Prometheus Unbound: The Gulf Coast Claims Facility as a Means for Resolving Mass Tort Claims?A Fund Too Far

Author:Linda S. Mullenix
Position:Morris and Rita Atlas Chair in Advocacy, University of Texas School of Law.
Pages:819-916
 
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Prometheus Unbound: The Gulf Coast Claims Facility
as a Means for Resolving Mass Tort ClaimsA Fund
Too Far
Linda S. Mullenix
I. INTRODUCTION
In the well-known Greek myth, Prometheus stole fire from the
Greek god Zeus and gave it to humanity. In return for this
arrogance, Zeus had Prometheus chained to a rock in the Caucasus
Mountains where Prometheus was punished by an eagle eating
away at his liver, which regenerated every night. Because
Prometheus was immortal, he was condemned to eternal torture by
the voracious eagle‘s pecking. After 30 years of this punishment,
however, Hercules appeared, killed the eagle, and liberated
Prometheus from his unending torment. In return for freeing him,
Prometheus rewarded Hercules with the secret to completing the
11th of his famous Herculean labors.
1
On April 20, 2010, an explosion on the Deepwater Horizon rig
killed 11 workers and unleashed the worst oil spill in American
history. Less than two months later, on June 16th, 2010, BP
Oilafter meeting with President Barack Obamaagreed to set
up a $20 billion fund to compensate victims of the disaster. Shortly
thereafter, BP selected Kenneth Feinberg to oversee the
compensation fund and claims process.
In the morality play of the Deepwater Horizon oil spill, BP
assumed the Promethean role of modern energy-bringer to
mankind. In its arrogance for attempting to expropriate energy
from miles below the ocean floor and bring oil to mankind, BP
precipitated a massive calamity. As a consequence, BP faced the
eternal punishment of being lashed to the American Caucasus of
never-ending civil litigation, perpetually to be pecked away by
claimants. Rather than endure this interminable retribution, BP
instead chose to terminate its own agony as quickly as possible by
creating a fund. And, Herculesin the form of the heroic Ken
Copyright 2011, by LINDA S. MULLENIX.
Morris and Rita Atlas Chair in Advocacy, University of Texas School of
Law. The author thanks Melissa Bernstein, Faculty Services Coordinator at the
Tarlton Law Library, University of Texas School of Law, for her research
assistance on this project.
1
. Prometheus gave Her cules the secret to stealing the gold en apples from
the Hesperides. PIERRE GRIMAL, THE DICTIONARY OF CLASSICAL MYTHOLOGY
202 (Blackwell Publ‘g 1996) (1951).
820 LOUISIANA LAW REVIEW [Vol. 71
Feinbergappeared to BP just in time to slay the civil litigators
and liberate BP. For his efforts at enabling the BP rescue, BP
rewarded Feinberg.
2
The appearance of Feinberg as the heroic savior in the Gulf oil
calamity was, in no small measure, a consequence of a persona
whose reputation has indeed assumed mythic proportions in the
public consciousness.
3
As is well known, Feinberg served as the
special master administering the September 11th Victim
Compensation Fund (the ―Fund‖) in the aftermath of the terrorist
attack of September 11, 2001.
4
As is equally well known, Feinberg
has also had an extended career serving as a mediator, special
master, settlement negotiator, claims administrator, and more
recently, as President Barack Obama‘s Wall Street executive
compensation czar.
5
The selection of Feinberg to administer the Gulf Coast Claims
Facility (GCCF) immediately commanded comparison to the
September 11th Victim Compensation Fund. Indeed, Feinberg
2
. By the a uthor‘s somewhat inexpert count, Feinberg might well be
performing approximately his seventh Her culean labor, with his precedin g feats
consisting of his participation as a sp ecial master in: (1) negotiating the Agent
Orange class action settlement, (2) as a trustee charged with disbursing Dal kon
Shield settlement payments, (3) assisting Judge Jack Weinstein of the Federal
District Court for the Eastern District of New York in the Brooklyn Navy Yard
asbestos cases, (4) managing the September 1 1th Victim Compensation Fund,
(5) determining Wall Street executive salary compensation under the Troubled
Asset Relief Progra m, (6) supervising the Hokie Spirit Memorial Fund after the
Virginia T ech ca mpus shootings, and (7) ad ministering t he Gulf Coas t Claims
Facility. See Terry Carter, The Master of Disaster s: Is It Just Him, or Is Kenneth
Feinberg Changing the Course of Mass Tort Resolution?, A.B.A. J., Jan. 2011;
Jeff McDermott, Kenneth R. F einberg: A P rofile in Public Service, FED. LAW.,
May 2008, at 38.
3
. See Steven Brill, What’s a Bailed-Out Banker Really Worth?, N.Y. TIMES
MAG., Jan. 2010, at 32 (profile of Feinberg‘s role as executive pay czar under the
federal Troubled Asset Relief Program); Carter, supra note 2, at 33; Kimberley A.
Strassel, Mr. Fa irness: The Pay Czar, BP Claims Administrator, and 9/11 Victims
Fund Manager Talks About How He Makes Decisions That Alter Lives, WALL ST.
J., Aug. 7, 2010, at A11, availa ble a t http://online.wsj.com/article/SB100014240
52748703309704575413404274531476.html (comparing Feinberg to King
Solomon).
4
. See KENNETH R. FEINBERG ET AL., FINAL REPORT OF THE SPECIAL
MASTER FOR THE SEPTEMBER 11TH VICTIM COMPENSATION FUND OF 2001,
VOLUME I (2004), availa ble at http://www.usdoj.gov/final_report.pdf.
5
. Janet Cooper Alexander, Pr ocedural Design an d Terror Victim
Compensation, 53 DEPAUL L. REV. 627, 667 (2003); Martha Chamallas, The
September 11th Victim Compensation Fund: Rethinking the Damages Element
in Injury Law, 71 TENN. L. REV. 51, 56 (2003); Charles J. Faruki, Book Review,
FED. LAW., Oct. 2005, at 5 2 (reviewing KENNETH R. FEINBERG, WHAT IS LIFE
WORTH? THE UNPRECEDENTED EFFORT TO COMPENSATE THE VICTIMS OF 9/11
(2005)); McDermott, supra note 2; Strassel, supra note 3.
2011] PROMETHEUS UNBOUND 821
himself announced that in administering the GCCF, he would be
drawing on his vast knowledge and experience in administering the
September 11th Victim Compensation Fund.
6
Many of Feinberg‘s
initial initiativessuch as town hall meetings and outreach
programs to Gulf fishermen and other claimantsduplicated
techniques that Feinberg had developed during his supervision of
the September 11th Victim Compensation Fund.
7
But, the BP Gulf Coast Claims Facilityapart from its
superficial designation as a compensation fundbears little
resemblance to the September 11th Victim Compensation Fund.
Although these two ―fund‖ mechanisms have in common the same
all-powerful administrator, the two funds are entirely unlike one
another. This comparison bears scrutiny and debate for several
compelling reasons.
First, the September 11th Victim Compensation Fund was
widely acknowledged as a sui generis, one-time endeavor to
compensate victims of a national terrorist disaster.
8
Indeed, special
6
. See Strassel, supra note 3.
7
. See Kenneth Feinberg, Transpar ency and Civil J ustice: The Internal a nd
External Value of Sunlight, 58 DEPAUL L. REV. 473 (2003); Feinberg Says BP Fund
Will Be Generous, Better than Lawsuits, BUS. WK. (July 15, 2010), http://
businessweek.com/news/2010-07-15/feinberg-says-bp-fund-will-be-generous-better-
than-lawsuits.html [hereinafter BP Fund Will Be Generous] (local meeting in
Jefferson Parish, Louisiana); Wendy Kaufman, Feinberg Vows Quick Response on
Gulf Oil Spill Claims, NPR (Aug. 19, 2010), http://www.npr.org/templates/story/
story.php?storyId=129293800 (Feinberg meeting in Houma, Louisiana).
8
. See, e.g ., FEINBERG ET AL., supra note 4, at 8384; Robert M.
Ackerman, The September 11th Victim Compensation Fund: An Effective
Administrative Response to National Tragedy, 10 HARV. NEGOT. L. REV. 135,
205 (2005) ( ―Because the Fund is sui generis, it is unlikely to have a profound
impact o n d evelopments in the law of torts.‖); Chamallas, supra note 5, at 53
(―Perhaps the most repeated observation made about the September 11th Victim
Compensation Fund, like the horrible events which brought it into being, is that
it is unique and has no close parallel in the history of Unit ed States injury and
compensation law.‖); Robert S. Peck, The Victim Compensation Fund: Born
from a Unique Confluence of Events Not Likely to Be Duplicated , 53 DEPAUL L.
REV. 209 (2003) (comparing the World Trade Center events to the attack on
Pearl Harbor on December 7, 1941); Robert L. Rabin, The September 11th
Victim Compensation F und: A Cir cumscribed Response or an Auspicious
Model?, 53 DEPAUL L. REV. 769, 771 (2003); Robert L. Rabin & Stephen D.
Sugarman, The Case for Specia lly Compensating the Victims of Terror ist Acts:
An Assessment, 35 HOFSTRA L. REV. 901, 907 (2007) (―9/11 was the
quintessential once-in-a -lifetime disaster.‖); Erin G. Ho lt, Note, The September
11th Victim Compensa tion F und: Legislative Justice Sui Gener is, 59 N.Y.U.
ANN. SURV. AM. L. 513, 535 (2004). But see Michele Landis Dauber, The War
of 1812, September 11th, a nd the Politics of Compensation, 53 DEPAUL L. REV.
289 (2003) (arguing that the September 11th Victim Compensation Fund was
not unprecedented; the federal government historically has been involved in

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