Eagle1993

Just so it is clear how unlikely the TCJC is an easy fix ... this the judge dedicated an entire section of her opinion to the TCJC settlment. "Throughout this Opinion, I have noted one exception to the appropriateness of the Scouting-Related Releases, namely, the settlement with TCJC...." (about Abuse claim releases unrelated to Scouting) "Both Debtors and TCJC argue that jurisdiction exists and that a full release of TCJC is warranted and supported by the evidence." The judge goes on to show she understands the TCJC and BSA had a unique relationship. "... It is undisputed that Scouting was the official activity program for young men affiliated with the TCJC beginning in the 1920s and that all boys involved with the church were automatically enrolled in Scouting at age 8." "...From this, TCJC concludes that every instance of Abuse that a claimant could allege relating to TCJC necessarily occurred in Scouting." "... I decline to approve the third-party releases over objection because (i) it is unclear that the evidence supports the release, and in any event (ii) the TCJC Settlement stretches third-party releases too far." She goes on to talk about a letter from TCJC to BSA from 2003 describing various cases, including one with mixed claims (abuse occurred both in scouting & non scouting TCJC events). "...(mixed claim case) shows the fallacy of TCJC's conclusion: while all Abuse that occurred during a Scouting activity might also be TCJC-related, the revers is not necessarily true..... Further, while a Local Council has no mission or business other than Scouting, TCJC clearly does." She goes on to state the $250M may not be enough to get the releases requested. In the end... "For these reasons, I decline to approve the TCJC Settlement." I see almost no path to include the current LDS settlement with scouting only releases. Since all kids in LDS were in scouting and scouting volunteers were also church leaders, it is nearly impossible to guarantee the abuse only occurred during scouting activities. I expect we will hear the $250M will be pulled. The BSA does not need the $250M to fund the plan and the LDS, given the relationship with the BSA, likely have limited benefit to obtain scouting only releases. Now, the one issue that could cause delay is if LDS switches to being an opt out CO. If the LDS believes there is no benefit from being protected from post 1976 claims, they may go the opt out route. That would preserve some rights against BSA insurance and BSA (through settlement trust). https://casedocs.omniagentsolutions.com/cmsvol2/pub_47373/9156e828-9e46-448c-bdd0-ae41eab0683b_Chartered_Organization_Notice.pdf So ... if I were the LDS lawyer, I would probably say ... pull back the $250M and become the only Opt Out charter org. That could be a fairly significant development and the BSA and supporting entities may need to negotiate something to prevent the LDS from going down that route. (That is how the Catholic Church got a better pre 1976 deal than other COs). Unfortunately that would lead to some delays.

From her ruling: ... The nomination of retired Judge Hauser together with the changes to the oversight authority of the STAC go a long way to allay concerns raised by the Certain Insurers. Nonetheless, the record supports the implementation of strong fraud prevention measures in connection with review of Direct Abuse Claims. ..." she goes on "...While no one questions the integrity of the proposed Settlement Trustee, it is appropriate, generally, and in this case in particular given the record, to require that the Settlement Trustee engage in a process that will ferret out any fraudulent claims.... Those procedures will be presented to the court. The STAC will have no consent rights or veto rights with respect to the proposed procedures. In addition to disallowance of a claim, penalties may include seeking the prosecution of the claimant or claimant's attorney for presenting a fraudulent claim in violation of 18 U.S.C. 152 and seeking sanctions from the court." She doesn't trust the STAC or law firms with respect to vetting claims. She brought up how lawyers backpaddled supporting claims with their signature. So, she doesn't want anyone with self interest in charge of the process any more. It was a great move for non fraudulent claimants.

BSA owns the next actions. 1) They need to meeting with LDS along with TCC, FCR & Coalition. The LDS will not have any releases for non-scouting abuse (as they wanted if the vicitim/abuser were in scouts regardless of setting). The LDS will need to choose ... be part of the plan with revised releases or leave the plan. 2) BSA to discuss with TCC, FCR & Coalition if they are ok with lack of findings supporting TDPs. 3) BSA to meet with settling insurers that covered Guam. See if they are ok proceeding or if the BSA needs to go to the Guam Archdiocese bankruptcy court and fight to free that insurance policy from the stay. 4) BSA to meet with various parties about non abuse claims & lack of releases. 5) BSA to clean up some language that had some minor issues. In terms of timing ... it really depends on the settling insurers, TCC, Coalition and FCR and how significant they see the changes are to the plan. The LDS portion was only going to LDS claimants, so that helps limit the impact a bit. My hope is that we see an updated plan in a few weeks that addresses the judge's concerns. The judge will allow objections to the changes and then a hearing. Perhaps a ruling a few days later. I think the big news is that the overall structure of the plan is fine. Most of the major objections were overruled. She telegraphed the exact issues and hinted at a path to fix (for example ... she said the plan is fully funded without LDS ... hint hint). For CSA victims, unfortunately, as the TCC has said, this is only the first step. Once confirmed, there will be appeal(s) that could take a few months. Post appeal ... then the trust ramps up. They have to create a process to vet claims (as they were not vetted well as part of bankruptcy). That process must be approved by bankruptcy court. Unfortunately, it looks like it will be a while before payments are made. I'm sure the TCC will update until the trustee takes over.

I'll attempt to explain my understanding of abuse claims going forward. This is for child sex abuse claims related to scouting that occurred prior to February 2020. This has nothing to do post Feb 2020 nor non abuse claims. I look at this under two umbrellas. One is liability and the other is insurance. The liability is the individual or organization that pays under tort. For example, for any case, there could be liability ranging from parent, perp, unit leaders, chartered org, local council and national BSA. Depending on a specific case, a jury could assign liability to any one of these by %. Insurance is issued to institutions. Depending on policy language, they could be on the hook to pay; however, the requirement to pay is really based on the tort decision. If you are under insured or your insurance is already spent, you still need to pay or file bankruptcy (and then pay what you can). See the image below for my understanding. Green = fully covered post-bankruptcy. Orange = not covered and could be sued 12 months post bankruptcy (in bankruptcy, COs are given 12 months to settle). Pink = specifically targeted in plan for trustee to go after. Note that I left LDS out as the judge rejected their settlement. So, liability wise: Protected from future lawsuits: National, LCs and Methodist All COs are protected post 1976 claims Catholics if the claim would have been covered by a settling insurer Not protected from future lawsuits Perps Chartered orgs (excluding Methodists & Catholics) for pre 1976 claims Catholics from pre 1976 claims if those claims were not already covered by settling insurers Insurance summary: Settling insurers (regardless of who they insured) cannot be pursued for any coverage Non settling insurers of perp could be pursued (by suing perp) Non settling insurers of COs could be pursued for pre 1976 claims (by suing CO) Post 1976 claims - Trustee will pursue non settling insurers for liability of CO, LC, National & volunteers) - As policy covered COs though National Pre 1976 claims - Trustee will pursue non settling insurers for liability of LC, National & Volunteers - As policy only covered LCs & National Hope this helps. Let me know if you see issues or have questions as it is confusing. I think the interesting point was the Catholic Church who managed to get coverage if their insurance settled. All other COs lost that coverage by being a participating CO (which gave them protection post 1976) but gave them no backstop pre 1976.

The insurers were clear that their payments cover any liability they faced with respect to scouting abuse. That is why the Roman Catholic Church fought the plan so long as they felt they were losing coverage. Other LCs that didn't settle should have joined the Roman Catholics but likely did not understand the gravity of the situation. The Roman Catholic were able to get a better deal than other LCs by fighting in court. I think the Elks probably recognize the issue they are about to face. I'm not sure if others do yet.

I don't think so. The LDS negotiation was unique in that it was directed to LDS claimants only. The Methodist also settled which could be used as a benchmark.

The judge made it clear the BSA does not need the LDS $250M. She stated there is enough $ in the plan without the LDS contribution. I take that as a signal from her on a path out. BSA is probably best off removing the LDS from the plan. The LDS will face a surge of lawsuits but since they are not a currren CO there will be no negative impact to the BSA.

Basically the LDS were attempting to clear out all claims where the youth was abused by a scout leader within the LDS. She said that while it is ok to clear out claims from scouting activities, she cannot approve clearing claims where the abuse occurred outside of scouting. LDS will have a tough decision. Do they pay $250M for significant protection or do they prepare for an onslaught of lawsuits. They may face that onslaught regardless. My guess is that they pull the $250M and become a non participating charter org.

It is not exactly clear to me, but as I understand it ... The proponents of the plan wanted the judge to rule with certain findings supporting the TDPs. That be would give the trustee more leverage when asking non settling insurers to pay up. The bankruptcy judge denied this and basically said it by is up to future courts to decide on a case by case basis. So, it gives the non settling insurers a bit more leverage. As I understand it, the TDPs will still be used, they just carry less weight if they are used in future court cases.

The way I look at this. 1) BSA and LDS need to talk. LDS likely had 3 options. Walk away from the plan, pay $250M but go with the standard charter releases or try to offer less and go with the standard charter releases. 2) BSA and settling insurers must decide if it is ok to punt on the guam insurance transfer and to accept a few minor changes to the plan. My guess is they do. 3) BSA will likely have to remove many of the 22 groups they included in the plan they didn't notify. It is a risk going forward but they can't delay this further. 4) BSA, TCC and Coalition will have to determine if the ruling on the TDP is ok. Probably not much to be done, it is what it is. The good news is that the BSA has a path to clear get to plan approval. My guess is that it may take a few weeks to a month to update. Then perhaps time for objections to the changes. My hope is by end of September they get plan approval.

We were at Bear Paw week 1 with linked Troops. We patrol cooked and while we had some recommendations for the future, overall a good experience.

She overrules another group of objectors, except for: UST & Jane Doe. They argue section 1129(a)7 is a confirmation requirement. (This is a requirement to show creditors would get at least as much as they would through Chapter 7). BSA said this section doesn't apply to non profits. The judge agrees with UST & Jane Doe. However, I think the point is moot from what I can see. Several certain insurer objections are overruled. Various other issues are punted to the trustee (basically Allianz plans to sue post plan confirmation and the settlement trustee will be the other side of the lawsuit). There is an issue that the judge cannot confirm all 22 categories of person listed in (d) of the defined term Releasing Claim Holders received notice to release their claims. There is an issue with the list of exculpation includes the reorganized debtors & Pachulski Stang. The reoganized debtors do not exist, so they shouldn't be listed. Pachulski Stang can only be listed if the settlement is approved. In addition, debtors must account for setoff and recoupment rights. That is it. I'm not a legal expert, but I expect the biggest issue is TCJC. That was $250M and they will get far less protection than initially planned. Otherwise, most of the remaining issues appear to be easily fixed. My reading was very fast ... so I may have missed something.

Independent fees ... in general , the judge approves the $20K in fees. However, she wants the following change. If the settlement trust doesn't waive the fee and the claimant is not happy, they can go to the bankruptcy court for review.

Very minor change required ... "Given the Debtor's intent, the word "negligence" should be added to Art. VII.C.2(c)". Other than that, certain insurer's objections are overruled and she finds the plan in good faith.

"If the plan is confirmed, the confirmation order will provide that the settlement trustee will propose procedures to suss out fraudulent claims taking into account factors she deems appropriate, which can include a cost/benefit analysis. Those procedures will be presented to the court. The STAC will have no consent or veto rights over these procedures. In addition to disallowance of a claim, penalties may include seeking prosecution of the claimant or claimant attorney for representing a fraudulent claim." She seemed VERY upset over what she herd with claim approvals. Basically, if she confirms the plan, before any payouts, she wants to see how the trust will vet claims.

She found some issues with post bankruptcy settlements. Basically, all parties must be notified even if bankruptcy court approval is not sought.

She overruled several objections including pro se claimants, the Girl Scouts (not that matters anymore) ... on page 204 of 281

TDP (Boy Scouts of America Trust Distribution Procedures for Abuse Claims) Findings ... ... she will not find the TDPs as "fair and equitable settlement of Abuse claims" as she does not see a need to do this to confirm the plan. ... she will not find the TDPs under Historical Consistency Finding. Again, she doesn't think she needs to do this to confirm the plan. ... she will not find the TDPs under "The Binding Finding" ... unnecessary ...she may agree to "They Allowed Claim Finding" .. however, needs an update .. she will not find the TPDs under "The Good Faith Finding" Basically, she is punting the TDPs to future litigation as needed. Major win for non settling insurers.

She rejects the third party releases for TCJC (Church of Jesus Christ of Latter-day Saints} as they went too far. That is why she is excluding their $250M settlement as she expects that may change. The issue is TCJC were attempting to clear out mixed claims. She is ok clearing out pure scouting abuse from TCJC, but mixed claims are a bridge too far. So ... "... I decline to approve the TCJC (Church of Jesus Christ of Latter-day Saints) Settlement."

She concludes that there is statutory authority to grant third-party nonconsensual releases. She goes through pages and pages including discussing Dr. Kennedy & Mr. Meidl's moving statements in support of the plan. In the end, she believes this case the releases are allowed. Major hurdle cleared here.

A bunch of more objections by Lujan were denied. So far, (page 120 of 281) there is 1 major issue. BSA cannot transfer the Guam abuse insurance rights to the debtor until the Guam bankruptcy concludes or that court addresses the issue.

7) The settling insurer settlements meet the standard required. Each insurer met the standard vs Ms. Gutzler's analysis EXCEPT Century. However, two points. BSA & Century were litigating coverage before bankruptcy & there is doubt if Century can pay more anyway. Plus, TCC, Coalition & FCR approved it. First Issue: She cannot approve the sale of abuse insurance policies in Guam. The Guam bankruptcy court blocked it during the Archbishop bankruptcy there and based on a review of law. A win for Lujan & Guam...

It is very long! Will attempt to summarize her findings: 1) She agrees with the Bate's estimate of $2.4 - $3.6B. 2) She agrees with the insurance expert that potential allocation to solvent non-settling insurance companies is between $321,319,886 and $400,546,854 and total limits of coverage potentially available is $4,295,878,628 and $4,404,844,433. 3) Based upon 1 & 2, the judge concludes that if the plan is confirmed, direct abuse claims will more likely than not be paid in full. 4) She CANNOT approve the $250M contribution from TCJC (Church of Jesus Christ of Latter-day Saints) because, of a release of non-abuse claims. 5) She also excluded contributions from other chartered orgs. for her analysis of #3 as there is nothing to really estimate a contribution 6) She also exlcuded Pachulski Stang's contribution of 10% of fees. Regardless, she believes direct abuse will be paid in full. ... more coming

Opened up new thread here Locking this one down.

Well, we have an opinion on the docket. From my brief review, it is not an approval; however, not a full rejection. https://casedocs.omniagentsolutions.com/cmsvol2/pub_47373/9ba8739e-283b-4ce4-b328-5a1eda289f30_10136.pdf Please keep the discussion civil.