W000787
Congress of the United States
Washington, DC 20515
October 25, 2001
The Honorable John Ashcroft
Attorney General
U.S. Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear General Ashcroft:
On September 21, 2001, Congress passed H.R. 2926, the Air Transportation Safety and System
Stabilization Act (now Public Law 107-42), a critical first step toward ensuring the future vitality
of commercial aviation in America and throughout the world.
While H.R. 2926 provides immediate assistance to the industry, it also addresses Congress'
urgent responsibility to ensure fairness, justice and compassion for the human victims of the horrific
events of September 11, and for their families. Title IV of the Act establishes a September 11th
Compensation Fund to be administered by a Special Master appointed by the Attorney General of the United
States.
We write to urge you to appoint that Special Master expeditiously but with due diligence. As you
know, Section 407 of the measure requires that you, in consultation with the Special Master,
promulgate regulations to carry out the activities of the fund within 90 days of the bill's
enactment. To that end, it is vital that a Special Master be appointed quickly.
We feel Strongly that the Special Master you choose must have the support and confidence of the
Senate and the House and of the elected representatives of the victims in particular. Title IV vest
an enormous amount of power and discretion in you and in the Special Master. The regulations you
promulgate and the way you administer the fund will have enormous repercussions for the
victims and their families.
The Special Master you select must have extensive experience, extraordinary judgment and legal
ability, broad respect within the legal community and bipartisan support in Congress. Accordingly, we
respectfully request that you consult with us prior to selecting the Special Master and
promulgating regulations.
The Honorable John Ashcroft
October 12, 2001
Page 2
Our nation and Congress have come together, heeding the President's call for unity in action and
spirit in the wake of the terrible events of September 11. We know that you will appoint the Special
Master and promulgate the regulations in the same spirit of cooperation in the very near future to discuss
this process.
Attached you will find proposed regulations we would like you to consider for the September
11th Compensation Fund.
Yours respectfully,
Tom Daschle Richard A. Gephardt
Senate Majority Leader House Democratic Leader
Patrick J. Leahy John Conyers Jr.
Chairman, Senate Judiciary Committee Ranking Member, House Judiciary
Committee
Regulations pursuant to Section H.R.2926. Section 407.
"September 11th Victim Compensation Fund of 2001"
401. Scope and Purpose. The regulations in this part apply to claims presented or filed pursuant
to the September 11th Victim Compensation Fund of 2001(the "Act"). The purpose of these
regulations is to effectuate a coherent framework to provide full, fair, uniform and expeditious
compensation to victims and families of victims resulting from the terrorist attacks of September
11, 2001 and these regulations should be interpreted to effectuate that purpose.
402. Definitions and Use of Terms. The purposes of these regulations and as used in the Act,
except where otherwise provided, the following definitions shall apply:
1. Spouse. The term "spouse," shall mean the person who is deemed by the laws of
the state in which the claimant resides to be legally married to the claimant at the
time of his or her death; or is deemed to be the claimant's spouse under the laws
of the state in which the claimant resided that would apply in determining the
devolution of the claimant's intestate personal property or would have the right of
a spouse to share in the claimant's intestate personal property under such laws.
2. Child. The term, "child," shall mean any natural or adopted child of the claimant
or decedent on whose behalf a claim is brought under the Act.
3. Minor Child. The term, "minor child," as used in these regulations, shall refer to
any child who is no more than 18 years old, or no more than 23 years old where
such child is enrolled full time as a student in a secondary or post-secondary
educational institution.
4. Decedent. The term, "decedent," shall mean a person who has been declared by
law or appropriate legal authority to be deceased.
5. Decedent Claimant. The term, "decedent claimant," shall mean a decedent person
on whose behalf a claim is brought under the Act.
6. Dependent. The term, "dependent," as used in these regulations shall mean any
person who received or reasonably would receive in the future services or support
from the decedent or injured person.
7. Personal Representative of the Decedent. For the Purposes of filling a claim under
the Act, "personal representative of the decedent," shall mean: (1) a person named
by the decedent in a will or other testamentary documents; (2) a parent or the legal
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guardian of the decedent where the decedent was a minor or was under the legal
custody of another person or institution pursuant to an award of custody
established by a court of competent jurisdiction; or (3) a person duly qualified or
appointed under an applicable state law.
8. Immediate Aftermath. The term," immediate aftermath," shall mean the period
commencing at the time of the crash of each of the air carriers in the September
11th attack, or the period commencing at the time of the collapse of any building
that occurred on that same date as a result of such crash and terminating 48 hours
thereafter, and shall be extended beyond such period only to include efforts by
authorized persons to rescue persons or recover human remains from the site of
the collapse of any such building or crash.
9. Physical Harm. The term, "physical harm," shall mean any direct injury to a
person and any resulting condition, disability or loss that directly and in natural
sequence is caused by the injury.
10. Present at. The term, "present at," shall mean being within the described physical
location, within any building at the described physical location or in such
proximity of any described physical location so that a person suffered physical
harm due to impact from any part of an aircraft or building within a described
physical location.
11. Collateral Source. The term, "collateral source," shall include payments to the
Claimant from sources of compensation or benefits, including life insurance,
pension funds, death benefit programs, and payments by the Federal, State or local
governments as a result of the terrorist-related aircraft crashes on September 11,
2001. It shall not include any grants or gifts given, or expected to be given, to the
Claimant as a result of the terrorist-related aircraft crashes on September 11, 2001,
from any non-profit, religious or other charitable 501(c)(3) organization.
12. "collateral source compensation....has received or is entitled to receive." For the
purposes of determining the amount by which to reduce a Claimant's
compensation due to collateral source compensation, the Special Master shall
consider collateral source payments received by the Claimant or personal
representative of the decedent and collateral source payments that are reasonably
certain to be due Claimant or personal representative of decedent in the future.
Reasonably certain means collateral source payments as to which there is either a
statutory or contractual right or fully vested interest at the time of the final
determination.
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403. Special Master/Hearing Officers.
1. Special Master. The Attorney General's appointment of any individual as the
Special Master shall be for a term of 3 years, subject to termination by the
Attorney General for incompetency, misconduct, or neglect of duty or for any
other good cause shown.
The Special Master shall be responsible for the following:
a) Administering the Office of Special Master, hiring its staff, providing for
the efficient, expeditious, and effective handling of claims, and performing
such other duties related to the Act as may be assigned by the Attorney
General;
b) Administering the September 11thth Victim Compensation Fund
established under this Act;
c) Promulgating all procedural and substantive rules for the administration of
this Fund;
d) Appointing and fixing the salary and duties of such administrative staff as
necessary. Such staff shall be subject to removal for good cause by the
Special Master;
e) Appointing and fixing the salary and duties of such Hearing Officers as
necessary;
f) Managing and executing all aspects of budgetary and administrative
affairs affecting the Hearing Officers and their staff; and
g) Reporting every 6 months to the Attorney General and the committees of
the Judiciary of the House of Representatives and the Senate on the
number of claims filed and their disposition, the types and amounts of
awards, the length of time for the disposition of the petitions, the cost of
administering the Program, and recommendations for changes in the
Program.
12. Hearing Officers.
1. Qualifications. Hearing officers shall be retired federal court judges,
retired state court judges of general jurisdiction or appellate courts or
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certified mediators. Hearing officers shall be selected from the locales
where hearings are to be held and shall be in consultation with the Chief
Judge of the United States Court in the District(s) or the Chief
Justice of the State from said locations. Employees of the United States
government, airline industry or insurance industry shall not be selected as
Hearing Officers.
2. Authority of Hearing Officers. Hearing Officers are authorized to:
a) Conduct formal hearings with respect to, and adjudicate claims in
accordance with, these regulations and the Act;
b) Administer oaths and examine witnesses;
c) Compel the production of documents and appearance of witnesses
by issuance of a subpoena;
d) Prepare documents for the signature of the parties;
e) Issue decisions and orders with respect to claims as provided in
this part; and
f) Do all other things necessary to enable him or her to discharge the
duties of the office.
A Hearing Officer may be removed by the Special Master because of
incompetence, misconduct, neglect of duty or for other good cause shown.
No Hearing Officer shall conduct any proceedings in a claim in which he or she is
prejudiced or partial, or where he or she has any interest in the matter pending for
decision. Upon assignment of a Hearing Officer, a Claimant may within 15 days
challenge said Hearing Officer setting forth in writing the basis of said challenge.
A decision to withdraw from the consideration of a claim shall be within the
discretion of the Hearing Officer and reviewable by the Special Master. If the
Hearing Officer withdraws, another Hearing Officer shall be designated by the
Special Master to complete the adjudication of the claim in a timely manner.
No Hearing Officer shall be permitted to appear or act as a representative of a
party under this part while such individual is employed as a Hearing Officer. No
Hearing Officer shall be permitted at any time to appear or act as a representative
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in connection with any case or claim in which he or she was personally involved.
No Hearing Officer shall act in any claim involving a party that employed such
Hearing Officer within one year before the adjudication of such claim.
Notwithstanding paragraph (1) of this subsection, no Hearing Officer shall be
permitted to act in any claim involving a party who is related to the Hearing
Officer by consanguinity or affinity within the third degree as determined by the
law of the lace such party is domiciled. Any action taken by a Hearing Officer
in knowing violation of this paragraph shall be void.
404. Presenting Claims
1. Forms and Contents - All claims must be in writing and submitted on the standard
form contained in these regulations. The form must be completed, signed under
oath either by a person eligible to file a claim under the Act, by that person's legal
guardian or by the personal representative of a decedent and any counsel for the
claimant and mailed to .
2. Attorney Referral- Claim forms issued by the Special Master shall include clear
and conspicuous statements regarding Claimant rights to an attorney. Forms shall
be accompanied by information on how to receive pro bono assistance.
3. Standard Claim Form - Copies of the standard claim form shall be available
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4. Filing - Upon receipt of a claim, the Special Master shall within 14 days review
the claim for completeness. If a claim is deemed complete or at the expiration of
14 days, the claim shall be deemed filed. The date of filling shall be recorded by a
stamp on the face of the standard form. If the claim is deemed to be incomplete, it
shall be promptly returned unfilled to the sender with a statement identifying
reasons why the claim does not comply. The claim may be resubmitted after
correcting the deficiencies.
When claims are filed, the filing shall be promptly acknowledged with a letter
identifying the number assigned to the claim and the date the claim was filed.
Claims which substantially comply with the requirements of Rule 403.1 shall not
be deemed to be incomplete and shall be accepted for filing.
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5. Single Claim - There may be only one claim for each injury or death. The claim
shall identify and be on behalf of persons who are entitled to be beneficiaries of
the claim. In the case of a decedent, the claim shall be filed by the personal
representative of the decedent on behalf of all persons entitled to receive
compensation, by reason of the death of the decedent.
6. Who May File A Claim - The following persons are eligible to file claims for
compensation:
a) An injured adult person, on behalf of themself and any spouse or children.
b) A duly appointed guardian of an injured adult person, on behalf of the
injured person and any spouse or children of the injured person.
c) A duly appointed guardian of an injured minor, on behalf of the injured
child and the parents of the injured child.
d) In case of a decedent, a duly appointed personal representative. A
personal representative shall act on behalf of any surviving spouse, any
children of the decedent, any children of a deceased child of the decedent,
parents of the decedent, any dependents of the decedent and the decedent's
estate. Personal representatives shall be appointed in accordance with the
laws of the decedent's domicile
7. Attorney Representative - A claimant need not be represented by an attorney to
file a claim under the Act.
a) If the claimant desires to be represented, then the attorney selected by the
claimant must be a member in good standing of the bar of the highest
court of a state.
b) Attorneys on behalf of claimants shall attest that he/she is a member in
good standing of the bar of the highest court of a state and is authorized to
represent the claimant.
c) It shall be the ethical obligation of any attorney who represents a victim of
the September 11th terrorist attacks to advise said person(s) of the
compensation available under the Act and the availability of any pro bono
program.
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8. Immigration Status Information -- Any information concerning the immigration
status of a claimant or a dependent of a Claimant shall not be disclosed to the
Immigration and Naturalization Service.
405. Hearings.
1. Time of Hearings. Hearings must be scheduled and completed within 120 days of
the date a claim is filed. The claimant may extend said time or may waive the
right to a hearing by making a written request to the Hearing Officer. Any such
request must be signed by the Claimant.
2. Notice of Hearing. The Hearing Officer shall provide to the Claimants at least 10
days written notice of the time and place at which the hearing will be held.
3. Commencement of 120-day Hearing Period. The 120-day period for review and
determination of a claim shall commence upon the date that the claim is deemed
filed.
4. Time and Place of Hearing. Hearings shall be scheduled and held, to the extent
practical, at a place within 50 miles of the Claimant's residence unless an
alternative location is required by the Claimant. At the request of the Claimant,
the Hearing Officer shall provide for an opportunity to conduct a hearing via
telephone, Internet or video conferencing.
5. Parties to Proceedings. The following persons shall be parties to the proceedings
on claims; (a) the claimant any authorized representative and (b) the
government acting by and through authorized personnel of the Department of
Justice. Parties may waive their right to appear.
6. Burden of Proof. The burden of proving a fact alleged shall rest with the party
making the allegation. The standard of proof shall be a preponderance of the
evidence. Proof by a preponderance of the evidence means that it is more likely
than not that the proposition to be proved is true.
7. Affidavits. Written affidavits or declarations, subject to penalty for perjury, will
be accepted as evidence of employment history, earnings, loss of services, and
survivor relationships.
8. Rules of Evidence. The Hearing Officer is not bound by common law or
statutory rules of evidence, or by technical or formal rules of procedure. The
Hearing Officer shall conduct the hearing in such a manner as to best ascertain the
rights of the Claimant and fulfill the purposes of the Act.
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9. Documentary Evidence. A Claimant may submit either the original or a clear
readable copy of any document. The Hearing Officer may require the submission
of an original document, if an original exists, if necessary to a decision on the
claim.
10. Witness. Witnesses at the hearing shall testify under oath or affirmation. The
Hearing Officer and the parties may question witnesses with respect to any
matters relevant and material to any contested issue.
11. Record of Hearing. All hearings shall be open to the public and shall be
mechanically or stenographically reported. All evidence upon which the Hearing
Officer relies for decision shall be contained in the transcript of testimony, either
directly or by appropriate reference. All medical reports, exhibits, and any other
pertinent document or record, either in whole or in material part, introduced as
evidence, shall be marked for identification and incorporated into the record.
12. Submission of Insufficient Evidence. In the event a Claimant submits insufficient
evidence regarding any matter, the Hearing Officer shall inform the Claimant
what further evidence is necessary and request that such evidence be submitted
within a specified reasonable time which may, upon request by the Claimant, be
extended for good cause.
406. Governing Law. To provide consistent and uniform application of the Act to all persons
filing a claim, the following rules shall apply in rendering decisions on claims:
1. Physical Harm. Claimants suffering physical harm due to the terrorist-related
aircraft crashes of September 11, 2001, shall be entitled to recover full economic
and non-economic loss as follows:
a) Economic loss means any pecuniary loss of a Claimant including but not
limited to loss of earnings or other employment benefits, loss of earning
capacity, medical expense loss, experienced in the past or to be
experienced in the future and loss to a Claimant's surviving spouse and
children of services, support, consortium and affection and the loss to a
minor Claimant's parents of services, support, companionship and
affection experienced in the past or to be experienced in the future.
b) Non-economic loss means loss to the Claimant due to physical and
emotional pain, suffering, inconvenience, physical impairment, mental
anguish, disfigurement, loss of enjoyment of life, any injury to reputation,
and any other losses authorized by the Act, experienced in the past or to be
experienced in the future, including any aggravation of an existing disease
or physical defect.
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2. Wrongful Death. Personal representatives of decedents shall be entitled to
recover full economic and non-economic loss resulting from a decedent's death
due to the terrorist-related aircraft crashes of September 11, 2001 as follows:
a) On behalf of a decedent's surviving spouse, decedent's children, children
of any deceased child of the decedent and parents of the decedent, the
economic and non-economic loss each has suffered including all monies
the decedent would have spent or given to each person for such items as
shelter, food, clothing, medical care, education, entertainment, gifts and
recreation during the normal life expectancy of the decedent; the pecuniary
value of the services, society and comfort that the decedent would have
provided to each person, including such elements as work around the
home, transportation and provision of physical comforts and services; the
loss of decedent's companionship and protection and the survivor's mental
pain and suffering as a result of the decedent's injury and death, suffered
in the past and reasonably expected to be suffered in the in the future.
b) On behalf of any relative by blood or marriage who is dependent upon the
decedent for support or services and any person who resided in the
household of the decedent at the time of the death who was dependent
upon the decedent, the support or services that the decedent would have
provided to each such dependent during the decedent's life expectancy.
c) On behalf of the decedent's estate, the costs of administration of the estate
and any medical, funeral or other last expenses of the decedent, hedonic
damages; the estate's loss of net accumulations, which is that part of the
decedent's after paying his personal expenses and monies for the support of
his survivors, would have left as part of the estate if he had lived his
normal life expectancy; and compensation for any conscious mental pain
and suffering suffered by the decedent as a result of the terrorist acts until
the time of the decedent's death.
3. Claimants shall be entitled to recover as damages the reasonable and fair costs of
presenting their claims to the Fund and their evidence at any hearing.
407. Presumptions. Presumptions shall be rebuttable upon proof that the fact is different than
the presumed fact. Unless the Hearings Officer finds that a preponderance of the evidence shows
a fact to be different, the following presumptions shall apply to determining claims:
1. It shall be presumed that the life expectancy of an individual is as set forth in the
Life Tables, Vital Statistics of the United States 1998, published by the National
Center of Health Statistics, U.S. Department of Health and Human Services.
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2. In the absence of any expert evidence to the contrary, it shall be presumed that the
work-life expectancy of an individual is 65 years.
3. In the absence of any expert evidence to the contrary, it shall be presumed that the
loss earnings of a decedent is the sum of the last 12 months of a decedent's
earning times the remaining work life expectancy of the decedent.
408. Decisions.
1. Form and Contents of Decisions. Claim decisions shall be in writing and shall
contain the names of the parties, the names of all beneficiaries of the decision, any
finding of fact or conclusion of law, the damage due each claimant or beneficiary
of a claim and any amounts being deducted as a collateral source, together with
the reasons therefore. Decisions shall be based on the record before the Hearing
Officer.
2. Issuance of Decision. All decisions shall be made not later than 10 days after the
termination of the hearing and must be promptly furnished to the Claimant and
any attorney representative by the quickest means practical. Upon request or
agreement of the Claimant, the hearing can be continued to a time certain.
3. Deduction of Collateral Sources. After determination of the damages due any
Claimant or beneficiary of a claim, the Hearing Officer shall determine whether
any collateral sources are applicable to the determined damages and deduct from
said damages the net present value of the collateral source (after reduction for any
cost to the claimant or beneficiary). Except for life insurance, collateral sources
which do not duplicate any item of economic loss should not be deducted. As to
any collateral source as to which there is a right of subrogation, said amounts shall
not be deducted from the determined damages.
4. Review of Hearing Officer Decisions. Within ten days of the date of a decision
the Claimant may request review of the decision by the Special Master. Such a
request must be accompanied by a written extension of applicable time limits to
allow a reasonable time for review. The review shall be conducted by the Special
Master based on the record before the Hearing Officer.
a) A decision of the Hearing Officer that is not supported by substantial
evidence, that incorrectly applies the law or these regulations or that is
otherwise contrary to the law shall be reversed and remanded for further
proceeding.
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b) In the event a claim is remanded for further review, the decision shall be
entered not later than 120 days from the date of remand.
c) There shall be no further review.
5. Authority to Compromise and Settle. The Special Master or his or her designee is
delegated authority to enter into a compromise or settlement of any claim under
the Act either before or after a decision has been made.
409. Payment of Benefits.
1. Payees. Benefits shall be paid, as appropriate, to each beneficiary of a claim as
set forth in the decision. The benefits may be paid directly to a claimant or
beneficiary or to a revocable living trust created by the Claimant or on behalf of a
beneficiary, or, at the direction of a court, to a trust described in 42 U.S.C. &
1496p(d)(4)(A). A Hearing officer may require that a legal guardian or
representative be appointed to receive payment on behalf of any minor child or
person who is mentally incompetent.
2. Subrogation Liens Barred. There shall be no right of subrogation on behalf of a
collateral source payee that is deducted from a Claimant's award. To the extent
that any state or federal law allows a lien to be placed or filed on behalf of any
collateral source payor, such a lien is barred. If there is a determination under
applicable law that a collateral source payor has the right to a lien and subrogation
against a claim under the Act, then any amounts paid or payable from said payor
shall not be deemed a "collateral source" under the Act.
3. Periodic Payments. At the election of any Claimant or beneficiary, amounts
payable to said Claimant or beneficiary pursuant to a decision under the Act may
be received as a periodic payment described in 26 U.S.C. 104 (a)(2), funded by
an annuity the cost of which shall be such amount. Any such election shall be
made by providing notice thereof to the Hearing Officer prior to the date of the
decision. If an amount is payable in periodic payments funded by an annuity,
then the Special Master may transfer, in a qualified assignment, the obligation to
make such periodic payments, see 26 U.S.C, 130. The claimant or beneficiary
shall provide to the Special Master or the Hearing Officer, within 60 days
following issuance of the written notice under section 405(b)(3), the name of the
assignee to whom a qualified assignment is to be made and the documents
required to make the qualified assignment in a form acceptable to the Special
Master.
4. Tax Treatment of Amounts Paid From The Fund. Amounts paid from the Fund
to, or on behalf of, Claimants or beneficiaries upon a decision under the Act are
compensation (other than punitive damages) paid on account of personal injury or
sickness, in a case involving physical injury. For United States federal income tax
purposes, such amounts are excludable from the gross income of the recipients.
See 26 U.S.C. 104(a)(2).
6. Reports to Congress. The Attorney General shall report annually to the
Committee on the Judiciary of the U.S. House of Representatives and the Senate
on claims paid under the Act, stating the name of each Claimant, beneficiary and
the amount awarded.
410. Privacy Policy.
a) The Special Master shall adopt and enforce a privacy policy consistent
with Department of Justice privacy policy to ensure that an documents,
testimony, reports or other information utilized during the claim process
are afforded protection against improper disclosure.
b) The Special Master shall prominently display its privacy policy on the
claim form and on all official publications that provide information
concerning the claim process.
c) The Special Master shall prominently display its privacy policy on the
website.
411. Notice of Program to Potential Litigants. The Department of Justice shall monitor the
federal civil court docket for actions brought by victims in connection with the September 11th
airline crashes and inform the Special Master of any claims that have been brought or are brought
within 90 days after the date on which these regulations are promulgated. When the Special
Master receives this information, it shall immediately notify any and all plaintiffs, by first class
mail, of their rights to claim benefits under the program if they withdraw from such action within
90 days after the date on which these regulations are promulgated.
1. Public Notice of Program. The Special Master shall immediately develop
and implement a comprehensive program to inform the public about the Victim
Compensation Fund and their rights thereto.
In developing and implementing this program, the Special Master shall produce
printed informational material for the se of potential Claimants. This
informational material will explain to the public their rights to compensation
under the program and will inform persons as to the procedures necessary to file a
claim. The informational material shall also inform potential claimants of any
available pro bono programs.
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The Special Master shall send written notice immediately to all persons and/or the
families of persons identified as injured, missing or dead by the Attorney General
as a result of the September 11, 2001 airline crashes. This notice shall inform
persons as to their rights to compensation under the Fund and inform persons as to
the procedures necessary to file a claim. The Special Master shall send to each of
these persons copies of all informational materials on the program immediately
upon availability.
The Special Master shall move immediately to establish a "1-800" telephone
Number and website to receive requests form potential Claimants for
informational material and claim forms.
The Special Master shall purchase sufficient advertising in both print and media
in the New York, New Jersey, Boston, Los Angeles, Chicago, Dallas and
Washington, D.C. media markets to inform the public about the availability of
compensation and the process for filing claim.
The Special Master shall take whatever additional steps it deems appropriate to
publicize the availability of compensation for eligible Claimants.
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