Chapter 11 announced

[CynicalScouter]

8 minutes ago, BQZip said:

Individual councils shouldn't be on the list

And yet the councils will have to contribute to the victim's fund and if Kosnoff et al can convince the courts that the Councils are really just appendages of National, all Council assets go on the table.

[CynicalScouter]

6 minutes ago, mrjohns2 said:

Now if the case took tons of resources (and thus time), maybe they should get more than 33%, but the complexity and resources needed for the case should dictate that. Not a percentage.

The reason why the standard is 33% is because of the nature of contingency. The lawyer who takes on a client takes a risk that they will not be able to recover at all. Remember: if the lawyer takes a case and loses, they get 0%. In pursuing a case, the lawyer takes all the risk. For every "windfall" case, there's literally THOUSANDS in which the plaintiff's lawyer LOSES.

But this gets beyond the issue of Chapter 11 and BSA and the reasons why attorneys use contingency at all.

Edited February 18, 2021 by CynicalScouter

[yknot]

5 minutes ago, mrjohns2 said:

I would rather pay T&M, but then maybe people aren't going to do a good job of managing their time? 

They should be paid an amount that compensates them for their time at the going $/hr rate. It should not be a windfall. Just because the defendant has more money, doesn't mean the lawyers should make more money. Now if the case took tons of resources (and thus time), maybe they should get more than 33%, but the complexity and resources needed for the case should dictate that. Not a percentage.

When teams of lawyers are earning $400-$2000 an hour sometimes the percentage approach works out better.  Have you ever gotten a legal bill and seen how much it costs for the simple task of having an admin level person at a law firm  put something in fed ex lol? It's mind boggling, but sometimes the percentage approach actually caps the legal fees. 

 

 

[David CO]

I don't know how a lawyer's hourly rate is determined, but I suspect that it includes a lot of stuff added on to the money the lawyer actually gets.  It is certainly true of other workers.  A plumber's hourly rate seems pretty high too.  So does an appliance repairman's.  But their rates include the cost of their truck, warehouse, dispatcher, accountant, etc..  Joe the Plumber doesn't get to keep every cent out of his hourly rate.

I am a teacher.  If you included all of the supporting costs of running a classroom in my hourly wage, it would probably seem like I am overpaid too.

 

[yknot]

11 minutes ago, David CO said:

I don't know how a lawyer's hourly rate is determined, but I suspect that it includes a lot of stuff added on to the money the lawyer actually gets.  It is certainly true of other workers.  A plumber's hourly rate seems pretty high too.  So does an appliance repairman's.  But their rates include the cost of their truck, warehouse, dispatcher, accountant, etc..  Joe the Plumber doesn't get to keep every cent out of his hourly rate.

I am a teacher.  If you included all of the supporting costs of running a classroom in my hourly wage, it would probably seem like I am overpaid too.

 

That is the reality today. If you don't figure in all your hidden overhead costs when setting your rate, fee, or bid, you will not earn a profit and survive. A hundred years ago it was just a guy and his hammer and stuff you could cut down or dig out of a field. Now it's insurance, workers comp, licensing fees, materials, vehicles, etc. etc. 

[mrjohns2]

18 hours ago, CynicalScouter said:

But this gets beyond the issue of Chapter 11 and BSA and the reasons why attorneys use contingency at all.

You asked how we thought they should get paid. I said they should get paid based on the work executed vs. a percentage of settlement. 

[RememberSchiff]

2/22/2021:

BSA Attorneys filed a motion asking Judge Silverstein  to extend a preliminary injunction (expires March 19) that halted lawsuits against local BSA councils and sponsoring organizations during the bankruptcy.

"Attorneys for the BSA argue that maintaining the injunction is critical to restructuring efforts, including enabling local councils and chartered organizations to participate in mediation and, ultimately, make “a substantial contribution” to a settlement and global resolution of abuse claims. Allowing lawsuits against local councils and sponsoring organizations to proceed will make it difficult, if not impossible, for the BSA to both equitably compensate abuse survivors and ensure that the organization can continue to carry out its charitable mission, they contend."

The motion asks for an extension to July 19.

....

"Attorneys for the BSA noted in Monday’s court filing that the tort claimants committee has received some 327,000 pages of documents regarding local council assets, the nature of restrictions on those assets, and historical transactions."

Much more at source link:

https://www.usnews.com/news/us/articles/2021-02-23/boy-scouts-seek-to-extend-halt-to-lawsuits-vs-local-groups

https://www.ktbs.com/news/business/boy-scouts-seek-to-extend-halt-to-lawsuits-vs-local-groups/article_cadc72d7-8d69-503a-9f60-d8b774dffed7.html

Edited February 24, 2021 by RememberSchiff

[ThenNow]

On 2/10/2021 at 9:34 AM, CynicalScouter said:

This group is the key

The insurance companies in particular may simply refuse to pay claims that are time-barred under state law. Then what? BSA holds the bag? Councils? Or maybe BSA and the Councils tell those 54,400 claimants to go away?

Any Reorganization Plan that excludes all of the state SOL time-barred claims will not pass and the BSA will move to liquidate. No one other than TK, et al., wants that. In my assessment, after the discovery to whatever degree it is allowed, the legitimate sexual abuse survivor claimants, including the 54,400 you note, will have a vote. Let's see if the soon to be released Plan makes any note of how the otherwise time-barred claims will be classified or treated.

As an abuse survivor claimant, I don't believe all 54,400 of those claims were vetted and legitimate. That is partly gut and sniff test, partly an attorney's assessment after reviewing as many of the filings as I've had time to review. There are just too many 'fast and loose' tactics were involved in mining these claims, not the least of which is having a single attorney sign hundreds of claims in rapid succession on a single day or series of days. I truly hope Judge Silverstein slaps them down for it, as she warned she would. Anyway...

The BSA made it loud and clear and public that they were gathering all current, pending and potential claims into the Chapter 11, without caveat or condition. Set aside the SOL element, since this is not a state court litigation, and read what they said. Any effort to discard all of these claims, if otherwise sound and vetted, will be a complete and utter PR disaster. I will be part of the effort to make that a reality, if they try it.

Roger Mosbey: The BSA...has filed...Chapter 11...to achieve two key objectives: equitably compensate victims who were harmed during their time in Scouting...[the BSA] intends to use the Chapter 11 process to create a Victims Compensation Trust that would provide compensation to victims...the proposed Trust structure will provide equitable compensation to all victims..."

Jim Turley: "We believe that all victims should receive our support and compensation...the BSA has initiated restructuring to ensure we can equitably compensate all victims of past abuse in Scouting...come forward and file claims so you can receive compensation from this Trust...we believe you and we believe in compensating you." 

This is not a matter of an easy line item deletion, by any means.

[ThenNow]

On 2/18/2021 at 12:08 PM, CynicalScouter said:

Source?

The HIGHEST I ever, EVER heard was 40% (complex civil litigation). The standard is 33%.

I'd love to know where this 50% number came from

Most of the large firms and consortiums are getting 40% in this matter. As a retired attorney and claimant in this case, I find it ghastly. 

Also, this Chapter 11 cannot be compared to mustering and advancing complex civil litigation or a significant tort case, class action or otherwise. There is considerably less lawyering to be done. Where is the long process of drafting complaints and early motions then discovery - interrogatories, document requests, depositions, witness gathering, trial prep and, etc.? It's almost non-existent. The 'complaint' was a 12-page check the box with additional lines for brief narrative. It's telling that a fair number of survivors completed the Proof of Claim without counsel. It wasn't needed.

Very unique, as well, is the existence of an plaintiffs/claimants advocacy group, here the TCC. For the most part, they arguably represent the best interest of all claimants and carry the water. The majority of attorneys and firms don't have to do anything to advance the process. Admittedly, the other mediation parties are working hard and investing a great deal of time and resources. The TCC could be considered the 'lead plaintiff' as in a class action, but they get no additional consideration or award for their efforts. Plus, there are 9 of them and the Debtor/defendant pays their legal fees.

Okay. I'll stop. Maybe that helps.

[CynicalScouter]

 

35 minutes ago, ThenNow said:

Any Reorganization Plan that excludes all of the state SOL time-barred claims will not pass and the BSA will move to liquidate. No one other than TK, et al., wants that

As I noted, this for me is the question.

BSA seems to be sending out the right noises that it wants to help and do something, regardless of SOL. But BSA has only but so many assets.

The insurance companies seem to be sending out the opposite signal that they won't pay anything SOL barred.

Wondering aloud here, but is it possible BSA come up with a restructuring plan in March that is opposed by ALL sides for various reasons? In other words

1) The insurers will hate the plan because it puts them on the hook for more than they want.

2) Those who want compensation but not BSA's death will oppose it because it isn't enough.

3) Those who want BSA's death will oppose it because it isn't BSA's death.

Then we are at the point of a universally opposed cramdown: the judge accepts a plan that literally EVERY major creditor hates.

[CynicalScouter]

41 minutes ago, ThenNow said:

Any effort to discard all of these claims, if otherwise sound and vetted, will be a complete and utter PR disaster. I will be part of the effort to make that a reality, if they try it.

I'm not saying BSA will discard, I am saying what can they do? If the insurance companies won't pay, then the BSA is on the hook for it all. And they just don't have the assets to cover it all by themselves unless you start talking about relatively paltry sums (at $10,000 a piece, those 54,000 SOL claims = $540,000,000).

 

[ThenNow]

Yes, it is quite possible that the Plan, as initially proposed, is widely disfavored. Then, it will get pushed and pulled. That's what I'm anticipating and I think they will be filing it sooner rather than well into March. The judge will be loathe to cramdown in this case.

[ThenNow]

7 minutes ago, CynicalScouter said:

I'm not saying BSA will discard, I am saying what can they do? If the insurance companies won't pay, then the BSA is on the hook for it all. And they just don't have the assets to cover it all by themselves unless you start talking about relatively paltry sums (at $10,000 a piece, those 54,000 SOL claims = $540,000,000).

 

As with the LC's and SO's, insurers know that some/many of those otherwise time-barred claims derived from states where Victims Rights Act legislation is pending. 18 states have a pending VRA that creates a lookback 'revival' window. Also, insurers value certainty and clarity of liability. Both factors add some motivation and incentive to come to the table. I have other thoughts, but that may take me beyond what I am willing to share publicly. 

[fred8033]

QUESTION ... I was reading on retroactively extending SOL.   Am I correct to interpret a difference between criminal and civil SOL?  Or a specific person SOL versus an institution?  I'd like to better understand the topic.  I've read Supreme Court rulings about extending to apply criminal charges, but not found the specific about extending for institutional civil cases like the BSA's situation. 

Pointing to an article I could ready would be fine.

[CynicalScouter]

EDIT: Misunderstood question.

There's no difference between civil and criminal SOL extensions.

And extensions to Civil SOLs apply to ALL persons or institutions.

New York Child Victim’s Act doesn't just target BSA or the Catholic Church. It covers individuals as well ("any party")

https://www.nysenate.gov/legislation/laws/CVP/214-G

Quote

Notwithstanding any provision of law which imposes a period of limitation to the contrary and the provisions of any other law pertaining to the filing of a notice of claim or a notice of intention to file a claim as a condition precedent to commencement of an action or special proceeding, every civil claim or cause of action brought against any party alleging intentional or negligent acts or omissions by a person for physical, psychological, or other injury or condition suffered as a result of conduct which would constitute a sexual offense as defined in article one hundred thirty of the penal law committed against a child less than eighteen years of age, incest as defined in section 255.27, 255.26 or 255.25 of the penal law committed against a child less than eighteen years of age, or the use of a child in a sexual performance as defined in section 263.05 of the penal law, or a predecessor statute that prohibited such conduct at the time of the act, which conduct was committed against a child less than eighteen years of age, which is barred as of the effective date of this section because the applicable period of limitation has expired, and/or the plaintiff previously failed to file a notice of claim or a notice of intention to file a claim, is hereby revived, and action thereon may be commenced not earlier than six months after, and not later than two years and six months after the effective date of this section. In any such claim or action: (a) in addition to any other defense and affirmative defense that may be available in accordance with law, rule or the common law, to the extent that the acts alleged in such action are of the type described in subdivision one of section 130.30 of the penal law or subdivision one of section 130.45 of the penal law, the affirmative defenses set forth, respectively, in the closing paragraph of such sections of the penal law shall apply; and (b) dismissal of a previous action, ordered before the effective date of this section, on grounds that such previous action was time barred, and/or for failure of a party to file a notice of claim or a notice of intention to file a claim, shall not be grounds for dismissal of a revival action pursuant to this section.

 

Edited February 24, 2021 by CynicalScouter