FICC Focus Ken Feinberg on Mass Tort Mediation: State of Distressed Debt
Apr 5, 2024
Ken Feinberg, a renowned alternative dispute resolution expert, shares insights from his extensive experience managing high-profile compensation funds like the 9/11 Victim Compensation Fund. He discusses the crucial elements of effective mediation, such as ensuring key participants are present and setting firm deadlines. Feinberg explains why bankruptcy is now a primary forum for mass tort claims, emphasizing the importance of trust in co-mediation and preparation. He also highlights the benefits of settlements over uncertain litigation outcomes, illuminating the intricate intersections of law and public policy.
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Bankruptcy As The Default Mass-Tort Forum
- Bankruptcy has become the default aggregation venue for mass torts because class actions are discouraged by the Supreme Court.
- Venue choice (bankruptcy, MDL, class action) matters less than achieving total peace and aggregation.
Estimation Is Central To Mass-Tort Bankruptcies
- Estimation of current and future claims is integral to bankruptcy when mass torts are involved.
- Courts must estimate decades of potential claims to design viable plans and achieve 'total peace'.
Unfinished LTL Estimation Assignment
- Feinberg was appointed to estimate viable current and future talc claims in the LTL matter but could not finish the report.
- The Third Circuit intervened and halted the court-appointed estimation effort before completion.