Eagle1993

Court begins at 1 Eastern today. I think Guam and a few others have witnesses.

Interesting ... judge continued to sustain objections over the coalition lawyer; however, when his questioning wrapped up the judge went back to him and apologized for being curt (I don't think she was) and said she made some notes that he brought up some good points early in cross and suggested he expand on those during closing arguments. Again, I don't think these witnesses are helping the certain insurers...

5 minutes on debating the definition of the word "voluntary" GIven the fees being charged, that probably cost the BSA $250,000.

The BSA lawyer is using the settling insurer witness to actually make a stronger case for the plan. I do not understand attacking the TDPs. They have to get through 82,000 claims. The TDPs seem very well written to handle that. If anything, one could see more arguments from claimants. I don't understand why the settling insurers think they have a winner there. Then ... instead of finding experts in TDPs and trusts, they pull in people who have no clue how TDPs or trusts are supposed to work. I still think the neutral path has more liability (as there is no max, there is no money to pay for the results, insurance companies could claim it is not insurance neutral plus claimants have to pay a ton to go down that path). However, it seems like the insurers are simply stuck on the TDPs. My only thought ... settling insurers may say ... most of these claims deserve $0. The reaming have more than enough $ already in the trust. The only reason the trust needs more money is due to bad TDPs. Therefore, fix the TDPs and eliminate the $3500 payment then you don't need any money or neutral path from the non settling insurers. I just don't see this working, but who knows, I'm not a lawyer.

This morning, a witness is going on and on that the TDP isn't like how it would be handled in tort. Well, correct. This isn't tort, this is bankruptcy. I'm barely listening, but I could easily dimiss this through cross. Questions... do you have experience in bankruptcy? Do you have experience in TDPs? Do you have experience in trust distributions? Thank you and goodbye. This seems to be a waste of time.

Watching the insurers ... I think their best line of attack is against the neutral path. That came in late to the plan and may not have been vetted as well as it didn't go through 2-3 iterations. In addition, it sounds unique to trusts and DOJ & the judge both questioned it a lot. Finally, it seems like the one that may not be insurance neutral. Right now, it seems like they took the shotgun approach. Spray a lot of lead and see what hits. I'm not sure that will be as effective. My only thought is that they want to delay it ... so if they only blow 1 hole in the plan, that could be fixed and then the case would close. They may want to try and blow many holes to delay it further. I just don't see them as being effective (at least yet).

Her heart was in the right place. However, I don't understand why she was even a witness and the insurance companies should have prepared her more. Now ... she would have been a good witness about 2 years ago ...

Follow the rules. I understand there are cases that are tough calls. For example, we were at summer camp in a major storm (lightening not wind) that came on fast in the middle of the night. We stayed in our tents and didn't evacuate as the path to evacuate was likely more dangerous than the area we were already in. There are cases where you are out on high adventure trips where you make the best call you can. The case described here isn't that ... let them walk 250 feet and seek shelter. I don't understand why they wouldn't.

I think there is flexibility and I would expect the trustee will require an increasing amount of evidence for higher and higher payouts. Prof. Jacoby brought up a good point... Hindsight is 20-20 ... but I do think a lot more vetting & work should have been done up front. Perhaps instead of just a proof of claim, claimants may have had to submit the form(s) she mentioned. Perhaps law firms should have had to fund it for their clients. My guess is that we would have seen far fewer claims, those claims would have been validated and the negotiations may have gone faster. The downside is that those who are poor and/or did not have good access to lawyers would have been left out. So, with everything, there is competing priorities. That said, we are where we are. It sounds like the plan does have tools to prevent big payouts to fraudulent claims. While in a perfect world, fraudulent claims would receive 0, I just don't see how that is possible without spending far more money than would be saved.

This is a good point. There are processes in place, just not a 6 hour psychologist evaluation for every claimant. I think a very valid point raised by BSA .... the trust is able to determine what process to follow on a case by case basis. They have the flexibility to require that 6 hour interview if they felt it was necessary .... it just doesn't mandate what she is recommending. I don't see much coming from her testimony.

A psychologist for certain insurers was pushing to require all TDPs to go through a certain specific level of testing prior to payment. She made some very interesting points, including that around 40% of the individuals she has dealt with were false claims (at least based on certain standards). Her main point is that self questionaires are almost worthless in ensuring claims are valid. That said ... what she is asking is unprecedented. In addition, it would take on the order of nearly $200M and 187 person years of work. It would probably work on a very small scale, but wouldn't fit this case. Very nice woman who is very concerned that money will go to fraud vs actual victims, but her solution is probably not feasible. (My opinion after listening to cross).

Interesting. Insurers brought up Thorpe Insulation bankruptcy where the non settling insurers won an appeal. Basically ... if a plan isn't insurance neutral they can distrupt it even late in the process.

I think that only applies once district court would approve, but would be good if someone could confirm. There have been many recent examples where district court has rejected non debtor releases. I tend to agree though, if district court approves, there may be limited groups appealing.

On cross the insurance witness struggled a bit to explain how the TDPs or expedited payment negatively impacts them. However, I think they make a decent case on the neutral path. There is no limit. Plus, in their contract, insurance companies should have assistance of the insured to investigate the incident. That seems to be non existent in the neutral path plus there isn't much involvement of insurance. Now, they will get a bill and told take it or leave it. The issue is that if they go to court then, then are concerned that the bill will be looked at as binding. The Judge and DOJ had raised issues about the neutral path. I think the insurance companies are raising some valid concerns regarding this path as well. Now, I think it could be fixed (perhaps by lowering the fee AND allowing insurance companies to participate during the process). We will see...

I expect many trusts are built upon future insurance settlements. I would have thought this part was standard language. I wouldn't be surprised if there is an update to the plan that clarifies insurance rights for non settling insurers. I would be surprised in the insurance side leads to major delays, even though I do think insurance may be landing some good points today. The big issue, where it could lead to major delays, is district court and the non debtor releases. I think we will see the bankruptcy court approve the plan in April (unless something shocking comes up). Then, we may know by June where district court lands on this case. If they approve ... then I expect further appeals are likely moot and the plan will go forward. If they reject ... well, I have no idea where this goes. Just my guesses ... but April/June are probably key dates coming up. Now, when payments will be made (other than those $3500 quick payouts) ... I have no idea. That could take a while as they need to setup the TDP/neutral review process & collect payments from parties. I think we are definitely closer to the end than the beginning.

Today's hearing has been pretty interesting. Certain insurers are saying their policies REQUIRE the owner of the policy to help in the defense/review of the claim. That allowed insurers to offer their insurance to BSA at a lower premium. Now, the witness is saying, the debtors and claimants worked together and violated the contract terms of the insurance policies. I think the issue is that in the plan TDPs and neutral there is no provided defense to help the insurers as required per their contract terms.

I agree. I have no idea why certain insurers put that into the record. Unless there is testimony coming up that can show he lied and casts significant doubt. I haven't watched the entire hearing, but the moments I do ... I get the sense that the certain insurers have very weak arguments to stop this plan. One of the best witnesses they interviewed was BSA's insurance expert. At some points, he seemed to actually correct the insurer's lawyer on how policies are written. He showed how they pushed back on the TCC & Coalition to include insurance company language. I think it is clear to everyone that certain insurers simply want a delay and have no legal reason ... they are just afraid of how much they are going to have to pay the trust eventually. I am much more sympathetic to Lujan, Guam Committee and Dumas. Lujan is a mess. Perhaps that is because it is the middle of the night, but most of her questions are wandering and not targeted. Occasionally, I think she starts hitting on some points but then wanders off of them. Guam Committee is angry and spent most of yesterday on one witness ... and the bit I saw didn't seem to make many major points. Dumas, to me, has been one of the best and most effective lawyers objecting to the plan. She was able to get some BSA representatives (especially the local council ad hoc guy) on their toes. She asked if any Pacific coast state councils had representatives on the Ad Hoc committee and he said "Arizona". She asked if Arizona was on the Pacific coast and he said ... I'm from Georgia, everything West of me is West. She asked about Oregon, Idaho, etc. cases that were missing from analysis. I think she is making a good case that West coast councils did not pay enough for the settlement. Now, I think that may not delay the plan, but may hit district court. I wouldn't be surprised if she can prove West coast (especially Oregon) underpaid to get their releases. That may not be her goal, but the effect of her strategy.

The one who said the majority of the claims were likely fraudulent? Seemed like a weak witness as he didn't provide a lot of evidence. Just opinion based on limited knowledge/review. If the majority are fraudulent then you need to provide a lot more evidence. I don't see their witnesses impact the outcome yet. In terms of fraud... Judge can simply say the trust can deal with it. The other witnesses were lawyers from law firms who have a lot of clients. Neither of their depositions seemed socking to me. I don't think certain insurers have much of a case to stop plan approval. While they speak a lot, they seem to have the weakest case. Guam and a few other claimant lawyers have been more effective. Probably not enough to stop plan approval but may be enough to cause headaches in district court especially if DOJ objects.

BSA has rested their case today. Now objectors are starting. Certain insurers played video of several witnesses and they start tomorrow morning with more.

I think he will object and probably follow a similar path as the Purdue Pharma US Trustee. The DOJ does not agree with allowing bankruptcy courts the power to grant releases to non-debtors with non-consenting claimants. My understanding is that there are a couple of paths the bankruptcy can go post plan approval by Judge Silverstein (assuming she approves). Note that Professor Jacoby recently tweeted a summary of where cases can go post bankruptcy plan approval. Prof. Jacoby on Twitter: "Here is a thread on appeals from bankruptcy court decisions. Cannot say it is by popular demand - more by demand by a popular person! @alahav 1/x" / Twitter In this thread, she states that lawyers will go to District Court. Then, it will depend on the pace of district court on how long it could take to get to appeals (if district approves). It could take years and at that point, the appeals court decision could be moot.

Sounds like Whitman would testify about non debtor releases. The Roman Catholic Church had objected to his testimony but then dropped their objection after the settlement. So now BSA wants to bring him to testify. However, Guam had their own objection and BSA had mentioned they were done with Whitman. That was a back and forth with some heater language from Guam. As mentioned, the judge said she is going to read the transcript and wasn't sure how she would rule. BSA will wrap up Monday. Then we will see the objector witnesses. After that, closing arguments. Hopefully we have a decision in 2 weeks. I think this plan will get approved however who knows what happens in district court.

Our Troop spent decades at Lefeber which was a patrol cooking camp. We then went to Long Lake one year and the scouts hated it. Last 4 years we went to CFL and loved what they did there. Now, we are headed to Bear Paw. Hopefully it works out and keeps Patrol Cooking a permanent fixture.

I wasn't able to attend after part way through the survivor working group representative. Reading through Prof. Jacoby's updates... - Survivor working group was 15 members was a diverse group representing various races, ethnicities and sexual orientations. - FCR rep was up next, who believes 11,000 more claims will come in the future from current minors or those with claimants with repressed memories. He believes the trust will need to operate for decades. Objecting claimant lawyers indicated that this is a reason that claimants will not be compensated in full in addition to other concerns.

I lost connection as I'm in the Rocky Mountains right now, but it sounds like he was on the survivors working group and was going through some of the negotiations.

A claimant started the hearing today and gave a very emotional testimony about his time in scouting and impact on his life. It brought the trial back to what this is about, compensating abuse victims. He also mentioned finding fellow survivors on a scouter forum. I'm glad I was able to log in to hear his testimony. FYI ... it is still going on if you want to log on.