by Cam Simpson
This side of the firm’s practice came via the outsize personalities of two of its four named partners, both brilliant, both tenacious, both difficult: the firm’s late founder, Jerry Cohen, and his leading protégé, Michael Hausfeld. Cohen had been a firebrand. In the 1960s and early ’70s, he served as staff director and chief counsel to the antitrust subcommittee of the U.S. Senate’s Judiciary Committee. His private practice was animated by an intense suspicion of corporations—a suspicion born of his insider’s view from the Senate. He was colead counsel in suits against Exxon following its catastrophic oil spill off Alaska’s Prince William Sound, in which he won a $5 billion punitive damages judgment.* He had also sued Union Carbide on behalf of hundreds of thousands of Indian citizens exposed to pesticides in Bhopal following one of history’s worst industrial accidents in 1984. His work on sexual harassment established it as a core violation of federal civil rights laws, an outcome he achieved by targeting workplace harassment within the hallowed corridors of none other than the U.S. Department of Justice.1 Like his mentor, Hausfeld also pushed cases involving causes. In 1996, one year after Cohen’s death, Hausfeld secured what was then the largest race discrimination settlement in history, with Texaco paying $141 million.2 Ostensibly, he headed the firm’s antitrust practice. He gambled on high-stakes cases, which could yield huge fee awards or serve as money pits. He spent the firm’s vast resources on spec, hiring a team of Holocaust scholars to inch through five thousand cubic feet, or nearly ten million pages, of World War II–era records in the National Archives. They unearthed troves of evidence implicating Swiss bank executives in collaborating with the Nazis, and they found documents showing that European and American corporations had profited from the Holocaust through Nazi-supplied slave labor. In December 1996, Hausfeld launched his assault on the alleged beneficiaries of the twentieth century’s biggest crime by suing the Swiss banks on behalf of Holocaust survivors, arguing that the same banks doing business in New York had committed gross human rights violations six decades earlier by handsomely profiting from their collaboration with the Nazis. Critics accused him of being history’s version of an international ambulance chaser, but such criticism did not withstand scrutiny. Hausfeld did the case pro bono. To many, he seemed more like an activist who used the law rather than a lawyer with a healthy streak of activism, but by the time the Swiss banks settled for a whopping $1.25 billion, Hausfeld had moved into the side of the litigation that could yield more significant rewards for the firm, suing companies that had allegedly profited off the backs of concentration camp slaves.3 A vast new area of the law for class-action lawyers opened up, with Hausfeld, a small, soft-spoken, bespectacled man with a penchant for bow ties, among the handful leading the way. He started regularly landing atop lists of the nation’s most feared litigators.
By 2005, a younger partner named Agnieszka Fryszman, originally hired by Hausfeld to do antitrust cases, was handling a lot of work for the firm on the human rights side of the practice, and Matthew Handley did much of his pro bono work by volunteering for her. Increasingly, these cases devoured Handley’s focus and energies. He helped Fryszman represent detainees at Guantánamo Bay, a daunting legal challenge encased in Pentagon red tape. He plunged into the Bhopal litigation, still pending long after Cohen’s death and by then approaching the Dickensian scale of Jarndyce v. Jarndyce in Bleak House. He worked on lawsuits brought against construction firms for ignoring the Americans with Disabilities Act. And thanks to his time a decade earlier as a Peace Corps volunteer in Nepal, he landed the asylum case of a Nepalese author living in Maryland.
The two partners conducting Handley’s review couldn’t have been farther away from Hausfeld’s side of the practice and wondered aloud if Handley had spread himself too thin, especially regarding the time he spent with Fryszman. “Wow, you’re really involved in a lot of things here,” one of the partners told Handley. “We think it might be better for you to focus a bit more on some of the core practice areas.” The partners were not scolding, but they were firm. Perhaps the hardest part for Handley was this: his bosses were right. He worked at a pace that would have crushed many other lawyers, young or old, billing close to 2,400 hours for a single year. That added up to working full-time, without a vacation or a single day off, for an entire calendar year—and then squeezing in an extra two months of full-time work after hours. And that was just the time he tracked formally. He was less assiduous about clocking the time he spent on the cases he cared about most, such as Fryszman’s. The harder it became to devote time to the pro bono cases, owing to the demands of the securities practice, the more Handley worked after hours. Circles darkened the flesh beneath his eyes. His waistband tightened. His marriage frayed. The more difficult his marriage became, the more he stayed late in the office to devote himself to the work that gave him a sense of purpose. Rumors about Handley’s personal life made the rounds at the firm. The two partners conducting his review may not have known what was going on at home, but they knew enough about his office presence to be concerned. “They thought I was going to get burned out,” Handley would later recall.
Still, he gently pushed back during the annual review. “I’ll certainly be more mindful about trying to make sure I’m focusing on important matters,” he told the partners, “but these other cases are important to me. I want to continue to make them part of my practice here.” The men assented but made it clear they would keep close track of him and see how things progressed in the months ahead. Handley kept his word, but rather than diminishing his work on the pro bono cases, he merely worked on them as quietly and with as little fanfare as possible. Lawyers whom Handley helped on these cases, especially Fryszman, aided and abetted his effort to keep a low profile, owing to their desperate need for assistance on cases that rarely paid for themselves, let alone paid the firm’s partners. Sometimes, however, they simply couldn’t avoid detection. On one such occasion, Toll, the managing partner, learned at the last minute that Handley would soon board a plane with Fryszman bound for Guantánamo Bay. The detainee cases and others like them made up Fryszman’s full-time job, but not Handley’s. Toll called Handley’s cell phone, saying he felt blindsided by the associate’s absence and demanded to know why he had not been informed. “I’m sorry that somehow you were kept out of the loop on this,” Handley told his livid boss, “but that wasn’t the intention.” Handley argued that his presence at Gitmo would be vital to the firm’s handling of the detainee cases, at least this time; the Pentagon had given security clearance to Handley before Fryszman, so Handley had met the detainees on an earlier trip without her. He needed to go with Fryszman on this occasion so he could show her the ropes and properly hand things off. At least, that’s what he told Toll. In the end, Handley talked the firm’s managing partner into letting him board the plane, but just barely. Things seemed to get harder after that.
Fryszman had read the Tribune investigation soon after its publication in October 2005 and asked to meet me. We arranged to meet for lunch at a café equidistant from our offices in Downtown Washington, a few blocks east of the White House. Her résumé was impressive. She worked on lawsuits targeting multinational corporations and others for alleged human rights abuses abroad. She had been a lead lawyer in a suit against the Japanese government on behalf of the estimated two hundred thousand women from Korea, China, and other Asian nations who were forced into sexual slavery for Japanese soldiers during World War II. She had taken on the lead litigation role in a case against ExxonMobil, alleging the company’s complicity in the Indonesian military’s torture and murder of civilians living near the company’s natural gas fields in Aceh Province.4 She represented victims of the 9/11 attacks and the detainees held at Guantánamo Bay whom she had gone to see with Handley.
For someone who grew up without a passion to practice the law, Fryszman had taken to it with a dedication that, to colleagues, sometimes seemed to border on the obsessive. She could, without hesitation, remember the citations for cases stemming from an obscure
law enacted by Congress in 1789 but just as often forget personal dates such as her wedding anniversary. Once, her husband took her on a romantic getaway to Paris for Valentine’s Day, but she had forgotten it was Valentine’s Day until it was announced on the flight. For court appearances or important meetings, she always wore the same outfit, a black pantsuit and a French-blue blouse. She could afford more clothes, but she didn’t want to suffer the burden of choice on days when she had to appear in court. She wanted her head clear for the job at hand: the arguments she would need to muster and the strategies she would need for those she wanted to shoot down. Keeping only one nice outfit hanging in the closet seemed to her to make that easier.
At lunch, she sat across from me on a bar stool at a high table in a quiet corner by a window, speaking at times like a tommy gun. She rattled off acronyms, citations for laws, and cases stemming from those laws that she saw as potentially triggered by my investigation, putting it all into the context of other cases the firm had handled. I could not keep up with the dizzying speed of her words and her intimidating grasp of international law, including the relatively new federal statute on human trafficking. Fryszman said she wanted to see if my investigation could be pursued further, sensing that KBR Halliburton might be more than just the beneficiary of the system I had written about, and more directly involved in its operation than I had been able to learn before my deadline. She asked for contact details for the families of the twelve Nepalese men.
Generally, journalists do not share with lawyers unpublished materials stemming from their investigations, unless compelled to do so by subpoena. Even a slam-dunk legal case could grind on for years, if not a decade or more, especially against a company with the vast resources of KBR Halliburton. I made clear that I could not help beyond what had been published in the Tribune, but I did ask if she had ever heard of two related statutes, called the War Hazards Compensation Act and the Defense Base Act, which required contractors and their subcontractors in an American war zone to provide compensation to surviving family members of those killed. The theory behind the World War II–era law was simple: a contract worker risking life and limb to support the American war effort mattered as much as a full-time government employee doing the same, and should therefore get the same protection, regardless of his or her employment status or nationality. Any company doing business with the United States, including the lowliest subcontractor, needed to carry an insurance policy for the compensation program, but it could charge the costs of the premiums to taxpayers. In the case of payouts for what had been deemed deaths or injuries due to “war hazards,” taxpayers made the insurance companies whole. The federal government administered and regulated the system through the Department of Labor.5
The legal rights of the families of the twelve Nepali men to the compensation drove my frustration with efforts by those involved to cover up their connection to the tragedy as much as the exploitation of the system that had delivered them to their deaths. Based on even limited research, it seemed clear that contractors and subcontractors in Iraq widely ignored the compensation law, and the U.S. government did little, if anything, to enforce it. If she wanted to help them get the compensation demanded by law, I suggested that Fryszman get in touch with someone who could connect her to the families. The case seemed cut-and-dried and would make a material difference for the families I had met in Nepal. She said she would look into it.
A strong student of math and science, Handley had earned his undergraduate degree in engineering at Princeton. He believed that engineers could make a decent living while also having a positive impact on the world. That latter instinct drew Handley into the Peace Corps, a service that treasured engineers because they could deliver what people in the poorest corners of the world often needed most: the separation of uncontaminated drinking water from sewage through basic sanitation. Handley was sent to Nepal by lottery, knowing little about the country beyond the fact that it was home to the world’s highest peak, Mount Everest. His main focus would be designing and building pit latrines to help spare rural villages from the deadly ravages of cholera and other diseases.
Nepal’s people captured his heart almost instantly. Crushing poverty paradoxically bred boundless generosity. So many had so little, yet they would give it all to a stranger in need. The language also captured him, as even the illiterate seemed to speak in poetry. The spirits of many Nepalis he met seemed as grand as the landscape climbing into the heavens all around them. Yet near the end of his first year in the Peace Corps, Handley grew disillusioned. American volunteers in Nepal were required to work beside officials from the government’s Ministry of Federal Affairs and Local Development. The chief development officer for Handley’s district, a politician, told the young engineer that what the district needed most was a central amphitheater. The development officer wanted to spend vast sums, and all Handley’s expertise, building a venue for his own political speeches. Meanwhile, local villages in the district were desperate for sanitation. Handley feigned ignorance of how to design or build an amphitheater, but it was difficult for him to do his job in the shadow of this self-serving official and others like him. Time after time, Handley saw how warped political priorities, outright corruption, and the absence of the rule of law held back the country far more than a dearth of technical expertise. While many government officials in Nepal only compounded their people’s woes, Handley also saw how little benefit came from the private sector, in the form of major international corporations doing business there. Western breweries and soft drink manufacturers are often the biggest private employers in places such as Nepal, because they produce and bottle their products locally, through indigenous business partners. Yet their plants were surrounded by some of the most desperate shantytowns Handley had ever seen. That’s where their workers lived.
Midway through his Peace Corps service, Handley decided that a law degree would help him have a bigger impact on the world than he could have as an engineer, equipping him with the skills needed to tackle the kinds of injustices he saw in every city and village of Nepal. He spent his free time studying for the American law school entry exam and then piecing together applications by candlelight, or beneath the glare of a battery-powered lamp. Once his Peace Corps service ended, he enrolled in the law school at the University of Texas.
A decade later, Handley’s Peace Corps experience brought Fryszman to his office with a proposal that he assist her with the case of the twelve Nepalese men killed in Iraq. Who better to help her than a young, idealistic associate who worked tirelessly, knew Nepal, and just happened to speak its language? As 2006 dawned at Cohen Milstein, Handley believed the case had the potential to marry everything that had driven his life up to that moment: tackling exploitation, and more specifically the exploitation of a people he loved; wresting justice from faceless international companies thriving off political clout; and using the law to improve the lives of people who needed it the most. Everything he’d done in life seemed to coalesce around a single purpose. This one case could make sense of the strange and highly unlikely path he had followed to a job at a top Washington law firm. It would also bring him back to one of the happiest and most formative periods of his life. Handley had met his wife, a fellow Peace Corps volunteer, in Nepal. Maybe this case could somehow bring them closer together.
If it was a dream case for the young lawyer, it also came at the worst possible moment. His bosses had agreed to let him help Fryszman, but wary of the time he devoted to such noncore areas of their practice, they placed him under the cover of a no-fly zone. He would not be allowed to travel to Nepal. How on earth could he even begin without being able to go to Nepal to meet the families, or to Jordan, or anywhere else?
No one above Fryszman at the firm had heard of the obscure wartime compensation laws; nor was there a good understanding of what benefit the claims might yield for the partners. Yet Fryszman convinced Hausfeld to let her and Handley pursue compensation claims for the twelve families. The claims case could serve as a
vehicle for investigating a potential federal human rights suit and could lead to evidence tying KBR Halliburton and its subcontractor more directly to specific abuses, or to specific knowledge of them. Because of his background and language skills, the claims case fell to Handley.
Handley stared down at a blank U.S. government form, called an LS-201. Across the top, it read, “Notice of Employee’s Injury or Death.” The form is supposed to be filed with the government within thirty days of a contract worker’s death in a foreign combat zone. It was the first step to getting compensation. Yet, nearly two years after the murders of the twelve men, no one had filed it. On the face of it, the form looked simple: nineteen questions for each man, covering a single page. Instructions came on an attached sheet. Yet given the nature of the case, the obfuscation following the men’s deaths, and the fact that an entire world separated Handley from the people he represented, even the simplest questions seemed challenging. “Name of supervisor at time of injury”? Which KBR Halliburton boss could that possibly be, and how on earth would he find out? Some basic facts, including even the full legal names, dates of birth, and addresses of the dead, were unknown to Handley. A separate form called the LS-262, to claim the mandatory death benefits, demanded detailed information about the dependents of each murdered man, including the level of dependency for parents of the dead men who had left behind no widows or children, and sources and amounts of income. These were all simple enough questions for a civilian worker in Iraq whose family was in Texas, but daunting for someone from the shadows of the Himalayas whose loved one had been bought and sold into firms that would not acknowledge their connections to him—and for Handley, the answers, each multiplied by twelve, lay scattered across one of the most remote and disconnected places left on earth.