ASK’s Ed Neiger weighs in on Wildfire Victim Fund, as reported in Honolulu’s Civil Beat

It’s still not clear how much information about the fund or its applicants will be made public although settlements will be filed in court. 

A state-sponsored settlement fund for Maui wildfire victims has received more than a dozen applications from fire victims, the fund’s administrator says. 

Retired Hawaii Island Judge Ron Ibarra, who is administering the fund, said that as of Tuesday, 17 people had submitted registration forms, which is the first step in seeking claims from the Maui Wildfires Compensation Program, also known as the One Ohana Fund.  

He didn’t know how many were families of people who died or if the claims were filed by people who had been injured. At least 101 people died in the Lahaina fire but there’s not an official count of the number of injuries. 

Retired Judge Ronald Ibarra is the administrator of the Maui Wildfires Compensation Program’s One Ohana Fund. The fund is designed to compensate loss of life as well as injury for those who survived the Aug. 8 fire on Maui. (Kevin Fujii/Civil Beat/2024) 

The fund provides $1.5 million for the estates of each victim killed in the wildfires in exchange for releasing the state, Maui County, Hawaiian Electric Industries, Kamehameha Schools and others from legal liability. The amount paid for eligible injury claims will be determined by Ibarra and not exceed $1.5 million. 

“There’s nothing surreptitious about this program,” Ibarra said when announcing the program alongside Green. “It’s all transparent.” 

For potential claimants, including the estates of 101 people killed in the fires, the rules and process for obtaining claims indeed are clear: laid out in documents titled “Protocol” and “Frequently Asked Questions” on the fund’s website, www.mauicompensationfund.com. 

But less clear are the fund’s procedures for providing information and updates to the public.  

Settlement Funds Vary On Reporting Information 

Settlement funds for mass tort claims vary in how they report information. For instance, decades after the 2001 World Trade Center attacks, the September 11th Victim Compensation Fund continues to provide monthly statistical reports on its website showing details including claims submitted, determinations made on those claims and the amount awarded, which to date totals $13.25 billion. 

Other compensation funds, including wildfire victims funds, also provide such reports on a regular basis, says Ed Neiger, of the law firm ASK LLP, which is representing Maui wildfire property damage plaintiffs. 

Neiger, who is also a bankruptcy law expert, was one of six members of the settlement subcommittee that extracted a $12 billion settlement with PG&E for victims of the Paradise, California, wildfires. He said the wildfire fund submitted regular updates including the number of claims and amounts paid to the bankruptcy court, making the reports a matter of public record. 

Whether names of claimaints are made public is another matter. The California wildfire fund lists the names of individuals making claims, for instance. 

But other settlement funds don’t make public the names of claimants, particularly when there’s a perceived element of shame associated with being a victim. For example, Neiger also helped negotiate a $2.8 billion settlement by the Boy Scouts of America for sex abuse victims and $1 billion settlement by Purdue Pharma for victims of the opiod crisis. While the protocols for awarding damages on those matters were public, Neiger said, the names of victims receiving settlements was confidential. 

Likewise, the September 11th fund doesn’t report who has received settlements. 

“It’s confidential because victims and their families don’t want their private grief and quest to participate in the program to be made public,” said Ken Feinberg, who helped establish the fund for victims of the World Trade Center attacks and advised Hawaii on the One Ohana Fund. “There are a lot of reasons people in grief want to be left alone.”  

Under the One Ohana fund’s protocols, the identities of people receiving payments will be a matter of public record. Settlements will require court approval, meaning the names of settling parties will appear in court records.  

But the fund’s protocol indicates it will not release names, or much else, to the public. The protocol’s privacy policy states that information submitted by claimants to the program will be disclosed only for processing claims, “legitimate business use associated with administering the Program, including the prevention of fraud” and “law, regulation or judicial process.” 

Whether that means the fund would issue regular statistical reports similar to what the September 11th Fund puts out was not clear. 

Asked whether such reports would be issued, Ibarra said, “I hope so.” But there is nothing in the protocol discussing public reporting.  

Gov. Josh Green shared a light moment with the Maui Wildfires Compensation Program’s One Ohana Fund administrator, retired Judge Ronald Ibarra, during a news conference announcing the fund. (Kevin Fujii/Civil Beat/2024) 

The protocol also says little about fund’s existence as a legal entity, which could affect whether it is subject to Hawaii’s open records law. The document says the fund “was created at the request of Governor Josh Green with cooperation, input and funding from” the state, Hawaiian Electric, Kamehameha Schools trustees, Maui County, Hawaiian Telcom, Spectrum, and West Maui Land Co. 

Ibarra said the fund is a private trust in which he is trustee and administrator, the state and other funders are the grantors and the victims are potential beneficiaries. The fund’s internet domain name, mauicompensationfund.com, suggests it is a commercial rather than a government entity. The registrant on the domain registration is not a government agency, but rather the accounting firm PricewaterhouseCoopers. 

Still, there’s no entity registered with the state Department of Commerce and Consumer Affairs with the name “Maui Wildfires Compensation Program” or “Maui Wildfires Compensation Fund.” 

It’s also not clear how much money actually has been transferred to the fund. At his press conference kicking off the fund, Green announced pledges totaling $175 million, including $65 million from the state, $75 million from Hawaiian Electric Co., $17.5 million from Kamehameha Schools, $10 million from Maui County and $2.5 million each from Charter, Hawaiian Telcom and West Maui Land. 

But the source of the state’s pledged contribution still isn’t clear. Green has promised he will find the money to finance the fund even as lawmakers have balked at providing it. On Tuesday, the fund’s trustee could not say how much had been actually transferred into the account. 

“I know what’s supposed to be there,” Ibarra said. “$175 million.” 

Civil Beat’s coverage of Maui County is supported in part by grants from the Nuestro Futuro Foundation.