Chapter 11 announced

[RememberSchiff]

"We're $100 million into fees in this case. I think that is a staggering number ...And progress needs to be made. Victims need to be compensated appropriately and the Boy Scouts' mission needs to continue...It affects how much this is going to cost and quite frankly, every dollar going to professional fees is a dollar that comes out of some creditor's pocket,"   Judge Silverstein

 

IHMO, the pot is calling the kettle black.

 

https://today.westlaw.com/Document/Ie8268510876411ebbfc3d04651a63703/View/FullText.html?transitionType=SearchItem&contextData=(sc.Default)

Edited March 18, 2021 by RememberSchiff

[ThenNow]

9 minutes ago, RememberSchiff said:

IHMO, the pot is calling the kettle black.

How so?

[Eagle1993]

1 hour ago, ThenNow said:

How so?

My one frustration is that the judge doesn’t seem to make many rulings.  For example on discovery, she seemed to like the idea but deferred to District Court and that process. When will she officially decide on the HA based or councils as separate entities.  Outside of a stern message, what legal pressure is on the groups to reach a settlement?  What can she do to force a tight timeline and is she doing it?

[ThenNow]

44 minutes ago, Eagle1993 said:

My one frustration is that the judge doesn’t seem to make many rulings.  For example on discovery, she seemed to like the idea but deferred to District Court and that process. When will she officially decide on the HA based or councils as separate entities.  Outside of a stern message, what legal pressure is on the groups to reach a settlement?  What can she do to force a tight timeline and is she doing it?

I was never a litigator nor a bankruptcy attorney, so someone else will be better to give technical thoughts. My general understanding is that bankruptcy judges are more moderators of the business process and noodge it along, as needed. She was going to allow limited discovery, but deferred because it would happen, to some degree, in the estimation. I have to believe she was nearly as surprised as the rest of the universe at the state of the proposed Plan. It revealed little progress and I doubt she realized just how little had been made.

As to "legal pressure," I don't know. The estimation motion was a curveball (so it seemed) and it appears it's not headed toward her plate. She can't control it. I think the only real pressure is BSA's need to move toward resolve to avoid going belly up. They and the LCs have to get serious quickly. Perhaps the mediation meeting will show a new posture. The other players, not so much pressure. 

PS - For the insurers? Almost none imho, other than the desire for certainty in the form of a definitive amount of liability. The longer it goes the more interest they can earn on their reserves, etc.

Edited March 18, 2021 by ThenNow

[CynicalScouter]

2 hours ago, Eagle1993 said:

My one frustration is that the judge doesn’t seem to make many rulings.

I agree, every major thing (are LCs appendages of National and thus LC assets = National; how many claimants officially? How much? Can Insurers depose and document demand claimants, etc.) has been kicked down the road and/or sent to mediation which appears to have been useless and involved people not even showing up.

Here's the problem from a judicial perspective: she is not checking in on progress DAILY or even WEEKLY. It is (at best) MONTHLY. We are now 12 months in and still pretty much no closer to any of the questions than before. Thus, her strong suggestion/order to get back into the mediation room and come out with some answers.

[ThenNow]

7 minutes ago, CynicalScouter said:

Here's the problem from a judicial perspective: she is not checking in on progress DAILY or even WEEKLY. It is (at best) MONTHLY. We are now 12 months in and still pretty much no closer to any of the questions than before. Thus, her strong suggestion/order to get back into the mediation room and come out with some answers.

In my experience, which is vastly different than this context, it's mind boggling. The last time I was involved in a decent sized negotiation, which was on a class action case 2+ years ago, this is how it worked when the frustration stage hit:

1) We had flung pleadings, negotiated and made some progress, but not enough;

2) We were mandated to go to settlement conference with the judge's appointed mediator, committing up to two days;

3) Our side sat in the main courtroom and the other in a separate one;

4) We went back and forth all day, with the mediator relaying offer/counter offer and leaning on each party as she went;

5) No lunch, no coffee allowed, few bathroom breaks; and

6) We settled after about nine hours. No one was "happy," but everyone could live with the deal.

Admittedly, this has a lot more parties a lot more moving parts and a whole glob of attorneys. Again, I am biased, but I feel like the BSA, LCs, insurers and (now) COs have been the ones laying back waiting for who knows what. They seem to be the dragging anchors. 

[CynicalScouter]

21 minutes ago, ThenNow said:

Admittedly, this has a lot more parties a lot more moving parts and a whole glob of attorneys. Again, I am biased, but I feel like the BSA, LCs, insurers and (now) COs have been the ones laying back waiting for who knows what. They seem to be the dragging anchors. 

I agree, but I think the difference between this and any other civil suit I've seen is MOST of the parties do not even concede they should be at the table.

1) The Ad Hoc Committee represents precisely NO ONE (or nearly so) in terms of Local Councils outside of the 8 listed LCs.

2) The Insurance Companies are still on record as claiming/contesting that they owe one thin dime based on their claim BSA lied to get the insurance policies (and insurance doesn't cover criminal acts)

3) BSA concedes it should be at the table, and both is (and isn't) prepared to bargain on behalf of the other two ("Asking" LCs to contribute to a settlement fund, sticking insurance for the rest?)

4) Meanwhile, out in the ether somewhere, are the COs. I know the Methodist church en masse filed claims against BSA to protect themselves, but again maybe they are operating under the assumption that National and the LCs will protect them? And in reading the chartered organization agreements of the past, I can see how they could conclude that.

But this isn't just trash the "BSA" side, lets look at abuse claimants

1) TCC is the official group of record. Fantastic. But..

2) The Coalition/AIS/Kosnoff/whomever: there is a large and very vocal contingent who are acting as if TCC is either an impediment or actively working against claimant interests (up to demanding a Trustee be placed on BSA and that the Trustee force a liquidation, which is now the new Kosnoff plan.

So, here's my question and where it differs from any other civil mediation or case I've seen.

When this mediation session happens:

1) Literally WHO is sitting at the table/Zoom session?

2) Of the people listed in #1, WHAT parties do they, or do they not, represent? Or, put another way, what is the authority of the people in that room to negotiate of behalf of BSA, LCs, COs, Insurance Companies, and/or Abuse Claimants?

I can very easily see another round of "Well, I'm here, but only on behalf of X, but not Y." and "No, you don't represent X's interests, I do!" and a half a dozen hours of fighting over that.

 

Edited March 18, 2021 by CynicalScouter

[ParkMan]

4 minutes ago, CynicalScouter said:

 

When this mediation session happens:

1) Literally WHO is sitting at the table/Zoom session?

2) Of the people listed in #1, WHAT parties do they, or do they not, represent? Or, put another way, what is the authority of the people in that room to negotiate of behalf of BSA, LCs, COs, Insurance Companies, and/or Abuse Claimants?

I can very easily see another round of "Well, I'm here, but only on behalf of X, but not Y." and "No, you don't represent X's interests, I do!" and a half a dozen hours of fighting over that.

 

But isn't the only party here that really matters the BSA?  Maybe also the LCs - maybe.

The judge is telegraphing she wants the BSA to continue and so that means Chapter 11.  Let's say that she has mentally ruled out Chapter 7.  That means that she'll determine the assets the BSA has to divide and to then continue.   Everyone else is secondary.  No?

[ThenNow]

9 minutes ago, CynicalScouter said:

I think the difference between this and any other civil suit I've seen is MOST of the parties do not even concede they should be at the table

I don't think I said they were similar, just stated my puzzlement and the chasm between the two contexts and approaches. The defendant corporation most assuredly thought they should have been back at corporate counting their billions.

[ThenNow]

15 minutes ago, CynicalScouter said:

The Coalition/AIS/Kosnoff/whomever: there is a large and very vocal contingent who are acting as if TCC is either an impediment or actively working against claimant interests (up to demanding a Trustee be placed on BSA and that the Trustee force a liquidation, which is now the new Kosnoff plan.

Question not a joust (getting tired of that): Unless all or most of their 16,000-25,000+/- clients are in open states, how is liquidation in the best interest of his/their clients if the pension fund goes to first chair? Is his passion to "Hulk SMASH!!" overriding his duty to his clients? Is he just hot to get as many cases into state court as possible? Again, what about their closed state clients. Messa confused.

[CynicalScouter]

5 minutes ago, ParkMan said:

But isn't the only party here that really matters the BSA?  Maybe also the LCs - maybe.

BSA's Reorganization Plan involves BSA AND the LCs AND the insurance companies paying into the Settlement Fund.

That Reorg plan literally spells out, in black and white, that LCs and Insurance Companies will be paying along with BSA.

Only, that's the problem.

1) LC's are being asked for "voluntary" contributions equaling $300 million by BSA and they ain't volunteering much if at all. The TCC is insisting that LCs be MANDATED to give SPECIFIC amounts that far exceed $300 million. And by the way, this BSA reorg plan concludes with both BSA National AND THE LOCAL COUNCILS having all abuse claims prior to 2020 ended. Meanwhile, the LCs are still palying games/being coy about how much they'll pay, if at all. And the Ad Hoc Committee does NOT legally speaking speak for all 200+ LCs. From a technical standpoint, they only speak or 8 of them.

2) Insurance Companies are not keen to just hand over cash by the bushel. First, they don't think they have to pay a DIME to cover the sexual abuse claims against BSA because (they say) BSA lied to get the insurance policies. But even if the insurance companies DO have to pay, they insist many/most of the 80,000 claims are B.S.

So no, cutting a deal with BSA alone is not going to mean anything if MOST of BSA's deal consists of "Go get money out of the LCs and Insurance Cos". That's not going to fly at all.

 

[CynicalScouter]

7 minutes ago, ThenNow said:

Is his passion to "Hulk SMASH!!" overriding his duty to his clients?

I cannot crawl into his head. I know from his Twitter and other statements that he wants liquidation of national AND LC assets.

Thus, in his twisted logic, let the Pension Benefit Guaranty Corporation have BSA National, he'll reap the $3 billion on LC assets.

[Eagle1993]

45 minutes ago, ThenNow said:

In my experience, which is vastly different than this context, it's mind boggling. The last time I was involved in a decent sized negotiation, which was on a class action case 2+ years ago, this is how it worked when the frustration stage hit:

1) We had flung pleadings, negotiated and made some progress, but not enough;

2) We were mandated to go to settlement conference with the judge's appointed mediator, committing up to two days;

3) Our side sat in the main courtroom and the other in a separate one;

4) We went back and forth all day, with the mediator relaying offer/counter offer and leaning on each party as she went;

5) No lunch, no coffee allowed, few bathroom breaks; and

6) We settled after about nine hours. No one was "happy," but everyone could live with the deal.

Admittedly, this has a lot more parties a lot more moving parts and a whole glob of attorneys. Again, I am biased, but I feel like the BSA, LCs, insurers and (now) COs have been the ones laying back waiting for who knows what. They seem to be the dragging anchors. 

My father-in-law went through mediation on a real estate sale.  Yes, much, much smaller .. but still.

Similar experience.  After mediation closed, the mediator basically told the other side ... you will lose if this goes to trail.  They closed on an agreement quickly after that.  Mediators can tell either side when they are over the rails.

I think if BSA & TCC walk out of the room with a deal, the councils & claimants will fall into line.   Councils will be told that if the deal falls through, National will liquidate and essentially councils funds will all go to legal fees.  They won't have a choice.  TCC will recommend approval.  Even if 55% approval, the judge can simply say she approves the deal.  She doesn't need 66% approval from the claimants.  If she sees TCC on board AND the majority of claimants and only 1 or two lawyers are crowing ... I expect she approves.

Get the TCC & BSA in a room.  Perhaps it is a week with a strong mediator.  Work it out.  Burning $10M in cash a month doesn't help anyone.

 

[ThenNow]

4 minutes ago, CynicalScouter said:

I cannot crawl into his head. I know from his Twitter and other statements that he wants liquidation of national AND LC assets.

Of course. Asking for your analysis, since it makes no sense to me whatsoever and seems to flaunt his ethical responsibility. It seem like blind hatred at all cost, but he's too smart to go there...maybe?

[ThenNow]

7 minutes ago, Eagle1993 said:

After mediation closed, the mediator basically told the other side ... you will lose if this goes to trail.  They closed on an agreement quickly after that.  Mediators can tell either side when they are over the rails.

As the lead plaintiff, this is how she brought me to an eventual number, though I still pushed above their "last and final." She gave me her sense of the odds of getting less, combined with the legal fee burn rate estimate, and that's what ushered in the proverbial ceremonial pens. I think it's too many reticent parties and too much denial.

Edited March 18, 2021 by ThenNow