MYCVAStory

There's a lot to be said about that approach. When so much is unpredictable it's good to avoid surprise and sometimes it works as well to expect the worst and be pleased when that doesn't happen! Hang in there.

RE the BSA going Chapter 7, that's HIGHLY unlikely under the relative progress of the current plan. The "heavy lifting", as in lawyers and professionals working and running up bills, has been done to a large extent. Continued drain will be painful but not unsustainable for the period of time while this works its way through the courts. IF, the plan is completely tossed out it's going to be tough for the BSA to start over but the big issue is the importance of the third-party releases as they relate to the over 1,000 charter orgs. The LC's have said, and said in District Court, that CO releases must be a part of a plan and if that leg of the stool is removed then it all falls apart. That would make for a very interesting game of chicken if the court granted releases to the LCs but NOT the charter orgs. LOTS and lots of "what ifs" right now. Always good to consider them but there also comes a time for me when I must focus upon what is rather than what might be.

The substantial contribution hearing to address the Coalition, Pfau/Zalkin and Catholic requests to have their bills paid by the BSA has been rescheduled to 3/23: Docket Text: Notice of Hearing /Re-Notice of Motion of the Coalition of Abused Scouts for Justice for Entry of an Order Approving the Debtors' Proposed Payment of the Coalition Restructuring Expenses (related document(s)[10808]) Filed by Coalition of Abused Scouts for Justice. Hearing scheduled for 3/23/2023 at 10:00 AM at US Bankruptcy Court, 824 Market St., 6th Fl., Courtroom #2, Wilmington, Delaware. Objections due by 1/12/2023.

Agreed 100%. But, Survivors still need to be thinking in year(s) unfortunately. For some that means their Estates will receive awards instead of them. That's tragedy heaped upon tragedy and yet another reason why Bankruptcy court is the WORST place for so many Survivors. There will be reason for some optimism at some point but history will not judge this whole episode as a good one for Survivors.

The District court decision could be stayed by the court if the insurers fight for the stay, and they probably would get it based upon precedence, so it could go to Circuit court review. A wait for Circuit Court could be....a year if that's what it wants or it knows an issue will come up in the Supreme Court in the meantime. The Trust could be funded but only for "startup" costs so that key personnel can start work on procedures in anticipation of real funding. Expect that to occur so that the Trust can say to the Court "Look, we're all ready to go and the Trust is working as designed." I'd like to be all kinds of optimistic here but the reality is that the non-settling insurers have EVERY reason to hold this up as long as possible. Well, billions of reasons at least.

Friday afternoon at District Court.... This was the Guam Show with Lujan chasing a number of issues. It was painful to watch at times as one thing after another was thrown against the all to see if anything stuck. The gist of the objecting argument was that Guam's Survivors deserved different treatment than the plan allowed based on a series of factors both unique and not so. The arguments really highlighted the fact that in bankruptcy claimants, like Survivors, become a "class" and lose individual treatment that was enjoyed pre-bankruptcy. As well, the Judge also highlighted his role in determining whether the bankruptcy court erred in applying the law when he said to Lujan "To say the bankruptcy was wrong I'd have to find that she (Silverstein) was clearly erroneous." He was basically saying "You might not like the plan, it might have your clients losing some opportunities they had pre-bankruptcy, but if it follows the bankruptcy code it's good enough." Luria did a good job of demonstrating why the Guam arguments didn't apply and after Lujan complained that the plan was changed after her clients voted on it Luria put the smackdown on by highlighting the number of Guam claimants and saying "If Lujan's clients don't like the plan now we'll accept their votes changed to 'NO'.....that won't change the vote outcome!" Luria had enough and reminded the Court that it's been three years, $250 mil spent and time to get on with it. The Judge stayed patient but that wore off and at the end put his hand up to interrupt Lujan when her agreed upon time had run out and said "I think we're done." Judging from the number of attorneys in the gallery who spent the two hours on their phones it was easy to feel that the afternoon's objections went nowhere. A bright spot for Survivors was at the end of the agenda. The Judge acknowledged that he knew people were waiting for some resolution and he commented that the decision was "...going to take some time", and then there was a long pause while the gallery waited for him to say how long that might be, and then to some laughter he said "In the meantime I guess you'll have to wait." Still, it was obvious that he's aware people want a decision. So, enjoy the wait.

Couple things..... Consensus is that Third Party Releases in Districts that allow them won't be negatively impacted until the Supreme Court weighs in. Districts and Circuits like to follow their own precedent until instructed otherwise. Sorry, to say, if the plan gets District Approval then look for the certain insurers to move for a stay, quickly, while this waits for Circuit appeal. The plan could still be funded with a few million but this would only allow the Trustee to start some infrastructure and prepare for the significant funding someday. That's a good thing until there's money to be awarded but that award money wouldn't go out the door until significant funding. BSA, Methodists, settling insurers could fund the Trust prior to a Third Circuit appeal but they'd do so at a risk that the plan could be tossed.

District Court this morning..... This was the main event. Focus was on subject matter jurisdiction and third-party releases. Luria, Anker, and Mason on one side, Lujan and Dumas on the other. For every point made by one side there was a counter-point. Like yesterday the Judge seemed to have a very good grasp on the issues and a lot of focus was not on whether this was the best plan (that was for Judge Silverstein to be more concerned with) but whether it conformed to the law. The proponents were well prepared and while the objectors less so they did a good job making their points when they weren't going off on a tangent. Whereas yesterday it was easy to determine that the insurers didn't make any headway, it appeared like the fleet of lawyers present today in the gallery couldn't smile or frown afterward. Everyone knew that these issues are political and realistic hot potatoes right now. I did get the sense from his questions that the Judge was looking for an avenue to feel good about the scope of the releases and asked some questions to make sure they didn't extend to non-scouting abuse in some cases. But, the Judge pointed out that the number of releases to COs exceeded the number of claimants! I was taking notes furiously, and reviewing them, at the end of the day I think most people didn't get a comfortable take on where the Judge stood. At the most, there didn't appear to be any "ah-hah" moments where a flaw in Silverstein's ruling was laid bare. Yesterday was a slam-dunk for the plan proponents. Today was a boxing match where you waited for a knockout punch but at round's end both sides just went to their corners. This would suggest that the Judge, knowing this is headed to the Circuit on Appeal where the court is more aggressive, might be inclined to say "It isn't perfect but if it was good enough for Judge Silverstein, it's good enough for me." This afternoon will be automatic stay, insurance, and best interest. It appears that the judge has about heard enough and expectations are, from the time allotted, that this afternoon will be short. No one's guessing how long it'll be before a decision is entered but the fact that this was heard before most people expected is being taken that the wait might not be unexpectedly long as it was with Judge Silverstein.

Just a little stage-setting. What it looks like in the District Court: Actually looks like a TV courtroom. Lots of wood and portraits of judges. Half-dozen attorneys sit up front from each side. Each side's attorneys get a prescribed amount of time and the judge interrupts a lot. Then both sides stand and there's a bit of a lightning round. Afternoon was 150 minutes. Audience looks like a middle-aged white men in dark suits convention. Probably 100 attorneys and there's an overflow room somewhere in the building watching it on TV. You get to use your phone and laptop in the audience and many do. Interesting to see faces from the years of Zoom land. I noted Tanc, Ricky Mason, Ken Rotheweiler, Andrew Van Arsdale, Kennedy and Humphrey and a bunch of TCC attorneys, Dumas representing Guam Survivors.

District court this afternoon... The issues addressed were Assignment of Insurance contract rights and obligations, as well as Indirect abuse claims and judgement reduction. This was VERY specific insurance arguments with lots of case law cited. Several attorneys for both sides presented and fielded questions. This Judge has done his homework and his demeanor was one of slight befuddlement masking a VERY sharp mind on the issues. The popular opinion was that the certain insurers again did not sway the judge. It seemed like repeatedly he asked the plan supporters to help him make arguments with examples and challenged the objectors. Time and time again he kept asking the insurers "Aren't your rights preserved?" Insurers also had issues with the TDP. That's pretty funny since the ones objecting didn't choose to constructively participate or settle. Overall, the Judge's demeanor went from skeptical to exasperated . He quickly grew tired of the insurer's hypothetical doomsday scenarios where the Trustee wouldn't do her job or wouldn't be around long-term, and at one point he put his hands up and said "The idea that the Trustee will be replaced by a plaintiff's attorney wearing a "Death to insurance companies" t-shirt is painful to imagine." Like I said, much of it was very specific to case law from all over and fun terms like "asymmetrical reduction clause." The role of the District Court is to find LEGAL flaws in the approved plan, and not re-litigate confirmation. To that end it did not look like the objectors moved the needle much and the Judge seemed to signal that he is okay with the plan, the Trustee's role in addressing the next steps, and the non-participating insurers litigating the issues they want. As one of the supporting insurance attorneys commented, and which the Judge nodded in agreement, "The insurance companies don't get to live in a world where the bankruptcy didn't happen." Tomorrow should be MUCH more interesting and telling. Third-party releases, Automatic Stay, and Best interest of creditors will be addressed. I might have a completely wrong take on things right now but Survivors should at least be pleased that this Judge has done his homework and understands Judge Silverstein's opinion as well as the briefs filed.

I'm at the District Court. Not wanting to trigger a libel suit I'll leave out the who said what and whether they stumbled. This morning was all about the "Good Faith" argument. This is a weak part of the insurer's objection, and it showed. The judge asked many questions and most seemed to be doubtful of the insurer's points. So basically, insurers spoke for 30 minutes, including questions from the judge, White and Case for the BSA did the same, and then they both took questions for 45 minutes. Recess until 2.

An administrator to manage the claims process has been designated. It is Ms. Randi Ilyse Roth. A full description is in Docket 10948 https://casedocs.omniagentsolutions.com/cmsvol2/pub_47373/e6b860d5-ea87-4d08-9283-894100d71c06_10948.pdf. She'll be responsible for managing the process to include hiring staff and sexual abuse experts, setting up the claim intake process, etc. Interestingly, she was the claims facilitator in US V. Fata. That case gives Survivors a bit of an indication of how the process will look, forms required and website if a Survivor's Trust is funded. The legacy website is via this PDF: https://casedocs.omniagentsolutions.com/cmsvol2/pub_47373/e6b860d5-ea87-4d08-9283-894100d71c06_10948.pdf Remember, she'll be one part of the Trust "team" with Barbara Houser overseeing all of it. So, she won't be judge and jury but will be developing the claim/award processes and implementing them. Also of note is that her selection came via interviews with Houser, the STAC, and representatives of Pfau/Zalkin, TCC, and the Coalition, It's a good sign when these groups can come to an agreement!

If you have a claim and pass away it becomes the "property" of your estate. That, and questions about documenting things NOW are reasons to lawyer up if you have any concerns. It IS an issue for many. I seem to remember hearing at some point that something on the order of 10,000 claims were from Survivors over 70, with 2,000 from those over 80. No, I'm not a lawyer so remember when you get free legal advice you get what you pay for 😉

So true. I've been struck at the number of times parties have suggested that Survivors are growing impatient when that isn't the case. Frustrated? Absolutely. But if you take a Survivor who has waited decades for some sort of resolution, and assume that all of a sudden their patience is going to evaporate, you're going to make a big mistake. Survivors want this over but realize that for many this might be their best shot. Don't ignore their abuse OR the resolve that's been forged over the decades.

While the TCC didn't object, it didn't support reimbursement either, and made clear that the Coalition and Pfau/Zalkin's reimbursement requests were not their fight pro or con. From the docket: https://casedocs.omniagentsolutions.com/cmsvol2/pub_47373/4e0ca3c3-b1e5-4bc3-b4f4-0407a4d599ca_10861.pdf "However, in an attempt to emphasize their individual roles in this case to support the payment of their substantial contribution claims, the Coalition and, to a lesser extent, Pfau/Zalkin, have minimized (and at times have been outright dismissive of) the integral role that the TCC played in this case, both individually and as part of the joint efforts of the three survivor representative groups – each of which played varying, additive and vital roles in the ultimate successful outcome of this case." Given the feelings shown by Judge Silverstein regarding the Coalition it was probably best not to get into that mud fight unless their was a desire to get muddy. Regardless, put 2/21 on your calendar for that hearing. This should be via Zoom and could not only have some fireworks but judges often rule from the bench at conclusion. It should be interesting to see if the Judge essentially asks "So, the attorneys who formed the Coalition are taking 40% from their clients. Why should the BSA pay for the Coalition's professionals fees (Brown-Rudnick) instead of it coming out of the client contingencies the Coalition attorneys stand to collect?" It will be very interesting to see from the outset if the Judge just wants to get this over with or make it ugly. Small other reminder, District Court hearing 2/9-10 is NOT on Zoom. In-person viewing only. Come to Wilmington...beautiful in January! (Sarcasm mode off)

I suppose the cynic in me would say this is why you hire a bankruptcy attorney to represent you in bankruptcy court. He isn't one so his post isn't entirely correct. All isssues aren't being addressed de novo. The de novo portion of the procedure underway isn't unusual and the District Court will also review some things under an "abuse of discretion" standard which is harder to overrule. So, strict bankruptcy code issues may be reviewed de novo while more complicated issues that aren't typical may get de novo treatment. This is all wise because if this heads to further appeal, and that takes more time, then the "problems" need to be identified now and addressed. As a reminder, we're also headed into non-zoom territory. First DC gathering to set out some ground rules is Friday and in-person only. Beware of reports that start with "I heard from someone who spoke to someone there...."

The DOJ missed the deadline to appeal. It's "certain insurers" (Non-Settling ones), Lujan and Dumas clients appealing. They will make the arguments they made previously, and specifically argue that the Judge applied bankruptcy code incorrectly.

Yep. The wheels of bankruptcy grind on, slowly. The key for Survivors is to get this "effective enough" so that some funding can roll into the trust so it starts to get operational. The Trustee and named claims administrators need to hire their own staffs, or at least get them in the on-deck circle, and start the work on procedures so that when, fingers crossed, there are no more non-settling insurer appeals the Trust can hit the ground running. But yeah.....6-18 months. I remember hearing that 2,200 claims were from people over 80. I can't help but wonder how many won't be with us by the time this is over and maybe that will be an incredibly important contribution; the biggest reminder of why Sexual abuse should NOT be dealt with in bankruptcy court.

Friendly reminder for tonight: Virtual town hall meeting on September 15, 2022 at 8:00 p.m. (Eastern Time). Zoom: https://pszjlaw.zoom.us/j/82272826295 (no registration required) Dial-In by Telephone: 888-788-0099 (Toll Free), Webinar ID: 822 7282 6295. If asked for a “Participant ID,” just press #

Attorney forwarded this: NOTICE OF SEPTEMBER 15, 2022 VIRTUAL TOWN HALL MEETING HOSTED BY THE OFFICIAL TORT CLAIMANTS’ COMMITTEE PLEASE TAKE NOTICE that the Official Committee of Tort Claimants’ will hold a meeting regarding the confirmation or approval of the Boy Scout’s Plan of Reorganization on September 15, 2022 at 8:00 p.m. (ET). The details for the next meeting are below. PLEASE TAKE FURTHER NOTICE that the Tort Claimants’ Committee will hold a virtual town hall meeting on September 15, 2022 at 8:00 p.m. (Eastern Time). Zoom: https://pszjlaw.zoom.us/j/82272826295 (no registration required) Dial-In by Telephone: 888-788-0099 (Toll Free), Webinar ID: 822 7282 6295. If asked for a “Participant ID,” just press #

Yes. The CRITICAL day is when the plan goes "Effective"; and the next step to that happening is District approval. Nothing happens until then. If not, then parties like the LCs would lose the injunction that is a part of the plan. Unfortunately, lots of "BSA emerges from Bankruptcy" headlines are giving the wrong impression.

Briefly..... Appeals must be filed within 14 days. This is basically an "I appeal" placeholder filed. Parties discuss a suggested appeals process. Documents, arguments, briefs, etc submissions are agreed upon. Or not. Stipulation filed with the District Court regarding the appeals process for its agreement. It can do its own thing as well. Also District Court is MUCH different than Bankruptcy Cort. IF there is testimony don't expect it to be on Zoom. But, you can travel to beautiful Wilmington to see it! Distrct Court places dates on the docket. Right now it's all a guess but the District shouldn't be expected to take this up until closer to November. By agreement at this point the plan is NOT effective OR funded in any form until District approval. How long does that approval or rejection take after District review is completed? NO ONE can accurately predict that right now without knowing the exact nature of any appeals and the extent of materials and testimony to be considered. TCC has a Town Hall on 9/15 and hopefully will explain the process better.

"Doors closing...all Aboard! Next Stop, District Court. Welcome to the Hurry Up and Wait Express"

Attorney just told me that the TCC is holding a Town Hall 9/15.

Yeah....the cringy moment of the day was when one of the attorneys lightheartedly mentioned to the Judge that the proceeding's complexity and reminder of past hearings might be "TRIGGERING" to her. UH, how about if we dont joke about that. Some just don't get it.