 So those of you who are of a certain age or have a certain sense of humor know there's a line from Monty Python that goes now for something completely different. Here we go. So from submersibles sniffing around the river of oil and economics and law of natural resource damages and loss of tourism dollars, we switched to tort law. And we're very fortunate that we have my boss and good colleague, Dean David Logan, who's put together this panel to be moderating it. He's been the dean here since 2003. Has extensive experience that I'm not going to reiterate that's in the program. But when we were putting together this conference, I said, I don't do this tort stuff. So this is all your baby, Dean Logan. Excuse me. There was a joke. There was a boy that's hard to far Chris Reddy. He was talking about the comment about graveyards. There's a joke among law deans. Is how is a law dean like a groundskeeper in a cemetery? And the answer is, in both circumstances, there's lots of people underneath you, but you're not sure anyone's actually listening. Well, it turns out Susan reports to me, unlike the faculty. And I said, if we're going to put this together, my particular interest in the tort system ought to have a toehold in the program. And it became very easy because one of our adjunct faculty and very close friends, Don McGlory, is deeply involved in these kinds of issues. So this particular program, this is called the Sewer Settle, is focusing on some issues that really were touched upon by some of the morning panelists about how we evaluate injuries to people and what's the fair way to go about it. In addition to what I thought one of Chris Reddy's really important points was echoed again earlier this morning is, science doesn't run on the same clock that people do. The Chittum-Schiff's needs compensation now, not when science resolves its questions five and 10 years from now. And so we are caught in a situation where needs for individual justice and compensation bump up against the reality that often proof problems are very significant. And a lot of this spills over into this question of compensation systems. How do we deal with torts or misconduct that causes a large number of injuries, typically in one certain catastrophic event? And I could not have put together, maybe if I got in Ken Feinberg here, a better panel. But other than this, this is a great panel. Don McGlory to my immediate left comes to this from a number of different deep experiences, including representation of 9-11 victims. As far as I know, the only one left that has not actually settled either through the torts system or through the 9-11 compensation fund is Don's client. And that's scheduled to go to trial in New York in June. And it's the only one of these thousands of civil claims that will actually, assuming it does go to trial, go to trial. And Don has thought long and hard about these questions of compensation systems. And so he's going to bring this really from the plaintiff's perspective and speak, eloquently, about why the torts system has a place in resolving these matters. To his immediate left is another superstar who knows a lot about this area. It's Debra Greenspan. It may be incorrect to say that she goes all the way back to Jack Weinstein and the Agent Orange compensation plan. But Debra has been, in one capacity or another, involved many, many of the mass torts in large cases where, from her perspective and the end, often corporate clients had to face the challenges of dealing with multiple claimants arising of a single incident. She also was appointed by the Department of Justice to be a special master in the 9-11 compensation funds. She knows that deeply. And she's spoken around the country and now has her practice at a wonderful firm, Dixie and Shapiro-Moran, dealing with complex civil litigation. So Debra, thank you for being here. And then you'd think George Cock would be here because he loves wooden boats. And it's true. The last time I saw George was on a day when the weather was about this bad, when there was a Harishoff boat gathering of Harishoff boat people. For those of you that are wooden boat folks, it's down the street about a mile. And it's like Mecca for wood boat folks. And George was here. But George also happens to be a fantastic scholar, writing about complex civil litigation, including compensation schemes. And on top of it, does something that's really sort of hard for law faculties to have, which is have a person who's got 30 years of practice trying and then advocating on appeal towards cases. And he teaches now full-time at Fordham Law School, a range of courses that go out of his experience. So with that background, I will sit down and let Don Mallory, who's also adjunct faculty member, make the case for the plaintiff. Well, I too am a Cranston boy. And my Cranston's going to come out a couple of times, I'm sure. And I have been in this place before, Coach Brown, put right after one of the most interesting and dynamic speakers with nothing very substantive to say. I guess that's called plaintiff work. No, I've been involved with these issues for a long time. But when the dean and Susan asked me to participate in putting the program together, I actually was very interested that Deborah be part of the program because of her background and having worked with her so much on these issues in the past, myself and my firm for years. And getting Kevin here, my partner who is on the ground working directly with these victims and trying to get claims through the process. And of course, our client who is nice enough to come here and share from his perspective, the only perspective here of what it's like to actually feel the cost of an event like this in your livelihood. I was very proud to be part of putting that part of the show together. It also put me out of work because I don't really have much more to add except maybe trying to raise a particular question about what the tort systems are really all about. And I actually do teach a course about this here. What is the tort system about? What is the traditional tort system all about? And can it handle 9-11? Can it handle the BP oil spill? And so what I'd like to do is just go through some of the things. But before I do that, I know that Garrett had made reference to how BP responded to this event. And I actually had a slide from a prior talk about it. He wasn't kidding. Part of there, this is representative Markey who pointed it out, but BP actually did redo its response plan multiple times. But even after this event, it was 90% identical to its prior plans. And they kept talking about how they were going to continue to protect the Walruses, even though they hadn't been in the Gulf for 3 million years. And Markey's remark was that only technology that the oil companies seemed to be relying upon is a Xerox machine to put together their response plan. The civil justice system, the tort system, the one that's been handed over to us through the common law, is a system that's not just about getting compensation. It's an important component of it. But it's my belief, it's my strong belief that the system has many more components to it than just compensation. But within compensation, that has to be just. Discovery is the entire issue. The ability to ask questions, the ability to ask pointed questions, the ability for a victim of an event to ask questions relevant to that person is one of the most empowering things for an individual with a corporation that has allegedly done something wrong to him or her. The ability to get the answers and do something with those answers and shed light with those answers is also critically important in a fundamental part of the civil justice system. With that comes an accountability. After that process, the point in one of the major motivations for families like the 9-11 victims or the BP victims is to make sure that somebody's held accountable, not in a vendetta sort of way, but in a way that makes sure that there is some kind of legacy from that event which gets to another point, which is that in the event that there is a finding of accountability, there should be some effect. There should be some change of behavior. There should be some deterrence. That entity should know, or that individual should know, that that conduct can't be repeated. And much more globally from that lesson, hopefully there's something to be learned. Now in a car accident, it's kind of hard to say that what happens at the end of a car accident is going to end up changing the world. When you talk about 9-11 and the events of 9-11 and how 9-11 came about and who's responsible for 9-11, it has a lot to do with what happens. What a victim of that crime or a victim of that event suffered makes a lot of difference on what's known from that event and what's done with that information. And the same is true with BP. Compensation systems, on the other hand, are not about any of the non-economic factors. They're about compensation. And they're not even necessarily about just compensation. They're about moving claims in and getting releases out. And sometimes that's the right decision. It's the right decision for many people to go into the system and address an immediate hardship economic need, even if it means getting less, but getting it immediately. In the 9-11 context, that actually happened. And I actually very much applaud Debra and her team for the way they handled our clients. We put 50 people through the Victims Compensation Fund on 9-11. We as a firm made a choice to do that pro bono because we didn't think that the compensation was just. We thought that the numbers were deflated. But they were individual decisions of individual families. And we thought that if those families were going to make those choices and inform choices, that we'd be there for them and help them get through it. And for them, that was the right decision. But in the end, what that produced was 98% of the people from 9-11 who died went through that system and got quicker payments in order to get that part of their lives behind them. And what's in that effect of that type of scheme, it causes a stability. The act that created the Victims Compensation Fund in 9-11 is called the Stabilization Act. It's basically an act that's designed to keep the airlines flying and keep the economy moving from that perspective. And so compensation funds tend to have a very different end game and a different motivation. So the simple point that I think I'm trying to address is actually one that was actually addressed by a woman named Jillian Hadfield out of USC. Jillian put together this idea that there is a choice that 9-11 victims had to make between the fund and between the litigation. And she actually talked to folks who went through that process of the Victims Compensation Fund after the fact to find out what they felt going through this rather unique Victims Compensation Fund process instead of the tort system and see how they, after the fact, felt about their decisions. And she concluded a few things, but she did note that a lot of people, including Ken Feinberg, who manages both funds, said that while the non-monetary goals were unrealistic, Feinberg, for example, responds that the 9-11 victims desired to pursue information and accountability with his legal assessment that litigation would not produce these outcomes and that the 9-11 commission was a proper avenue to get information. While the 9-11 commission was not designed to get information about what happened to people on planes, it was designed to figure out on a policy level what was going on between the FBI, the CIA, and other departments. And I have been appointed by the district court in the Southern District of New York to be the liaison for the 96 claims that did not go through the Victims Compensation Fund. In all but one case remains. That's the bavis case that Dean Logan referred to. Those families went through this process in order to get those non-monetary goals achieved as well as a better compensation for their families. One of the conclusions of Hadfield's study is that as a result of talking to the Victims Compensation Fund applicants and those folks, the 98% who went through the process, she found that the majority of them felt a little bit of a buyer's remorse for lack of a better term. That is, they went into the system, they had the immediate needs, they had never seen anything. Nobody's really had anything to really compare this to in the past. But in the end, the citizenry part of bringing a lawsuit, getting answers, accounting for the blame, that part of it left them feeling unholy. And it's her view and her conclusion, based on talking to these family members, that Victims Compensation Funds are really designed to get people out of the compensation system. How do you get 98% of the people to participate, give them enough so that they can get by and get on with their lives, but get them out of the system? Whereas the tort system is designed to give access, to give equal footing to an individual with a corporation. Now, I don't want to leave anybody with the impression that I'm saying that the compensation funds are completely and wholly bad. They're not. For some families, it's the absolute only thing they could do, emotionally or economically. Nobody who made a decision to go into the fund should ever be criticized for doing so. But it's important to know that those funds have very different motivations. And we, as people who think about legal issues and legal systems and compensation systems, should be very, very leery and very, very suspicious of efforts to every time there's a major event in our society, any kind of mass tort, that we respond with this alternative scheme. Our civil justice system is fully equipped to maintain, to manage these types of disasters. There are judges that do this almost exclusively in the multi-district litigation process. And it's something that we should never abandon so that we can just set up these sort of quasi-opa-type compensation funds, these quasi-voluntary funds. But funds that end up paying out between $10,000 and $25,000 to victims of the BP oil spill in exchange for final releases. When I was part of an ad hoc committee to help design the protocol for the BP fund, we met multiple times with Ken Feinberg and his partner, Mike Rosen. And we tried to suggest the things that we learned from the 9-11 fund to make sure those problems didn't occur again in the system that was set up for BP. Many of our recommendations were ignored, some were adopted. But in the end, in that process, what we learned is that this system was set up to anticipate 250,000 claims. And now it's probably achieved almost double that. And the point of the system seems to be the same as that with 9-11, which is, let's see how many people we can get into the system. Let's see how many people we can hold that bay by sending those sort of nondescript denial letters. And let's see how big the problem is before we really start dealing with the economic and financial hardships of our families and the folks who've been affected. So in the long run, the only point I want to make is that the funds and the schemes are not a solve, they're not a direction for the future to resolve all mass tort claims. They have to be handled in a very specific way. And as Ken Feinberg actually said in his own book about talking about the victim's compensation fund, I believe he gave himself a magna cum laude grading, but then said that nobody should ever do this again. So we need to be very careful about how we use them. We need to be very careful about what they mean. And as legal thinkers, we need to be very careful about what it means to the degradation of the civil justice system and its purposes. Now, I've got a bunch of things that I was going to show you. And I was going to stick to sort of the 9-11 example more than talk about the BP fund, because Deborah, I had the benefit of seeing their slides first, so I don't have to cover many of the things that they're going to cover so well. But the 9-11 example teaches us a lot of things. And I bet if we were to survey the people in this room about 9-11, I bet most people would say, well, that's a terrorist event. It was a crime. It's something that was a result of the FBI not talking to the CIA and the CIA not talking to the FBI and everybody failing to do what they should have. And if you're a Republican, it was because Clinton didn't bomb Osama when he had a chance. And if you're a Democrat, it's because George Bush didn't know what he was doing. But the truth of the matter is that what happened on 9-11 actually could have been prevented if folks at the last line of defense actually did their job, which is defend the checkpoints. And these checkpoints have not just been known to be vulnerable. These checkpoints had been invaded, had been crossed many, many times before 9-11. In fact, just three months before Logan was a subject as well as Providence Airport of a Fox investigative news report, where they brought bombs through, simulated bombs through the checkpoints, then put them on TV in March of 2001. I'm a Rhode Islander. I bet everyone here knows Call Hog, Rhode Island very well. This is a clip from Family Guy. And I actually intend to show this at the trial. One of the reasons why we try these cases for the families that have the energy, the determination, or the ability to try them is to get information out into the public. Family Guy, for those of you that don't know, is a pretty irreverent show. I'm going to show you a clip from the show. And I want to see, just to show a fan how many people think this may be over the line in terms of tastfulness. Sorry, little man. Everything gets x-rayed. Wait, wait. There's really no need to. On the gold ship, lollipop, it's a sweet trip to the candy shop where bonbons play. On the sunny beach of peppermint day, let's hope Osama bin Laden doesn't know show tunes. God, I hope I get it. I hope I get it. How many people does he need? How many boys? How many girls? How many people think that's tasteless? You got a couple hands? How about if I told you that was aired a year and a half before 9-11? A RISD student with no security training, with no background, insecurity issues, with no aviation experience, thought it would be really funny to put on the air on May 30, 2000. A clip of Osama bin Laden singing show tunes and duking out the Providence or the Quahoghurt Island checkpoint screeners to get guns and weapons through the security checkpoint. It is one of those things that people just don't stop to realize. And one of the most wonderful things about the civil justice system is that it gives the 96 people that I represented who chose not to go into a no-fault system the opportunity to ask questions, get answers, find out what happened that day, expose it publicly, and just say to folks, this wasn't the first time we could think about it. This was imagined, it was imaginable, and it should never have happened. And so for families, I can do that. The civil justice system should be not just set aside as an alternative to these new compensation schemes. That should be the place that people are encouraged to go if they've got the ability to do it. And that's the place where an individual has the absolute right, and the only place that person has the absolute right to stand in equal footing with a corporation to try to figure out what happened. I can't tell you most of the things that we learned from our investigation, but what I can tell you is this. In the 9-11 context, we took over 200 depositions. We've gathered millions of pages of documents. They're all in a protective order until we go to trial. And the Davis family that's about to try that case has not given me any authority to resolve it because they want these stories to be told because they think it's important. So when you think about the BP context, all I ask is that you keep an open mind that it's not just about making sure that the businesses get back on their feet for everybody, and we cannot wholesale throughout the civil justice system in all of its benefits in exchange for getting quick, short relief in 98% participation with releases. We, on the compensation level alone, the average victim's compensation fund paid out at just over $2 million a claim for death in the after offsets. And in the context of the tort litigation, those claims average over $5 million each. So even within the concept of compensation, the tort system is there. It works. It should be protected in the law schools. It should be protected in our practices. And it should be protected in our social talking when we talk to people about our practice. And although I started my talk with a plaintiff joke, the truth is that the system needs to be revisited just for what it has. And it has to be protected by what we do and what we say and how we look at it. And hopefully for these BP victims, for those that are going through the MDL process, for those that are going through the litigation process, they'll have the opportunity to ask the questions and figure out why certain things like what the Alabama Attorney General has found. The Attorney General in Alabama wrote a letter to Ken Feinberg saying that the process of quick pay and meager payments and quick releases is really hurting the citizens of his state. And he pointed out the very same things that we found in Jillian's study, which is that those people that are going through that process are feeling frustration. They're feeling demoralization and humiliation. They're feeling the stress and the hopelessness of their business and their livelihood. And their business problems aren't going to be resolved, even though that there are many, many promises at the outset of the compensation scheme to resolve the claims that they will be fixed and resolve quickly and expediently through the BPRA process. I wish Ken Feinberg tremendous success because it means something to my clients. I don't think a system where he's being paid directly by BP is one that's going to produce that for my clients. But in the end, for me, it's about folks like Harold and what they need to do to get back on their feet. And so to the extent that people go through that process, I wish them the best. But to the extent that they don't, let's not throw out the baby in the bathwater. Thank you. I need to put this way down. OK. Well, first, I just want to thank David and Don for thinking of me and inviting me to this conference. And I hope I can provide some context for these compensation schemes, these funds that Don has just introduced in his talk. So you have a flavor for what they are, what they do, how you deal with it, and really what the problem is that they've tried to address in some of the history of how these kinds of compensation systems have arisen. So here's what we had. This is in a very simplistic form. We've heard a lot today about all the natural resources issues and the scientific issues. But from the perspective of people who have been affected by the, or directly affected by the oil spill, you have hundreds of thousands of people and businesses who are affected by this. There's all kinds of different losses, property damage. There's personal injury. There's economic loss, loss of business, loss of profits. I think everybody's pretty familiar in general with that. And you have cases were filed. I don't even know how quickly after the spill, but I'm almost immediately after the spill. Lawsuits started being filed in different jurisdictions, took quite some time, really, to start to bring order, I think, to the litigation process. And then you, of course, had the political pressure, the media, this fund was set up with a handshake with the administration and BP. This is not, it was obviously stemming from the public perception and the concept, the idea that something needs to happen right away. BP needs to step up to the plate and do something quickly. And it needs to look a little bit more independent than just having BP hire a bunch of people and start processing claims. So that's kind of the origin of this. But here you've got hundreds of thousands of claims. They're not going to run through the litigation system in six months. And people are, they have economic needs, immediate economic needs. And so some of the question is, how do you balance those things? Can you afford to wait for the whole legal process to run its course, which will be, I don't know, Don, how long you think, or how long this is gonna take to start resolving claims through that process. But anyway, that's the outset. So how do you address them? There's real life issues. Is there an alternative? And I think what I'm hearing Don say is that, these are not mutually exclusive alternatives. That there will be options, sort of a, if you can set up some sort of system, that might be the right thing for some people. Litigation might be the right thing for other people. But if you're gonna set something up, how do you do it? What should it address? How do you know that you're really establishing something that's effective and helpful and useful? So what I'm gonna talk about a bit is some of the history and some of the things that have some of the compensation systems that have been set up in other contexts that give us, we can learn lessons from those experiences. There are, I categorize three different types. Court supervised settlement processes, statutory programs, and some sort of voluntary program. The court supervised example is really something that will come out of usually a class action, maybe a bankruptcy, or some other aggregation of claims where there's a massive number of claims. And cases are proceeding through litigation. It's not like there is no litigation. They are proceeding through the litigation process, and at some point there's a resolution or a mass resolution of these claims. They're not resolved on an individual basis. And the examples are things that I think everyone's familiar with. Asbestos litigation is sort of the, you know, perhaps the biggest example where claims get resolved now very commonly through bankruptcy trusts. The silicone gel breast implant litigation is another example of that kind of resolution of mass claims. These kinds of mass resolution programs are set up to run for multiple years. They're usually set up with some kind of a schedule where claims are valued on some consistent basis, not on an individualized basis. So if it's a medical issue, you may have defined five or 10 different medical conditions. And everybody with condition A gets the same amount. Everyone with condition B gets the same amount of money. And that's how they're developed so that you can run them as an administrative process. There's oversight from a court. There's often oversight from the plaintiffs' attorneys that have been involved in the litigation in one way or another. And it's funded by the defendants, the companies that have been sued in the litigation. That's where the money comes from and how that operates is another story. There's not too many examples of statutory programs of pure compensation. There are different kinds of programs that have been set up to address various issues where there is an interest perhaps in promoting a certain activity or product. And some of the cost of doing that is to pay into a fund that will compensate for certain kinds of injuries. The 9-11 fund is, of course, there may be one other example of something like this, but it's, I think in recent years, a fairly unique experience. This was, I'll digress for a moment and explain a little bit more of my understanding of how it was created. It's part of the, I think I have a later slide on this, but it's part of the Airline Transportation and Stabilization Act, which was passed 11 days after the 9-11 attacks. And that act was what set up the TSA that we all enjoy so much when we go through the airports. And it created a variety of procedures and systems for dealing with transportation security. And one of the things it did was kept the liability of the airlines and some other entities for the 9-11 event because there was this sense at the time, which was, I think, a fairly, a point in time when people didn't know a lot and when there was a lot of concern and speculation. I don't think there was full knowledge at all about what really happened, certainly at that point in time. But there was fear that if there was not protection for the transportation industry, then it would fail and there would be severe economic consequences. But the Victim's Fund was sort of the quid pro quo. If you're going to cap the liability, then we need to offer up some sort of system for claimants to get compensated quickly and easily and without spending years in litigation and fighting it for this capped amount of money. So it was put into the statute fairly late in the day. I don't think it got a lot of, based on interactions I had with members of Congress, I don't think people spent a lot of time thinking about it. And it was set up as sort of a skeletal structure to be implemented, to be figured out later down the road. I've also mentioned voluntary private programs because there are plenty of examples of companies that see an issue with a product, they'd rather go out and start settling claims before they start getting sued or at least take some claims out of the system so that they have a smaller problem. That does happen and those you don't hear very much about because they are privately implemented. So why would you have an alternative program? It could be quicker, it might be quicker than the litigation process. I mean, certainly the 9-11 victims were paid in under three years. We're just going to trial in the one case, which is 10 years later, almost 10 years later. You can have what we call in this world, horizontal equity. That means that if you have a like situation, similar claims, they'll be treated similarly. That may not happen if you have cases litigated in various jurisdictions around the country, you may get very different outcomes. You can have some flexibility. If you need emergency relief, the 9-11 example is one. There were these, we had these advanced payments the day that we opened the doors for that operation. People could come in and get $25,000 or $50,000 if they thought they needed it. Not too many people did that. Some people felt a real economic need and they did opt for those benefits. I have not ever personally done a study of this, but just knowing what it costs to undertake smaller scale litigation. If you're talking about addressing hundreds of thousands of claims, you can administer a program at something of a lower cost. You give up some things in order to do that, but there's a lower administrative cost to it. And you can provide a degree of certainty. If you go into the court system and you put your case on, your experienced lawyers will have a sense of how they think it will come out, but you never know how it's gonna come out exactly. There is a risk. There's always a risk when you walk into the courtroom. In a compensation program, if it's set up properly, you should have a reasonable idea of what you're going to recover from it so that you know what you're getting into. The downsides, you might get a lower recovery. I think that's what Don's saying. You probably will get a lower recovery, or on average you might get a lower recovery. It may not be the same for each individual, but you might also have more people recovering from the system. It may be very difficult to set the level of compensation if it's very, very early, and you haven't had a lot of experience with the particular claims or the products or the torts or the legal issues, then you may be setting the compensation amounts at the wrong level. I think this is something Don really picked up and limits the discovery of information. There might be pertinent to understanding the causes, the risks, so you may not get the full story out. In some situations, I think you certainly have tools to get the full story out or much of the story out if there's investigations of incidents, but perhaps that doesn't dive as deeply as you might in a particular litigation. And of course, if it's not well-administered, it could be a disaster. It doesn't, there is certainly, you certainly have to operate the program properly or you may fail in all respects. I don't know, I know we have limited time. I was going to go quickly through a couple of examples. One, the silicone gel breast implant settlement. It's a product that was on the market for 30 years before anybody really started bringing claims and the litigation bloomed when there was a television program that addressed issues or complaints that people had about the product. And within a year, there were hundreds of cases, if not thousands of cases, lots of class actions and it was referred to an MDL court. Ultimately 400,000 claims. Most of these claims were resolved through administrative compensation programs that were set up through a settlement, a class action settlement in one case and a bankruptcy settlement in another case. And it's set up to pay people based on their particular disease. You have, I think we have eight. And there's a specified amount. You get paid if you have this condition. You have to submit documentation for it. But once you do, there's a set amount of payment. And each of these different programs was set to run for 15 years so that people could come back in if they later developed a condition. They didn't have to make their claim on day one and decide what they were gonna take. They did have to decide that they were going to be in the program. There was either an opt-out requirement. In both cases, there was essentially an opt-out requirement. That had to be done upfront. But once you were in it, you could wait and see if you developed a condition and then make your claim. So you didn't have to do it right away. Just one of the two programs that I'm talking about has paid over a billion dollars in about a six-year period for 101,000 claims. Payments from $600, which go to people who just submit an affidavit of product identification and nothing else, to $300,000 to people who have certain kinds of conditions. Just to give you a sense of the range. Now, some of those cases in litigation would have yielded recoveries in excess of a million dollars. But I know from the defense side, it cost over a million dollars to try one of those cases. So there's a lot of expense there and fees that come out of your million-dollar recovery. So here, there also may be some fees that come out of your recovery, but the fees are capped in the program. I won't go through all the... Yeah, so I'm gonna flip through very quickly. Just quickly on bankruptcy asbestos trusts, it's sort of the same kind of pattern. You get paid by your disease condition. These trusts are set up to run for decades so that future claims are addressed in the trust. I did wanna say something more about the 9-11 Fund. And I know George is gonna get into some of these statistics. There were 7,400 claims submitted. And one thing I think that's kind of, I think might be relevant here is that claims didn't really get submitted in earnest till the last six months of the program. There was a deadline and they started to come in really, there were claims that came in throughout, but basically they got submitted at the end. And for a variety of reasons, people were assessing their litigation options and they were meeting with the fund because a lot of what we did for the first two years of the fund was to sit down with people and talk to them about what their claims were and what they would likely recover from the fund. And I have to say, even though there was a schedule published, this was a very individualized process. Each claim was treated on its own merit individually, discussions with the claimant, hearings, meetings, very, very hands-on process to evaluate these claims. The highest payment was 8.5 million. And that was to a victim who was injured, not somebody, not the family of someone who was killed. I can go into detail about how you had, how the issues were with the high value death claims at some other point if we want, but the $500 payment would have gone to somebody who was injured, had smoke inhalation, was treated for 10 minutes at the hospital and went home. That kind of claim got about $500 payment. So that's a huge range to just show you how different each of these claims was. I won't go over the Gulf Coast facility. We've already had a lot of discussion of that except to say that it's a hybrid. There's no formal oversight, but I think the court is starting to step in and maybe more oversight. And I don't think people should underestimate what it takes to set up something where you might be addressing, whether it's 250,000 claims or 500,000 claims, if you're given the task of trying to pay out. And as I understand, I think Ken Feinberg was said, was told, get relief to these people quickly. They've not received, it's been a few months since this event, they haven't got relief. They need it now. That's not so easy to do. And then to sit back a year later and look at it and say, did I do the right thing? Did I come up with the right numbers? Was it too soon? I think it's very hard to, you don't know enough if you're trying to do that. So to accommodate the competing interests of having enough knowledge to do this, to come up with numbers and processes and to meet this mandate to do something immediately, do it online, do it electronically, make it easily. These are all things that I saw. You can't necessarily marry those two concepts effectively. You have to recognize that there's going to be imperfections in the system. I'll stop right there. Yeah, maybe. I'm going to answer the question. Okay, good afternoon. Well, I thought somebody should show a picture of a decent looking boat. So as David mentioned, I have wooden boat disease and I got three wooden boats. And this is my favorite. This, when I come to Bristol, I feel like a salmon who's come home to spawn. Because the Harishoff Manufacturing Company, which is now a museum and America's Cup Hall of Fame are right across the harbor. And that just for the record is a Buzzards Bay 14 designed by L. Francis Harishoff, the great designer and son of the great designer, Nat Harishoff. It is 14 feet on the waterline, 17 feet overall, mahogany planked over Oak Frame, built at the Boat School in Eastport, Maine in 1985. And its name is North River. Okay. So I've been retrained from trial lawyer to a 50 minute hour lecturer. So I'm ready for all 50 minutes, so I'm gonna try to cut that to 15. And so let me say this, the tort system. I made my living as a plaintiff's lawyer for 30 years. And I'm a great advocate of the tort system. But the objective of the tort system I feel is when someone comes into your office and sits across on the opposite side of your desk and you say to them, how can I help you? And they tell you, that's what you're there for. You are there to obtain compensation and the other collateral benefits of the system which sometimes is a judgment. And what people want is a community judgment. And I'm an advocate of that aspect of the tort system. But the tort system as it developed at the common law that we like to celebrate also had a lot of weaknesses. So workers 100 years ago had almost nothing going for them. There were a series of defenses like the fellow servant rule. If your fellow worker was negligent, that negligence couldn't be attributed to the employer. There was the assumption of the risk. You knew what you were getting into. So workers couldn't recover. We responded by the labor movement responded by creating in America an administrative system that we call workers' compensation that guaranteed people medical treatment and wage continuation benefits efficiently and at least as to the medical benefits and temporary wage loss pretty efficiently. And we established administrative bureaucracies in every state in the country to do that. Now, the next big thing that happened in tort was in the 60s, we saw a rise of product liability litigation that was driven by unsafe automobiles. And in the 70s, we saw the emergence of a massive epidemic of asbestos-related disease due to unsafe work practices and indifference by the industry to the health issues that confronted workers. That presented the legal system with big problems as far as administration of the claims that were presented, the thousands of claims that were presented. And as Deborah mentioned, some came to be administered through bankruptcy, others through... Well, for a small class, vaccine injuries, they were administered through a statutory system. Then there was judicial administration through the MDL settlements. And then there was the unique 9-11 settlement. Now, I just wanna say a few words about one type and that is the MDL settlement in Vioxx because I was in the Vioxx litigation. I worked on a post-trial on, I think, four or five, I forget, of the 18 cases that were tried. And in those 18 bellwether trials, two out of three were won by Merck. They were mostly won by Merck on the issue of individual causation where people came to the... jurors came to the conclusion that this person was a heart attack waiting to happen. There was uncertain or uneven or unclear evidence about whether that person would have heated a warning and the like. But there were four major punitive damages awards, four major awards of compensatory damages, including the one in which I was principally responsible for the appeal, McDarby versus Merck. And if you look that up in the New Jersey Superior Court reports, that is the only comprehensive review of the facts in that case and the facts that we developed in that case where Merck was looking at a crisis. They had five products that were coming off patent and they needed a big seller and they oversold this little tested product as though it were a miracle drug. And jurors recognized that. And for that reason, and because conscientious scientists had studied the actual use of the drug and the impact on the millions of people who took it, that the company was led to withdraw the product from the market. So in that case, we had a court supervised settlement fund and 85% of the plaintiffs had to agree to it, 93% did. But I want you to remember that the reason that 93% of the people signed up was that everyone who was a plaintiff knew that the plaintiff's lawyers had put millions of dollars into those cases, taken tremendous risk, gone to verdict and had enough of a database to be able to realistically assess the risk on the plaintiff's side and the same for Merck. No company could ask for a more skillful or determined defense than Merck mounted and that it's defense lawyers delivered. And at the end of that, there was an agreement and we had a lot of what we look for on both aspects. That is that there was successful compensation and the civil justice system and the jury system played its role of granting judgment. And so if you ask me what's my preferred approach to what we'll call mass torts, my answer is Vioxx, okay? So, and it's not because it was $4.85 billion. I mean, I was just a law professor by then and I was billing by the hour and I wish I, and I, whatever, you know? I didn't have a percentage of that, I wish I did, okay? That's why you go adjunct. So, well, at that point I was a full-time adjunct and so I was in this sort of ambiguous middle status, but okay, so rather than talk about the 9-11 fund, given the limits in time, which I think was an appropriate effort and extremely well handled by Kenneth Feinberg and his staff and collaborators like Deborah, let me go to this, to BP, because that's what brought us all here. It is not a fund. Let's get that straight. This is not a fund. This is an amount of assets that have been set aside or dedicated or declared by BP that they will make available for settlement. What does BP face? They face a law and the law says that the responsible party shall establish a procedure. They set a procedure. A procedure is not a fund. There is no trustee. The money is in BP's hands and they have hired someone who they hope will administer the claims process and resolve a high percentage of those claims early and successfully. There are no federal regulations in place that govern the procedure. There is a procedure and there's a slide coming where I left out the most significant thing in some ways. There is an oil pollution fund. It's administered by the Coast Guard and if you go there, it tells you to go to the GCCF because you only go to there if the responsible party has failed and refused and is unable to pay. So it's really not an actor in the process at this stage. Right now, there's nothing that governs the procedure. Now, the situation that BP faced was the general rule that if you don't have damage to person or property, you have no basis for recovery. Historically, there were exceptions made for fishermen. So these are the three big historic precedents. Fishermen on North Carolina River and a paper pulp company. A Mississippi fishing camp, they won compensation for masonite which makes an artificial kind of fiberboard, wood board. And the Samta Barbara Channel oil spill. These were exceptions because you don't own the river, you don't own the fish in the sea. When Exxon Valdez came along, yes, they recognized the rights of the fishermen at common law. The Oil Pollution Act didn't come into effect. Remember, the Oil Pollution Act is a response. And all these claims were denied. None of these people recovered in Alaska. People of this type who make their living this way are all along the Gulf Coast and that beautiful shoreline of Louisiana that we saw pictured earlier. So on the basis of the law now, it's not at all clear that these people will recover. The general rule is that they will not. All that the statute says, the Oil Pollution Act is that if you use natural resources and as a result of the oil spill, you suffer a loss, then you are entitled to recover. But it doesn't make clear what use they're talking about. How remote must your use be? If I have an ice cream stand across from the beach and nobody's on the beach, am I using the resource? The Gulf, Mr. Feinberg has substantial discretion right now in deciding what he'll pay and what he won't pay. Now, he's in an environment where as a general rule, the common law is running against the claimants. Unless you're a fisherman. There's another strain in the law, the great Louisiana judge John Minor Wisdom who is the great hero of the civil rights movement, the great hero of asbestos litigation in a dissent in a 10 to five decision by the United States Court of Appeals for the Fifth Circuit in 1985 said in the spill case, compensation should be paid for all spill victims who suffer particular damages affecting primary maritime activities. And he meant all these people, you know? Fishermen, users of the waterways, this is his list, right? Suppliers of commodities or services vital to primary activities. Now, here's the history of it. It was 10 to five, he was the dissenter. He was the bold dissenter. There's only one other judge who embraced his reasoning 100%. The situation that Kenneth Feinberg has to face is, in order to settle these claims effectively on behalf of BP and to fairly administer the company's obligations under the Oil Pollution Act, am I going to compensate all these people or not? If you wanna settle quickly, you should expect to settle high. BP has a difficult time with that. They're already of the view that he has started to settle too high. So, but now let's look at the, at another side of it, which is who is Kenneth Feinberg and what is the Gulf Coast Claims Facility? This is the language from their contract, which you can find, I think it's now on their website. It wasn't initially. He's to be guided by federal law. All claims shall be made from the fund and he'll make an independent determination. He then held himself out as a neutral fund administrator. Now you know that there are thousands of claims that have been, and hundreds of actions that have been filed and consolidated in the United States District Court and for the Eastern District of Louisiana, supervised by Judge Barbier. And the plaintiff's lawyers made a motion for supervision of the GCCF. Now there is nothing in the books that said, what is a motion for supervision? You will not find it in the federal rules of civil procedure. You will not find anything in the federal regulations because they're in anything in the federal regulations about governing this procedure. And the plaintiff's lawyers went and said, we want Feinberg to be supervised. We don't like the way he's holding himself out as a neutral fund administrator, frankly using the aura of the 9-11 fund to settle commercial claims on behalf of an oil company. Isn't that a straightforward statement of what was going on and the reason for the alarm that the plaintiff's lawyers expressed? So they got a copy as a result of the miracle of discovery of his contract. And one of the exhibits to it said, we will perform the following claim intake services, review services, evaluation services, settle cases, administer claims, and manage your database. Mr. Feinberg obtained an opinion letter from the most widely quoted legal ethics expert in the country, Stephen Gillers, who said, you are not in an attorney-client relationship with BP, you are an administrator. You owe none of the attributes of the attorney-client relationship, including loyalty and confidentiality to BP. Perrin Brackett's not stated, who are paying you $850,000 a month. 1.25. Now it's up, that was the first year. They renewed it and went to 1.25 million a month, not that he's not earning it. Now, so Professor Gillers says he's not in an attorney-client relationship. Well, let me tell you, around my home port, that kind of work, that's what we call the practice law. And here's what the ABA model rule says. These are the functions of a lawyer, advisor, negotiator, advocate, evaluator. He's contracted to do all those things, so Mr. Feinberg is an attorney for BP. And as a result of Judge Barbier's orders, he changed the homepage and now it says, Mr. Feinberg and the GCCF are acting for and on behalf of BP Exploration and Production Incorporated. Now there's a straightforward statement. That's very different from an independent and neutral fund evaluator. So now, when someone is asking you to make a compromise and compromises are being called for or proposed and you're trying to evaluate whether he's making you an offer that's a good gamble for you or a bad gamble for you, it's really best to know who is making the offer. And so now, thanks to Judge Barbier, Mr. Feinberg is in a position to be more straightforward and more candid with the applicants to his funds and they are to his settlement facility, I should say. And so we have Judge Barbier to thank for that progress and also for insisting that every client, every claimant be told that he has a right to consult an attorney of his own choosing before accepting any settlement. So I'm gonna conclude with this one. So this is the slide that has the missing thing which is the coast guard is the administrator of the Oil Pollution Trust Fund. And which is a complicated fund and it's funded by a per barrel tax and it has a lot of different functions and works under a bunch of different statutes. And so on the books, they are the only ones who or maybe the most likely candidate now to perhaps supervise this kind of claims facility. But I'd suggest that we look at it a fresh because we're trying to determine what will be and what should be the legal legacy of the Gulf oil spill. So let's start from scratch. Who should oversee it? Let's start first with this is a statutory duty. The duty is to establish a procedure. Yet we have no regulations to describe what that procedure should be. Who should administer it? Who should audit it? Who it should report its rules to? No one to determine what is the scope of the obligation under the Oil Pollution Act. Should we give that to an MDL judge in New Orleans? You know, MDL judges have been good in these circumstances where you've had lots of litigation. I mean, let me tell you the plaintiff's steering committee and the Vioxx litigation. And I worked for two of those firms, White's Luxembourg and Lanier. Actually, they weren't even on the steering committee. But I can tell you that the plaintiff's steering committee, people like Chris Seeger and Seeger Weiss, they're a formidable group. So when we say the MDL judge supervises, the real truth is that these things are basically run by the plaintiff's steering committee after a process of complex and protracted negotiation with the defendant in that case, Merck. So I don't think that MDL supervision, even though Judge Barbier has stepped into the void, is really the way to go because we don't have an other side when we're looking at a statutory procedure like that in the BP cases. Note that 2705, section 33 USC 2705 of the Oil Pollution Act requires the spiller, the responsible party, to make interim payments. Unlike the tourist system where you can just get a lump sum payment at the end. So this is an obligation that begins on day one. I think that neither the MDL court nor a special master appointed by the court is really the way to go. The Minerals Management Service? I'd suggest no. For reasons that we've heard earlier. The Coast Guard, listen, I have three votes. I am enormously grateful to the United States Coast Guard. They're the only ones that answer the call when my engine died off a black island at sunset last summer. I am happy to have them do the response work and the other work. But I think that maybe the agency that we should look to is the United States Department of Commerce to set a decent set of regulations at any rate. That's for congressional hearings and the like. I'll just conclude with the observation that there's a big regulatory gap here and that we need a formal recognized structure to handle the situation when an oil spill triggers the obligations under 2705 and 2701 of the Oil Pollution Act. Thank you. One question. One, one, yeah. How many are lost in here currently? I had a question about the issues of the most inquisitive, I suppose. Well, I didn't say most. As opposed to the person selling ice cream on the beach. How about the Admiralty Extension Act? You know, I don't know the answer to that question. I, we've got an Admiralty lawyer here. I just read the Admiralty Extension Act yesterday on the train. And look, there is a longstanding obligation of maintenance and cure. And that's a traditional Admiralty remedy. And even if we didn't have the Oil Pollution Act, there might well have been an obligation because the deep water horizon was a vessel that triggered the maintenance and cure provisions of the Admiralty Extension Act. There's actually issues, there's a couple of cases out there that would say a well is not. So the fact that it's a well raises the issue of it. So it's not as clear as people would like to think. Uh-huh. Is there a break up? We have a quick break coming and then come back. We'll have the remarks from Senator Reid and then our last panel. And I know it's a long day, but this is the heavy hitter panel, man. You don't want to miss it. So get back as soon as you can. Thank you.