Judge Lauds Birnbaum’s Work as Mediator in 9/11 Lawsuits
ALI Council member Sheila Birnbaum played a crucial role as the court-appointed mediator in the settlement of all but three of the 95 cases filed on behalf of victims of the terrorist attacks of September 11, 2001, according to Judge Alvin K. Hellerstein of the U.S. District Court for the Southern District of New York, who accepted the mediator’s report in an order dated March 4. The cases settled for a total of $500 million.
The vast majority of September 11 claimants opted to participate in the Victim Compensation Fund established by Congress to allow claimants to recover without proof of fault and without the risks and delays of litigation. The Fund, administered by Special Master Kenneth Feinberg (who spoke at the Institute’s Annual Dinner in 2005), paid out more than $7 billion to 5560 claimants in less than three years. But about three percent of the victims’ families chose to file lawsuits against the airlines whose planes were hijacked, airport security firms, and other defendants. When it became clear that complex discovery issues would lead to lengthy delays, Judge Hellerstein urged the parties to pursue settlements. Ms. Birnbaum, a specialist in mass torts and a partner at Skadden, Arps, Slate, Meagher & Flom in New York, was appointed to mediate cases in early 2006, assisted by Skadden’s Thomas E. Fox. Their efforts led directly to the settlement of 72 cases, and by December 2008 only three cases remained for trial.
In her report, Ms. Birnbaum said that one obstacle to settlement for many families was the sense that they had not had a chance to “tell the story of their loss” to a representative of the court or of the airlines. She therefore held mediation sessions in New York, Washington, D.C., and Boston so that the individual families could be present to communicate their grief and loss to representatives of the defendant airlines and security companies and to receive personal condolences from them. Judge Hellerstein participated in some of the New York sessions. Of the experience, Ms. Birnbaum wrote,“Needless to say, the meetings with the families were a heart-wrenching and emotionally draining experience for all involved.”
In his order, Judge Hellerstein praised Ms. Birnbaum and Mr. Fox for their “tireless work” in achieving consistent, fair, and just settlements: “Ms. Birnbaum, assisted by Mr. Fox, has performed extraordinary work to settle the September 11 wrongful death and personal injury litigation. In her report, Ms. Birnbaum describes the settlement process and the factors that most influenced settlement values. She allowed each of the plaintiffs’ families to express their loss and the quality of the lives lost on September 11. She absorbed their losses and their pain with empathy and brought opposing counsel and high officers of the airlines to sit in their presence and hear their stories. She gained plaintiffs’ confidence. Without her assistance, most of these cases, in my opinion, would not have settled.”