Eagle1993

TCC indicated they were invited back into mediation Monday this week and have been going strong since. They cannot comment; however, it sounds like they are being listened to and there can be a framework to get it updated and acceptable.

I agree in transparency in reporting and I hope that is part of any settlement. It will be helpful to show this for every council/region. Lack of any youth protection failures would be a red flag as much as excessive ones. I also think BSA should release all of their files. They have already done that in other cases (such as in Oregon) and hiding these files seems to cause concern/pain in the abused. Given that, they should release these files to put to bed any remaining debate over what they may contain.

First, I have to say no child should go through what you went through. Any part the BSA played in that is wrong and a failure of the organization. Abuse like what you describe is unimaginable to me and as a father, would be devastating to an entire family. You have my complete sympathy. My only defense of the BSA, in terms of their actions in bankruptcy, is that bankruptcy is a horrible way to address child sex abuse liability. I know they chose this path and perhaps financially that was the correct option for the BSA. I think as a current scouter, I can ensure my Troop follows all barriers to abuse rules and keeps an eye on all adult leaders to protect our youth as much as possible. In addition, I can pressure BSA to be a leader in methods to prevent abuse going forward. I am not an expert in that area, but would encourage BSA to fully accept input from outside experts while still maintaining the key elements of the program. Finally, every leader (either on this forum or elsewhere) has spent countless hours mentoring youth using the methods of scouting (which do not include any sort of the abuse you experienced) to help young boys mature and grow into outstanding citizens. Many of us will debate specifics, politics, religion and other aspects of the program, but all have the same heart and a common interest in helping youth. I expect none of this could provide much comfort given what you went through. I can never know how I would have reacted to such abuse, but expect it wouldn't be far from your comments. I do hope, in the end, some good can be salvaged from this ugly bankruptcy process and I wish you some solace going forward.

I hope the judge clarifies what she is looking for in terms of %. If its 66%, we are likely done. If 75% ... then probably some minor changes to the plan, perhaps, may be enough to get it there. If it is 95% .... well then, major plan changes will be required. I know she is deliberate but I hope she signals where she is leaning. (Also, it would be good to know where she is at overall in terms of non consensual non debtor releases).

I wonder if there is an example of only allowing reject going to accept? The recent example I saw (USA Gymnastics) is that they went through another full vote. They used Omni and had the option to submit votes online (and only had 500 or so claimants). Given that DOJ already wasn't happy, I expect if there are changes, BSA will need to go to a full vote again.

Attempting to guess where this may go from here, I took a deeper look at another case under Judge Silverstein (Imerys Talc America). 1) Their plan went out for vote with a target of confirmation hearings in June 2021. When the vote came back as passing, there were a lot of questions about how law firms obtained votes. They found one firm had 15,000 votes and did not have sufficient evidence they vetted the claims. Judge Silverstein threw out their votes which then resulted in the remaining votes not sufficient to pass the plan. - What I see here is that Judge Silverstein will want to make sure those who voted for the plan are claimants with legitimate claims. I'm sure she will be open to questions of voting irregularities. Note that the votes were due March 25, 2021. The fight over the vote took until October 13, 2021 when Judge Silverstein decided to throw out 15,000 votes which killed the deal. So ... if there is a fight over the BSA vote, you can expect discovery, depositions, discovery, depositions, then hearings upon hearings. Perhaps it will be faster than 7 months ... but this will not be a few weeks of time. Silverstein will ensure nothing is rushed without allowing appropriate legal review. There are a ton of questions about the eBallots, claims vetting, master ballots, etc. I expect both sides to fight the vote as long as BSA puts forward the current plan. 2) What has happened after Oct 13 ... that was a hard stop on the current plan. No confirmation hearing. Back in mediation. So, the judge holds to the vote. Now, in this case, it is over 66%, but as mentioned apparently in CSA cases they expect 75% ... and probably higher for non debtor releases. In the Talc case, Silverstein appointed a new mediator to join the team Kenneth R. Feinberg (the lawyer that oversaw the Sept 11 terrorist attacks fund). However, before mediation started, she is working with the sides to set strict rules (to prevent discovery fights later). - So, in the BSA case, if this plan fails, I would expect Silverstein to appoint new mediators ... personally, Feinberg may be a great choice. In any case, she may even get involved to set rules of engagement to prevent failures out of the first mediation. Overall, the Talc case vote was due March 25. It is now over 9 months later and they are back in mediation. My concern is that BSA may be headed down a similar path. Hopefully, they are having open/honest conversations. I just found the Talc case an interesting study. Each direct abuse claim vote is worth $1. That was debated and they didn't change it.

They are only paid by the BSA, they do not get a percent of any settlement. Chapter 7 would end their payments, in addition, would likely end with less money for claimants so not a good for a company that works so many bankrupcies. The TCC law firm, PSZJ Law, has been used as the law firm for the official creditor committee in many sex abuse bankruptcy cases (including most recently USA Gymnastics and many 16 different arch dioceses bankruptcies). I'll give you one example. In Milwaukee, PSZJ and others took a $4M offer, sued the arch diocese over their cemetery fund and eventually ended up with $21M for claimants. You saw what they did with USA Gymnastics ... taking initial offers and driving it up by hundreds of millions. So, if the TCC committee hires a law firm, pays them ... let's say $20M for the BSA case ... that that law firm is able to drive up settlement offers hundreds of millions of dollars over what other attorneys could do, then they are probably worth their money. If instead, the law firm fails and the case goes Chapter 7, then they are definitely not worth their money. The TCC law firm has 1 job ... maximize the return for the parties they represent. To be fair, PSZJ has done that well in similar cases, so I understand why the TCC hired them. I do think there is an argument that all bankruptcy firms are paid too much (PSZJ, Omni and White & Case) especially for the non-profit world. I'm not sure what can be done to change that (other than possibly reduce the complexity of bankruptcy law).

If the judge is not satisfied with 73%, I don't think she will take a wink/nod that the changes are enough without seeing a vote take place. The DOJ already was upset that the plan was changing during the voting process, but she let it play out just to see where the claimants currently are. It seemed clear that any further changes would likely require a new vote. Before a new vote takes place, the BSA must have the TCC on board. We are talking ~5 months each time a plan goes out to vote. They can't just keep making minor tweaks and sending the update out with crossed fingers. They tried the crossed fingers once and it likely failed. I doubt it. I think they are tied to the coalition. That could change after January 10th hearing.

I'm taking a look at the votes that were not counted. I found several issues in Omni's table. Claimants 17518, 73211, 95439, 93065 listed either "Accept or Reject" under the vote heading; however, the Reason(s) for exclusion is that "Holder did not indicate vote to accept or reject the plan". These are all AIS claimants. Something is off on those. Also note, I took a quick look at the first several pages of AIS claimants who submitted a direct ballot to Omni that was not counted. Most of these were not counted as their votes were superseded by a master ballot submitted by AIS. Now, it is unclear if the vote changed between the direct ballot and master ballot ... that would be interesting info. The direct votes that did not count (from the first several pages ... of the report) 26 Accept 18 Reject 16 Abstain (why would there be any abstain votes when voting directly) In any case, just counting reject vs accept ... that is a 59% acceptance rate. Now the question is ... what are these votes in the master ballot and did that rate change? I think it also leads into the question into Omni if they swapped Master/Direct in their summary.

I guess what is the impact of those that vote to "opt out"? My understanding of the situation is that if this plan goes forward, no one can "opt out". That 3rd parties (chartered org and LCs) are granted release of liability and it is funneled into the settlement trust. Therefore, I wonder what it means if someone "opts out". Does that mean they could sue the LC/CO even if this plan is approved? I don't think so. Why am I questioning the "opt out"? One example ... someone wrote to Omni (posted in the docket) saying they vote to accept the plan for BSA but also said they "opt out" as they don't want to release their CO. I don't think that is how it works. I see 21,172 selected "opt out". That is far greater than the 14,487 reject votes. Assuming all reject votes were also opt out, that leaves 6,685 Accept votes that also selected "opt out". That is an odd combination to me. It would be great if someone could explain why someone would Accept and then "opt out".

66% is the threshold for a bankruptcy. However, WSJ was reporting even BSA admitted they needed 75% which they didn't reach. There are two issues that the 73% causes. One will be with Silverstein. Has there been a case where there are non consensual releases of non debtors with this low of a vote? Recent votes have all been in the 95% range and even then they had struggles. This will be a hurdle to get over with her. Now, if she approves (which is probably unlikely) the next court to see this plan is a district court. District courts have started to question non consensual releases of non debtors (Purdue in 2nd Circuit and now Mahwah Bergen in 4th Circuit). Purdue was at 95% and not sure about Mahwah Bergen. I'm not sure I would want to take 73% or even 75% approval into a district court. As I mentioned, anything could happen. Silverstein could say this is the best deal that could be reached, ignore Purdue, ignore Mahwah and punt it to the district court. The district court, larger court of appeals could also let it go through (barring anything happening in the Supreme court in the future from Purdue .. apparently 1 aspect of it could go there). That is a definite possibility. That said ... I think BSA would be wise to reconsider this path. Perhaps go ahead and pursue it, but I really hope they start laying out the framework of an alternate plan that could get TCC (and DOJ) buy in. Ignoring that path is putting all of your cards into a rusty, hole filled bucket. The scout motto is "Be Prepared" ... they should be "Be Prepared" for Silverstein OR a district court now rejecting this plan.

I doubt it, but not too surprised it hit that level. It was mentioned earlier about Judge Silverstein. I would argue since the RSA, she has been pushing hard to get a plan out for a vote. She agreed/pushed all controversial/tough decisions to plan confirmation (vs Disclosure/Plan solicitation) because she wanted voting to start. She pushed out plan confirmation to Feb 22, but kept the voting report earlier. Why? She said she wants to see where the claimants are. What BSA is asking is for thousands of organizations to be cleared of any liability of child sex abuse related to scouting (that term is even questioned). I think the judge clearly wants to see if the claimants are on board. They are not. I question even the 75% target for what is being asked. Now, as I mentioned, anything could happen including a cramdown/approval. However, if I were to make a bet (which I won't as I am horrible at betting) I would lean to the other side (this plan is dead). I could imagine her saying something like ... TCC/BSA/etc. ... you have 1 month to come to agreement. If no agreement, this becomes a BSA national only bankruptcy. Again, just a hunch. She has seen this go on multiple years. After that, the vote is underwhelming (I think we could agree on that). This is an incredibly complex case. She wants BSA to survive. ... That could take a major change in direction. Regardless, if this plan fails, the BSA needs to start working with the TCC again and not only the Coalition. White & Case messed up when they went all in on the Coalition. I hope they can now all work together quickly to come to an agreement.

Many are on master ballots. So my guess on those is that the law firm was not able to confirm how the claimant wants to vote but still includes their claim on their overall master ballot. The direct ballots don’t make sense… I agree anyone directly voting would likely have wanted a vote to count. Who knows … I’m sure will come out with discovery and further review.

I do believe master ballots will be questioned; however, they are allowed by the judge and they do (should) reflect the input of the claimants (either directly or via POA). I wouldn’t e surprised to hear Omni flipped them with direct. Also note there are a large number of ballots rejected. They are listed along with how they voted and why they were rejected. That could be cleaned up before the final total.

$17.8M since start of bankruptcy https://casedocs.omniagentsolutions.com/cmsvol2/pub_47373/8e88654e-8770-45af-97da-6b95e61ed17b_8062.pdf

One final note before I sign off. Nothing is guaranteed. The judge could look at this and say it’s the best deal possible and allow it to go through. This is a complex case and I’m not sure there will ever be 95% approval. That said, I hope BSA sits down with TCC and finds a path closer to that 95% mark.

What was the opt out question? Over 21,000 selected the opt out.

To me that 73% was right in the middle of limbo land. It meets the minimum threshold; however, not the 95% you saw from talc/Purdue or 100% from USA Gymnastics. January 10 will tell us where this is headed. I expect Silverstein to weigh in if this is good enough or if it is a non starter for her. Personally, I hope she tells parties to sharpen their pencils and work on mediation and keeps the confirmation hearing going. There are a ton of rulings she needs to make and they could be helpful even if it likely this plan isn’t approved.

For direct abuse claims, 55,888 votes. A bit surprising but the bulk of the rejects came through master ballots. About 1/3 of approvals requested the $3500. I doubt this will be enough yes votes to get accepted but it will be enough to go through months of hearings. I expect we are in limbo. Indirect abuse claims are likely charted orgs that rejected the deal.

Indirect abuse claims rejected the plan outright. https://casedocs.omniagentsolutions.com/cmsvol2/pub_47373/d45114a7-88c5-452f-9da1-f61ca4ac3eed_8141.pdf

Vote is in. 73.12% accept.

If this was a National only bankruptcy yes. However, there are non debtors involved and non consensual claimants. This is the same issue Purdue Pharma ran into. Some circuits do not allow this while others (currently) do in rare cases. See below from an article about these releases including iv. There it talks to claimants having overwhelming accepted the plan. Purdue that was 95%. Talc that was 95%. It sound like some cases it dropped into the 80s. <75% likely won’t cut it unless this judge wants to see the plan thrown out by a district court 2 months later. In the circuits where non-consensual third party releases are permitted, a debtor must satisfy a high evidentiary bar to obtain approval of such releases. The factors a bankruptcy court must consider in such circuits include (i) the identity of interests between the debtor and the third party, such that a suit against the non-debtor is akin to a suit against the debtor due to, for example, an indemnity obligation that may deplete the debtor’s assets; (ii) whether the non-debtor has contributed substantial assets to the reorganization; (iii) whether the release is essential to reorganization; (iv) whether the impacted classes of claims have overwhelmingly accepted the plan in question; and (v) whether the bankruptcy court has made a record of specific factual findings to support such releases.

I definitely think that may help reduce burden on leadership. However, pack meetings are a lot of fun and a way we built up excitement for the program. For us, we had a pretty easy calendar that worked. Sept - New scout intro, kickoff Oct - Outdoor S’mores and campfire Nov - Cake Bake (bake cakes at home and vote on each other’s) Dec - No meeting but went caroling as groups of dens Jan - Pinewood Derby Feb - Blue and Gold Mar - Bear Carnival April - Camping/Cabin trip May -Advancement ceremony It seemed to work well. We would add in a Fall and June overnight most years as well. Wasn’t too bad. Note that our den meetings were also only Monthly which I know is a bit unique.

The way I read it is they cancelled their first request and created a new request both with the BSA.

The Coalition plans to hold a meeting this evening. Zoom link can be found on the site below. Events | Coalition of Abused Scouts for Justice (scoutingabusesurvivors.com)