- The Washington Times - Wednesday, September 18, 2002

Most families of the 3,025 persons killed by the September 11 terrorists are holding off on filing federal claims that average $1.5 million, in an apparent waiting game to get more money, particularly if their loved one's income exceeded $231,000.
Hundreds now have filed court cases, which they will have to abandon to receive federal money. The tactic lets them straddle both options until at least December 2003 while lawyers decide which is the most lucrative.
"The families of those lost on September 11 must receive nothing less than the full compensation that the act requires," said an analysis issued by Cantor Fitzgerald, the World Trade Center financial giant that criticized all limits on payouts to its workers. The company posted the analysis on its Web site yesterday.
Cantor Fitzgerald which lost 658 employees at its World Trade Center offices, including 163 partners, or co-owners said Justice Department Special Master Kenneth R. Feinberg's decision to cap survivors' claims violates the law.
Mr. Feinberg said yesterday he will consider each case individually but will not change the fund's rules and regulations, which the report urges.
"I will read it with great care," he said.
The company also said the caps distort the intent of Congress and the president to restore all economic losses while protecting airlines, governments and insurance firms from ruinous lawsuits.
"Congress could have chosen to cap compensation to the victims' families, but it chose not to do so. Instead, it directed the special master to determine, among other things, economic loss, which was defined to include any pecuniary loss," the company said in a legal analysis prepared by Skadden, Arps, Slate, Meagher & Flom, plus an economic study by Chicago Partners LLC.
Among practices that the analysis says violate the law is calculating income after taxes, rather than on the gross, even though fund awards are not taxable.
The company also criticized as "arbitrary and inappropriate" the use of three-year wage averages as a basis for awards. The 658 dead at Cantor Fitzgerald earned a combined $283.7 million in 2001. The firm suggests using the group's two-year average of $222.2 million per year, instead of the three-year average of $192.6 million, which Mr. Feinberg's policy would use.
No formal caps or mandatory minimums were set on fund awards, but Mr. Feinberg's staff uses payroll charts that do not go above $231,000 a year.
"He has said there is no cap on what he will award, yet the tables only go up to $231,000 a year," said New York lawyer John Schutty, whose Speiser, Krause, Nolan and Granito firm represents 81 families that sued the Port Authority of New York and New Jersey on Sept. 6.
The White House wouldn't comment yesterday on specific policies or grants approved by Mr. Feinberg, but a spokeswoman said President Bush supports the sensitivity of his approach.
"The president is very pleased with the job the special master is doing in administering the Victims Compensation Fund to help the victims of the tragedies on September 11," spokeswoman Anne Womack said.
In the week before a key one-year statute of limitations expired, at least 731 families including some Cantor employees, began a kind of legal limbo in New York federal court to preserve their prerogative to sue if they find the trend of Victims Compensation Fund awards disappointing.
U.S. District Judge Alvin K. Hellerstein declared dormant for at least 15 months the Sept. 6 legal actions. He extended the statute of limitations by a year.
"This order is the result of efforts to deal with extraordinary circumstances and nothing contained herein is to be deemed to be a waiver," Judge Hellerstein said.
Mr. Schutty said the central question of whether it is constitutional to bar from courts those who make claims to the fund. "Several law firms are looking into it."
He predicted yesterday that most families will wait until near the December 2003 deadline when options should be clearer.
"Should they rush into the fund when it's rather gray as to how the fund will be applied to them?" he said. "The issue is when should they enter the fund."
"For those who are average wage-earners the fund provides presumed tables and families can calculate pretty much what they can recover if they proceed through the fund," he said of a system that provides a range of awards based on age, income and family size.
Meanwhile, families of 696 victims have filed for federal grants from the Victims Compensation Fund, but only a bit more than half of them have supplied the lifetime earnings estimates required to complete the application.
Mr. Feinberg has approved 52 award letters averaging $1.57 million, of which 25 were accepted. Five families are seeking hearings to reconsider the amounts, and 22 had not replied. The low end of the range is $250,000 to $324,000.
Justice Department data show that the fund assures payment of no less than $250,000 for low-salaried, single workers of advanced age and up to $3.7 million for top-paid workers whose families require support.

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