Muttsy

So the Settlement Trustee standing in the shoes of the BSA/LC insured sues himself. Sorta like when that Woody Allen character who cross examines himself in that Take the Money and Run movie? Could someone please explain to this poor mentally challenged soul how this is supposed to work?

Lawsuits against whom? If this plan is confirmed, BSA and LC’s will be released and can’t be sued.

Kosnoff is saying the insurance piece is also dead. He’s making sense. At the last hearing the judge saw the insurance carriers strongly object to the idea that she could approve trust distribution procedures that would be binding on the insurance companies. She made comments suggesting that she agreed. The insurers’ reaction is understandable. An insured defendant can’t damage someone and then agree with that person to a claim resolution program that is binding on that person’s insurance company unless the insurance company agrees to be bound by the award. Apparently no court has ever found a Trust Distribution Procedure such as this one can be forced on insurers. I think this is what Kosnoff means when he says the BSA and Coalition/TCC/FCR are telling “fairy tales” in order to hoodwink survivors. Down another costly rabbit hole for nothing.

I don’t know about this fella. His CV and educational background are a tad light on substance. Or not. He’s very close to BSA’s lawyers. He’s done a LOT of mediations for Sidley and Austin which are Lauria and Andolina’s prior firm. Green was rejected by the TCC as a mediation team member for that reason and others. He is said to have a god complex. Lawyers who had dealings with him were not complimentary. A vocal lawyer on the Coalition advocated hard for him a year ago.

No real protection in place for Scouts? You must not understand how current YP works. Is it perfect? Obviously not. Is it improving all of the time? Yes, more rules, more strictly enforced. I know that BSA has been doing “Youth Protection since at least 1986 when it launched the Three R’s program created by Dr Finkelhor. I know that 20% of the claims in this case occurred after 1986. Please edify me about any peer reviewed data driven studies published demonstrating the efficacy of that nifty acronym YP you reference. Don’t cite Dr Warren. She wasnt allowed to answer questions at BSA’s press conference in 2019 She’s not credible In the meantime please read the CHILDUSA report on abuse in scouting and especially its conclusions. Ask yourself whether BSA’s model could ever be made reasonable safe from child molesters. Also please read almost any scientific literature regarding the obsessive compulsive nearly unstoppable urges of these people. Finally, if Boeing had 84,000 crashes, would you put your kid on one?

Personally, I don’t care one whit what happens to BSA. Under the soon to be fourth rendition of its plan, there is no money for survivors. It all gets gobbled up anyway, so why take bupkis for the privilege of putting the organization back in business with no real protections in place for kids? The AG investigations will finish BSA off eventually. KOSNOFF got it right last year when he said BSA should do an orderly Ch 7 conversion with appointment of a Ch 7 trustee who will pursue the insurance and liquidate assets. At least that would stop the massive financial bleed. Fair market values could be ascertained and properties sold off. Separately the battle will move on to the LC’s and CO’s who are both additional insureds and in many cases have decades of their own insurance to be tapped. Individual Ch 11 bankruptcies with 500 - 5000 claims will be less complex to resolve. Kosnoff tweeted last year that this case has always been doomed to fail. Apparently no one wanted to hear that.

There is literally hundreds of billions of dollars in insurance. Chubb alone showed 175B in assets on its 2020 Annual financial statement. if you want real justice, you HAVE to make the carriers bleed. Trust me, there are multitudes of hungry trial lawyers who will press it if the client wants to fight on. And not years and years. That is is TCC and Coalition propaganda they spout because they aren’t sex abuse lawyers or even litigators. It’s like asking the dentist if you should get a heart transplant.

Bankruptcy judges don’t decide tort law issues especially and including SOL. A claimant has a right under the code to liquidate his claim in state or federal court. She has no power to take that away.

It is immoral and unjust to ever treat similarly abused and affected survivors differently based on the accident of geographic location of the abuse or the capriciousness of state legislatures. Compensation should reflect material aspects of what was inflicted and it’s short, intermediate and long term effects on the boy/man. Two other points. While this mess is a real stinker, it doesn’t mean checkmate against survivors. Two important legal concepts to ponder: 1: insurance companies have a nearly absolute “duty to defend” even if they assert a “reservation of rights” to maintain inter alia that the claim is time-barred 2. SOL is a legal defense that is raised in these cases but people somehow think it means an automatic dismissal of the case. It doesn’t The defense must support a motion to dismiss on SOL with EVIDENCE Where does the defense get the evidence? Through litigation discovery e.g. interrogatories, depositions, requests to admit etc Civil defense law firms are not charitable organizations The cost to litigate each case is borne by the insurance company. Just the discovery and motion practice to get the SOL dismissal motion ruled upon is $15-50k per plaintiff depending on local legal market rates. One case? Ok 40 cases? Ok. 50,000 cases? No way. In a case like this, SOL is economically irrelevant. Remember, too, that there are potent plaintiff defenses to the defense of SOL In this case, fraudulent concealment is a major one BSA, LC’s and many CO’s KNEW of the pedophile permeability of scouting for a century and fraudulently concealed that information from scouts and scout parents How much would it cost Chubb and the others to litigate those fact issues, even if they won some of them? Other courts will say the defense is a fact question for a jury. Ching-ching the cost of defense for the ins carriers shoots to 500k-2M dollars per trial. The carriers understand the economics The TCC and the Eagles apparently do not Then there is the latent discovery defense to SOL This is recognized in many non-window states Last week even Louisiana’s Supreme Court recognized the defense and Louisiana hasn’t been on the radar screen as a beacon of hope for abuse survivors. The latent injury discovery defense to the SOL defense is a very complex and di$covery intensive exercise. Expert witnesses, medical and psychological records, school, military records, depositions of parents, siblings, childhood friends — all to prove or disprove that the survivor had psychological injuries he did not discover until within the last three years or whatever the SOL period for personal injury cases is in a particular state. This is why even a cram down for BSA that leaves LC’s and CO’s legally exposed is far preferable because the carriers will be forced to defend an impossible number of cases. The case will be won in the multitude of lawsuits leading inevitably to hundreds of LC and CO bankruptcies. This is where your real CSA lawyers will earn their fees. Not the bankruptcy types who charge hundreds of millions, fail and then convince victims to “take it or leave it.” Leave it.

The body language of the TCC people last night was unmistakable. The mediation has fully finally failed. Tonight you will hear that admission. The “New” plan is the same as the old plan. Still full of gaping holes that can’t be filled. It won’t survive confirmation. If it does, it won’t get anywhere close to 2/3rds. Failure. Take it or leave it, is what the legal brain trust is going to tell you. Even the US Trustee will argue it is illegal to grant 3rd party releases and cannot be confirmed. There is no real money to distribute after deduction of future claims reserves and settlement trustee litigation reserves. The whole case has been disastrously managed. By all of them.

BSA and the councils have all the enrollment records. They had no problem digging out this one to promote itself earlier this year:

My personality is the kind that sees the glass half full not half empty. The solution to disappointing recoveries from the BSA and LC’s is making the pot much bigger with insurance carriers and CO recoveries. Chubb, for example, lists assets of 175B and 45B in premium revenues It pays big dividends. Same with Hartford. And all the hundreds of other carriers with exposure The dioceses have Catholic Mutual which is backstopped by the Vatican The LDS church has insurance with huge reinsurers like XL Bermuda. The Church has a massive stockpile of assets the scope of which is which known only to the angel Moroni. Best estimates are north of a trillion So let’s be cheerful. There are insurance plaintiffs lawyers who are Jedi Knights when it comes to litigating against insurance companies. Look at it this way, Do you want 66% of 5B or 55% of 30B?

Wow!

There is a rumor circulating that LDS is mediating with the TCC/Coalition/FCR next week. Has anyone heard anything about that? I seem to remember reading somewhere that LDS sponsored troops account for more than 3000 cases. I wonder if anything similar is happening with the Methodists, Catholic Dioceses etc.

Related, and I sure I asked this before among my interminable obsession with probing, does anyone have any clue the pool of candidates for Settlement Trustee? Like Future Claimant Representatives and Tort Claimants’ counsel, it has to be aa fairly small universe. I know the TCC, Coalition and FCR will select that person, but curious if there is any narrowing to be done in this vacuum I am occupying. This question concerns me enormously. These bankruptcy creatures see these cases as their own personal goldmines. I’m certain the jockeying and horse-trading is going on. They all want a piece of that gravy train, too. Coalition lawyer David Molton (Brown Rudnick positioned himself to be the PG&E Trustee. Enormous fees to his firm. I’m sure Stang’s firm wants a cut of the action, too. They’ll try to get their people on the advisory committee to secure their selection. They hire their “friends” to do work. The settlement trustee approves their fees. The bankruptcy court plays no oversight role. The case is closed. The settlement trustee is all powerful. I will vote and urge others to.vote for the plan if it installs any of the bankruptcy attorneys in a position to control the selection of the trustee. It should be a complete outsider. Some one like Irwin Pickard who was the trustee in the Madoff case. He recovered over 80% of the Madoff victims’ losses. Ken Friedberg was trustee for the 911 Fund and the BP oil spill disasters. He’s known to be ferociously independent and reasonable. There are other candidates who would be fine. But I don’t trust any of the long knives involved in this bankruptcy. Some are involved in other mass tort cases where they ended up taking 75% of the pot as compensation to the trustee and his lawyers. These are very dangerous waters we are entering.

Does this section mean what I think it means. Did BSA buy the Coalition’s votes for 10 million dollars? “Coalition restructuring expenses?? This appears very deceptive. The Coalition was supposedly paying Brown Rudnick. Looks like all the survivors are. What does the TCC have to say about this?

My bad. But you get me. 2021-22. creeping senility

Too pessimistic. Folks may see an initial distribution in 2020 early 21. Once the carriers see that they can no longer hold BSA hostage, perspectives will change — quickly. My gut tells me carriers will begin to get serious soon. Think of it as an annuity. Every year another check.

Would that be D&O plus E&O? Could that external layer be tapped as a secondary source of their settlement funds? Yes. I’m not sure if the settlement trustee could tap it or whether it would be limited to shareholders. Theoretically in a Chubb bankruptcy everything would be up for grabs. Chubb has the money. It reported net assets of 190B and 41B in premium revenues in 2020. Forbes Mag. Chubb has a strong balance sheet. It could issue debt or sell additional stock. It could, if forced, pay 50B. Why should the trustee settle cheap?

The trustee will have a team of insurance litigators who are the very best money can buy. These guys know coverage law down to the minute. Every appellate ruling, every significant trial court opinion in real time. I can envision strategies to put maximum pressure on the carriers but the weight of the existing claims and additional claims coming forward against CO’s should be enough. One strategy is to submit an individual policy limits demand for each claimant. If the carrier denies to timely pay that claim, the limits come off. The trustee seeks a court judgment in a “reasonableness”hearing that BSA was liable for that amount.. If the court finds it reasonable, the 500k/occurrence limits become unlimited coverage on that claim. Multiply that exercise by 84,000 claims. Then the refusal to pay also gives rise to the tort of bad faith against the carrier. Think treble damages, punitive damages. Truly astronomical numbers. Chubb has a market cap of only 75B; Hartford 25B. They are truly playing with fire now. Stupid is as stupid does. Just look at BSA. We may eventually see both Chubb and the Hartford in their own Ch 11’s. I sure hope they have adequate insurance for corporate blunders of that magnitude.

Hartford settlement is dead. Funeral arrangements pending. There is a claimant opt out provision in these cases but no one ever takes it because it gains you nothing. Basically you sue the settlement trustee who stands in the shoes of the BSA. The trust has to pay the cost of defense or tenders it to the insurance carrier who pays. You get your verdict 5 years from now and you get a pro rata amount based on the matrix, not what your jury award.

It appears that all of the policies will be assigned to the trust. That is expected. The are only a few states that allow a direct action against the insurance company by the beneficial party in interest aka the plaintiff/claimant.

The problem with believing that non-monetary provisions in a bankruptcy plan will matter much is that they are unenforceable. The code does not allow for setting up a “consent decree” type of regulatory regimen that would be enforceable by the Justice Department and the federal district court. The post confirmation trustee is charged with bringing actions to increase the size of the settlement pot. The bankruptcy court cannot and will not keep the case open for years to monitor whether BSA complies with whatever non-monetary provisions may be contained in the plan I’ve seen this before from Stang and other official committees. It’s all window dressing to get survivors to vote for a plan. Don’t buy it. Aside from current National and local leadership’s demonstrated denialism, lies and studied ignorance about the problem, it is true that there are millions of obsessive compulsive child molesters who cannot and will not stop themselves. When famed Depression-era robber Willie Sutton was asked why he robbed banks, his answer was more than satisfactory: “Because that’s where the money is.” Same with kids and especially scouts The current model of BSA won’t meaningfully stop the abusers from gaining access to an organization based on trust and on amateurs as the first line of defense. How many here have any experience in human resource departments, security clearance investigations, background checks methods? Can anyone here tell me what “double-deep” background checks are? Any idea what the $ cost is to do an applicant screen even at an average Fortune 500 company? Or at a media organization? If not, then stop deluding yourself

So, assuming a global deal or partial global deal gets worked out, will local councils be pacified by some of the governance changes alluded to on the fireside? Is the LC anger just hot air or are they in a position to force meaningful changes? Do you think the brand still has the same value? It has been so damaged I question whether it is an asset or a liability.

But wouldn’t BSA “sticking to programming” be the same thing as “there should not be a national organization to ensure uniform and high standards of leadership” which was the fundamental premise behind the Congressional Charter? If so, it begs the question: Why does scouting need a BSA at all? Can’t or shouldn’t LC’s have the freedom to develop programming that is tailored to the needs of its scouts and community? States do many things much better than the federal government because the federal bureaucracy tries to push out one size fits all “programs” that don’t work for every community.