To use an analogy, are you a “conservative investor” or do you like to take more risk? Or said another way, are you willing to gamble with litigation and pay your lawyers 25 or 33 1/3 % of a potentially higher return, or would you rather receive a quicker determination from the 9/11 Victim Compensation Fund re-opened by the James Zadroga Act and pay your lawyers only 10% as capped by law?
As reported by the Associated Press on 12/25/2011, if you are one of the estimated 1600 responders who still have a pending 9/11 lawsuit (not one where you are simply waiting to receive full payment), you have a choice to make prior to January 2, 2012. Therefore, you essentially have to make the decision now.
Under the Zadroga Act, in order to claim benefits under the 9/11 Victim Compensation Fund, anyone with a pending 9/11 related lawsuit must withdraw from such lawsuit by January 2, 2012. The details of what one has to do to withdraw from such a lawsuit are below:
2.13 If I participated or am currently participating in a lawsuit related to September 11th, can I participate in the VCF? (Updated: December 5, 2011)
Yes, if you withdraw from the lawsuit or settled the lawsuit as described below. Therefore, if you or any dependent, spouse or beneficiary has filed a lawsuit or have been a party to a lawsuit in any Federal or State court relating to or arising out of damages sustained as a result of the terrorist-related aircraft crashes of September 11, 2001 or for damages arising from or related to debris removal (other than a lawsuit to recover collateral source obligations or a lawsuit against any person who is a knowing participant in any conspiracy to hijack or commit any terrorist act), you may be able to obtain compensation from the VCF if you meet the following conditions (and if you are otherwise eligible):
- Pending actions: Individuals who have filed a lawsuit described above or who are a party to such a lawsuit may not file a claim with the Special Master unless they withdraw from such lawsuit on or before January 2, 2012. You must submit proof of timely withdrawal with your claim. For purposes of the Eligibility Form, you may submit either a court order establishing that the action has been discontinued and/or dismissed dated on or before January 2, 2012 or a notice/letter of withdrawal filed on the ECF system in the relevant docket on or before January 2, 2012. For purposes of receiving compensation, you must submit the final order of the court confirming the withdrawal or dismissal or all claims. That order may be dated after January 2, 2012 only if you have provided proof that you filed a notice of withdrawal on the ECF system in the relevant docket on or before January 2, 2012.
- Settled actions: In the case of an individual who settled a lawsuit described above, such individual may not submit a claim with the VCF unless the lawsuit was commenced after December 22, 2003 and a release of all claims in such lawsuit was tendered by the individual, or by the individual’s attorney (provided the attorney has authority to tender the release) prior to January 2, 2011. You must submit proof documenting the date of commencement and release of all claims with your claim. If an attorney signed and submitted the release on behalf of the individual or the individual’s dependent, spouse or beneficiary, a copy of the retainer agreement with the attorney in the settled lawsuit must be submitted as proof that the attorney was authorized to sign the release.
If you have participated or are currently participating in such a lawsuit, you must certify on your claim form that the above conditions are satisfied.
So, should you withdraw? Bottom Line – every individual must make the decision based upon the facts of their own case, unbiased competent legal advice and their own tolerance for risk. Clearly, the litigation route is riskier because lawyers will have to prove “fault” by the defendants, while the 9/11 Victim Compensation Fund is a safer because you only have to prove damages. However, the litigation route could lead to a greater recovery, even after you pay the higher percentage attorneys’ fees.
Can you get unbiased advice from an attorney who stands to gain more fees in litigation? I am not so sure. Read the letter here from the law firm of Worby, Groner Edelman & Napoli Bern, LLP dated 12/21/2011 which was sent to one of my clients and followed up with a phone call, urging him to reconsider his previous decision to apply for the federal Zadroga Act 9/11 Victim Compensation Fund. You be the judge. In my opinion, these types of letters almost demand an second legal opinion.
When I pointed out to my client that the letter from Worby Groner itself was factually wrong – he has been receiving Social Security Disability benefits for some time – my client decided to stay with the safer and potentially more generous 9/11 Victim Compensation Fund.
If you do choose to withdraw from your pending lawsuit in favor of Zadroga Act benefits, I suggest you send your current litigation lawyer a letter by FedEx tomorrow stating that you wish to “withdraw from any and all pending 9/11 lawsuits” and asking them to “take all actions to preserve my right to file a Zadroga claim”. Unfortunately, you really need to do it now! Good luck!
