Books : After : Excerpts

From After: How America Confronted The September 12 Era

Wednesday, January 23, 2002

Ken Feinberg knew that the attacks on his regulations would come from all sides. He'd even joked with Ted Kennedy about it. But deep down, he also thought that reason would prevail and that it would quickly become clear to the victims that his was, indeed, "the only game in town." Yet as of today only 250 people had applied to his fund. It had now been a month since the draft regulations had been issued. The program guaranteed an immediate $50,000 and the rest within 120 days of Feinberg making an award. Still, most weren't biting.

Perhaps because he didn't yet appreciate how the charities had covered so much of the immediate cash needs of so many of the families, while life insurance payouts had provided even more to people like Eileen Simon, Feinberg was surprised that more people weren't signing up faster.

This morning in Ridgewood, New Jersey, he got a firsthand lesson in what was holding them back. His audience of about 150 were mostly well-dressed widows from the New Jersey suburbs, who arrived at a local courthouse in Suburbans, Lexuses, and BMWs. Several sat with babies in their laps.

Feinberg, standing at a lectern in front of the courtroom, ran through the basics of his program. His voice boomed a bit too loud, his words came a little too quickly, and his promise to get to another subject "in a minute" became more annoying the more he repeated the phrase. Yet he seemed to talk to these people like he was trying to help them. He wasn't defensive. He used no legalese.

"You give up your right to sue, before you know what you're going to get," someone complained.

Feinberg answered that although the statute seemed to require that, he had developed three ways around the problem. First, they could look at the presumptive awards on the charts, something they could ask a lawyer or other advisor to help them with. Second, they could watch his website and see what other, similarly situated people got. (To preserve privacy, names and identifying details would not be given on the website, but enough specifics would be provided to give them a good idea.) Third, and most important, they could make an appointment to come see him or a member of his staff and get an estimate of an award calculated in advance. It would not be binding, but "you would be able to trust me."

"Why should we trust you?" someone yelled from the back.

"Because if I don't make good on those estimates, I'm sure you'll hear about it."

When someone asked what would happen to the money if there was no will, Feinberg reported that the estimates he had seen were that only 25 percent of all the families had had wills -- which meant that in three quarters of the cases the money would be divided up according to how the state where the deceased person had lived dictated it be divided. (In New Jersey, that meant a spouse gets half and the children split the other half.)

A woman stood up to complain that because she didn't have children and her husband had no will, under her state's law "my mother-in-law will get half, and she didn't suffer at all. I'll get one twentieth of my loss and she'll get twenty times her loss."

Feinberg said maybe he could talk to the mother-in-law for her and get her to be reasonable. She smiled a teary smile and said, "That's not likely."

A baby let out a wail. Her mother, toting a Prada bag, shot up from her seat to take her out into the hall.

Someone asked if she could come to Feinberg's office and provide proof of her husband's real potential for earnings growth, potential that was "way beyond the formula [for assumed income growth over the years] in your charts."

"You could," said Feinberg, "but it'll have to be more than a letter from someone saying he was a star and would have made a lot of money."

It was that kind of truthful but unvarnished response that alienated the group. Feinberg just didn't have any kind of bedside manner.

"You should talk to a lawyer about what kind of proof you can present."

"What if we don't want to hire a lawyer," someone shouted.

"Then talk to an advisor, or come ask me or someone on my staff."

Another baby cried.

One woman asked why she shouldn't be compensated for the value of her husband's lawn mowing and other services, such as cleaning the pool. Feinberg said it was unlikely that he could help her with that.

Someone else stood and talked about her life partner, another woman who had died. What could she recover?

That depended on whether New Jersey changed its law to recognize same sex partners, Feinberg replied.

One woman complained that she had five kids, ages two to nine, to support, but she'd get zero because of the deductions to be made from any award for life insurance policy payouts, which in her case amounted to $2 million. This brought on a barrage of more complaints, even catcalls, about life insurance offsets. The one who complained most adamantly was the woman who was hosting the meeting -- Marge Roukema, the longtime Republican congresswoman from this area of New Jersey. She declared that her constituents were being destroyed by this unfair rule.

When Feinberg reminded the group, and the congresswoman, that the insurance offsets were specifically in the law that Congress had passed, Roukema blurted out, "I voted for it, but I didn't understand the full implications of what I voted for." Some laughed at their hapless congresswoman. Others booed. Someone yelled out, "What else didn't you understand?...How in blazes could Congress vote and not know about the insurance?"

"This is a travesty," a heavyset man in the far right corner yelled.

Roukema recovered to tell her audience that she was co-sponsoring legislation to repeal the offsets, but Feinberg politely said that it was unrealistic to expect Congress to pass anything like that. "You should see the letters I get attacking the whole program, or asking, 'What about the Oklahoma City victims?'" he added.

As Feinberg looked at his watch and said that he had to leave soon, another heavyset man in the back asked about pensions being offset, and about Social Security. A chorus of "yeahs" followed.

Feinberg, who had by now begun to understand the widespread concern about the Social Security, workers' compensation, and pension offset issues, seemed to welcome the question. "There are pensions and there are pensions," he said. "Many won't be offset. The same is true for workers' compensation and Social Security. We are looking at that right now. I think an argument can be made that no workers' comp should be offset and most Social Security should not be offset. I'm doing my best to make sure no one gets zero because of this. My goal," he continued, adding something that would have surprised Mitch Daniels back at the Office of Management and Budget, "is to deduct as little in the way of offsets as possible. I'm really going to do my best."

This got the attention of a blond woman in the first row, who had had her hand up through most of the question period. Now, she waved it more purposefully.

"Widows only," said Roukema.

"I am a widow, that much I know," the blonde replied with a chuckle. Then she turned to Feinberg.

"Uh, I have to tell you that you're saying you're doing your best is not enough," she said with a smile. "You have to tell us. What are the rules?" Her face now lost its smile. She stood up, and continued. "In the beginning I felt like you were on my side. Then you put out the regulations, and I'm being told I get zero. I have three children and with their Social Security and workers' comp I get zero. I was counting on you, I really was, to do the right thing. You seem like a decent person. But I can't stand watching them rebuild Afghanistan while America turns its back on me....I have had a huge American flag on my porch since September 12. I want to love that flag."

It was Eileen Simon.

Feinberg, in fact, recognized her, because she's not easy to forget and because she had buttonholed him last month at the first Cantor Fitzgerald meeting to ask about the same thing.

But since that first meeting, Simon had learned the details of the workers' comp and Social Security issues cold. She had consulted both a lawyer at Kreindler's firm, referred to her by people at Cantor Fitzgerald, and a lawyer at her sister's old Wall Street law firm. In fact, a week ago she'd gotten those two lawyers and people from the Justice Department who had worked on Feinberg's regulations on a conference call. When she'd rattled off what she said she thought the workers' comp and Social Security payouts to each of her children and to her were worth, everyone else seemed to doubt her. But as the conversation dragged on and reconvened after the person at Justice got off to check Simon's numbers with others in the government, they all soon concluded that she was right.

Now Simon stood in front of Feinberg, reading from her notes the dollar-by-dollar presumed value of what to Feinberg and apparently everyone else in the government had seemed to be minimally relevant benefits. "Under your rules, as you have written them, I get zero; in fact I get less than zero," Simon concluded.

Feinberg would later recall that after Simon stood up and spoke that morning about the problem and seemed so sure about it, he made a note to himself that he had to go back to Washington and nail down how to deal with workers' comp and Social Security. The lawyers at Justice, working with people at the Labor Department, had handled all that. Had they gotten it wrong? Worse, had they sandbagged him into putting out regulations that were budget-friendly but would screw the victims?

"The blonde with all the numbers really got to me," is how he later put it.