Governor Sununu has just signed into law the creation of a $100,000,000 fund to be used to compensate hundreds of victims of physical and sexual assault at the Youth Development Center in Manchester. Ten former YDC employees have been charged criminally for their evil conduct.
An arbitrator will decide amounts per claimant, but victims must give up going to court for a jury trial.
The idea is similar to many mass tort settlement funds such as the World Trade Center and the Boy Scouts which were set up to avoid years and years of court proceedings and appeals. Because each claimant has endured different physical or sexual abuse, a one size fits all settlement in a consumer product class action is not permitted because of the great variety of claims.
A couple of years ago, over 70 women at Dartmouth College settled a class action for sexual assault and harassment for $14 million. Again, the other lawyers and I set up a system to pay out different amounts to each person affected depending on the severity of the harm suffered. The numbers are in line with the number of claimants on the $100 million YDC fund and its total amount.
The YDC fund is a trade off between speed and some compensation, rather than years in the court system waiting to see what 12 people on a jury might decide. It is not perfect and will not fully compensate some of those harmed. Those who are young enough may be willing to wait years for the hundreds of trials standing between them and their day in court and would avoid the fund process.
How Will the Fund Process Claims?
First, a neutral attorney will be chosen by the State Supreme Court to serve as the Administrator of the fund. This person must be agreed to by the Attorney General and counsel for claimants and will be paid the same as a Superior Court judge if he or she is full-time.
Claim forms, procedures and settlement guidelines will be determined by the Attorney General. As was done 20 years ago in the negotiations with the Diocese of Manchester by the handful of us representing victims of sexual assault by priests, we developed a matrix to help put a dollar value on the cases based on the nature of the abuse, the frequency and duration of it, and aggravating factors. This will result in grouping of claims into values and ranges for the different types of abuse at the YDC.
For any one person who underwent sexual and physical abuse, there is a cap or limit of $1,500,000, but for physical abuse only, the limit is $150,000 in the aggregate per person.
When Can Claims Be Filed?
By November 1 of this year, the person chosen as Administrator shall publish notice that claimants can begin filing claims on or after January 1, 2023. Any former resident of the YDC may then file a claim, but no family members or relatives will have standing to file a claim for any distress they experienced as a result of the abuse of a relative at the YDC. There is a two-year window for filing of claims running from January 1, 2023, to December 31, 2024.
Filing a claim is voluntary, but claimants that have filed suit (as about 500 have done) must forgo the judicial process for the fund arbitration system and cannot get back in line for court if they do not like the result. The process, unlike going to court, is confidential, but the claimant may be interviewed by an investigator.
In the Catholic Church priest cases, all my clients were interviewed as part of that process set up to resolve claims without going to court. No claim was turned down based on the 50 or so cases I handled.
If a YDC claim is negotiated and settled, the claimant will have resolved the case far faster than could have been done in court. If the claim cannot be settled with the Attorney General’s office, then it will go to the Administrator for an arbitration hearing under rules not yet fleshed out for a three-hour hearing.
Attorneys who represent claimants will be limited to not more than a one-third contingent fee on the amount recovered. The $100,000,000 fund will last until June 30, 2032.
While not a perfect solution, the State owes victims a timely and fair resolution for the tragedies that should never have happened to them.
Chuck Douglas is a former Supreme Court Justice who practices law in Concord.