Chapter 11 announced

[ParkMan]

Just now, CynicalScouter said:

There is 0% change Congress will step in to stop abuse claims. That's absolutely radioactive.

I know, but I still hope.

[CynicalScouter]

1 minute ago, ParkMan said:

I know, but I still hope.

Why? I hate this to, but what would Congress stepping in solve? Stopping the bankruptcy and denying ANY victim ANY claims? What is the end game with Congress stepping in?

[ParkMan]

20 minutes ago, CynicalScouter said:

Why? I hate this to, but what would Congress stepping in solve? Stopping the bankruptcy and denying ANY victim ANY claims? What is the end game with Congress stepping in?

I would like to see legislation that limits extensions of statue of limitations for federally chartered organizations. 

Here we have a nationally chartered corporation whose ability to fulfill it's legislated charter is now in doubt because states have extended the statute of limitations to levels beyond what is practical for what is largely a volunteer organization.  Congress should recognize that this action by the states is causing harm to the ability of these kind of organizations to meet their charters.

Having a reasonable duration on the statute of limitations for a congressionally chartered corporation (say 10 years) would still allow the states to ensure that the corporation is following current law and that volunteers and employees of the current organization are held correctly responsible for their actions.  Limiting the duration of the statute of limitations to something reasonable would enable the federal corporation to predict it's ability to meet it's congressional charter and not be continually responding to actions by people involved with the corporation years ago.  Congressionally chartered organizations like this have a unique ability to have a long corporate lifetime which makes it unusually susceptible to problems like this.  It's in the best interest of the people of the United States to enable these corporations to fulfill their congressional obligation while still being reasonably held accountable for the actions of it's contemporary volunteers and employees.

Edited October 16, 2020 by ParkMan
clarified a thought

[CynicalScouter]

50 minutes ago, ParkMan said:

I would like to see legislation that limits extensions of statue of limitations for federally chartered organizations. 

Here we have a nationally chartered corporation whose ability to fulfill it's legislated charter is now in doubt because states have extended the statute of limitations to levels beyond what is practical for what is largely a volunteer organization.  Congress should recognize that this action by the states is causing harm to the ability of these kind of organizations to meet their charters.

Having a reasonable duration on the statute of limitations for a congressionally chartered corporation (say 10 years) would still allow the states to ensure that the corporation is following current law and that volunteers and employees of the current organization are held correctly responsible for their actions.  Limiting the duration of the statute of limitations to something reasonable would enable the federal corporation to predict it's ability to meet it's congressional charter and not be continually responding to actions by people involved with the corporation years ago.  Congressionally chartered organizations like this have a unique ability to have a long corporate lifetime which makes it unusually susceptible to problems like this.  It's in the best interest of the people of the United States to enable these corporations to fulfill their congressional obligation while still being reasonably held accountable for the actions of it's contemporary volunteers and employees.

I cannot see a scenario in which Congress overrides state statutes of limitations to protect Congressionally chartered orgs.

I also don't see why Congress should. There are lots and lots of not for profit and charities that are locally/state incorporated and subject to state statutes.

Why should Boy Scouts of America get special legal privileges over that of say the Salvation Army USA (incorporated in New Jersey)?

The problem is that the situation with the BSA is so unique that it doesn't justify giving the other 90 or so Congressionally Chartered organizations special protections.

One final point: I can very much see a situation where if BSA or someone on BSA's behalf tried to get these active pending claims tossed by getting a law granting this kind of blanket protection to Congressionally chartered orgs that the OTHER ORGS would actively oppose it because they don't want anything to do with it.

Edited October 16, 2020 by CynicalScouter

[ParkMan]

2 minutes ago, CynicalScouter said:

I cannot see a scenario in which Congress overrides state statutes of limitations to protect Congressionally chartered orgs.

Honestly - nor do I.  This is not an important enough national issue.  But I hope.

3 minutes ago, CynicalScouter said:

I also don't see why Congress should. There are lots and lots of not for profit and charities that are locally/state incorporated and subject to state statutes.

Why should Boy Scouts of America get special legal privileges over that of say the Salvation Army USA (incorporated in New Jersey)?

Congress should get involved because it's a question of federal vs. state powers. 

The federal government chartered the organization and charged it with certain responsibilities to the nation.  Because of the action by the states, the federal corporation is in real danger of not being able to fulfill those responsibilities to the nation.  This is akin to other situations where there is a conflict between federal authority and state authority.

The Boy Scouts of America is very different than the Salvation Army USA.  The BSA is a federal corporation charged with responsibilities to the nation.  The Salvation Army is a non profit corporation registered in New Jersey.  We tend to look at this from the ground up and say they are both nonprofits.  But in reality they are not at all the same.  A similar analogy is the Smithsonian vs. NY Museum of Modern Art.  Both are great museums - however the Simthsonian is a museum enabled by Congress for the betterment of the nation.  MOMA is a world class museum located in NY.  Both are treasures, but one (the Smithsonian) was explicitly created by the US federal government.

That aside - I would argue that generally this kind of protection would be worthwhile for other prominent non-profits as well.  We all want to see people who hurt kids punished and we all want to see the victims of abuse supported.  Yet, it does not do the kids of the United States any benefit to destroy the Scouting program.  Our country continues to need Scouting to help support the growth our our kids.  At a time when Scouting should be focused on how it should grow and evolve, it is instead hunkered down, fighting lawsuits, fighting for survival.  This does absolutely nothing to benefit the kids of today or tomorrow.  If there are other nationally prominent non-profits that are dealing with this kind of problem I would theoretically support a cap on the statute of limitations for them as well. 

Again - this is all a pipe dream because Congress isn't prepared for this kind of display of leadership.

[yknot]

50 minutes ago, ParkMan said:

Honestly - nor do I.  This is not an important enough national issue.  But I hope.

Congress should get involved because it's a question of federal vs. state powers. 

The federal government chartered the organization and charged it with certain responsibilities to the nation.  Because of the action by the states, the federal corporation is in real danger of not being able to fulfill those responsibilities to the nation.  This is akin to other situations where there is a conflict between federal authority and state authority.

The Boy Scouts of America is very different than the Salvation Army USA.  The BSA is a federal corporation charged with responsibilities to the nation.  The Salvation Army is a non profit corporation registered in New Jersey.  We tend to look at this from the ground up and say they are both nonprofits.  But in reality they are not at all the same.  A similar analogy is the Smithsonian vs. NY Museum of Modern Art.  Both are great museums - however the Simthsonian is a museum enabled by Congress for the betterment of the nation.  MOMA is a world class museum located in NY.  Both are treasures, but one (the Smithsonian) was explicitly created by the US federal government.

That aside - I would argue that generally this kind of protection would be worthwhile for other prominent non-profits as well.  We all want to see people who hurt kids punished and we all want to see the victims of abuse supported.  Yet, it does not do the kids of the United States any benefit to destroy the Scouting program.  Our country continues to need Scouting to help support the growth our our kids.  At a time when Scouting should be focused on how it should grow and evolve, it is instead hunkered down, fighting lawsuits, fighting for survival.  This does absolutely nothing to benefit the kids of today or tomorrow.  If there are other nationally prominent non-profits that are dealing with this kind of problem I would theoretically support a cap on the statute of limitations for them as well. 

Again - this is all a pipe dream because Congress isn't prepared for this kind of display of leadership.

Congress will only do something if it is connected with votes or hot button issues but the numbers just aren't there for us. We're too small, on the politically wrong side of most issues and have no common core. A couple decades ago you might have been able to rely on support from a conservative Christian voting bloc but today the religious aspects of scouting are too fragmented and miniscule. LDS has pulled out. Catholics oppose LGBTQ issues. Methodists endorse LGBTQ issue,  etc., etc. Congressional leaders will never step into that. This past decade, BSA should have been burnishing a less controversial linkage to being the premiere outdoor resource for the nation's youth, but too many entrenched interests have kept us stuck in the mud. That would have crossed religious, social and political lines. I keep hoping they'll wake up and stake out that territory but no movement so far. 

[CynicalScouter]

1 hour ago, ParkMan said:

The BSA is a federal corporation charged with responsibilities to the nation. That aside - I would argue that generally this kind of protection would be worthwhile for other prominent non-profits as well. 

That sounds great, and that may have been a 19th century view of things, but as a legal matter, it matters not a whit. All "Congressional charter" means is "I got pull in Congress". And BSA did. 100 years ago. Now, to try and use the fact that it has a congressional charter as some sort of shield from abuse claims? "Sorry you got molested and all, but we have a Congressional Charter, so too bad."

And I'm sorry, but if I'm a lawfirm and you write a law that allows for absolute waivers of liability as long as I can somehow register as a charity? I'm all over that.

Sorry you were molested kid and our organizations leaders knew, but you can't sue us because we are a charity? A not-for-profit?

And how "prominent" do you have to be? If your gross income is over $100 million a year you get a "molest all the kids, stay out of legal liability" pass? What about $10 million? $1 million?

BSA (the organizational leaders thereof) did this to itself. Their poor choices means there are two generations of victims: those who were abused and those who now suffer due to the decline in the program.

I will never, ever, EVER blame the victim or seek protection for an organization that KNEW what was happening and failed to act sufficiently or to exercise due diligence.

EDIT: One final note. Part of being an incorporated entity, one of the benefits, is being able to avoid personal legal liability. There's no talk of seizing the PERSONAL assets of the former Scout CEOs and other leaders who knew, should have known, and did nothing.

So under this theory, so long as you run a not-for-profit staffed with pedophile volunteer leaders:

1) You can't hold the not-for-profit that trained and oversaw the pedophile volunteer accountable because it is a not-for-profit

2) You can't hold personally liable the paid officers of the organization ("pierce the corporate veil") because it is an incorporated entity

Therefore, out of the two sets of wrongdoers (the not-for-profit and its officers PLUS the pedophile) one gets to skate?

No, thank you.

Edited October 16, 2020 by CynicalScouter

[ParkMan]

1 hour ago, yknot said:

Congress will only do something if it is connected with votes or hot button issues but the numbers just aren't there for us. We're too small, on the politically wrong side of most issues and have no common core. A couple decades ago you might have been able to rely on support from a conservative Christian voting bloc but today the religious aspects of scouting are too fragmented and miniscule. LDS has pulled out. Catholics oppose LGBTQ issues. Methodists endorse LGBTQ issue,  etc., etc. Congressional leaders will never step into that. This past decade, BSA should have been burnishing a less controversial linkage to being the premiere outdoor resource for the nation's youth, but too many entrenched interests have kept us stuck in the mud. That would have crossed religious, social and political lines. I keep hoping they'll wake up and stake out that territory but no movement so far. 

Yes - I am sure you are correct 100%.  I don't see a poltiical reason why congress would act here.

[ParkMan]

55 minutes ago, CynicalScouter said:

That sounds great, and that may have been a 19th century view of things, but as a legal matter, it matters not a whit. All "Congressional charter" means is "I got pull in Congress". And BSA did. 100 years ago. Now, to try and use the fact that it has a congressional charter as some sort of shield from abuse claims? "Sorry you got molested and all, but we have a Congressional Charter, so too bad."

And I'm sorry, but if I'm a lawfirm and you write a law that allows for absolute waivers of liability as long as I can somehow register as a charity? I'm all over that.

Sorry you were molested kid and our organizations leaders knew, but you can't sue us because we are a charity? A not-for-profit?

And how "prominent" do you have to be? If your gross income is over $100 million a year you get a "molest all the kids, stay out of legal liability" pass? What about $10 million? $1 million?

BSA (the organizational leaders thereof) did this to itself. Their poor choices means there are two generations of victims: those who were abused and those who now suffer due to the decline in the program.

I will never, ever, EVER blame the victim or seek protection for an organization that KNEW what was happening and failed to act sufficiently or to exercise due diligence.

EDIT: One final note. Part of being an incorporated entity, one of the benefits, is being able to avoid personal legal liability. There's no talk of seizing the PERSONAL assets of the former Scout CEOs and other leaders who knew, should have known, and did nothing.

So under this theory, so long as you run a not-for-profit staffed with pedophile volunteer leaders:

1) You can't hold the not-for-profit that trained and oversaw the pedophile volunteer accountable because it is a not-for-profit

2) You can't hold personally liable the paid officers of the organization ("pierce the corporate veil") because it is an incorporated entity

Therefore, out of the two sets of wrongdoers (the not-for-profit and its officers PLUS the pedophile) one gets to skate?

No, thank you.

Your comment has nothing to do with what I wrote - which was about the public policy question from a federally created organization being impacted by statute of limitations changes in individual state laws.  You're trying to turn my comment into something very different.  No thanks.

 

[CynicalScouter]

6 hours ago, ParkMan said:

Your comment has nothing to do with what I wrote - which was about the public policy question from a federally created organization being impacted by statute of limitations changes in individual state laws.  You're trying to turn my comment into something very different.  No thanks.

Yes. And what I pointed out is that your proposal to shield federally created organizations is unworkable. This is NOT like the question of whether state law should impact a federal government.

Quote

This is akin to other situations where there is a conflict between federal authority and state authority.

This is NOT like the question of whether state law should impact a federal government agency.  There, the supremacy clause is really clear (and McCulloch v. Maryland makes it clearer).

What you want is for Congress to give immunity to federally chartered organizations from pedophilia suits. That's just not going to happen and it shouldn't. The fact that Congress incorporated the entity does NOT mean it shouldn't be held liable.

But let's try something less charged in the area of torts. Say, breach of contract and the National Ski Patrol (also Congressional charter, 36 USC 1527). The National Ski Patrol enters into a contract with a local Colorado IT vendor for their website. The IT vendor delivers and National Ski Patrol fails to make payment on delivery. IT vendor sues in Colorado state court and National Ski Patrol moves for dismissal; as a Congressional Chartered Organization they are immune from suit.

After all National Ski Patrol is a "federal corporation charged with responsibilities to the nation." (your words) Surely they shouldn't be held liable for anything!
Etc.

[DavidLeeLambert]

On 9/30/2020 at 1:29 PM, CynicalScouter said:

Just because they are asking for CO and roster lists going back to time immemorial does not mean they'll get them.

The fact that they are asking, however, certainly seems to indicate that any hope for wrapping this up by Spring 2021 is fading.

EDIT: Only reason you want the CO lists at this point is that now that the financial statements from Councils have been filed and that the High Adventure properties are being appraised or have been appraised, it is starting to sink in that even with total liquidation there won't be anywhere need the $1.5 billion number that was tossed around. And with tens of thousands of claims being filed, that means no one gets much of anything.

So off to find more assets they go. And that means COs

Well, there is one (former) CO that allegedly had $100 billion in a rainy-day fund consisting of liquid investments at the end of 2019. But  the next man in line to be Prophet is a former State Supreme Court Judge, and that church owns a law school. If I were an abuse-claimant lawyer I'd be worried that the LDS church would use its assets as a litigation warchest and fight for many years without ever giving out a penny.  From my random perusal of the Ineligible Volunteer Files that were made public, I don't see a lot of cases with obvious LDS involvement; and I wouldn't be surprised if there are microfilmed records in a vault in Utah of the registration information of all LDS units and all LDS volunteers in any unit or other position, which might actually disprove any LDS connection to a lot of the claims.

Then there are Catholic-chartered units. Indeed, patterns of abuse by Catholic priests were a major factor in the state-law changes that led to this bankruptcy. But over a dozen dioceses have already filed for bankruptcy, and several have already emerged from bankruptcy or executed a purported global settlement; while there are a lot more that haven't (yet), it may be that the ones that already have are either the biggest ones, or the ones with the most actual liability, or both.  The ones that remain are more likely to have very few assets, or to have actually run a tight ship and be able to prove that they were not complicit in any pattern of abuse by BSA volunteers, covered up by other BSA volunteers and employees.

That leaves thousands of other COs, past and present, generally smaller.  A lot of those are single-congregation churches, perhaps with a historic building in a desirable location, perhaps with an antique organ or some first-class sound equipment, or perhaps not.  My sons' troop meets at a church that's bordered by commercial property on a major street to the west, a fire station to the south, residential to the east, and a small park (just a soccer field) to he north. Maybe it could be forced into liquidation and sell the building for $500,000; or maybe it has insurance that would cover historic abuse claims. The lowest-numbered troop in my area meets at a nondenominational church right across the street from a college campus, in a hundred-year-old or more building.  There's a $100 million new high-rise building only a block away, so maybe the church's land would be worth $1 million at fire-sale. But that church also hosts Girl Scout troops, and runs a day-care, and hosts performances by the area's stringed-instrument club, and probably helps the community in other ways as well.

Other units were chartered by organizations that may have ceased to exist. With an LDS ward or Catholic parish, it should be possible to find a successor that covers the same geographical area where the victim lived, and in any case the parent organization remains liable, but for "Pastor Ryan's Whole Faith Bible Church" that chartered a Troop and Pack from 1972 to 1982, the Pastor may be dead, the building may have changed hands twice after he retired and now be a brewpub or marijuana dispensary, and the five congregants from that period who are still alive may be attending five different churches.

And some units are chartered by the parent-teacher organizations of schools; the current CO for my younger children's Pack is the Parent Council of their public elementary school.  The way I understand it, the Parent Council is a legally separate organization from the school. Its main annual fundraiser has a goal of $8000. At the hourly rates of many of the lawyers and even other professionals in the case, that gets eaten up by a single hour of a hearing, or maybe a half-day of deposition.

So suppose Mr. Kosnoff finds ten men who each say they showed up to a pack meeting between 1975 and 1985 and were abused at the first meeting and the Cubmaster must have not turned in their registration because he was covering up their abuse.  Suppose further that he gets a judgement against the Parent Council for the $16000 it still has in the bank. They each get $960, he pays $4230 plus interest to the company that generated his Facebook leads, he gets about $2000 left over for gas-money for his yacht.

But if the Parent Council is legally part of the school, that gets into a defense of governmental immunity, and angry teacher's unions whose pensions are at danger, and angry taxpayers...the more vaguely-related parties the claimants try to pull in, the more risk that they might have their claims closely scrutinized, or cause the trend of statute-of-limitations extensions to be reconsidered, and also gives the debtors and primary insurers additional defenses that they were not primarily liable.

[ParkMan]

3 hours ago, CynicalScouter said:

Yes. And what I pointed out is that your proposal to shield federally created organizations is unworkable. This is NOT like the question of whether state law should impact a federal government.

• You know that the BSA is a 100+ year organization
• You know that the issues with abuse were many years ago. 
• You know that the vast preponderance of the volunteers and professionals involved with the BSA today had nothing to do with that abuse.
• The owners of the BSA are us - the people of the United States.
• The BSA is here today to serve the kids of today.  The people involved with it are largely volunteers serving the kids of today.

Just who precisely do you think my proposal shields?

And - your response did not point out that my proposal is not workable.  You stated that I was trying to create a haven for pedophiles with money.  You inferred that I was trying to blame the victim.  That was out of line.

 

[CynicalScouter]

4 minutes ago, ParkMan said:

• You know that the BSA is a 100+ year organization
• You know that the issues with abuse were many years ago. 
• You know that the vast preponderance of the volunteers and professionals involved with the BSA today had nothing to do with that abuse.
• The owners of the BSA are us - the people of the United States.
• The BSA is here today to serve the kids of today.  The people involved with it are largely volunteers serving the kids of today.

• So, if you make it to the century mark, you get Congressionally-imposed immunity from tort liability?
• So, if the tort/abuse is more than a year ago (vs. "years"), you get Congressionally-imposed immunity from tort liability?
• So, if the CURRENT volunteers are squeaky clean, then all prior bad acts (and liability) for the incorporated entity's officers and agents get Congressionally-imposed immunity from tort liability?
• There literally are no owners of the BSA (36 USC 30906(b) "The corporation may not issue stock or declare or pay a dividend.").
• So, if your organization is here today, all prior bad acts are hereby waived and you get Congressionally-imposed immunity from tort liability?

"We do good works today" does NOT absolve the entity itself from having to pay for its malfeasance, misfeasance and, nonfeasance.

Quote

Just who precisely do you think my proposal shields?

Congressionally chartered organizations. Which, as I noted, simply is not appropriate. Why should a Congressional charter give you a get-out-of-tort-liability card? Again, I used the example of breach of contract and the National Ski Patrol (also Congressional charter, 36 USC 1527). The National Ski Patrol enters into a contract with a local Colorado IT vendor for their website. The IT vendor delivers and National Ski Patrol fails to make payment on delivery. IT vendor sues in Colorado state court and National Ski Patrol moves for dismissal; as a Congressional Chartered Organization they are immune from suit.

Under your theory, this is perfectly acceptable because the PAST National Ski Patrol leadership breached the contract, so therefore the CURRENT National Ski Patrol shouldn't have to pay for their tort (breach of contract). All because they have a Congressional Charter?

This makes no sense. At all.

[ParkMan]

1 hour ago, CynicalScouter said:

• So, if you make it to the century mark, you get Congressionally-imposed immunity from tort liability?
• So, if the tort/abuse is more than a year ago (vs. "years"), you get Congressionally-imposed immunity from tort liability?
• So, if the CURRENT volunteers are squeaky clean, then all prior bad acts (and liability) for the incorporated entity's officers and agents get Congressionally-imposed immunity from tort liability?
• There literally are no owners of the BSA (36 USC 30906(b) "The corporation may not issue stock or declare or pay a dividend.").
• So, if your organization is here today, all prior bad acts are hereby waived and you get Congressionally-imposed immunity from tort liability?

"We do good works today" does NOT absolve the entity itself from having to pay for its malfeasance, misfeasance and, nonfeasance.

You know I didn't say one year.

The Ski Patrol skipping out on a contract is not germane to this discussion.

The core public policy problem we are dealing with is how does a federally chartered organization with a mission to serve the kids of the United States deal with bad acts in it's distant past.  If you go back far enough in history you can certainly find all kinds of bad things that occurred.  

This isn't s family business that got rich through illegal activities.  This is a national non-profit created by Congress with a specific governance structure.  By virtue of that structure the organization will survive as long as people show up who want to help.  

As there is no stock, the owners of this corporation are effectively the people of the United States.  By penalizing the organization today you are penalizing the children it serves today and in the future.  Selling Philmont hurt kids.  Selling council camps hurts kids. Raising fees to pay lawsuits means kids today pay more.  A great many kids in the program can not afford to pay hundreds of dollars a year to cover lawsuit settlements.  

Why do you want to penalize the kids of the United States today because some volunteers many years ago did reprehensible things and some professionals many years ago did equally reprehensible things by not preventing that from happening?

 

Edited October 16, 2020 by ParkMan
typos

[CynicalScouter]

20 minutes ago, ParkMan said:

Why do you want to penalize the kids of the United States today because some volunteers many years ago did reprehensible things and some professionals many years ago did equally reprehensible things by not preventing that from happening?

Why do YOU want to deny abuse victims compensation for those reprehensible things that BSA leadership overlooked or failed to follow-up on?

This isn't about seeking protection from Congressionally Chartered organizations. Your plan is simply a BSA bailout. No one organization should get that kind of a custom carve-out from tort liability.

Yes, it is a shame that today's kids get penalized. You want to just focus on today's kids. I want to focus on the kids (now grown men) who got abused.

And even if I didn't want to focus on the kids, I find the idea of such a special carve-out from tort liability is bad public policy. No one organization is so important that it should receive special favors from Congress.

 

Edited October 16, 2020 by CynicalScouter