John Feal: Alvin Hellerstein is a Hero
Is it clear now why Jon Gold pimped the crap out of John Feal? And why John Feal did what he did to gain the support of sick first responders? Does anyone actually believe that Hellerstein cares a flying flip about any of the victims?
http://www.nytimes.com/2010/05/03/nyregion/03judge.html?ref=us&pagewante...
NY Times: Empathetic judge in 9/11 suits seen by some as interfering
Submitted by simuvac on Mon, 05/03/2010 - 10:32am
District Judge Alvin K. Hellerstein
May 2, 2010
Empathetic Judge in 9/11 Suits Seen by Some as Interfering
By MIREYA NAVARRO
Over nearly three decades as a litigator at a downtown law firm, Alvin K. Hellerstein shared a view of the World Trade Center towers with dozens of other colleagues in an office building on Maiden Lane.
Yet as a United States District Court judge in Manhattan, he has had a singular perspective on the towers — specifically, the suffering that has lingered long after the terrorist attacks that leveled them in 2001.
As the federal judge who has overseen the wrongful death, property damage and personal injury lawsuits arising from 9/11, Judge Hellerstein, 76, has developed a visible empathy for both the families of the victims and for the workers who fell ill after the rescue and cleanup efforts.
“He had my clients in his chambers for over one hour to listen to them,” said Norman Siegel, a lawyer for families seeking to recover human remains from the debris that was carted off to the Fresh Kills landfill on Staten Island. “He, more than anyone, understands deeply the pain.”
Yet in eight years of 9/11 oversight, many who have appeared before him say that Judge Hellerstein has also grown determined to put his own stamp on financial settlements reached between a plaintiff and defendant. And recently the city and lawyers have been smarting over his clout.
On March 19, the judge stunned lawyers on both sides by rejecting a $657.5 million settlement reached in individual suits brought against New York City by more than 10,000 rescue and cleanup workers who say their health was damaged at ground zero.
Saluting the workers as “heroes,” he said that the compensation was inadequate, the terms were poorly understood by the plaintiffs and lawyers should not expect to extract their fees from the $657.5 million payout. He would also reduce those fees.
While some plaintiffs cheered, their lawyers and those for the city were dismayed to see a settlement that was two years in the making fall apart.
What is more, Judge Hellerstein had waded into untested legal waters: such intervention is not the norm in cases that are not a class action, legal experts say. Last month the city filed an appeal challenging his authority, even as it returned to the table to negotiate new terms.
The struggle over control of the settlement has underscored two different, but not necessarily contradictory views of the judge: the compassionate jurist driven by a sense of social responsibility and with a wealth of experience with victims’ suffering, and the aggressive judge unwilling to cede ground on cases he has shepherded for years.
Judge Hellerstein declined repeated requests for an interview. Still, his decisions and remarks on the bench appear to shed some light on his philosophy.
A Bronx native and Columbia Law School graduate who was appointed to the bench by President Bill Clinton in 1998, Judge Hellerstein has shown independence and a strong adherence to the First Amendment and to transparency, for example. He ordered the government to release videos and photos from the Abu Ghraib prison in Iraq after the American Civil Liberties Union sued under the Freedom of Information Act. In a 1999 decision against the New York Police Department that was later overturned, he ruled that members of the Ku Klux Klan could wear their traditional masks at demonstrations.
Charles G. Moerdler, a friend and former co-partner at the firm Stroock & Stroock & Lavan, said that Judge Hellerstein, an Orthodox Jew who has been active on the board of several Jewish organizations, was motivated by “a very high standard of morality and decency.”
As a litigator representing banks and large corporations, he said, the judge was willing to tell a bank client being sued by an investor over money losses to reconsider its position. “He’d say, I can litigate this, and I can fight this, but in fairness, this person was injured,” Mr. Moerdler said.
Judge Hellerstein lost several former clients in the collapse of the twin towers on 9/11. But legal experts suggest that he has a bigger motivation for championing the ground zero victims: he may see his handling of the 9/11 cases as his legacy.
“This is history for him,” said Arthur Miller, a professor at New York University School of Law who specializes in federal procedure. “This is an awesome responsibility. He wants to be the person who brought peace to this entire situation. He would not be human if he didn’t feel a personal interest in this.”
At the March hearing, Judge Hellerstein called the ground zero cases he had handled his “greatest challenge.”
“This is different,” he told the lawyers in spurning the settlement terms. “This is 9/11.”
But lawyers who have sparred with Judge Hellerstein suggest that his moral compass and commitment to doing what he thinks is right have sometimes led him to overreach.
Just as he rejected the settlement in the workers’ case for giving too little, he has spurned settlements of individual suits filed by survivors of the airline passengers killed on 9/11 for giving too much in comparison with similar cases, some noted.
Donald A. Migliori, a lawyer for survivors in airline-related cases whose settlement amounts were reduced, said that such intervention was unusual in a non-class-action suit. “It’s a very frustrating thing for lawyers,” he said. “He’s guided by a concept of fairness that’s not in the law.”
Mr. Migliori said he did not appeal Judge Hellerstein’s stance because his clients wanted to put the litigation behind them.
But lawyers for New York City are more determined. They went to the Second Circuit Court of Appeals to try to challenge Judge Hellerstein’s authority for blocking the settlement.
They argue that the judge has no legal basis to try to approve, reject or modify a private, hard-won deal that took about two years to broker and that both sides consider fair.
The city was particularly alarmed that Judge Hellerstein was trying to get the city’s insurer to pay the contingency fees for the plaintiffs’ lawyers, which would sharply raise the ultimate cost of the settlement by tens of millions of dollars.
And the lawyers for the plaintiffs now face a tougher time trying to sell the settlement to their clients, 95 percent of whom must approve the agreement if it is to take effect.
“We have extracted every penny from the city that we can get,” said Marc J. Bern, one of the lawyers.
But now both sides are trying to hammer out modifications to the settlement to try to satisfy the judge and ensure that it will be accepted by most plaintiffs. In advocating for more money, Judge Hellerstein has emerged as their chief protector, some of the 9/11 workers say.
“He’s keeping it fair,” said one plaintiff, Ernest Vallebuona, 45, a retired police detective who developed lymphoma after 9/11.
Some plaintiffs disagree with the judge.
Joe Greco, 41, a retired police detective who said he needed to use a breathing machine up to five times a day for his asthma, said that he appreciated Judge Hellerstein’s effort to look after his interests but that he wished the judge had not interfered.
People struggling with serious illness need to ensure their families’ financial well-being, he explained. They “want this thing settled,” he said. “We’re on borrowed time right now.”
But John Feal, who works as an advocate for the 9/11 workers through his FealGood Foundation, counters that Judge Hellerstein himself has emerged as a ground zero hero.
“The judge is now like Elvis in the 9/11 community,” he said. “For years these guys have been neglected, and now there’s someone who cares.”
John has been conned
he was one of the good guys...guess someone needs to set him straight
priorities
distract and demoralize the immediate victims by withholding recognition and money for health care
Perps almost out of the litigation woods...
Of course, there's no statute of limitations on murder, so even if they are able to pass the financial liability off it doesn't mean they're invulnerable from accountability...
Parties Campaign Aggressively for Participation in 9/11 Pact
Mark Hamblett
New York Law Journal
November 08, 2010
An unprecedented effort to persuade some 10,000 plaintiffs who responded to the World Trade Center terror attacks to accept a $712.5 million settlement of their respiratory illness claims is nearing the finish line.
Firefighters, police and cleanup workers who toiled in the pit at Ground Zero face a filing deadline today to opt in to the settlement, and the lead plaintiffs' lawyer said last week that he expects to meet the 95 percent participation level required to make the settlement effective.
"We're getting a lot of releases, we have over 8,500 in hand and I expect by [today] to have a lot more," said Paul Napoli of Worby Groner Edelman & Napoli Bern. "I'm confident that, at the end of the day, we are going to get 99 to 100 percent."
Still, campaigning for the settlement in In re World Trade Center Disaster Site Litigation, 21 MC 100, continued down to the wire as the firm held one-on-one meetings with clients at its own offices and in rented hotel conference rooms and ballrooms. On Wednesday night, lawyers were in Nassau County and on Staten Island on Thursday. Further meetings were scheduled during the weekend in Manhattan, Queens, Brooklyn and the Bronx.
Mr. Napoli's firm, serving as co-liaison plaintiffs' counsel, represents the vast majority of the claimants in the seven-year-old litigation. Nicholas Papain and Andrew J. Carboy of Sullivan Papain Block McGrath & Cannavo, represent some 679 police and firefighters who have, or fear they will have, respiratory and other illnesses from inhaling the toxic dust and ash produced by the collapse of the twin towers on Sept. 11, 2001. About 300 additional plaintiffs are represented by a half dozen other law firms.
One lawyer involved in the litigation, who asked not to be named because of the sensitivity of the last-minute push, said attorneys heard comments from several people about how hard everyone—plaintiffs' and defense attorneys and the court—was pushing the settlement.
"Well, at a certain point, yeah, guilty as charged," the lawyer said. "They negotiated hard for this thing for over two years and, at the end of the day, people should not be surprised they are pushing for it. They think it's in everyone's best interest to do it. They think this is the best settlement [the plaintiffs] are going to get."
It has taken more than two years for the plaintiffs' lawyers to negotiate a settlement with New York City and its contractors and lawyers for the World Trade Center Captive Insurance Co., an entity formed to manage insurance costs associated with the response to the terror attacks and funded by a $1 billion grant from the Federal Emergency Management Agency (FEMA).
The parties thought they had reached a final agreement in early 2010. But on March 19, Southern District Judge Alvin K. Hellerstein stunned Mr. Napoli; James Tyrrell of Patton Boggs, who is the city's lead outside counsel; and the lead lawyer for the WTC Captive, Margaret Warner of McDermott Will & Emery, when he rejected the proposed deal.
Mr. Tyrrell questioned the judge's authority to intervene in a non-class action, mass tort settlement. But the judge, whose dockets have been consumed for almost nine years by a variety of Sept. 11 litigation, said that "9/11 is different."
His rejection sent all sides back to the table, accompanied by an admonition that he would not accept Mr. Napoli's standard 33 percent contingency fee contracts with his clients.
A new deal was forged, with Mr. Napoli agreeing on May 27 to reduce the contingency fee to 25 percent, adding $50 million to the amount for distribution; New York City agreeing to waive certain Workers' Compensation liens for an additional $25 million; and the WTC Captive pitching in another $50 million.
While Mr. Napoli's fees drew the judge's scrutiny, the fees paid out by the WTC Captive in defense of the lawsuit since 2004 were no small matter. According to the most recent filing, the Captive had spent $220.9 million by the end of June on legal fees and another $62.1 million on claims administration and document management.
However, those fees have been partially offset by the $200 million for the city's legal costs recovered in successful litigation with the insurance companies.
On June 10, Judge Hellerstein hailed the reworked settlement, saying, "This is a very good deal. I am very excited about this deal."
From that moment, all the parties involved in the process were working toward a common goal: persuading the plaintiffs that opting into the settlement was the best deal they were going to get.
Selling the Settlement
The effort moved into high gear beginning at a June 23 fairness hearing in Judge Hellerstein's courtoom attended by counsel for the plaintiffs, the WTC Captive and the city, including Corporation Counsel Michael A. Cardozo; Kenneth Feinberg, appointed by the judge to hear appeals from compensation decisions; and a number of plaintiffs.
Judge Hellerstein said he hoped that two plaintiffs who expressed opposition to the deal would "think about it" and realize "it's far from perfect. It's good. It's the best we could do."
Mr. Tyrrell outlined the significant hurdles of scientific proof and defenses the plaintiffs would need to surmount to get to trial. The judge, Mr. Napoli and Mr. Feinberg all warned plaintiffs at the hearing not to opt out of the settlement in the hope that a five-year effort in Congress to reopen the 9/11 Victim Compensation Fund would provide them better compensation.
Mr. Feinberg said to any plaintiffs who might be waiting for the bill, known as the James Zadroga 9/11 Health and Compensation Act, "I believe, personally, you are making a mistake."
Mr. Cardozo summed up the city's difficult position in having to defend the suits, and the reason it was accepting settlement.
"How do we fairly compensate the heroes who went down to the pile who worked tirelessly to put this city back on its feet?" he asked. "It was not the fault of the contractors or New York City, at least, in our view, that these people were injured, but there is no question that some people were injured and they suffered damages."
In subsequent public relations efforts, the plaintiffs' attorneys at Napoli Bern contacted reporters to pitch positive stories about the settlement. The firm also was quick to respond to critical or unfavorable news articles or editorials in defense of the deal.
Meanwhile, Mr. Feinberg promoted the settlement in an opinion piece in The New York Times.
The first of three "town hall" meetings was held at a hotel in Times Square, where plaintiffs' lawyers, Special Master Aaron Twerski, and claims allocation neutral Matthew Garretson explained to plaintiffs and the media how the compensation structure worked and how claims would be processed and analyzed. They emphasized what they said was the fairness of the settlement and the transparency of the process. Similar meetings would later be held at a courthouse in Queens and a school on Staten Island.
On July 26, Judge Hellerstein appeared at the Michael J. Petrides School on Staten Island, to assure dozens of rescue workers that the deal was good, although not "perfect." He pointed out that it would be difficult for them to prove that their illnesses were caused by conditions at Ground Zero.
The judge made a second appearance on Aug. 3 at the final town hall meeting in Queens.
In status conferences and court hearings throughout August and September, Judge Hellerstein continued to make the case for opting into the settlement by increasing the compensation for plaintiff responders and shaving what the attorneys would receive.
On Aug. 27, after telling Mr. Napoli, "You're getting too much," Judge Hellerstein rejected the attorney's bid to pass on to plaintiffs $6.1 million in interest costs incurred in financing the massive litigation, even though the arrangement was called for in the firm's contracts with plaintiffs and had been pronounced ethical by a legal ethics expert.
On Sept. 29, the Zadroga bill finally passed the House of Representatives. The bill allocates billions of dollars in compensation and free health care for Ground Zero responders.
Under changes made in the bill, plaintiffs would not have to choose between the settlement or waiting for a reopened compensation fund, thus removing a major incentive to opt out of the settlement.
The measure has not passed the Senate. Moreover, Tuesday's election results, which will give Republicans control of the House, place in doubt the future of the bill if it does not pass this year.
On Oct. 5, Mayor Michael Bloomberg, in a City Hall press conference with Mr. Feinberg by his side, made a public plea to responders and cleanup workers to accept the settlement.
That same day, Mr. Napoli reported to Judge Hellerstein that 75 percent of his 9,700 plaintiffs had elected to opt into the deal. With Mr. Feinberg, who had headed the 9/11 Victim Compensation Fund, estimating that as many as 25 percent of claimants in mass tort cases make up their minds in the closing weeks before an opt-in deadline, Mr. Napoli and his team took further steps to get 100 percent participation, which would take the total outlay from the WTC Captive from the low-end number of $625 million to a high-end number of at least $712 million.
Two weeks ago, Judge Hellerstein set aside his courtroom so plaintiffs could have the terms of the settlement explained to them by Messrs. Twerski and Henderson. The special masters had been appointed to assist the judge in executing a multi-phased plan for organizing the plaintiffs into tiers based on the severity and type of their injuries, prioritize cases for trial and lay the groundwork for settlement. (383 separate diseases were alleged to have been caused by the dust.)
Judge's Involvement
While Mr. Tyrrell and others questioned Judge Hellerstein's authority to reject the settlement, and Mr. Napoli questioned his move to interfere with his contractually secured fee arrangements, there was less opposition to the judge's role in advocating that plaintiffs opt in.
"It's not unusual for some judges to get involved in settlement talks or talk to clients," Mr. Napoli said. "But I think that, in these circumstances, it was because this was such a public case that he got so involved."
Howard M. Erichson, a professor at Fordham University School of Law and an expert on mass tort litigation, noted that Judge Hellerstein is not the first jurist to take an active role in overseeing and approving settlements. He cited Eastern District Judge Jack B. Weinstein in the Zyprexa litigation and Judge Eldon Fallon in the Vioxx litigation in the Eastern District of Louisiana.
But Judge Hellerstein was the first judge to reject a settlement in the non-class action context. And while Mr. Erichson, like Mr. Tyrrell, questions whether the judge had the authority to do so, the situation changed once he was given a settlement that met his approval.
"This is a dynamic that comes up again and again," Mr. Erichson said. "At first, there is an adversary relationship between the plaintiffs' lawyers and the defense, but once a settlement has been negotiated, then it's like they are on the same team.
"After a deal has been struck, the plaintiffs' lawyers, the defense and the judge all want to see that deal through to completion," he said. "That's fine if justice is accomplished, but the question is whether individual claimants have anyone truly representing their interests."
This whole litigation has been affected by the fact that the 9/11 attacks "captured the nation's attention like nothing else," Mr. Erichson said. "It's hard to imagine, to the extent that these claims were against the city, the idea that the city would aggressively defend itself against claims by its first responders. It's just a horrible thought. We don't want to think of this as adversary litigation."
But the city was, indeed, aggressively fighting the cases and its alleged responsibility for the illnesses workers may have contracted, or might contract, in the future, even as Mr. Tyrrell said he did not relish the role of opposing compensation for "9/11 heroes."
Mr. Tyrrell asserted several defenses based on the immunity for people who respond to civil disasters. Ms. Warner joined him in warning that the individual plaintiffs would have a tough time proving causation should they be forced to go to trial.
Today's deadline is actually a mailing deadline, and the lawyers anticipate it will take a few weeks to return opt-in forms that have missing information, verify the plaintiffs and deal with attrition among those who initially sued but have moved or lost interest in the case because their recovery may be small.
Momentum continues to build as several other smaller settlements have been reached with defendants who are not covered by the WTC Captive.
In addition to the potential $712.5 million, a figure that can be reached if participation nears 100 percent, Mr. Napoli reported that roughly $103 million in settlements have been reached with other defendants: a $47.5 million settlement with the Port Authority of New York and New Jersey; a $28.3 million deal with the insurers who covered the barges that shipped debris to Staten Island's Fresh Kills landfill for sifting and disposal; a $24.3 million deal with entities at Fresh Kills; and another $4.15 million with a respirator manufacturer.
@|Mark Hamblett can be reached at mhamblett@alm.com.
http://www.law.com/jsp/nylj/PubArticleNY.jsp?id=1202474519249&Parties_Ca...