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2002-01-24

January 24, 2002

VIA FACSIMILE (301-519-5956)

Kenneth L. Zwick
Office of Management Programs
U.S. Department of Justice
Civil Division

Main Building, Room 3140
950 Pennsylvania Avenue, N.W.
Washington, D.C. 20530

Re: September 11th Victim Compensation Fund of 2001

The Association of the Bar of the City of New York submits these comments in response to the
Request for Public Comment, published on December 20,2001, relating to the Interim Final Rule
implementing the September 11th Victim Compensation Fund of 2001. The comments presented
below are informed by the general approach and policy set forth in the Statement by the Special
Master, which accompanied publication of the Interim Final Rule. In their statement, the Special
Master has set forth the two objectives embodied in the Interim Final Rule: "(1) to provide fair,
predictable and consistent compensation to the victims of September 11 and their families throughout
the life of the program; and (2) to do so in an expedited, efficient manner without the unnecessary
bureaucracy and needless demands on the victims," Statement, p. 2.
We concur with these objectives, and our comments on the Interim Final Rule are intended to further
their purpose.

I. Claimant Eligibility

A. The Need For Predictability

In his Statement, the Special Master has emphasized the importance "that
claimants be able to enter the program- or choose not to enter the program--with an
understanding of how their claims will be treated. This is especially important because the
Act provides that, upon submission of a claim, a claimant waives the right to file a civil
action for damages sustained as a result of the September 11 attacks," Statement, p. 9. This
Statement recognizes that claimants must be able to assess with certainty their eligibility in
order to make an informed election between participating in the Fund or pursuing litigation.
They should not be put in a position of waiving their rights to sue, only later to be told they
were not eligible to receive an award from the Fund. Certain procedures established by the
Interim Final Rules should be clarified to avoid this potential unfairness in determining
eligibility.

First, Interim Final Rule 104.21(a) should specify that a claim is not
deemed submitted, thereby waiving litigation rights, until it is determined that the claimant is
eligible, and not merely when it is determined that "the Eligibility Form is substantially
complete..."

Second, as drafted Interim Final Rule 104.52 ("Distribution of Awards to
Decedent's Beneficiaries") would seem to authorize the Special Master to reverse a prior
finding of eligibility at the conclusion of the proceeding before him, also an unfair result
unless the claimant's right to sue is preserved. This Rule states than, "[n]otwithstanding any
other provision of these regulations or any other provision of state law, in the event the
Special Master concludes that the Personal Representative's plan for distribution does not
appropriately compensate the victim's spouse, children, or other relatives, the Special Master
Representative of the decedent or as the executor or administrator of the decedent's will or
estate." Inter Final Rule 104.4(a)(1).

There may be some situations, such as where all of a deceased victim's property is held in
joint names with a survivor, where, but for the need to apply for an award under the Act, it
would not be necessary for the victim's estate to apply to a court for the appointment of a
personal representative. Similarly, if the deceased victim was a domiciliary of a civil law
jurisdiction, the appointment of a personal representative may not be required. In such situations,
if the Special Master is satisfied that all of the beneficiaries who would share in an award under
the law applicable to the disposition of the victim's estate are adult and competent, the
regulation should provide for the Special Master to recognize as the personal representative the
person designated in writing by all of such adult competent beneficiaries. An application for
recognition under such provision should be made under oath and require (a) representations (i)
that the deceased victim left no will, (ii) that specified persons are the persons who would
be entitled to share in an award under the law applicable to the administration of the victim's
estate (iii) that all of the victim's creditors have either been paid or that their payment has
been provided for, and (iv) that all beneficiaries have consented to the proposed distribution
plan and to the designation of the personal representative, (b) a family tree of the victim
sufficient to identify the lineage of the persons who would be entitled to share in an award
and (c) a proposed plan for the distribution of the award. The personal representative receiving
an award pursuant to this provision should be required to acknowledge that it was received in a
fiduciary capacity to be distributed pursuant to the plan and that distribution other than pursuant
to the plan will subject the personal representative to criminal prosecution for conversion
of U.S. Government funds.

may feel that they have no choice but to apply for this advance payment, regardless of whether that
decision would best serve their long-term interests. As a result, this program may be coercive to the
most vulnerable segment of the population - the very segment that it was designed to assist. We
recommend that claimants in need of immediate financial relief should have the opportunity to complete
an "undertaking" to repay the funds and to rescind their waiver during the period in which the Fund is
active. We recognize that some claimants may not have the resources to make this repayment, but we
believe that the risk of nonpayment is a small cost to absorb in order to relieve the potentially coercive
nature of this provision.


In sum, we recommend that claimants who are found to be ineligible to participate in the Fund,
or whose awards are disallowed by the Special Master's distribution plan, should not be deemed to
have waived their right to litigate. We suggest that the regulations permit claimants to retain their rights
to sue (1) the Special Master determines them to be ineligible to participate in the Fund, or (2) they do
not receive an award under the distribution plan approved by the Special Master, or (3) they repay any
advance award and rescind their litigation waivers.

B. "Physical Harm" and "Immediate Aftermath"

We take issue with the Interim Final Rule's artificially restrictive definition of
eligible claimants who have suffered "physical harm" as a direct result of the terrorist-related
airplane crashes. The Interim Final Rule narrowly defines the term "physical harm" to mean
"a physical injury to the body that was treated by a medical professional within 24 hours of
the injury having been sustained or within 24 hours of rescue; and (i) [r]equired
hospitalization as an in-patient for a least 24 hours; or (ii) [c]aused, either, temporarily or
permanently, partial or total physical disability, incapacity or disfigurement." Interim Final

Rule 104.2(c). In addition, the Interim Final Rule requires that "the physical injury must be
verified by contemporaneous medical records created by or at the direction of the medical
professional who provided the medical care" within that initial 24-hour period. Interim Final
Rule 104.2(c)(2). This 24-hour restriction unfairly denied eligibility to those who suffered
physical injury as a direct result of the September 11 attacks, but who did not seek immediate
treatment within 24 hours, or who were treated at triage centers that did not maintain
contemporaneous medical records. As written, the arbitrarily rigid Interim Final Rule would
disallow the claim of someone who sought medical treatment 25 hours after the crashes, or
who was treated at a site where no medical records were created.


Persons who the Special Master finds have sustained physical injury, such as
respiratory illness, as a direct result of the terrorist attacks should be eligible for an award
from the Fund, even if they did not seek medical treatment in the first 24 hours after the
attacks, or their injury did not manifest itself during those first 24 hours. With respect to
manifestation, awards should be available to compensate for injuries which manifested
themselves by the date when the claimant completes his or her application seeking an award
from the Fund. this is fully consistent with the Statement by the Special Master in which he
clearly inferred that the Fund should compensate for latent harm that "fully manifest[s] itself
within the statutory time period for this Fund." (Statement, p. 6).


The Special Master also should permit claims for physical injury based upon
any competent evidence submitted by the claimant tending to prove that his or her injury was
the direct result of the terrorist-related airplane crashes. Such evidence may include
contemporaneous medical records, but it should not be limited to those records only.


The Interim Final Rule's definition of the term "immediate aftermath" as
applied to rescue workers, namely "the period form the crashes until 96 hours after the
crashes" (104.2(b)), is also unreasonably narrow. Rescue worker who were injured while
assisting in efforts to search for, and recover, victims during the period in which the Fund.
There should be no arbitrary 96-hour limitation on the injuries eligible for an award.


C. Evidentiary Basis For Determining Who is a "Dependent" or a "Spouse"


We disagree with Interim Final Rule to th extent that, for the purpose of
determining the amount of an award, it limits (with narrow exceptions) eligible "dependents"
and "spouse[s] of victims to those persons identified on the victims' federal tax returns for
the year 2000, Interim Rule 104.3(b) and (c). Although a federal tax return is certainly
evidence of dependency or marriage, if is not the only competent evidence of such status.
Further, the tax laws impose limits on the classification of dependents, and on the obligation
to file tax returns, that bear no relationship to the purposes of the Fund and are inappropriate
to determining the amount of an award, it limits (with narrow exceptions) eligible "dependents"
and "spouse[s]" of victims to those persons identified on the victims' federal tax returns for
the year 2000. Interim Rule 104.3(b) and (c). Although a federal tax return is certainly
evidence of dependency or marriage, it is not the only competent evidence of such status.
Further, the tax laws impose limits on the classification of dependents, and on the obligation
to file tax returns, that bear no relationship to the purpose of the Fund and are inappropriate
to a determination of entitlement under the Act. See IRF 152(a) (qualifications for
claiming dependent on return, including that the dependent not exceed a minimum income
threshold and receive more than half of his or her total support form the taxpayer); and
6012 (minimum income threshold required income tax returns, that omission should not
deprive their survivors form receiving the compensation intended by Congress. The
restrictions of dependents and spouses to those claimed as such on federal tax returns also
seems inconsistent with the provision of the Act theat awards take into account "the individual
circumstances fo the claimant" Act 405 (b)(1)(B)(ii).


Accordingly, we urge that the basic regulations clarify that the Special Master
should receive and consider any competent evidence of dependency or marriage, including

marriage certificates, birth certificates, financial documentation, relevant court order
and credible sworn testimony.
D. Eligibility of Undocumented Aliens


We agree with the Interim Final Rule's inclusion of undocumented aliens
injured in the terrorist attacks or the families of those who were killed as participants in the
program. However, no provision is made in the rule to protect the information on
immigration status that is currently required to be supplied in the claim forms.


The Eligibility Form proposed by the Special Master is written in such a way
that any undocumented alien would be legitimately concerned that the information provided
to the Special Master could be used against the claimant by INS or other government
agencies for immigration purposes. The Eligibility Form requires information on the
victims's country of citizenship, and the victim's representative to
authorize (1) "the U.S. Department of Justice to obtain any information relating to [the] claim
under the September 11th Victim Compensation Fund of 2001..."; (2)"the U.S. Department
of Justice to disclose any records or information relating to [the] Compensation Fund claim,
to the extent necessary for its review, verification, and adjudication, to: agency contracts
assisting in the administration of the Compensation Fund; other federal, state, or local
agencies, including the Department of the Treasury; and other individuals or entities having
information related to the claim..."; (3) "the release of information relating to [the] claim,
where such information indicates a violation or potential violation of law...to any civil or
criminal la enforcement authority or other appropriate agency charged with responsibility
of investigating or prosecuting such a violation"; and (4) "individuals having information
pertinent to [the] claim to release such information to a duly accredited representative of the
Department of Justice during the review of [the] claim to Compensation Fund, regardless
of any previous agreement to the contrary....This authorization is valid for five (5) years
from the date signed or [the claimant's] written termination whichever is sooner,"

These provisions put undocumented aliens who file claims against the Fund at
serious risk of deportation or other proceedings arising out of their immigration status.
Likewise, their former employers may be unwilling to cooperate with such claimants or the
Special Master for fear that they will have legal exposure. The final rules should make plain
that undocumented aliens may proceed with their claims, and their former employers provide
evidence supporting their claims, without fear that the INS or other government agencies will
acquire or use such information for immigration or law enforcement purposes.

II. Distribution of the Fund Awards


In the Statement by the Special Master published as a preface to the Interim
Final Rule, the Special Master noted that the Interim Final Rule referred to state law to
determine the identity of the Personal Representative and stated, "[n]or would it be advisable
for the Special Master to step in and supplant state court practice or the testamentary intent of
decedents." Statement, p. 8. We agree with this approach, but feel constrained to point out,
that is not clear how state law will be applied in the context of the Interim Final Rule,
especially with respect to the distribution of awards.


Section 405(c)(3)(B) of the Act provides that submission of a claim under the
Act constitutes a waiver of the claimant's right to be a party to an action for "damages
sustained as a result of the events of September 11. Although technically "claimant" refers
to an individual who was injured or killed, the Interim Final Rule clearly contemplates that,
will respect to an individual who was killed in the terrorist attacks, the filing of a claim under
the Act constitutes a waiver by all persons who might have an interest in such damages. See

Interim Final Rule 104.4(b) (requiring notice of claims made against the Fund to be given
to, among others, "any other persons who may reasonably be expected to assert an interest in
an award or to have a cause of action to recover damages relating to the wrongful death of the
decedent"; 104.21(b)(1)(The Special Master "may require that the claimant certify that he
or she has dismissed any pending lawsuit...and that there is no pending lawsuit brought by
a dependent, spouse, or beneficiary or the victim")


Under New York State law, tort damages in respect of a deceased victim fall
into two categories: first damages for the victim's conscious pain and suffering, which are
payable to the victim's estate and therefore will be disposed of under the victim's Will or in
accordance with the rules of intestacy if the victim died without a Will; and, second damages
for wrongful death, which are payable to the victim's distributees within the meaning of that
who would inherit under the rules of intestacy).


Any award from the Fund should be distributed among those persons who
would have an interest in damages recovered as a result of the victim's death under State law,
See Act, 402(5) (defining "economic loss" to mean "any pecuniary loss resulting form
harm...to the extent recovery for such loss is allowed under applicable State law"). The
Interim Final Rule then goes on to authorize the Special Master to modify any proposed plan for
distribution if the Special Master" concludes that...it does not appropriately compensate the
victim's spouse, children, or other relatives." Id. Distributing an award form the Fund to
either a larger or a smaller class than permitted under state law open the doors to many

possible disputes and complexities. It should be done, if at all, only as a narrow exception to
expand the class, so as to avoid a substantial hardship faced by a person to whom a decedent
who died without a ill contributed material financial support and who therefore suffered
financially as a result of the decedent's death. We see a justification for such an exception
because, as the average age of those who died in the World Trade Center tragedy is only a
little over 30 years, at least some may not yet have provided for these relationships in a will.
We urge, accordingly, that Interim Final 104.52 be clarified as not otherwise
authorizes departures from state law (or, if applicable, foreign law) with respect to the
distributions of awards.


Interim Final Rule 104.3(a) defines "beneficiary" as " a person entitled
under the laws of the decedents' domicile to receive payment or benefits form the estate of
or on behalf of the decedents on whose behalf the claim to the Fund was filed." It is
respectfully submitted that "beneficiary" should be defined as "a person who, under
applicable State law, would have an interest in damages payable on account of the decedent's
pain and suffering of the decedent's wrong not be entitle to share in the damages on account of the
decedents's pain and suffering.


We believe that the State courts are the appropriate forum in which to resolve
questions about the allocation of an award among those that would be entitled to receive it,
given that such questions are indeed, "fact-intensive and time-consuming." Statement, p.8.
Consequently, we recommend that the personal representative, who has responsibility for
filing a claim against the Fund on behalf of a deceased individual, should in the vast majority
of cases be the "individual appointed by a court of competent jurisdiction as the Personal

Representative of the decedent or as the executor or administrator of the decedent's will or
estate." Interim Final Rule 104.4(a)(1).

There may be some situations, such as where all of deceased victim's
property is held in joint names with a survivor, where, but for the need to apply to a court for the
appointment of a personal representative. Similarly, if the deceased victim was domiciliary
of a civil law jurisdiction, the appointment of a personal representative may not be required.
In such situations, if the Special Master is satisfied that all of the beneficiaries who would
share in an award under the law applicable to the disposition of the victim's estate are adult
and competent, the regulations should provide for the Special Master to recognize as the
personal representative the person designated in writing by all of such adult competent
beneficiaries. An application for recognition under such provision should be made under
oath, and require (a) representations (i) that the deceased victim left no will, (ii) that specified
persons are the persons who would be entitled to share in an award under the law applicable
to the administration of the victim's estate (iii) that all of the victims' creditors have either
been paid or theat their payment has been provided for, and (iv) that all beneficiaries have
consented to the proposed distribution plan and to the designation of the personal
representative, (b) a family tree of the victim sufficient to identify the lineage of the persons
who would be entitled to share in an award pursuant to this provision should be
required to acknowledge that it was received in a fiduciary capacity to be distributed pursuant
to the plan and that distribution other than pursuant to the plan will subject the personal
representative to criminal prosecution for conversion of U.S. Government funds.


We object to Interim Final Rule 104.4(a)(2) in that it would permit the
Special Master to name as a personal representative a person named as an executor in a
purported Will without the validity of that Will having been established in Court. We also
object to the provision that would permit the Special Master to designate "the first person in
the line of succession" as the personal representative, without all persons who might share in
the award first agreeing to such designation, because we do not believe that the notice
provisions of Interim Final Rule 104.4(b) and (c) and (d) provide adequate protection to the
potential beneficiaries.

Where minors or incapacitated persons are involved as potential beneficiaries
of an award, the State law rules that would be applicable to an adjudication as to the
disposition of a recovery for wrongful death or personal injury should be equally applicable
to the dispositions of an award under the Act.

The Special Master should work closely with the Surrogate's Courts in
affected jurisdictions to streamline procedures for administering the estates of those
September 11 victims, particularly those requiring a Public Administrator or the appointment
of a qualified third party as an administrator. One possibility is to create an administrative
unit within the Surrogate's Courts or within the Office of the Public Administrator that would
be dedicated to September 11 victims whose families are potential claimants to the Fund. In
addition, where kinship proceedings are deemed necessary, consideration should be given to
accepting evidence, such as affidavits form uninterested third parties who knew the decedent,
in lieu of full-blown investigations in foreign locations, which could consume months and
cost thousands of dollars. Moreover, the cost of any kinship proceeding necessary to
distribute an award from the Fund should be paid out the Fund, not out of the award.
Finally, the Final Rule should provide a mechanism to permit the filing of a claim and the

granting of an award if an administrator has not been appointed by the Surrogate's Court as
of December 21, 2003, due to extended kinship proceedings or other delays inherent in the
appointment of an administrator, with the award to be held in escrow until the proceeding can
be completed.


Interim Final Rule 104.4(b) requires notice before filing a claim to the
following persons: "The immediate family of the decedent (including, but not limited to, the
decedent's spouse, former spouses, children, other dependents, and parents), to the executor,
administrator, and beneficiaries of the decedent's will, and to any other persons who may
reasonably be expected to assert an interest in an award or to have a cause of action to
recover damages relating to the wrongful death of the decedent." In situations where a
personal representative has been appointed by a Court, and is authorized by State court
proceeding in which the personal representative was appointed to all persons who would
have a right under State law to recover tort damages relating to the decedent's death, and so a
second notice to such persons pursuant to the Final Rule would be superfluous. We submit
that only such persons should be entitled to distribution form the Fund, since distributions to
others would be inconsistent with provisions of the Act that require waiver of State law
rights and would raise constitutional issues. If our position is adopted, there will be no
occasion for notice to any other persons.

With respect to the few situations (in our contemplation) in which the State
court has not appointed a personal representative, we have recommended above a procedure
requiring the written consent of all beneficiaries, thus obviating any need for further notice.


III. Nature and Amount of Compensation


A. Applicable State Law


Interim Fund Rule 104.42 states that "the Special Mater is not permitted to
compensate claimants for those categories or types of losses that would not be compensible
under the law of the State that would be applicable to any tort claims brought by or on behalf
of the victim". Since 405(b)(2) of the Act prevents the Special Master form considering
negligence or other theories of liability, it should be made clear that the Special Master will
not contributory negligence, assumption of risk or other possible negligence
defenses or offsets in determining the amount of an award.


B. Collateral Sources Offsets


The Act reduces awards by "the collateral source compensation the claimant
has received or is entitled to received", Act, 402.4, 405(b)(6). Given the purpose of the Act
as expressed in 403 of the Act, we believe that this term should be constructed narrowly in a
manner least harmful to the victims and their families. We note that the New York collateral
source rule is much more restrictive than the one provided for in the Act and specifically
excludes life insurance. CPLR 4545(C). This would provide equal treatment between those
victims who invested in life insurance and those who invested in other property, such as
securities, which is not treated as collateral source compensation.


The Interim Final Rule, consistent with Act, provides that an award "shall
be reduced by all collateral source compensation, including life insurance, pension, funds,
death benefit programs, and payment by federal, state or local governments related to the
terrorist-related aircraft crashes of September 11, 2001." Interim Final Rule. 104.47(a)
However, the Interim Final Rule goes beyond the Act in not requiring that such benefits be
payable to "the claimant" who, in the case of a deceased victim, is the victim (acting through)

his personal representative). Act 402(3), 405(a)(1) and 405(c)(2)(A). Accordingly, only
such compensation payable to a decedent's estate should be taken into account. In addition,
the amount offset should be reduced by the premiums or other payments made to maintain
the life insurance (or its cash value, if greater than the premiums paid) or other benefit treated

as a collateral source. Further, pension benefits payable after normal retirement age should
not be offset against any Fund award, because such benefits would have been available had
the deceased survivor September 11, 2001.


Offsets for collateral sources compensation should take into account the fact
that such compensation, unlike the Fund award, may be subject to income or estate taxes.
Consider, for example, a victim with substantial pension benefits payable over a number of
years. The pension benefits will be subject to income tax as they are paid, and consequently,
they will represent substantially less value, dollar-for-dollar, than an award from the Fund.
Alternatively, consider a victim who is domiciled in the United States and married to a non-
U.S. citizens. If the victim had substantial life insurance payable to his/her spouse, some or all
of the insurance proceeds may be subject to U.S. estate tax. The taxes payable on any
collateral source compensation required to be offset against the Fund should be considered in
determining the amount of the offset. Accordingly, we recommend that the Final Rule
specify that only the after-tax value of collateral source offsets be deducted form awards.


Because the Fund's purpose is to provide a no-fault alternative to tort
litigation, it would be inappropriate, and potentially unconstitutional, to reduce the Fund
award distributed to a claimant by the amount of life insurance/pension benefits payable to a
person who is not entitled to share in the award. Consider, for example, a divorced victim
who had maintained life insurance for a former spouse. Under the Interim Final Rule, the life
insurance payable to the former spouse would appear to reduce the amount of any award

from the Fund, although the insurance proceeds were not paid to the victim, his/her estate, or
his/her distributees (i.e., the persons entitled to share in tort recovery under New York State
law). We recommend that collateral source compensation be applied as an offset only
against the portion of the award distributable to the recipient of the collateral source
compensation.

The Interim Final Rule is ambiguous as to whether charitable donations are
collateral sources that must be deducted from Fund awards. Although the Interim Final Rule
states that charitable donations are not collateral source compensation that would be used to
reduce awards, the Rule also provides that the Special Master "may determined" that private
charitable payments "constitute, in substance," collateral source payments under the Act.
Interim Final Rule, 104.47(b)(2). We agree with the policy determination that charitable
contributions do not constitute collateral source payment deliberately structured as a
charitable donations to avoid deduction from the award, then the Rule should expressly state
that intention. The Rule also should recite the criteria that the Special Master must use in
making his determination. In all other cases, charitable donations should not be used to
reduce awards under the Act.


C. Evidence of Economic Loss

Consistent with our comments on proof of physical harm, we oppose limiting
the evidence required to establish economic losses to federal income tax. The Special
Master should receive and consider other competent evidence of the decedent's
salary/income in 1998-2000, such as W-2 forms, pay stubs, bank account statements, union
contribution documentation and employer affidavits.

D. Calculation of Presumptive Awards

The Special Master has published on his website "Presumed Economic and
Non-Economic Loss Tables," together with a general description of the factors considered in
calculating the presumed economic and non-economic losses before collateral source offsets.
The tables of presumptive awards are not transparent in theat they fail to show how the various
factors are used to calculated an award. As such, the tables do not enable a potential claimant
to estimate a presumptive award in advance of filing a claim.

For example, table are providing for married victims with zero, one and two
dependent children, and for single victims with zero and one dependent child. The increment
in the award per dependent child, varies with the victim's compensation, but not the victim's
age. It also appears to vary based upon the ages of the dependent children. The increment
for the first dependent child (assumed to be 9 years old) is radically different for a single
victim than it is for a married victim. Thus, for a victim earning $150,000/year, the
increment in the award for one dependent child for a single victim is more than $400,000; for
a married victim, the increment for the first dependent child is approximately $89,300, but
the increment for the second dependent child is approximately $110,300.

These disparities make any attempt to extrapolate from the published tabes
perilous for victims having more dependent children or for victims with young children. The
Special Master should add to his website a calculator that would permit a family to input
martial status, ages of dependent children, and the victims's age and salary in order to obtain a
guideline presumed award that reflects the victim's individual circumstances. At the very
least, additional table and data are essential to permit families with different circumstances
than those presented in the published tables to determine the presumptive awards to which
they would be entitled under the Fund.

E. Minimum and Maximus Awards

In the Statement by the Special Master, the view is expressed that, "absent
extraordinary circumstances, awards in excess of $3 million, tax-free, will rarely be
appropriate in light of individual needs and resources." (Statement, p.3). Imposition of an
artificial limit on awards, by reason of a claimant's other resources (not subject to collateral
offset), is in conflict with the statutory provision requiring "the amount of compensation to
which the claimant is entitled [to be] based on the harm to the claimant, the facts of the claim,
and the individual circumstances of the claimant." Act 405(b)(1)(B)(ii). We submit the
letter "individual circumstances" clause may not be construed, as the Special Master has, to
permit the award of less than a claimant's actual proven loss by reason of claimant's wealth
or other resources. The purpose of the Fund, as we read the statute, is to make all eligible
claimants whole, and not just some claimants selected by the Special Master. The imposition
of an artificial limit also is in conflict with the provisions of the act that measure recovery by
what would be allowed under applicable State law. Act 402(5). If a purpose of the Act
was to discourage litigation by providing a fair and reasonable alternative, the provision will
have the opposite effect and encourage litigation by those most able to afford it. We urge
that it be eliminated.

We agree with the recent statements attributed to the Special Master, as
reported in the media, that no eligible family should walk away from the Fund empty-handed.
The Special Master is authorized by the Interim Final Rule to depart form the presumptive
awards based upon a demonstration of extraordinary circumstances that the award
methodology does not adequately address. We believe that he Special Master should use his
authority to award a least $250,000 to eligible families that otherwise would receive no
award a nominal award as a consequence of the collateral source adjustments.


This Association stands ready to provide further assistance to the Department
and the Special Master in developing and implementing the final rules for the September 11th
Victim Compensation Fund of 2001.

We commend the Department and the Special Maser for their efforts to date
to develop fair efficient rules for administration of the Fund, and submit that adoption of
our suggestions above would those efforts to fruition.

Comment by
Association of the Bar
of the City of New York,
New York, NY

2002-01-24