New America Media, Commentary, Louis E. V. Nevaer
Ken Feinberg has been tapped to administer the $20 billion fund BP has promised to set aside in an escrow account to compensate victims of the Gulf of Mexico oil spill. He just toured the Gulf States to make the case that those with claims against the oil giant should participate in the fund.
“This program I am running is absolutely voluntary — nobody has to do it,” he told listeners, many of whom were skeptical that a deluge of claims could be settled fairly and quickly, given the tens of thousands affected. “It’s my opinion you are crazy if you don’t participate.”
Feinberg was tapped for this position because of his history of negotiating settlements to extraordinary claims in the past. Most recently, he was appointed “Pay Czar” by President Obama, with the authority to review pay at seven of the financial institutions that took the largest bailouts. His report showed many banks, including Citgroup, J P Morgan Chase and Goldman Sachs, had paid out record bonuses causing a public outcry but no real action.
Prior to this appointment, Feinberg became famous in his role as the “Special Master” in charge of the Victim Compensation Fund (VCF) set up by Congress weeks after the September 11, 2001 terrorist attacks.
Before that, he successfully negotiated a settlement between Vietnam veterans injured by the herbicide Agent Orange and the companies that manufactured that defoliant, and before that, he represented women who were harmed by the Dalkon Shield birth control device.
But for Hispanics – and some other minorities – the question remains: Will Ken Feinberg be fair this time?
An examination of his history demonstrates that minorities, especially Latinos, got the short end of the stick when it came to compensation.
It is true that there are powerful forces working against Hispanics – demographic and cultural – but it is also true that Ken Feinberg has appeared to be indifferent to ameliorating these biases.
Consider the VCF case. When Congress set up the Victims Compensation Fund, its purpose was not to protect the interests of the families who lost loved ones on September 11. It was to protect the airlines from the victims. Congress was concerned that the airlines would be liable for tens of billions of dollars in potential legal claims. In a desperate effort to save the nation’s entire transportation system from collapse, it quickly established the Air Transportation Safety and System Stabilization Act to protect the major carriers from civil lawsuits. Families that chose to receive VCF compensation surrendered all claims against the airlines, the Port Authority, which owned the World Trade Center, and any other potential party which may, or may not, have contributed to events leading to the terrorist attack.
For Hispanics, there were two fundamental flaws. The first arose from demographics: Hispanics are almost a decade younger than non-Hispanics, 9.5 years to be precise. This means that, regardless of job or position, Hispanics will be, statistically, almost an entire decade junior to their non-Hispanic colleagues. And the younger one is, and the more junior position one holds, the less one is entitled to receive. Reporting on the VCF in the New Yorker, Elizabeth Kolbert summed it up this way: “At first glance, the tables defy most notions of equity; the more needs a family is likely to have, the less well it fares.”
Another factor worked against Hispanics. Not unlike other minorities – Asian immigrants, for example, Hispanics are slow to challenge authority or speak up for their rights. When Feinberg made a Hispanic family an offer, almost all meekly accepted the deal.
This was a far cry from non-Hispanics – Caucasians and African-Americans especially – who have a long history of fighting powers that be. African-Americans and Jews fared well under Feinberg under the VCF program. Asian victims, for the most part, were primarily Japanese citizens working for Japanese banks located in the World Trade Center, and their government defended their nationals’ interests.
That left Hispanics and Latinos without any advocate and left to Feinberg’s whims. “On one occasion, I heard him promise to give a widow an additional half million dollars for no other reason than that she had come in with her two small children and asked for it,” Elizabeth Kolbert reported in December 2002.
How did Feinberg justify his capricious behavior? “The law gives me unbelievable discretion,” he told Kolbert. “It gives me discretion to do whatever I want. So I will.”
If one examines the cumulative impact of Hispanics’ younger demographics and cultural reluctance to rock the boat – especially in the current climate of hostility against Hispanics engendered by the raging immigration debate – it is easy to see how the average life lost on 9/11 was valued so radically differently by Feinberg: A Hispanic killed in the World Trade Center had his or her life valued at almost $800,000 less than the average non-Hispanic killed that same morning.
So what can minority victims of BP hope to expect from Ken Feinberg? Given his track record, it is important that Latino advocacy groups -- from MALDEF to the National Council of La Raza -- step up to the plate and help Latinos know their rights, know the built-in biases against them, and know Ken Feinberg's history of short-changing them and demand fair and just compensation. It may have eluded them after September 11, but it need not be outside their reach this time around.
“It’s a campaign,” Feinberg told reporters on July 15, 2010, when he was touring in the Gulf region. “It’s a road show. It’s a seminar.”
If they don’t watch out, Hispanics and other minorities might find it’s also a farce.