He Had Never Mediated Anything. Then He Settled Agent Orange for $250 Million.
Kenneth Feinberg told Judge Jack Weinstein he knew nothing about settling cases. Eight weeks later, he had helped reach a deal worth about $250 million covering the veterans' suits.
Original Jurisdiction · Resolving The Unresolvable: Kenneth FeinbergIn 1984, Kenneth Feinberg, then a Washington lawyer in private practice, told a federal judge that he had no experience as a mediator and knew nothing about bringing parties together to settle a case.
The judge was Jack Weinstein, a nationally recognized federal judge in Brooklyn. He wanted Feinberg to serve as a special master, a helper appointed by the court, to try to settle the Agent Orange class action brought by Vietnam veterans.
The case on Weinstein's docket was enormous and painful. About 250,000 Vietnam veterans had come home claiming illness, injury, or death from Agent Orange, a plant-killing chemical sprayed by American warplanes over Vietnam to strip away jungle cover for enemy fighters. The veterans, suffering from cancers and from chloracne, an acne-like skin condition, had brought a lawsuit.
Weinstein feared what a trial would mean. With appeals and delay, he thought it could take 10 years before anyone saw a result. He needed someone to bring the two sides together, and he thought Feinberg, who had worked for Senator Ted Kennedy, was the perfect person.
That eight-week assignment produced a deal that was, at the time, among the largest of its kind in history, and it remade Feinberg's career. After eight weeks of talks, Feinberg helped bring both sides to an agreement worth roughly $250 million. Newspapers across the country put the outcome on their front pages.
Feinberg had spent about 12 years building a Washington practice handling regulatory and legislative matters. The Agent Orange case rerouted his working life. Rather than staying a Washington lawyer focused on regulations and legislation, he built a new career helping courts and opposing sides find agreement outside of trial.
"Till the day I die, I'm beholden to Judge Weinstein for having faith in me to take this on," Feinberg said of the judge's decision to trust him with the case.
Questions people ask
What was Agent Orange?
Agent Orange was a herbicide the U.S. military sprayed in Vietnam from 1961 to 1971 to strip leaves and crops that could shelter enemy forces. It was contaminated with dioxin, a highly toxic chemical linked to cancers and other diseases. Veterans' exposure claims led to years of litigation, medical studies, and later government benefit programs.
What does a mediator or special master actually do?
A mediator does not decide who wins. He shuttles between sides, tests their arguments, and looks for a payment or agreement both can accept to avoid trial. A special master is a similar helper appointed by a judge to manage negotiations, gather facts, or recommend a resolution in a complex case.
Why settle a huge case like Agent Orange instead of going to trial?
Mass injury trials are slow, expensive, and uncertain, especially when science around causation is disputed. Defendants risk a crushing verdict, while sick plaintiffs risk waiting years and getting nothing. A settlement gives both sides certainty and gets money moving, though individual payments may be smaller than hoped.