Orange settlement to the 9/11 fund to the Gulf coast compensation fund that Feinberg managed for BP. “Where is it written,” he muses at one point, “that the tort system, and the tort system alone, must be the guiding force in determining who gets what?” It’s a good question.
On Monday morning, however, Feinberg unveiled his latest effort, a new fund, proposed and paid for by General Motors, to compensate victims of its ignition-switch failures with the Chevy Cobalt, the Saturn Ion and several other G.M. cars. It is very much tied to the tort system, as Feinberg was quick to concede when I spoke to him Monday afternoon. The family of a married father of two who had a $50,000-a-year job — and who died in an ignition-switch accident — would potentially get several million dollars more than, say, the family of an unmarried, out-of-work 29-year-old. An investment banker who was seriously injured would get more than a laborer who was seriously injured because the investment banker’s potential earnings were higher than the laborer’s. That may not necessarily be fair, but it is the calculation that courts use to compensate people in the tort system.
There is a reason that the G.M. compensation fund is set up to replicate the tort system, of course. Like the 9/11 fund and the BP fund before it, the General Motors fund has as one of its primary goals to keep victims from filing lawsuits. Indeed, the quid pro quo is quite explicit: After Feinberg and his staff have made an offer in an ignition-switch case, the victim has to be willing to sign a document saying he or she won’t sue to get the money. There is no cap on the total amount of money G.M. has agreed to spend on victims’ payments.
“It is designed to help claimants,” Feinberg said flatly. “It is not designed to punish G.M.”
Although the fund will pay some money for pain and suffering, punitive damages are not part of the equation. Claimants — and their lawyers — seeking “punis” will have to forego Feinberg’s offer of compensation and take their chances in court.
The fund has other features that have become associated with a Feinberg-run fund. On the one hand, it is probably overly generous to certain classes of claimants. “Contributory negligence” — that is drivers who were drinking, say, when they got into an ignition switch accident — will not be a factor in Feinberg’s calculations. People with minor scrapes that required a trip to the emergency room will get some money.
On the other hand, Feinberg isn’t just giving out cash willy-nilly. He is going to require documentation that the ignition switch was the “proximate cause” of the accident. I remember once asking Feinberg why he insisted on such rigor when he was handing out BP’s money. He told me that “if the process has no integrity, then people will begin to question the legitimacy of this alternative to the court system.”
The other thing about these funds is that they work. Some 97 percent of the families of 9/11 victims opted into that fund, according to Feinberg; the number for BP fund was 92 percent — this despite the best effort of some plaintiffs’ lawyers to undermine it.
In his book, Feinberg says that he thinks funds like the one established by BP should be rare because they set up “special rules for a select few.” He adds that “the American legal system, with its emphasis on judges, juries and lawyers all participating in adversarial give-and-take, works well in the great majority of cases.”
But I think the country would be better served if they became more frequent. Compensating people while keeping them out of the tort system is a worthy goal. For one thing, such funds can serve as a kind of public atonement for a company, as is the case with General Motors. For another, courts can be a crapshoot. Finally, these funds can pay people quickly, without years of litigation and the anxiety it brings.
“Money is a pretty poor substitute for loss,” said Feinberg toward the end of his prepared remarks on Monday morning. He noted that the millions of dollars he is about to parcel out to ignition-switch victims and their families won’t bring back loved ones, or give a permanently injured person back his or her health.
In “Who Gets What,” he also points out that other cultures have different ways of offering compensation, and it often doesn’t involve money. “It is,” he concluded, “the limit of what we can do.”
It is also the American way.
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