1 469f911c Conference 1 UNITED STATES DISTRICT COURT 1 SOUTHERN DISTRICT OF NEW YORK 2 ------------------------------x 2 3 IN RE SEPTEMBER 11TH LITIGATION 21 MC 97 (AKH) 3 4 4 ------------------------------x 5 5 June 9, 2004 6 3:05 p.m. 6 7 Before: 7 8 HON. ALVIN K. HELLERSTEIN, 8 9 District Judge 9 10 APPEARANCES 10 11 KREINDLER & KREINDLER, LLP 11 Attorneys for Plaintiss Executive Committee and Quigley 12 BY: JUSTIN GREEN, MARC MOLLER, NOAH KUSHLEFSKY 12 13 MOTLEY RICE, LLR 13 Attorneys for Motley Rice Plaintiffs 14 BY: ROBERT HAEFELE, ELIZABETH SMITH & DONALD A. MIGLIORI 14 15 AZRAEL, GANN & FRANZ 15 Attorneys for ANN WILSON 16 BY: JONATHAN A. AZRAEL 16 17 HANLY CONROY BIERSTEIN & SHERIDAN, LLP 17 Attorneys for Hoglan, Hackel & Oganowski 18 BY: JAYNE CONROY 18 19 SPEISER, KRAUSE, NOLAN & GRANITO 19 Attorneys for Judge and Nacke 20 BY: FRANK GRANITO 20 21 SIMPSON THATCHER & BARTLETT, LLP 21 Attorneys for Argenbright Security, Inc. 22 BY: LORI S. SIEMBIEDA 22 23 MENDES & MOUNT 23 Attorneys for HUNTLEIGH USA 24 BY: BRUCE WILDERMUTH 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2 469f911c Conference 1 APPEARANCES (Continued) 1 FLEMMING, ZULAKC & WILLIAMSON, LLP 2 Attorneys for WORLD TRADE CENTER PROPERTIES, INC. 2 BY: RICHARD A. WILLIAMSON AND THOMAS A. EGAN 3 3 4 DEBEVOISE & PLIMPTON 4 Attorneys for AMERICAN AIRLINES 5 BY: ROGER E. PODESTA 5 6 JONES, HIRSCH, CONNORS 6 Attorneys for GLOBE AVIATOR SERVICE CORP. 7 BY: JAMES P. CONNORS 7 8 QUIRK & BAKALOR, PC 8 Attorneys for UNITED AIRLINES 9 BY: JEFFREY E. ELLIS 9 10 CONDON & FORSYTH, LLP 10 Attorneys for AMERICAN AIRLINES 11 BY: DESMOND T. BARRY 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 3 469f911c Conference 1 THE COURT: Good afternoon. Be seated, everyone. 2 I have followed California style. Because of the 3 numbers of issues involved and the little time that is left for 4 the special master to function, we thought it best to try to 5 come to tentative resolutions of the issues that were presented 6 by the defendants' motions and submit them to you for 7 consideration. It will focus your arguments and, perhaps, 8 shorten the proceedings. It's a procedure that is regularly 9 used in both the state and federal courts in California, and it 10 works very well there, and I thought it was suitable to adapt 11 it to the practice here. 12 So what I would like to do, first, is just review the 13 agenda, and see that I picked up everything that anyone wishes 14 to present to me, and then go into the proposed decision and 15 take argument with respect to it. 16 Does anyone have any comment on the agenda? 17 All right. Are there any cases that anyone wishes to 18 bring to me that are not identified in one category or another 19 on the agenda? 20 MR. ELLIS: Your Honor, there is one. 21 THE COURT: Please announce. 22 MR. ELLIS: Jeffrey Ellis on behalf of United 23 Airlines. There is one case, Salvo versus United Airlines. We 24 had withdrawn that motion yesterday by letter. 25 THE COURT: I have to tell you that -- yes, I know SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4 469f911c Conference 1 that and I signed it, but it's not possible to keep this 2 sufficiently dynamic to deal with all the late submissions. 3 MR. ELLIS: Okay, thank you. 4 (Pause) 5 THE COURT: I am reminded that I did not sign it and 6 thank you for bringing it up. 7 This is a submission that denies without prejudice the 8 motion regarding Salvo, and I was reluctant to sign it because 9 I wanted to bring to your attention and to the plaintiff that 10 the practical effect of this might be to lose whatever 11 flexibility remains with respect to the special master. 12 Is Salvo here? 13 MR. WEISNER: Yes, your Honor. I'm an attorney for 14 plaintiff, Weisner, Floyd Weisner. 15 THE COURT: And of course you signed that stipulation, 16 but you are aware, are you not, that -- you are aware that 17 withdrawing your claim at this point may foreclose you from 18 bringing it? 19 MR. WEISNER: From bringing the VCF claim, yes. 20 THE COURT: Or the lawsuit? 21 MR. WEISNER: I understood from Mr. Ellis that he was 22 withdrawing the Salvo case from this motion on behalf of 23 United. 24 THE COURT: Well, where do we stand on it then? 25 MR. WEISNER: As I understand it, it's withdrawn, it's SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5 469f911c Conference 1 not part of this motion today. That was only as of last night 2 though, your Honor. You may not have seen it yet. 3 THE COURT: Does anyone have a spare copy? 4 MR. ELLIS: I am sorry, your Honor. I don't. 5 MR. WEISNER: I think I might have, your Honor. 6 THE COURT: Oh, we have it. All right. 7 Tell me what's happened in this case. 8 MR. WEISNER: Your Honor, as I understand it a little 9 bit late, Mr. Ellis tells me your Honor has already denied the 10 motion as to Salvo. 11 MR. ELLIS: In his proposed order. 12 MR. WEISNER: If your Honor is going to keep that as a 13 final order, we should just let that decision stand. 14 MR. ELLIS: It might be -- I think, your Honor, it 15 might, in case the Court was to disagree with your Honor, maybe 16 by keeping it as denied would allow Mr. Salvo, if need be, to 17 go back into the fund, and maybe it would be best for Mr. Salvo 18 that, perhaps, the motion not be withdrawn. 19 THE COURT: So that was the point of my making 20 rulings. 21 MR. ELLIS: Yes, I understand. I am willing to do 22 what Mr. Weisner feels appropriate. 23 THE COURT: Why don't you discuss it with each other 24 and I will call you at the end? 25 MR. WEISNER: Thank you, Judge. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6 469f911c Conference 1 MR. ELLIS: We will. 2 MR. WOOD: Your Honor. 3 THE COURT: Please state -- 4 MR. WOOD: Mark Wood. I'm attorney for the 5 Massachusets Port Authority. 6 This is in reference to Appendix B, your proposed 7 order, your Honor. 8 Massachusets Port Authority joins in the motion in the 9 Oganowski case, 03 Civ 7070, which is on Roman three of 10 Appendix B. 11 THE COURT: So you want me to add that on page triple 12 I? 13 MR. WOOD: Yes, your Honor. 14 Thank you, your Honor. 15 MS. CONROY: Jayne Conroy representing Ms. Oganowski. 16 We would oppose that late joinder. It wasn't until last night 17 that Massacheussetts Port Authority joined in the motion for 18 summary judgment. 19 THE COURT: I will hear you both on that. 20 MS. CONROY: Your Honor, I think it's only fair that 21 the Massachusetts Port Authority, that we have actually only 22 received the papers this morning, should have joined in the 23 motion earlier so we could understand who the defendants were 24 that were seeking to dismiss Miss Oganowski's case. And we 25 think that last night or this morning was far to late for SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7 469f911c Conference 1 joinder when obviously they had until -- they had a month to 2 decide whether or not to join that motion. 3 MR. WOOD: Your Honor, we didn't have a month. It was 4 filed on the 17th. We were not served until June 1st. 5 MS. CONROY: Your Honor, it was our understanding 6 that -- 7 THE COURT: Give me a minute, please. 8 I denied the motion of the other defendants and 9 presumably, unless the Massachusetts Port Authority states 10 grounds that I did not consider, I would deny the motion as to 11 them as well. 12 What's your problem? 13 MS. CONROY: That's acceptable, but I don't know 14 what's coming next. That would be acceptable if that's all 15 that's coming. 16 MR. WOOD: We're not going to make any separate 17 argument from American Airlines. 18 THE COURT: So it seems to me you shouldn't oppose 19 this. 20 MS. CONROY: I'm very happy. 21 MR. WOOD: I seldom jump to my feet to join a losing 22 cause, your Honor. 23 THE COURT: There is an overall interest in getting 24 this right administratively, and we will add the Oganowski case 25 to the list on page triple I in Appendix B without opposition. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8 469f911c Conference 1 Anybody else? All right. 2 Let's go into the proposed opinion, itself. 3 I think the easiest way to do this is to take any 4 points that come up sequentially by pages and if I could have 5 the first person objecting to any proposed ruling. 6 Yes, sir. 7 MR. GRANITO: Would it be appropriate -- Frank Granito 8 of the Speisser firm for the plaintiffs Judge and Nacke. 9 Would it be appropriate to begin with the outline, 10 your Honor, of page three, categories of cases, subparagraph A? 11 THE COURT: Page three of the decision or page three 12 of the -- 13 MR. GRANITO: Of the outline, your Honor. 14 THE COURT: Yes, okay. 15 MR. GRANITO: Which paragraph A, claims allegedly not 16 withdrawn on or before January 22. 17 I would address the Court with respect to that portion 18 of the Court's findings, if I may. 19 THE COURT: Go ahead, sir. 20 MR. GRANITO: Your Honor, I did not find, in reading 21 the December 19th opinion, perhaps as many as a dozen times, 22 any portion of that opinion in which there was a directive to 23 withdraw the pending, incomplete applications. And in the 24 defendant's argument in support of that proposition, they have 25 not cited any text whatsoever that would support that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 9 469f911c Conference 1 conclusion. 2 And I might add, from my own point of view with 3 respect to that, to that conclusion, the December 19th order in 4 my opinion doesn't even rise to the level of ambiguity on this 5 point. But if it were ambiguous, it would not be enforceable 6 without a clear, unmistakable statement requiring the filing of 7 a withdrawal with the Victim Compensation Fund. 8 We contend, your Honor, that we complied with the 9 December 19th order, and that we got ourselves off the docket 10 in the cases of Nacke and Judge by so declaring before January 11 22nd. 12 That sums up our position on that point, your Honor. 13 THE COURT: Well, you did not withdraw your VCF 14 applications until after January 22nd? 15 MR. GRANITO: That's correct. 16 But there was no directive or requirement that I can 17 find in the December 19th order, or in any of the record 18 remarks by the Court during the course of events from December 19 through February, which would have led us to believe that we 20 were under an obligation to file a withdrawal before January 21 22nd. 22 MR. GREEN: Your Honor, I am Justin Green for the 23 Plaintiffs Committee, following up on Mr. Granito's comment. 24 In our brief, we set forth what we believe are the 25 requirements to have a claim before the Victim Compensation SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10 469f911c Conference 1 Fund. 2 One week ago today, Debra Greenspan, the Deputy 3 Special Master was deposed and provided her testimony on what 4 the requirements were for a claim. 5 I would like to draw the Court's attention to a 6 statement that she made that -- a number of statements. 7 Number one is that she testified that a lot of things 8 were sent to the Fund that were not intended as claims by the 9 claimants, nor were they received as claims by the Fund, 10 including documents that were sent to the Fund to meet the 11 December 22 deadline. 12 And I think if the Court would look at what, in fact, 13 was sent before December 22, those are not claims, they don't 14 meet the requirements of claims, they weren't sent as claims 15 and they weren't received as claims. 16 And Debbie Greenspan testified on page 94 of her 17 deposition that a lot of what was sent to meet the December 22 18 deadline never materialized in anything, nor was it received as 19 a claim. 20 So I would just like to draw the Court's attention to 21 that and I think it's an important distinction. 22 THE COURT: What significance do you take from the 23 fact that a claim number was assigned? 24 MR. GREEN: I don't attach any significance to that, 25 your Honor. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11 469f911c Conference 1 Specifically, on page 18 to 19 of Debbie Greenspan's 2 testimony she says that anything that comes through the door is 3 assigned a claim number. So, the fact that something came 4 through the door and was assigned a claim number is completely 5 irrelevant. 6 And, as my colleague here said, it's a way of the just 7 monitoring. It was an administrative number that was added. 8 She made it very clear in her deposition testimony there is no 9 significance to the fact that they were given a claim number. 10 THE COURT: Did your clients fill out applications, 11 Mr. Granito's clients? Did they fill out applications? 12 MR. GRANITO: They filled out applications without 13 signing them; is that correct? 14 MS. O'GRADY: Jean O'Grady. 15 Judge, plaintiff did not submit an application. 16 Plaintiff Nacke submitted the first three pages of the 17 eligibility application without signature. 18 MR. MIGLIORI: Your Honor, with respect on that same 19 group of clients, Don Migliori for the plaintiff, Alice Hoglan. 20 THE COURT: Anyone who wishes to say something will 21 have a chance. 22 MR. MIGLIORI: I thought we were dealing with a group. 23 THE COURT: I'm not going to be able to deal with this 24 effectively unless I can focus on particular people. 25 MR. GREEN: Another cite to Debbie Greenspan's SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12 469f911c Conference 1 testimony, your Honor, is on page 51. 2 The question was about receipt of something. 3 You have generally stated, I will not put it in 4 quotation marks, a claim number does not necessarily cause that 5 supposed claim to be filed as a claim; is that correct? 6 Her answer was that's correct. 7 She made it clear just because something was sent and 8 provided a claim number, and if there is not a claim, then 9 there is nothing to withdraw on January 22 in compliance with 10 your December order. 11 It's entirely appropriate, no matter how you read your 12 December 2003 order, that if something was sent to the Fund 13 that was not a claim, not intended as a claim, not received as 14 a claim, there is no obligation to withdraw it. 15 Thank you, your Honor. 16 MR. PODESTA: Roger Podesta For American Airlines. 17 I think your Honor's order is quite clear on page five 18 where you say that: 19 I hold that a claimant who satisfies the statutory and 20 regulatory definition of filing and submitting a claim will 21 have waived his right to sue or maintain his suit when that 22 filing or submission is substantially complete as determined by 23 the special master's claim evaluator or January 22, 2004, 24 whichever is earlier and not before then. 25 MR. GRANITO: I support that statement, your Honor. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 13 469f911c Conference 1 THE COURT: Let's take turns. Please, let's not do it 2 at the same time. 3 MR. PODESTA: No. Virtually, I believe every other 4 plaintiffs' firm interpreted that order in the same manner the 5 defendants did. 6 We received numerous withdrawal letters in discovery 7 from, I believe, every other plaintiffs' firm making 8 withdrawals before January 22. 9 The fact that there may have been an active lawsuit 10 doesn't change the matter. It doesn't terminate the VCF claim. 11 They had an active VCF claim until February 22nd. 12 At the hearing on December 16th which led to the 13 December 19 order, Mr. Braumeister argued that the Court should 14 keep open the option of pursuing VCF claims or litigation as 15 alternatives beyond January 22. The Court expressly denied 16 Mr. Braumeister's request and set January 22 as the deadline 17 for withdrawing claims before the VCF. Moreover, these were 18 real claims. 19 You notice in that same claim letter, letter to the 20 VCF of February 27, that withdraws the Judge and Nacke claims, 21 also purported to withdraw the Newton, Droz and Dillard claims 22 which have gone to final award with the Fund. 23 There were clearly claims pending before the Fund as 24 to which notes were not delivered prior to February 27, 2004. 25 I respectfully submit, that in the tentative order, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 14 469f911c Conference 1 the tentative opinion is correct. 2 THE COURT: Mr. Podesta, what significance should I 3 place on the fact that Judge did not sign anything? 4 MR. PODESTA: I don't believe you had to sign anything 5 to get a filing for purposes -- I recall that the bare bones 6 application, you just had to fill in your name and address and 7 that type of information, you get a claim number, and you meet 8 the statutory deadline. You didn't have to sign an application 9 with the Fund in order to meet that deadline. 10 Judge took advantage of that, got a claim number, and 11 she had a claim which she then withdrew on February 27th. 12 THE COURT: The substantive paragraph that we are 13 dealing with states my holding as the filing of a claim for 14 compensation with the special master as contemplated by Section 15 401(a) of the Act, that satisfies both the special master's 16 regulations and the December 22, 2003, statutory deadline will 17 be deemed filed and submitted on the earlier of two dates: 18 One, the date that the special master claims evaluator 19 determines that the forms are substantially complete, that did 20 not happen in these two cases; or, second, pursuant to Section 21 104.21(a) of the regulations, the January 22, 2004, date that 22 was fixed by the special master's policy statement, the policy 23 statement was issued to take into consideration that Congress 24 had fixed December 22, 2003, as the bar date for filing claims 25 with the VCF. And the special master enlarged that period for SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 15 469f911c Conference 1 people who had done sufficiently to satisfy that date but had 2 not substantially completed the process. 3 The Judge and Nacke claims satisfied the special 4 masters process as of December 22, 2003. The purpose of my 5 order was to cause people to make up their minds which of the 6 two forums of remedy authorized by Congress, namely, the 7 judicial forum of a suit at law or the special forum set up by 8 Congress in the Victim Compensation Fund should be pursued. 9 Congress was clear that one had to be chosen, not both. 10 For purposes of dealing with the litigation, I gave 11 everyone clear notice in this order that there had to be 12 effective choice made no later than January 22, 2004, to the 13 extent that matters had been submitted before then, which may 14 have satisfied the special master. 15 Accordingly, it seems clear to me that both Judge and 16 Nacke were on notice that they had to make a choice on or 17 before January 22, 2004, either to stay in the process that was 18 established by the Victim Compensation Fund or to withdraw from 19 it, but they had to act; and their failure to act by January 20 22, 2004, according to the procedure I set out was indicative 21 of a choice; that is, to stay in the VCF. That's how I see it. 22 MR. GRANITO: Your Honor, you understand it's our 23 position that the choice was made in -- what was the document 24 called? The Notice of Activation constituted the choice, and 25 that I am merely repeating myself when I say -- SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 16 469f911c Conference 1 THE COURT: The Notice of Activation was what, again? 2 MR. GRANITO: That was filed on January 22nd, Notice 3 of Activation of the lawsuit was served on that date. 4 THE COURT: Yes. But I am not interested in Notice of 5 Activation of a lawsuit; I am interested in you're getting out 6 of the Fund. 7 MR. GRANITO: And that constitutes getting out of the 8 Fund by making an election to proceed at common law. I say 9 that is sufficient under this court's order because there is 10 nothing in the order that says the election must be made by 11 filing a Notice of Withdrawal. I can't even find those words 12 in this order. 13 THE COURT: Why did you bother to withdraw in 14 February? 15 MR. GRANITO: I don't know why we did, but I don't 16 think that is relevant or determinative. 17 THE COURT: You know, by leaving your claim in, you 18 effectively keep your feet in both doors. 19 MR. GRANITO: That may be true. 20 THE COURT: Congress did not say the filing of a 21 lawsuit automatically bars you from the VCF. 22 MR. GRANITO: It says the election. 23 THE COURT: Congress says that filing a claim with the 24 VCF waives your right to sue. By implication, you could argue 25 the other and I ruled upon that earlier. But the important SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 17 469f911c Conference 1 point that I wished to pursue was to force choice and implement 2 the way, the provision that Congress had set up. It may be, 3 and I think it is, that the special master takes a more liberal 4 outlook on what he has to do -- 5 MR. GRANITO: Apparently he does. 6 THE COURT: -- than what I have to do, and that's 7 fine, and I appreciate that. And I don't mean to criticize 8 Mr. Feinberg for so doing, because that's his discretion. But 9 I have a waiver provision to deal with in the Act and my order 10 focused on that and required, in my judgment, Mr. Nacke, 11 plaintiff Nacke and plaintiff Judge to withdraw from the Fund. 12 MR. GRANITO: I just want to conclude with, I think 13 the Court's position is going to have some problems with 14 enforceability from an appellate point of view, because it 15 seems to me that if a common law action for wrongful death is 16 to be dismissed summarily, the order that constitutes the 17 requirements that justifies dismissal should be unmistakably 18 clear, and it should have been said in the order that if there 19 is no notice of waiver filed with the VCF, then that 20 constitutes a waiver, and I haven't read that this way, and I 21 believe it's susceptible to disagreement as to its 22 interpretation. 23 MR. GREEN: Your Honor, I just want to point out a 24 couple things. 25 I think Mr. Granito is correct. I don't believe that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 18 469f911c Conference 1 they had their feet in both camps. I believe that on December 2 22, when they filed their activation, they decided -- January 3 22, they decided to go with the litigation, and if they didn't 4 withdraw or send a letter to the Fund saying the submission, 5 not claim, the submission that we sent to you, disregard it for 6 now; that might be an administrative error, but it's not 7 something that warrants the dismissal of their action. 8 I would like to also draw the Court's attention to the 9 Act, Section 405(c)(B)(ii) which says pending actions, and it 10 says anyone with a pending action may not file a claim. And I 11 think both Judge and Nacke, and I think some of the other 12 decisions that you have made today deal with cases where people 13 sent stuff to the Fund to find out from Special Master Feinberg 14 what he would do with a potential claim, but they still kept 15 their litigation option open by keeping a litigation action 16 filed. I don't think the Court is allowed to dismiss a claim 17 because of the operation of this section of the Act. 18 THE COURT: You are relying on the section which says: 19 In the case of an individual who is a party to a civil action 20 described in cause one, cause little I, such individual may not 21 submit a claim to the VCF unless such individual withdraws from 22 such action by the date that is 90 days after the date on which 23 regulations are promulgated under Section 407? That takes 24 a long, long time. 25 MR. GREEN: Yes, your Honor. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 19 469f911c Conference 1 THE COURT: That date passed in the year 2001. 2 MR. GREEN: The Act actually doesn't address -- 3 THE COURT: March 2002. 4 MR. GREEN: At the deposition of Debbie Greenspan, she 5 said the Fund actually treated all actions that were filed as 6 subject to this requirement; that before they paid anybody the 7 action had to be withdrawn, the claim, the claim in court had 8 to be withdrawn before the Fund considered the claim. 9 THE COURT: Well, that was an issue that I dealt with 10 in permitting the suspense cases to begin with. There was a 11 problem of a short statute of limitations that was 12 jurisdictional regarding claims against the Port Authority. 13 MR. GREEN: That's right, your Honor. 14 THE COURT: And the short statute of limitations with 15 regard to claims against the City, and possibly short statute 16 of limitations in other respects, and I allowed cases to be 17 filed so as to toll limitations and satisfy the jurisdictional 18 prerequisite and placed on the suspense calendar as an 19 indication to the special master that claim could still be 20 brought until the fund. Congress gave until December 22, 2003, 21 and I was not going to shorten the time that Congress allowed 22 the people to decide how they wished to proceed. 23 I don't believe you can use this section here. 24 Look, I have your arguments. The purpose of using a 25 procedure of a proposed decision is to invite just such SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 20 469f911c Conference 1 arguments. I will consider them further, but I think I have 2 given you my attitudes so far, but I will reconsider them. 3 MR. GREEN: Your Honor, could I make a quick comment 4 on that last point? 5 When they activated, and your Honor did set up this 6 suspense docket to benefit the September 11 victims, and many 7 benefitted from that, but on January 22, when they took those 8 two cases off it and put it on the active case, I think that 9 shows their election to pursue the litigation, and does 10 implicate this section from the Act. 11 THE COURT: It does show an interest to litigate, but 12 there were other people who wished to see what they could get 13 before the VCF and make other analyses with the litigation, et 14 cetera. 15 I -- look, I have made my ruling. I have thought 16 about it beforehand. I thought it was essential to have this 17 choice regarding waiver made. I have a statute to deal with, 18 and I understand your arguments, and I will take them into 19 further consideration. 20 MR. GREEN: Thank you, your Honor. 21 THE COURT: Who wanted to make that other point now, 22 Mr. Migliori? 23 MR. MIGLIORI: On the Hoglan matter, Elizabeth Smith 24 from my office has a factual argument relative to this issue. 25 MS. SMITH: Thank you, your Honor. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 21 469f911c Conference 1 There are appears to be two main issues that require 2 addressing from review of the Court's preliminary opinion in 3 the case. 4 The first is the agreement that the parties reached at 5 the December 4th hearing in probate court in California with 6 regard to Mr. Bingham being made the special administrator to 7 the Estate of Mark Bingham with the ability to attempt to try 8 to go into the VCF, while Ms. Hoglan's appointment would be 9 changed to general administrator with the authority to proceed 10 with all matters in the estate. 11 This agreement that was reached at the December 4th 12 hearing was specifically contingent on the understanding that 13 Mr. Bingham's attempts to go into the Fund would not affect 14 Ms. Hoglan's litigation. In no way did she agree, did she ever 15 agree to allow him to attempt to go into the Fund in lieu of 16 her proceeding with her litigation. 17 In fact, the parties stated that if his attempt to go 18 into the Victim Compensation Fund failed, it would be a loss to 19 him and not affect her already pending litigation. 20 I think the transcript of that December 4th hearing is 21 instructive and is important on that issue. The transcript is 22 attached to the plaintiff's submission as Exhibit 53. 23 And in it, Mr. Wild, who was there representing 24 Ms. Hoglan, states, he goes through what the agreement is as I 25 have just stated and then at the end he states -- SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 22 469f911c Conference 1 THE COURT: Do you want to give me the page number so 2 I can follow? 3 MS. SMITH: Page two, line 21, through page three, 4 line four. 5 THE COURT: Yes. 6 MS. SMITH: He discusses the arrangement that had been 7 agreed to. 8 Then he states, if he's successful, fine, we are happy 9 with that, as long as it doesn't impinge against the estate and 10 the suit that has already been filed. 11 Mr. Messino, Mr. Anthony Messino, who was there at the 12 hearing on behalf of Mr. Bingham, also made statements along 13 the same line. 14 That is at, it's continuing on, I believe, your Honor, 15 on page four, he states: And we have received no written 16 assurance from the Fund that this works, but we believe, based 17 on the information, we believe that it's a viable plan. We 18 need more time to work. If it doesn't work, it doesn't work to 19 us, and that leaves Ms. Hoglan doing what she wants to do. 20 The parties stated at the December 4th hearing that 21 the agreement was contingent upon the Fund allowing Mr. Bingham 22 to go into the Fund for only his portion of the Fund proceeds. 23 It did not, in any way, waive her right to litigate the claim. 24 In fact, Mr. Bingham, as you know, has tried to go 25 into the Fund, but the Fund has not allowed him to proceed with SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 23 469f911c Conference 1 the claim. And the Fund hasn't allowed him to proceed with the 2 claim because Ms. Hoglan hasn't agreed, hasn't signed off on 3 the Victim Compensation Fund claim and won't agree to waive her 4 right to proceed with the litigation. 5 The application was put on hold specifically because 6 Ms. Hoglan hasn't waived her right to sue, and she hasn't 7 waived that right because it was never anticipated in the 8 agreement that was made on December the 4th. 9 The second portion of the order that needs to be 10 mentioned here is with regard to the agreement to split the 11 residue of the estate that the Court mentions. 12 This agreement, which is attached to Mr. Podesta's 13 affidavit as Defendant's Exhibit 184 at the bottom discusses 14 the parties agreement to the following in distribution of the 15 residue of the estate. This agreement had nothing to do with 16 the proceeds of the Victim Compensation Fund if Mr. Bingham was 17 able to obtain them or with the proceeds of litigation. It 18 dealt with the residue of the estate in terms of Mr. Bingham's 19 personal belongings, his office materials, his clothing, et 20 cetera. 21 Ms. Hoglan is here and can speak on that issue if the 22 Court is so inclined to hear her. 23 In addition, Mr. Bingham has stated in several of his 24 filings with the Fund that he in no way is going to share in 25 the proceeds of the litigation or be a party to the litigation. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 24 469f911c Conference 1 He states that first on Plaintiff's Exhibit 51, which is his 2 petition to become the special administrator for the purposes 3 of applying to the Fund. 4 In the attachment 3(f)(3) of that petition he states: 5 Petitioner requests appointment as the special administrator of 6 the decedant's estate so that he will have the requisite 7 authority to file his claim with the Fund and waive his rights 8 to recovery through litigation in connection with receiving the 9 benefits due to him. 10 He, again, on Plaintiff's Exhibit 60, which is a part 11 of his application to the Victim Compensation Fund, he states 12 Mr. Bingham is not and has never been a party to this lawsuit, 13 and will not be entitled to proceeds from this action, if any. 14 In addition, Ms. Hoglan has never submitted an 15 application to the Fund, has never agreed to Mr. Bingham's 16 application to the Fund or joined in on his application to the 17 Fund. She has not signed the waiver to waive her right to sue. 18 In order for her to receive a portion of the proceeds from the 19 Fund, she would have to do so, waive her right to sue and 20 dismiss this litigation. 21 Ms. Greenspan stated at her deposition last week that 22 if there is pending litigation, before they can finalize the 23 claim, before payment can be made, there has to be a 24 stipulation of dismissal or an order of dismissal. She has not 25 agreed to dismiss this case, so she could not also share in the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 25 469f911c Conference 1 proceeds of the Victim Compensation Fund as a party of this 2 agreement somehow, because she is not giving up on her right to 3 litigate this case. 4 Again, she has filed no claim with the Victim 5 Compensation Fund. She is asking for no part of the Victim 6 Compensation Fund claim, and Mr. Bingham is asking for no part 7 of the proceeds from the litigation. 8 If Mr. Bingham can't proceed with his Victim 9 Compensation Fund claim because Ms. Hoglan won't agree to be a 10 part of that claim, then that's Mr. Bingham's loss. It does 11 not affect Ms. Hoglan and her right to proceed in her 12 litigation. 13 THE COURT: Got it. Mr. Podesta. 14 MR. PODESTA: Your Honor, we believe the issues are 15 properly analyzed in the Court's tentative ruling. 16 The statute does not contemplate a situation where the 17 beneficiaries of the decedent's estate divide, and one goes in 18 the litigation and one goes into the Fund, and it is difficult 19 to -- I mean, the types of awards made for wrongful death, it 20 is difficult to see how it can be split in half. 21 These are really the decedent's claims. What is being 22 proposed here, what the California court did appointing a 23 general administrator and a special representative to pursue 24 claims against the Fund is not something that is authorized by 25 the statute and I think it's correctly analyzed by the Court in SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 26 469f911c Conference 1 its tentative ruling. 2 Indeed, if Ms. Hoglan were prepared to proceed, were 3 able to proceed to judgment in litigation, it would create very 4 difficult issues as to what the jury would be told what the 5 claim was, since Mr. Bingham would already have been 6 compensated by the Fund for his share. The issues as to 7 credits and how can you split up a wrongful death case into two 8 pieces in this way, and the agreement that was signed, Exhibit 9 184, gives Mr. Bingham a 25 percent interest in the residue of 10 the estate. 11 And in his letter to the Fund, it's Exhibit 195, he 12 says, look, give me 100 percent of the award, and I will split 13 it equally with Ms. Hoglan. 14 It's a complex situation. It's not one that the 15 Victim Compensation Act envisioned. 16 MS. FULMER: Your Honor, Brenda Fulmer for Gerald 17 Bingham. I was admitted pro haec vice this morning. Gerald 18 Bingham is also here. 19 There are a couple of statements I just want to 20 clarify for the record. 21 Obviously, as intervenor, what we have asked the court 22 to do is to go ahead and give its blessings to the California 23 agreement. When we filed the application, we understood it was 24 a unique situation, and we actually asked for the special 25 master to only award half of what they ordinarily would award SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 27 469f911c Conference 1 under the circumstances. 2 Gerald Bingham had no intention in interfering in 3 Alice Hoglan's lawsuit. The same could be said for Alice; that 4 is what the parties tried -- that is the agreement between the 5 parties, and that's what we would ask the Court to give its 6 blessing to, as opposed to dismissing Alice Hoglan's lawsuit. 7 THE COURT: No one has really dealt with the issue of 8 what happens if Alice Hoglan's case is dismissed or if Gerry 9 Bingham is not able to go forward with the Fund. There hasn't 10 been any type of agreement if Gerald Bingham, if he isn't 11 allowed to participate in the fund, walks away. That is 12 reading too much into what happened in the California probate 13 court. 14 Anybody else? Yes. 15 MS. SMITH: Yes, your Honor. 16 If I could add a few comments. 17 Mr. Bingham's application to the Fund can't be 18 complete. They won't pay the money unless she agrees and signs 19 on to the application; that is clear. And the Victim 20 Compensation Fund policies, that's found in the frequently 21 asked questions 3.11 attached, which states that if there are 22 corepresentatives, coappointees as representatives of the 23 estate, a claim will not be deemed filed until the signature of 24 both co-personal representatives are received. 25 Ms. Hoglan has not and does not intend to sign onto SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 28 469f911c Conference 1 the Victim Compensation Fund application of Mr. Bingham. 2 THE COURT: At least in the present posture. 3 MS. SMITH: I'm sorry. 4 THE COURT: At least at the present posture. If the 5 claim is dismissed in this lawsuit, you might rethink the 6 position. 7 MS. SMITH: The defense attorney stated that there is 8 a danger of the jury not knowing what to do with the verdict 9 because Ms. Hoglan or -- 10 THE COURT: The offset would be uncertain. 11 MS. SMITH: I'm sorry? 12 THE COURT: The offset would be uncertain. That's 13 because there is not a complete parallel between the 14 compensation remedy that would be won at the end of the lawsuit 15 and a compensation remedy that is available before the Victim 16 Compensation Fund. 17 Also, the tangling would be very difficult, because 18 the Victim Compensation Fund is paid immediately and the 19 results of the lawsuit are uncertain, creating extreme 20 difficulties in any kind of a sharing arrangement. 21 Miss Smith, I think I get the picture. The law and 22 the regulations are clear, it seems to me. 23 Ms. Hoglan, I think your lawyer is competent to speak. 24 If you really want to say something, I have bent every rule in 25 these cases because I recognize the situation is extraordinary SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 29 469f911c Conference 1 and I will let you speak, but I think your lawyer has very 2 competently told me all the issues and I studied the matter. 3 MS. HOGLAN: All right. I appreciate your indulgence, 4 your Honor. 5 As a flight attendant and a mother who lost her only 6 son on Flight 93, I'm convinced of the guilt of United Airlines 7 and Argenbright Security in contributing to the events of 8 September 11th, and on the other hand I don't wish to interfere 9 in the wishes of a man from whom I have been divorced for at 10 least 32 years. 11 I entered into an agreement with him making it clear, 12 as the record has read, that I in no way want my lawsuit 13 against Argenbright Security and United Airlines in any way 14 compromised by Mr. Bingham's actions, and clearly United 15 Airlines and Argenbright are attempting to do that today, and I 16 am devastated that they have gotten this far in this ugly 17 attempt. 18 Thank you. 19 THE COURT: The problem, Ms. Hoglan, and for the other 20 folks, is that the ordinary rules of law don't satisfactorily 21 resolve every tragic situation which ripples forward from the 22 terrible tragedy of September 11, 2001, and no effort of grace 23 by Congress or the Courts or the special master can ever 24 sufficiently respond to the tragedy that has ripped our nation. 25 It's a very difficult situation. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 30 469f911c Conference 1 As a district judge, I have to follow the law and I 2 have to apply the law, and if I am incorrect, then the remedy 3 is appealed. But I have to exercise my sworn obligation to 4 follow the law. 5 The law makes it clear that both claims to the Victim 6 Compensation Fund and, for the most part, lawsuits brought are 7 on behalf of a decedent, and compensation is paid by the 8 special master according to a set of criteria that is set out 9 in the law and the regulations and in the interpretive code, 10 but includes in the claim every criteria with the possible 11 exception of punitive damages because everything else is 12 included in terms of coming up with an amount that will be the 13 claim for compensation; that includes economic damage, it 14 includes non-economic damage. 15 And the law provides that if a claim is presented to 16 the Victim Compensation Fund, the person so claiming can't sue 17 at law. 18 Now, it's not just the person so claiming. The 19 claim -- the claimant is defined both as the victim and as the 20 person suing on behalf of the victim. It's not the technical 21 language, but I think it accurately sums it up, and the draft 22 opinion has the technical language. It means that everything 23 is subsumed in the claim. 24 And so, if, by special appointment of the California 25 court, your husband wants to go to the Victim Compensation SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 31 469f911c Conference 1 Fund, your ex-husband and you want to sue, you are doing 2 inconsistent things. You can't keep that up. And by keeping 3 that up past January 22, which is the date that the special 4 master fixed and which I found, you are creating a situation of 5 having a foot in both doors and that can't be. 6 I have to hold, I believe, that the existence of that 7 claim past January 22 precludes the lawsuit here and I have to 8 dismiss. And that leaves the potential of two remedies: One 9 is an appeal; the other is a proceeding in the Victim 10 Compensation Fund. 11 I want to add, although it's gratuitous, that it will 12 be a long time before any judgment can be reached regarding 13 United Air Lines and Argenbright Security. 14 I have had enough exposure to the proceedings in this 15 case to understand that every step presents countless 16 difficulties, many of which I don't think any one of us has 17 foreseen. 18 We are now involved -- I said United Airlines, I meant 19 American, but it's the same issue. 20 We are now involved in the issue of discovery with 21 regard to the Transportation Security Administration and it's 22 very difficult to deal with those discovery issues. The 23 discovery issues will have many repercussions in terms of the 24 issues of ultimate liability and who knows what kind of 25 judgment will be there at the end of the day, who knows whether SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 32 469f911c Conference 1 it will be frustration or vindication that will be felt. 2 Probably there will be ample much measure of both. 3 All this is to say that it's a reasonable decision on 4 anyone's part, and it was the decision of 98 percent of the 5 people who were eligible to make claims, to go into the Victim 6 Compensation Fund. That's not your decision, I know, and what 7 I say is not happy to you, but I think it's what I have to do 8 to apply the law as far as that is concerned. 9 MR. HAEFELE: I'm Robert Haefele, also from Motley 10 Rice. I'm concerned by one element of what you have said. And 11 if I may read another portion of Ms. Greenspan's deposition, 12 the situation here is that there are two personal 13 representatives: There is the general representative and the 14 special representative. 15 The special representative's sole purpose was to 16 endeavor to try to make the effort to go to the VCF to try to 17 file a claim. That never actually happened. There was a 18 submission to the VCF. There has been a number of items 19 submitted. 20 If I might read to you some questions and answers from 21 Mrs. Greenspan's deposition, I think we find there is no 22 filing. 23 THE COURT: Okay. What page? 24 MR. HAEFELE: On page 114 is where the question and 25 answer starts. Page 114, at line five. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 33 469f911c Conference 1 It is the VCF policy to not accept as filed or as 2 substantially complete any application that did not have all 3 the personal representatives participating in the claim; isn't 4 that right? 5 Answer: Our policy has always been that if there is 6 more than one personal representative that has been appointed, 7 then all of them have to submit the claim. We will not accept 8 it if there is -- only some of them have signed the claim. 9 Question: When you say you won't accept that, what 10 does that mean? 11 Answer: We will not consider the claim. It is not a 12 claim because it can't be a claim because we don't have 13 personal representative filing the claim. 14 Question: I think I understand you. I just want to 15 make sure the record is clear. When you say it is not a claim 16 what does that mean? 17 Answer: It means we won't process it as a claim. We 18 will simply advise whoever submitted it that there is a 19 deficiency and we cannot go forward. 20 Question: If it's not a claim that means it can't be 21 considered filed; correct? 22 Answer: They can't get an award, that's right. 23 So, we have a situation where there was no claim filed, 24 there is nothing filed, there was nothing substantially 25 complete, there is nothing but paper at the VCF right now. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 34 469f911c Conference 1 THE COURT: That's why my order energizes this 2 proceeding selection, both the substantial completion of the 3 claim that had already passed muster at the December 22, 2003, 4 bar date or January 22, 2004, whichever was earlier. 5 Thank you. 6 All right next issue, please. 7 MR. WITCHEL: Milton Witchel, and I am referring to 8 page ten of decision involving Mary Lou Lee. 9 THE COURT: Tell me your name again, sir? 10 MR. WITCHEL: Milton Witchel. 11 THE COURT: Yes, sir. 12 MR. WITCHEL: It is my -- 13 THE COURT: Whom do you represent, Mr. Witchel? 14 MR. WITCHEL: It's my understanding -- 15 THE COURT: Who do you represent? 16 MR. WITCHEL: I represent Mary Lou Lee. 17 THE COURT: Okay. 18 MR. WITCHEL: It is my understanding that the papers 19 or the application that normally is submitted -- 20 THE COURT: Why don't you step forward and take the 21 podium, sir? 22 MR. WITCHEL: Your Honor, it's my understanding that 23 the papers that were submitted on behalf of Mary Lou Lee by her 24 then attorney, Brian DeLorentis, were never signed by her an 25 application, never signed at all. And I just wonder as a SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 35 469f911c Conference 1 matter of factual accuracy whether, under those circumstances, 2 you can consider what occurred, which was basically an attempt 3 to obtain an estimate of what the approximate damage award 4 might be, the filing of a claim. 5 There is little question that the claim, as defined by 6 the statute, has to be signed by her and it never was signed by 7 her; nor was there ever contention that she did sign it, and 8 there always was a question of intent. 9 She never submitted it as a claim. So, on a factual 10 basis could she have possibly under those circumstances filed a 11 claim? 12 Another thing, your Honor, she commenced the 13 litigation in April of this year. Up to that time, there 14 really, as far as she was concerned, she had real difficulty 15 deciding whether she was ever going to sue at all from an 16 emotional standpoint, and it was only in April that she said, 17 let's sue. 18 So, again, when your Honor says she submitted a claim, 19 is your Honor referring to the fact that she submitted papers 20 under which she received a numbered reference which was used 21 primarily by the VCF in determining, on a clerical basis, 22 whether or not they had papers belonging to a given individual? 23 If that's the case, then the mere issuance of a number by the 24 VCF under any circumstances would foreclose anybody from 25 litigating the case under, before this court, and I don't think SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 36 469f911c Conference 1 that that was the intention of the VCF nor the intention of 2 your Honor. 3 THE COURT: Mr. Podesta? 4 MR. PODESTA: Yes, your Honor. 5 We agree with the tentative ruling. The facts here, 6 while she did not submit a signed form, Mr. Feinberg's policy 7 statement made very clear that you did not have to submit a 8 signed form in order to have a claim filed for purposes of 9 meeting, a bear bones application meeting the December 22, 10 2003, filing deadline. 11 Individuals who, like plaintiff Lee, filed a bare 12 bones application were required, if they wished to proceed with 13 litigation, to withdraw their claim by January 22, 2004. It's 14 undisputed that plaintiff Lee did not do that. Indeed, in 15 early February, she submitted additional materials, substantive 16 materials like tax returns and collateral source information, 17 affirmatively prosecuting her claim before the Victims 18 Compensation Fund. 19 She did not file suit until March 8, 2004, and she 20 only sent a withdrawal letter to the fund on April 1, 2004, 21 thus she is clearly in violation of the Court's order of 22 December 19th. And she had an active Victim Compensation Fund 23 claim, not a substantially complete claim, but an active claim 24 after January 22, 2004, and even submitted additional materials 25 after that date. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 37 469f911c Conference 1 She is attempting -- she had, until April 1, 2004, she 2 was pursuing both the VCF option and the lawsuit option in 3 violation of the December 19th order. She was doing exactly 4 what Mr. Braumeister requested your Honor to permit his clients 5 to do at the December 16 hearing, which your Honor emphatically 6 denied. And the fact that Ms. Lee did not have a lawsuit 7 pending on the date of the December 19 ruling is of no moment. 8 Your Honor's ruling was on a point of law which can 9 constitute binding precedent, even on those who were not before 10 the Court as of the moment the binding precedent was issued. 11 THE COURT: Mr. Witchel? 12 I'm not sure it's binding precedent, Mr. Podesta. It 13 expressed my view as to what the waiver clause meant, but it's 14 not necessarily binding on this case. It doesn't foreclose my 15 independent review. 16 As you know the law, the case doctrine in this court 17 does not bind a judge to follow what even that judge has said 18 earlier or ruled earlier. The judge is always open to 19 consider, and I intend as far as I am able to keep an open mind 20 and to entertain arguments, but I want him to clarify. 21 MR. PODESTA: I really did not mean to suggest that 22 your Honor could not reconsider your rulings. I meant that it 23 had equally binding force on Ms. Lee, who had not yet filed a 24 lawsuit, as to any other plaintiff who was on the suspense 25 docket. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 38 469f911c Conference 1 THE COURT: Perhaps not. I'm not going to rule on the 2 basis that what I said before necessarily binds. 3 MR. WITCHEL: The point I am trying to raise, your 4 Honor, on a strictly factual level, the real issue here is: 5 Did Ms. Lee file a claim? Did she have the intent to file a 6 claim? Did she complete the form? Did she sign her name? And 7 all those things have to be answered. She did not. 8 Under those circumstances, she submitted -- well, she 9 didn't, actually. Her attorney at that particular time sent a 10 request in for an estimate and it never was construed by the 11 VCF nor anyone at the VCF as being a filed claim. It never 12 was. 13 Now, if the argument is being made that once you 14 decide you are going to submit anything to the VCF, and you 15 haven't relinquished your right to commence a lawsuit, you 16 have, in effect, got your foot in both doors, that most 17 certainly wasn't the purpose of what your Honor has indicated 18 is the procedure. It has to be much more than having your foot 19 in both doors as manifested by the existence of a number. It 20 really has to go beyond that. It should be a filed claim, 21 something that the VCF recognizes as a filed claim. 22 MR. WILLIAMSON: Your Honor, may I respond? 23 THE COURT: I don't think it's necessary. 24 MR. WILLIAMSON: I have some additional points and our 25 client was movant in this case. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 39 469f911c Conference 1 THE COURT: Go ahead, Mr. Williamson. 2 MR. WILLIAMSON: First, Mr. Witchel is distancing 3 Mr. DeLorentis from the matter, saying their former attorney. 4 THE COURT: That doesn't make any difference. 5 MR. WILLIAMSON: Okay. Second, you are being told 6 that this plaintiff did not sign any of the forms; that's 7 incorrect. 8 What actually happened, part one was submitted. Part 9 one doesn't call for any signatures unless you are seeking 10 advance benefits. It says if you are not, check the box and 11 skip to part two. That's no surprise because there are no 12 signatures called for. 13 THE COURT: But he didn't sign, right? 14 MR. WILLIAMSON: There is no place to sign. 15 THE COURT: He didn't sign. 16 MR. WILLIAMSON: I'm going to come to part three; 17 that's where you could have an opportunity to sign. 18 THE COURT: But he didn't sign. 19 MR. WILLIAMSON: He did sign, that's what I want to 20 bring your attention to, your Honor. 21 There are several places where you could sign if you 22 wanted to in part three. And in this particular instance, this 23 particular plaintiff signed, by my count, in at least two 24 places and initialed, I see, in one place of what's been 25 submitted. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 40 469f911c Conference 1 So that, as your Honor's proposed order notes, the 2 other plaintiff who submitted parts two and three, and under 3 the regulation 104.21(a), which you need to submit in order to 4 submit a claim is part one and part two. So we had both parts 5 one and part two in. 6 Why did we have part one in December? Obviously to 7 meet the statutory deadline and still have the opportunity to 8 submit the claim. 9 But the story doesn't end there. 10 As your Honor's proposed order notes and, indeed, as 11 the correspondence from Mr. DeLaurentis bears out, because then 12 they sue on March 8. In their own letter say they are 13 withdrawing the prior submission to the VCF by April 1. 14 Here we have the claimant withdrawing a claim they say 15 was never made. 16 We submit that that just doesn't pass muster. 17 You also have, interestingly enough, the plaintiff 18 making the contradictory argument on page five of the 19 memorandum of law, that they abandoned the VCF claim as your 20 Honor notes in the proposed order, and yet they are telling you 21 there was no claim to abandon. It is just absurd. 22 THE COURT: Mr. Witchel, any more? 23 MR. WITCHEL: No, your Honor. I have expressed my -- 24 if she signed that as a claimant, I most certainly am unaware 25 of that, if that is the claim. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 41 469f911c Conference 1 I would like counsel to demonstrate she signed it as a 2 claimant. 3 MR. GREEN: There is a number of signatures in the 4 section. I would like to know which she signed and which she 5 did not sign, if any. 6 MR. WILLIAMSON: You can find it in what was produced 7 by the VCF, Bates numbers, I believe, 212-004931-0017, that's 8 signed by her. 9 MR. GREEN: My question is whether the waiver was 10 signed by her. 11 MR. WILLIAMSON: Let me keep going. I said there are 12 some that are signed; some that aren't signed. 13 THE COURT: What's the exhibit here, Mr. Wiliamson. 14 MR. WILLIAMSON: It's part of what the VCF produced. 15 THE COURT: Is it part of the motion record? 16 MR. WILLIAMSON: The answer to our motion was 17 originally submitted. 18 THE COURT: Mr. Wiliamson, step up here, please, and 19 identify it and bring it to Mr. Witchel. 20 MR. GREEN: Your Honor -- 21 THE COURT: One minute, let's -- 22 MR. GREEN: Your Honor, she didn't sign the waiver, I 23 think that is the important point, and that's the only 24 signature that potentially could waive someone's rights. 25 THE COURT: What did she sign and what did she not SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 42 469f911c Conference 1 sign? 2 MR. GREEN: There is a certificate, I certify that I 3 am the person named below claiming to the compensation fund and 4 I authorize the release of information listed above, and the 5 signature purports to be Mary Lou Lee. 6 THE COURT: Is that what you are talking about, 7 Mr. Wiliamson? 8 MR. WILLIAMSON: She signed in several places. The 9 first part, 3a, which is authorization for release of 10 information, then she skipped part 3d. 11 THE COURT: It's enough, Mr. Wiliamson. Thank you. 12 MR. GREEN: And on behalf of the Plaintiffs' 13 Committee, your Honor, I would like to point out Special Master 14 Feinberg invited people to make submissions to the Fund, fill 15 in everything, don't sign the waiver form, and I don't believe 16 Ms. Lee, she took him up on his invitation. 17 MR. WITCHEL: She did not -- 18 THE COURT: All right. Look, the argument is this. 19 Thank you, Mr. Witchel. 20 MR. WITCHEL: Thank you, sir. 21 THE COURT: The argument is this: Under the law, 22 Section 405(c)(3)(b)(iii), upon the submission of a claim under 23 this title, the claimant waives the right to file a civil 24 action or to be party to an action in any federal or state 25 court for damages sustained as a result of a terrorist related SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 43 469f911c Conference 1 aircraft crashes of September 11, 2001. 2 As I discussed in my order of December 19, 2003, the 3 regulations to which I give deference define when a submission 4 occurs. Section 104.21(d) provides that a claim shall be 5 deemed submitted for purposes of the section I just read when 6 the claim is deemed filed pursuant to Section 104.21, 7 regardless of whether any time limits are stayed or tolled. 8 As I noted, the regulations thus defines the date of 9 submission, not on the date or where the process of filing 10 begins, but when the process of filing is substantially 11 complete provided that the latter date is no later than January 12 22, 2004. 13 As I said before, my order was intended to deal with 14 the period of enlargement that was granted by the special 15 master in view of the special situation that pertained at the 16 time; namely, a large number of people who were eligible to 17 proceed to the Victim Compensation Fund but who, for various 18 reasons, were unable psychologically or physically to do the 19 necessary work to gather their claim material and present it to 20 the Victim Compensation Fund. 21 Accordingly, the special master ruled that if there 22 was any kind of a bare bones submission that would satisfy the 23 bar date set by Congress in the law, that is December 22, 2003, 24 and another month was allowed to add material and do whatever 25 was necessary to perfect the claim. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 44 469f911c Conference 1 Upon that situation, I ruled that unless someone took 2 out his material before January 22, 2004, the waiver provision 3 of the law would obtain. 4 As Mr. Witchel points out, normally waiver is an issue 5 of intent, but the Act creates something that is not 6 necessarily consistent in all respects with the issue of 7 intent. There is an operation of law that follows from the 8 submission of a claim and I defined that in my order of 9 December 19, 2003. 10 I observed at the time that it was necessary to have a 11 defined slate of lawsuits that were unquestionably here and 12 which unquestionably could proceed, because I was doing nobody 13 a favor to leave a complicated underbrush of uncertainty, and 14 yet have to deal with the extraordinarily difficult and 15 sensitive issues that had to be dealt with in these lawsuits. 16 Not by mandate or precedent, or by mandate of law of the case, 17 do I follow the procedure set out in my December 19, 2003, 18 order, but by my continued understanding that this kind of a 19 firm decision is necessary in order to allow us confidently to 20 proceed. 21 Accordingly, I believe that I was correct. 22 I will give it more thought in my holdings expressed 23 tentatively on pages ten and 11 in my decision dealing with the 24 case of Mary Lou Lee. 25 I will take the next issue that comes up now. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 45 469f911c Conference 1 MR. GRANITO: Your Honor, if I may? 2 THE COURT: Yes. 3 MR. GRANITO: We had one more argument that is based 4 on Article III of the Constitution concerning the justiciable 5 issue of whether or not the defendants had any standing to move 6 for the relief that they have been given, and when they have 7 been given it, in that we contend on behalf of plaintiff Nacke 8 and Judge, that the defendants are not aggrieved by the 9 administrator's determination or rather the special master's 10 determination, whether or not there was or was not a finding of 11 an application having been made and completed. 12 We would ask the Court to consider the Supreme Court 13 cases that we included in our brief, your Honor. And I will 14 read from one of the Supreme court cases in which they did find 15 standing, but it is said in the case of Bennett v. Superior, 16 found at 117 Supreme Court 1154, a 1997 case. 17 It says to satisfy the case or controversy requirement 18 of Article III, which is the irreducible Constitutional minimum 19 of standing applicable in this case, it would be the defendant, 20 must, generally speaking, demonstrate that he has suffered 21 injury; in fact, that the injury is fairly traceable to the 22 actions of the defendant; in this case the defendant would be 23 the special master and that the injury will likely be redressed 24 by a favorable decision. 25 THE COURT: Why is the defendant the party causing the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 46 469f911c Conference 1 injury? 2 MR. GRANITO: Well, because the nature of this motion 3 here is to say the special master is, has, is wrong in not 4 declaring that in Nacke and Judge there has been a filing, 5 when, in fact, the special master has, under his regulations 6 and guidelines of the special master, has concluded there was 7 not a filing as of January 22. 8 The defendants move for relief saying they have been 9 aggrieved by the special master's decision. They are not 10 aggrieved by what he did. They are not parties to the estate, 11 they are not parties to the administration. 12 And I submit, your Honor, it was even wrong in the 13 first place to give them discovery in this matter to determine 14 what were the actions of the special master, because the object 15 of that is to substitute this court's judgment with that of the 16 special master. 17 If I understood the Court just a while ago, you 18 referred to that, in effect, in the Judge and the Nacke cases, 19 what they filed as of December 22 would constitute their filing 20 when we have the situation in which the special master says 21 that could not be considered a filing because that would have 22 put the special master under the 120-day gun. 23 THE COURT: I think you are confusing different 24 things, Mr. Granito. 25 There is standing on the part of the plaintiffs SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 47 469f911c Conference 1 because they stand to have to pay more money and incur more 2 litigation expense by the presence of your clients in the 3 lawsuit. 4 MR. GRANITO: True. 5 THE COURT: So they have standing to complain about 6 that. 7 MR. GRANITO: Their injury isn't the result of what 8 the special master decides. Their injury is the result of the 9 fact that an action at law is being brought. They do not have 10 a statutory right not to be sued. They're not being injured by 11 the act of the special master. 12 THE COURT: You are saying that -- excuse me. Are you 13 saying they don't have the right to bring this motion -- 14 MR. GRANITO: Yes. 15 THE COURT: -- because a plaintiff is in the case that 16 should not be in a case, because he's waived? 17 MR. GRANITO: No. I say there is no justiciable issue 18 upon which this court can rule because they had no standing and 19 they are not aggrieved within the meaning of Article III of the 20 United States Constitution. 21 And, incidentally, your Honor, they did not address 22 that issue in the reply papers, and I think that -- I only 23 suggest that the Court look into the cases that we recited in 24 our memorandum of law. 25 THE COURT: Mr. Podesta? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 48 469f911c Conference 1 MR. PODESTA: Your Honor, Section 405(c)(3)(b) gives 2 the defendants, in effect, a defense to the causes of action 3 asserted under Section 408 of the Act; in other words, a 4 plaintiff cannot pursue this -- 5 THE COURT: Waiver is a defense. 6 MR. PODESTA: Waiver is a defense, and that's all we 7 need for Constitutional standing. 8 MR. GRANITO: That's not true, your Honor, from the 9 cases that I have read. The fact that they have a defense does 10 not establish standing in the administrative proceeding. 11 THE COURT: But they not are not entering the 12 administrative procedure here. 13 I have your argument. We will consider it again. 14 Anything else? 15 All right. We will endeavor to get out our decision. 16 MR. AZRAEL: Your Honor, I would like to be heard on 17 Wilson. 18 Azrael, my name is Jonathan Azrael, and I represent 19 the plaintiff Wilson, who is dealt with at page 18 and 19 of 20 your proposed order and, most respectfully, request your Honor 21 to take another look at your proposed order on Wilson. And we 22 think it is inappropriate to say that Ms. Wilson has waived 23 her, waived her right to file a civil action. 24 If your Honor -- your Honor's ruling is based on the 25 documents submitted with Mr. Barry's affidavit as Exhibit 155, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 49 469f911c Conference 1 page 16, which, indeed, is a waiver document in the -- that was 2 furnished by the Fund. 3 But if your Honor will refer to the affidavit 4 submitted with our reply, this is the affidavit of Mr. France, 5 who was the attorney in our firm handling the submission to the 6 Fund, Mr. France states that this form was not submitted to the 7 Victims Compensation Fund. 8 At page 12 of Mr. France's affidavit dealing with Ann 9 Wilson, at paragraphs 53 and subsequent, he explains that this 10 form that was referred to in Mr. Barry's affidavit was never 11 submitted to the Victims Compensation Fund, and he goes on to 12 explain, your Honor, that -- 13 THE COURT: So what is he saying that he supplied a 14 copy of the signed document in error? 15 MR. AZRAEL: Yes, it was in our file. 16 THE COURT: And that the form at the VCF did not have 17 a signature? 18 MR. AZRAEL: Right. This form had been -- 19 THE COURT: So it was your firm's prudential act in 20 having something signed at hand in case you had to submit it? 21 MR. AZRAEL: Exactly, your Honor. 22 THE COURT: How do you explain the date? Is it dated? 23 MR. AZRAEL: I don't have the document in front of me, 24 but it was never submitted to the Fund. It is not part of the 25 Fund's file that was furnished in the discovery. It was just SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 50 469f911c Conference 1 inadvertently copied and given to Mr. Barry, when, as part of 2 the complete copying of our files, which we did in response to 3 discovery. 4 THE COURT: Does anyone have the copy of the form in 5 the VCF? 6 MR. AZRAEL: It's not in the VCF file, your Honor. 7 There is further attached to Mr. France's affidavit an 8 exhibit, a letter; that is after we got Mr. Barry's affidavit 9 we wrote a letter to Mr. Barry dated May 18th, 2004, which is 10 Exhibit Number 7 to the France affidavit, explaining that page 11 16 was never provided to the Fund. 12 And in the -- so we tried to correct the record and 13 point out that this document had never been submitted to the 14 Fund. 15 Further, your Honor, there is an Exhibit Number 8 to 16 Mr. France's affidavit, which was a letter from the Fund that 17 says that the waiver of rights form needs to be submitted. And 18 that was -- 19 THE COURT: It's the second bullet in the letter? 20 MR. AZRAEL: Yes. So it was just a matter of 21 inadvertance. 22 I don't blame Mr. Barry for putting it in his 23 affidavit, because at that point he didn't have the Fund's 24 documents. The fact is that that waiver was never submitted to 25 the Victims Compensation Fund and it was just held in our file SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 51 469f911c Conference 1 because we -- we were trying to, the client was trying to make 2 up her mind what to do, and we were under a time, a very time 3 sensitive constraint. 4 So, merely for a matter of iadvertance, this case 5 should not be dismissed. The form was never submitted. 6 I don't want to go to the second prong of the 7 argument, which is to tell you that, you know, the entire claim 8 was, all the papers were withdrawn prior to the January 22nd 9 date. 10 THE COURT: Well, I'm interested in that. I'm 11 interested in that. 12 Go ahead and tell me. 13 MR. AZRAEL: Well, they all were. There is no 14 question about that. 15 There is a -- that's part of Mr. France's affidavit. 16 All of those documents were withdrawn. We made a very clear 17 election to go with the Court and followed your order of 18 December 19th, I think, to the letter. 19 So the only, the only error here, I think, was giving 20 Mr. Barry something that was in our file but had never been 21 filed with the Victims Compensation Fund. 22 THE COURT: And you withdrew on January 21? 23 MR. AZRAEL: Yes. And that's all acknowledged by the 24 Fund. 25 THE COURT: Mr. Barry. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 52 469f911c Conference 1 MR. BARRY: I have nothing to contradict what he says 2 about withdrawing, your Honor. I got the document from him, 3 and put it, attached it to my affidavit. 4 THE COURT: I think I should accept Mr. Azrael's 5 representation. 6 Mr. Wiliamson? 7 MR. WILLIAMSON: Thank you. 8 A couple of thoughts. First of all, with respect to 9 what we obtained from the Victim Compensation Fund, what we did 10 obtain was different than what was produced, and the particular 11 part of part three, acknowledgement of waiver of rights, was 12 not signed in what we got from the VCF, but it was signed on 13 what we received from plaintiff's counsel. 14 We were not permitted to inquire of the VCF 15 representative nor was she prepared to testify about specific 16 claims. We did, therefore, not inquire about it. 17 With respect to what else we got from the VCF, it 18 specifically indicates in a letter from plaintiff's firm on 19 November 11, 2003 to the Victim Compensation Fund, there is a 20 reference to this claim, and in the re of the letter, the 21 caption, it talks about the fact that it's a claim. It says 22 the only substantive information I haven't provided to you yet 23 has now been provided on this claim. 24 THE COURT: What date is that? 25 MR. WILLIAMSON: That was November 11, 2003. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 53 469f911c Conference 1 So now the VCF has all the substantive information, 2 according to plaintiff's law firm. 3 Then what happens next is we get the opposition to the 4 summary judgment motion and, for purposes of defeating the 5 motion, your Honor is being told that on January 22, not 6 January 21, they withdraw her documents. But actually what the 7 letter said, they didn't say they withdraw her documents, which 8 has become the euphemism here for a claim. 9 When you actually look at the January 22 letter, 10 written before these motions were made, it says something a 11 little different. It goes to the Victim Compensation Fund on 12 January 22, and it, again, captions it the claim for this 13 claimant, it gives you the claim number. It says we are 14 withdrawing her application, I quote, this is January 22, 2004, 15 quote, withdrawing her application from the Victim Compensation 16 Fund, close quote. 17 They go on to say, and we ask the Victim Compensation 18 Fund to promptly terminate its consideration of the application 19 and properly destroy its contents, close quote. 20 MR. AZRAEL: Exactly. 21 MR. WILLIAMSON: We don't know if anything was 22 destroyed. We don't. 23 They then go on the say in the last sentence, they 24 thank the Victim Compensation Fund for their conscientious 25 consideration of this claim. Yet you are being told for SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 54 469f911c Conference 1 purposes of defeating the summary judgment motion it is not a 2 claim, and yet for purposes of satisfying the statutory 3 deadline of December 22, 2003, of course, it was a claim, 4 otherwise they couldn't have gotten paid. 5 THE COURT: Well, Mr. Wiliamson, I'm looking at 6 Exhibit 1 to Mr. France's affidavit. That indicates to me -- 7 it's a letter from the Victim Compensation Fund -- 8 MR. AZRAEL: It wouldn't be one, your Honor, it would 9 be eight. Wilson is eight. 10 THE COURT: It's the affidavit of Keith S. France. 11 MR. AZRAEL: Yes. 12 THE COURT: I am looking at Exhibit 1 underneath that. 13 Am I looking at the wrong thing? 14 MR. AZRAEL: I think Exhibit 1 relates to Christine 15 Fisher. 16 MR. WILLIAMSON: Exhibit 8 may be the one you want. 17 THE COURT: Thank you. 18 Exhibit 8, it refers to the letter of October 27, 19 2003, from the Victim Compensation Fund, which describes 20 various omissions that need to be supplemented. 21 MR. AZRAEL: Mr. France addresses the issue, 22 specifically, your Honor, at paragraph 58. 23 He says: I collected and retain a completed part 24 three from Wilson in the event that Wilson elected to move 25 forward with the VCF. Wilson elected not to move forward with SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 55 469f911c Conference 1 the VCF. 2 THE COURT: I understand that. You have talked about 3 that before. But I don't see any document that constitutes a 4 deeming on the part of the special master that there is a 5 substantial completeness of the filing, which is the other 6 critical -- 7 MR. AZRAEL: Yes. 8 THE COURT: -- aspect of the issue. 9 I think I should hold, Mr. Wiliamson, that plaintiff 10 Wilson is not to be dismissed. 11 MR. AZRAEL: Thank you, your Honor. 12 THE COURT: Anybody else? 13 MR. WEISNER: Your Honor, may I be heard on Tempesta? 14 Just very briefly, your Honor, I did not submit a 15 written opposition, because frankly I believe defendant's 16 interpretation of the application of the Act to the test pest 17 at a facts is correct, however I did not want the record to 18 reflect that motion is unopposed. I do want to oppose it 19 orally just on the basis I think the Act as interpreted, as 20 necessarily applied by your Honor, is unconstitutional, in this 21 case denies plaintiff's right of action to the Court, denies 22 due process. 23 I want my position reflected in the record to preserve 24 my client's rights on appeal. 25 THE COURT: Okay. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 56 469f911c Conference 1 MR. WEISNER: Also you asked counsel to confer about 2 Salvo, you may recall at the beginning of this hearing, 3 plaintiff accepts with gratitude your Honor's proposed order on 4 Salvo, and ask that you respectfully make that a final order on 5 Salvo denying the motion. 6 THE COURT: All right. Mr. Williamson. 7 MR. WILLIAMSON: Just with respect to Wilson, I 8 understand your Honor has been persuaded to change your 9 preliminary order? 10 THE COURT: Right. 11 MR. WILLIAMSON: We advanced as well other arguments 12 in our papers that did not persuade you, and those we will just 13 preserve for appeal. 14 MR. HAEFELE: Robert Haefele from Motley Rice. I 15 would like to address plaintiff Hunt, which is found on page 16 three of the schedule today, and you addressed in a paragraph 17 on page 19 and page 20 of your proposed order. The plaintiff 18 is Jean Hunt. 19 The circumstances in that case are Ms. Hunt, who is an 20 injured complainant, tendered a VCF application, an incomplete 21 application on December 18th of '01, includes page one through 22 seven of an old VCF form that included a request for 23 eligibility and advance benefits. That's at Plaintiff's 24 Exhibit 38 and attached to the Haefele affidavit in opposition. 25 On March 28th of '03, the VCF advised Ms. Hunt she was SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 57 469f911c Conference 1 ineligible in part and ineligible for certain injuries, but 2 more importantly, and important to the point in that letter, 3 which is at Exhibit P-39, the VCF advises, and I will quote 4 from that, you may withdraw your claim at any time before it is 5 deemed substantially complete. To withdraw your claim contact 6 the help line. 7 In another paragraph, although your application was 8 found eligible for an award on March 26th, 2003, your claim has 9 not, and I emphasize not, been deemed filed or substantially 10 complete for purposes of Section 405(b)(3) of the Act. 11 Then the letter lists various documents which amount 12 to about 15 or more documents that would still need to be 13 submitted to make the claim or the proposed claim substantially 14 complete. 15 Then on April 6th or April 10th, I'm sorry, of '03, 16 Ms. Hunt's VCF attorney expressly states Ms. Hunt's intention 17 not to have the VCF consider the application as filed, 18 indicating that she continue to have interest to investigate 19 what the VCF will be able to offer her. That very next day 20 Ms. Hunt filed a request for reconsideration of her eligibility 21 determination, again investigating what the VCF would be able 22 to do for her. 23 Then in March of '03, the VCF advised Ms. Hunt once 24 again that its eligibility determination would remain unchanged 25 and reiterated what it said previously regarding the fact that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 58 469f911c Conference 1 the application was not deemed substantially complete. 2 Again, it says although your application was found 3 eligible for an award, your claim is, again, emphasizing the 4 word, has not yet been deemed filed or substantially complete 5 for purposes of 405(b)(3) of the Act. And again reiterates the 6 substantial materials that would be necessary to have the claim 7 deemed substantially complete. 8 Then on March -- I'm sorry on August 14th, August 14th 9 of '03, the VCF acknowledges that Ms. Hunt withdrew her claim 10 on August 13th. This court's December 19th order prescribes 11 the proper methods or the method that your Honor prescribed for 12 plaintiff to withdraw from the VCF. 13 Ms. Hunt complied with what that order stated to do. 14 She had withdrawn before the date of substantial completion, 15 and she had, before your Honor's prescribed date and she had 16 withdrawn before the claim was deemed substantially complete. 17 The VCF prescribed multiple times how Ms. Hunt could withdraw 18 from the VCF. Ms. Hunt complied with those prescriptions as 19 well. 20 Ms. Hunt was never deemed substantially complete. Not 21 only is there an absence of such a showing in the record from 22 the VCF, but also there is correspondence right on the point 23 from VCF saying it hasn't been deemed a substantially complete 24 acknowledgement of -- withdrawn. 25 One of the requirements based on Ms. Greenspan's SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 59 469f911c Conference 1 deposition is intent. Mrs. Greenspan's deposition at pages 39, 2 six through 19 and, again, at pages 98, lines four through 99, 3 line two, Ms. Greenspan identifies a number of things that 4 would be required for the thing to be deemed substantially 5 complete: Those are proof of eligibility and proper personal 6 representatives; requirement of all the signatures; an intent 7 to file the claim, as opposed to just having the VCF look at 8 the claim and consider what they might be able to do; and 9 lastly, sufficient documentation. 10 The goal of the VCF program was to, and this was 11 agreed to BY Ms. Greenspan at her deposition, was to ensure 12 that, quote, people that entered the program had some 13 understanding of what would happen to their claim and she says 14 that at page 99, lines seven through 11. Here Ms. Hunt's clear 15 goals were to determine what the VCF might be able to do for 16 her, what the eligibility was that she might be able to go into 17 the claim for. Once she learned it would not compensate her 18 for all of her injuries, she opted out. That approach is 19 consistent with the purpose of the program, with the VCF policy 20 and procedures, and with the advice of this court in its order. 21 THE COURT: Did she get advanced benefits? 22 MR. HAEFELE: She did not. 23 THE COURT: She never got anything. 24 MR. HAEFELE: She did not. The language that the 25 defendant's cite from the federal register does not appear in SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 60 469f911c Conference 1 the final regulations and, in fact, are belied by those 2 regulations. 3 Section 104.21 of the regulation states that where an 4 eligibility form requesting advance benefits is tendered to the 5 VCF without tending a personal injury form, that is a 6 paraphrase, then the quote is: The claim shall be deemed filed 7 when the claims evaluator determines that the eligibility form 8 is substantially complete. That never happened. 9 Moreover, in Section 104.22, the regulation states 10 that the claimant cannot be eligible for advance benefits until 11 the special master finds the claimant eligible to recover under 12 the Fund and that the claimant's physical injury required 13 hospitalization for one week or more; that didn't happen. 14 So she was not eligible. She was never deemed 15 eligible for advance benefits. She was never deemed 16 substantially complete. She never got recovery from the VCF. 17 She never got anything. 18 So, whether you look at it as whether the claim was 19 substantially complete or whether the eligibility and request 20 for advance benefits was substantially complete which, by the 21 way, is not something the VCF would do, or whether or not she 22 was even eligible for advance benefits, none of those things 23 happened. She didn't get anything from the VCF, no. 24 Thank you. 25 THE COURT: Mr. Podesta. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 61 469f911c Conference 1 MR. PODESTA: Your Honor's order is correct. 2 Ms. Hunt was the only one of the claimants against 3 whom summary judgment motions have been filed to make an 4 election for advance benefits. 5 She filled out and signed section four of the 6 eligibility form, checked the box that she wanted advance 7 benefits, she checked immediate payment, and under -- above her 8 signature appear the words, "I hereby acknowledge that by 9 submission of a substantially complete eligibility form, I am 10 waiving right to file a civil action or be a party to an action 11 in any federal or State court for the damages sustained as a 12 result of the terrorist related aircraft crashes of September 13 11, 2001." 14 What distinguishes this case from all the other cases 15 is that it's an advance benefit claim. As Mrs. Greenspan 16 testified, all that you have to do to make out a claim for 17 advance benefits and elect a VCF remedy is to complete part 18 one, the eligibility form, which she did. 19 Ms. Greenspan in her deposition carefully 20 distinguished between claims for advance benefits and claims 21 for compensation, which require to be substantially complete 22 not only the completion of part one, but the completion of 23 parts two, three, and four. 24 THE COURT: What determines whether or not you get 25 advance benefits? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 62 469f911c Conference 1 MR. PODESTA: You have to demonstrate certain 2 hardships. She apparently didn't demonstrate hardship, that 3 she didn't get the medical attention within the proper time, 4 but the waiver occurs under the Act and under the regulations 5 when you make the election, the signed election for advanced 6 benefits. 7 THE COURT: But the election reads "when my submission 8 is substantially complete." 9 MR. PODESTA: When the submission is substantially 10 complete, not when the application is granted. 11 And her submission, as Ms. Greenspan testified, 12 submission, substantial completeness means different things for 13 advance benefits than it means for the claim for compensation. 14 For the claim for compensation you have to substantially 15 complete all four parts of the form. 16 For advance benefits you will only have to complete 17 the first part of the form, and that's made very clear in part 18 104.21 of the regulations, which says: Provided, however, that 19 the claimant files an eligibility form requesting advance 20 benefits pursuant to 104.22 of this part, without filing either 21 a personal injury compensation form or a death compensation 22 form, the claim shall be deemed filed when the claims evaluator 23 determines that the eligibility portion is substantially 24 complete. 25 The VCF did that here, as Ms. Greenspan testified, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 63 469f911c Conference 1 with advance benefit applications, because they are relatively 2 simple. The Fund wouldn't send out a letter of substantial 3 completeness, instead it would move to an eligibility 4 determination, and that's what was done in this case. She got, 5 unlike claims like Oganowski and Shontere where they went the 6 preliminary evaluation route, she got into the claims 7 evaluation route under 104.31 and the like, and an eligibility 8 determination was rendered by a claim evaluator, which 9 determined she was eligible in part. 10 She then appealed that eligibility determination 11 within the VCF and the ruling was affirmed. A clearer election 12 to proceed under the VCF could not, could not be made. She 13 signed the form, expressly waiving the regulations are clear 14 that all she had to do was complete part one. She completed 15 part one. She even pursued eligibility determinations within 16 the procedures of the Fund, which none of the other claimants 17 as to whom your Honor is proposing to deny the motion, the 18 motion for summary judgment ever did. 19 THE COURT: This one stands alone. The loss is, upon 20 the submission of a claim under this title advance benefits, is 21 not necessarily a claim. 22 MR. PODESTA: Well, it says the form says by 23 submission of a substantially complete eligibility form, I am 24 waiving the right to file a civil action. That is unique 25 advance benefits and it's carried over into the regulations at SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 64 469f911c Conference 1 104.21. And the reason for that is when you ask for advance 2 benefits you are saying pay me money now. Once you sign a 3 check box, I want advance benefits, you can no longer withdraw. 4 It may be true that her claim for compensation, which would go 5 beyond the advance benefit payments to the full award, was not 6 substantially complete, but it's too late to pull out of the 7 Fund under the regulations and under the form at that time. 8 THE COURT: Mr. Haefele? 9 MR. HAEFELE: Your Honor, I would like to find, if 10 your Honor could ask where Ms. Greenspan said anything about 11 benefits becoming an election of benefits. She did not say 12 that. 13 THE COURT: I don't think Mr. Podesta said that. I 14 think he is arguing a logical progression argument, 15 Mr. Podesta; right? 16 MR. PODESTA: She -- what I said was that she 17 testified that to be substantially complete for advance 18 benefits you needed only -- 19 THE COURT: Under the eligibility form. 20 MR. PODESTA: And not parts two, three and four, that 21 the Fund would not issue a letter if there was a substantially 22 complete advanced benefits form but would instead move to a 23 finding of eligibility, and I can give you the page cites. 24 THE COURT: No, that's all right. It's not what 25 Mr. Haefele is challenging. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 65 469f911c Conference 1 MR. HAEFELE: Your Honor, I think one of the important 2 things, though, is that her advance benefits application wasn't 3 complete. She got rejected. 4 THE COURT: I was going to ask that of Mr. Podesta, 5 because the chronology shows that the VCF went on to consider 6 the overall claim, and when it came to the view that only some 7 of her injuries were eligible for compensation, it did not 8 award her advance benefit. 9 MR. PODESTA: That's right. 10 THE COURT: So is there an interconnection between the 11 application for advance benefits and the overall claim? 12 MR. PODESTA: But not between the denial of 13 eligibility for advance benefits and the waiver. 14 You waive when you seek advance benefits, just like 15 you waive when you go into the VCF for a hearing. You may get, 16 at the hearing get an award that is minimal, that says you are 17 collaterally offset by collateral source. 18 Waiver is determined on your filing the application 19 for advance benefits, not on a successful prosecution of the 20 application. 21 THE COURT: There are two arguments afoot: One 22 argument is by operation of law, the other is by operation of a 23 person's intent. 24 With regard to the latter, perhaps both, waiver is not 25 a favored remedy; and with regard to waiver operating by SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 66 469f911c Conference 1 intention, prejudice has to be shown to the other side. I 2 don't know that the defendant suffered prejudice in this 3 relationship. Their positions have not changed one way or the 4 other by reason of the signature on this particular form. 5 And as to operation of law, I don't think that there 6 has been a submission of a claim, in the way that has been 7 defined by me and by the regulations, and since she withdrew 8 her application well before the January 22, 2004 bar date, I 9 think Mr. Haefele makes a good case, and I would like to think 10 about it some more, but my inclination is that I should change 11 my mind. 12 MR. PODESTA: Your Honor, I think, with respect -- I 13 think that you have to focus very specifically on the 14 difference between an application for advance benefits, which 15 triggered an early waiver, and that application was triggered 16 by the filing of part one and the signing of the form that -- 17 form that indicated an intention to waive. 18 THE COURT: I understand. 19 Tell me this: What were the reasons that she was not 20 given full acceptance? 21 MR. PODESTA: I believe she didn't show that she had 22 sufficient medical injuries and sought sufficient medical 23 attention within the requisite period of time in the 24 regulations, so it was a factual. 25 THE COURT: She will have the same problems with the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 67 469f911c Conference 1 lawsuit, too. 2 MR. PODESTA: She might. There were factual 3 determinations that were made by the VCF. 4 THE COURT: Let me think on it some more. 5 At the present moment, I am substantially persuaded by 6 Mr. Haefele. 7 All right. What's next? 8 Anybody? 9 In the back. Please step up. 10 MR. WOLF: My name is Charles Wolf. I am one of the 11 victims. My wife was killed. 12 In regards to, I wanted to bring up a practical matter 13 if I may. I am not a party to the people who just spoke -- 14 THE COURT: You can step forward, Mr. Wolf. 15 MR. WOLF: -- but shortly after the regulations were 16 announced and I went to Pier 92 here to first look into the 17 Victim Compensation Fund. 18 The first question I asked was: Why are we required 19 to sign a waiver prior to knowing what we would have to -- what 20 we would get in the Fund? 21 And I hesitated to speak, because it's probably not my 22 position to speak, but I have been very involved with this. As 23 I lobbied the Special Mater for changes, I founded the 24 organization called Fix the Fund. 25 THE COURT: You founded the organization called? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 68 469f911c Conference 1 MR. WOLF: Fix the Fund. 2 THE COURT: Fix the Fund? 3 MR. WOLF: Fix the Fund. 4 And we worked very hard on getting the special master 5 to, shall we say, adjust some of their policies and procedures. 6 And the case that was brought up by this attorney just rung a 7 bell that was very close to my heart, and I wanted to just, 8 shall we say, speak to the Court saying that in a situation 9 where a person may have, shall we say, jumped the gun, and 10 signed a waiver, perhaps without the benefit of advice at that 11 time. 12 THE COURT: Which particular case are you talking 13 about? 14 MR. WOLF: Hunt. 15 THE COURT: Mr. Haefele is doing very well so far. 16 Are you sure you want to say anything? 17 MR. WOLF: The only thing I wanted to say was, then I 18 will not say much more, except for the fact that many 19 procedures were changed after that first few, after that first 20 month. 21 THE COURT: Thank you. 22 MR. WOLF: Including the ability to know ahead of time 23 what you are going to get. 24 Judge, as someone who went through that experience, I 25 wanted to -- it rang a bell, and it was very close to home. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 69 469f911c Conference 1 Thank you. 2 THE COURT: Okay. Anybody else? All right. So I 3 will close the proceedings. 4 Mr. Podesta, yes. 5 MR. PODESTA: Just really a housekeeping point. 6 We filed motions to dismiss in the Powell, Katherine 7 Powell and Lauren Lyles cases which were unopposed and they are 8 not the subject of your court's ruling, but they have not yet 9 been the subject of a formal order of dismissal either, and I 10 would like to clarify they don't fall into the gap. 11 THE COURT: I just signed them. 12 MR. PODESTA: Then I will sit down. I have gotten the 13 relief I wanted. 14 MR. GRANITO: Your Honor, may I ask when your proposed 15 order will become -- we can expect it to become final? 16 THE COURT: I hope tomorrow, because you need time to 17 go to the special master. He's closing up shop on what, the 18 15th? 19 The Court is closed on Friday, part of the national 20 day of mourning for President Regan, and we have to review all 21 the arguments that were made today, edit and finalize the 22 proposed order, and then publish it, docket it, scan it and get 23 it out to you, and I propose that it be done tomorrow and I 24 hope we can do it. We will do our very best. 25 I understand the time frames and pressures operating SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 70 469f911c Conference 1 on everybody. 2 Thanks, all, for papers and the motions and have a 3 good holiday. 4 oOo 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300