- The Washington Times - Wednesday, October 10, 2001

A new federal law intended to head off lawsuits from the Sept. 11 terrorist attacks gives victims a chance to seek speedy redress without going to court for now.

A lawsuit moratorium declared by the Association of Trial Lawyers of America (ATLA) so far has prevented a race to the courthouse, although some legal analysts doubt the self-restraint will last much longer than the end of the week.

The Victim Compensation Fund of 2001, enacted on Sept. 22, sought to protect airlines from being bankrupted and to provide federal compensation to injured survivors as well as those who lost breadwinners or business income.

Victims who refrain from filing lawsuits can submit their requests for compensation to a "special master," whose decisions on all matters is final, and receive their awards within a matter of months.

In an extraordinary request on Sept. 12, ATLA President Leo V. Boyle advised his 60,000 members not to file terrorism-related lawsuits.

"For the first time in our history the [ATLA,] in this time of national crisis, urges a moratorium on civil lawsuits that might arise out of these awful events," Mr. Boyle said.

But attorneys for all sides are holding their breath because tomorrow will mark one month since the terrorist acts as well as the end of the ethical cooling-off period in some states for lawyers following a major disaster. The potential for a piece of this huge civil disaster then might become too hard for some to resist.

"I can't put a number on this one, it's too large. I can't even imagine what it might be," said Blair C. Fensterstock of New York, one of 20 attorneys for the World Trade Center Bombing Litigation Steering Committee representing victims of the 1993 truck bombing of the center, which still is an open case.

"I think the moratorium was a valiant and noble effort to allow victims time to digest the horrific ramifications of this attack, and to suggest to lawyers that they sit back, bide some time, and allow that process to occur," Mr. Fensterstock said.

The federal law bars those who apply for federal payments from later suing, but legal analysts say the cases may wind up in court anyway.

Lawyer Danny Abel said the "no-suit" provision likely is unenforceable if a claimant receives an inadequate settlement from the federal special master.

"People have a right to expect fairness, and if they don't get it, they can go to court. Such laws are only a blueprint and, of course, the courts can get involved if a person's constitutional rights are denied," said Mr. Abel, who added that law firms like his are exercising "cautious restraint."

Mr. Abel, a partner of New Orleans lawyer Wendell Gauthier who pioneered big class-action lawsuits after disasters, said his firm was guiding potential clients through "various mazes and quagmires" but supported the indefinite moratorium imposed by the ATLA.

"I think the unique character and scope of what happened in itself would have restrained most people in the profession. It was not appropriate to do anything that would impede or distract the president," Mr. Abel said.

"We got probably 700 e-mails, telephone calls, letters, all in support of the moratorium. No one objected," ATLA spokesman Carlton Carr said last week.

The still-untried 1993 case against the buildings' owner, the Port Authority of New York and New Jersey, involves seven dead and hundreds with injuries or business losses seeking $500 million to $1 billion in damage payments. They fought for years to obtain papers that would show the agency ignored known risks.

"We did finally get the documents that would prove liability by the Port Authority of New York and New Jersey," Mr. Fensterstock said, explaining the theory that the building was a magnet for terrorists. "[They] proved conclusively the World Trade Center was the building most likely to be bombed in the United States."

Those 75 documents were stripped of what New York's highest court called "security-sensitive" data on threats other than the truck bomb, but Mr. Fensterstock said the Port Authority clearly considered the risk that an airliner could crash there, even if not necessarily in a deliberate act of terror, and had been on notice of the buildings' attraction for terrorists from arguments in the 1993 case.

"For one thing, it is absolutely clear that when the Port Authority designed the World Trade Center it boasted that it could withstand a crash of a 707," he said.

Port Authority general counsel Jeffrey Green, whose secretary was among five members of his legal staff to die Sept. 11 in Tower 1 of the center, was not available for comment but has told the National Law Journal he couldn't speculate on legal action.

"In America today, plaintiffs' lawyers can be quite inventive … but this is a tragic event caused by terrorists," Mr. Green said.

While the federal law limits losses for airlines to the value of their insurance, the Port Authority remains a deep-pocket target, along with Silverstein Properties Inc. and Westfield America Inc., which leased the buildings on April 26 in a $3.2 billion deal.

The law also requires that any lawsuits stemming from the Sept. 11 events be heard in the Manhattan federal court, and be governed by the laws of New York, Pennsylvania or Virginia depending on the site of the damage.

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