Chapter 11 announced - Part 3 - BSA's Toggle Plan

[David CO]

9 hours ago, Eagle1993 said:

Also add to the mix one Ariel N. Lavinbuk. Focus on bankruptcy, breach of contract and fraudulent transfer law.  He writes for Slate, Harvard and Yale Law Review.  

Also added is Ariel N. Lavinbu.  He is another Supreme Court litigator who has the highlight of winning a $4.6B lawsuit against the Country of Argentina.

Are you sure these are two different lawyers?  It looks to me like this is probably the same person, but with the name misspelled somewhere..

 

[Eagle1993]

Just now, David CO said:

Are you sure these are two different lawyers?  It looks to me like this is probably the same person, but with the name misspelled somewhere..

 

I copy pasted incorrectly.  There are actually 4 lawyers from Robbins Russell added to the mix.

Lawrence S. Robbins https://www.robbinsrussell.com/attorneys/lawrence-s-robbins/

Joshua S. Bolian   https://www.robbinsrussell.com/attorneys/joshua-s-bolian/

Ariel N. Lavinbuk https://www.robbinsrussell.com/attorneys/ariel-n-lavinbuk/

William J. Trunk https://www.robbinsrussell.com/attorneys/william-j-trunk/

 

[Eagle1993]

21 minutes ago, CynicalScouter said:

As much as I respect the TCC lawyers, they are to my way of thinking negotiators.

The lawyers the Coalition just brought in are fighters. They are are here to win and they are being paid the big bucks to do so.

This just sends a clear/clearer message that negotiations are over, as if the response they filed or the multiple discovery demands didn't get that message across,

I would not be shocked to see the Coalition formally withdraw from mediation; they could stick around just pro forma but not really engage.

I think we may look back and see a huge strategic error with the Hartford settlement.  Why even go there.  I'm starting to see a narrowing window for BSA to escape a Chapter 7.  I expect the only chance is give up the HA bases, withdraw the insurance settlement and move on.  The other side knows there is likely 10's of billions of dollars at stake with the insurance side.  They can be patient, filing lawsuits against National HA bases, LCs, COs and insurance companies.

Note that these are lawyers directly representing claimants ... not the TCC ... so they can file suit against LCs and COs.  (I don't think the TCC lawyers actually directly represent claimants).

Again, I expect much of the focus will be the insurance policies, but the tone is definitely changing here.

[CynicalScouter]

4 minutes ago, Eagle1993 said:

I'm starting to see a narrowing window for BSA to escape a Chapter 7.

I don't see a universe in which BSA voluntarily goes into Chapter 7, and it cannot (as a not-for-profit) be forced into it.

I CAN, however, see a situation where TCC/Coalition/FCR or some combination come up with their reorganization plan and force BSA to accept it. Remember: the ONLY reason they haven't done so is the BSA still has (for now) exclusive rights to submit a plan.

[jr56]

Does this time period expire when a judge makes a ruling?

[Eagle1993]

11 minutes ago, CynicalScouter said:

I don't see a universe in which BSA voluntarily goes into Chapter 7, and it cannot (as a not-for-profit) be forced into it.

Agreed ... but if the BSA runs out of cash to pay lawyers, what choice do they have?  I can't imagine BSA's cash situation is good right now.  I know BSA is using Ch 7 as a threat.  Perhaps JP Morgan can keep giving them loans, but JP may get antsy with these other lawyers added.

[CynicalScouter]

5 minutes ago, Eagle1993 said:

but if the BSA runs out of cash to pay lawyers, what choice do they have? 

They can exit Chapter 7 without having a reorg plan. Or, as I said, they'll be forced to accept the TCC/FCR/Coalition plan.

[CynicalScouter]

11 minutes ago, jr56 said:

Does this time period expire when a judge makes a ruling?

It already expired in part

Quote

the current Exclusive Filing Period and Exclusive Solicitation Period will expire on March 19, 2021 and May 18, 2021, respectively

So, TCC/FCR/Coalition COULD file a reorg plan TODAY if they want, but they couldn't possibly send it out for a vote until May 18.

Which is why I previously indicated that I expect to see a plan get filed, if not for formal consideration then as a veiled threat attached to some other pleading or document: BSA, get with the program or we will cram this down your throat/file the following for formal consideration.

[DavidLeeLambert]

On 4/22/2021 at 2:29 PM, jr56 said:

So am I not understanding this?  I have been told by the BSA,  if you can believe [it], that [they] are very proactive in efforts to prevent child abuse, more [so] than other groups.  Is this not true?  What further things should be done?

If your question is "What should BSA do more than what they're doing today", I'll remind you that there's a separate thread for that.

If your question is "What could BSA have done differently?", here's a list of ideas that plaintiffs' lawyers have suggested, implied, or might agree with.

• Hired private investigators to randomly check on Scoutmasters and other leaders
• Taken out a full-page ad in the local paper warning people that so-and-so was no longer authorized to have anything to do with Scouting every time someone was added to the Ineligible Volunteer File
• Taken out a full-page ad in a national paper every year warning people to be vigilant and not to trust Scoutmasters
• Required every unit meeting place to prominently display a "wanted" poster with the names and photos of every ineligible volunteer who had ever served there
• Related to that, required fingerprints, a photo, and a DNA sample of every prospective volunteer
• (before the mid-80s, when a computer index was created for the IVF) Kept IVF entries indefinitely, instead of removing them when the IV reached age 70 or was known to be deceased
• Including a disclaimer, requiring a separate parent signature and thumbprint, on the boy registration form, in 15-point type: WARNING: THERE IS A RISK THAT BOYS WILL BE MOLESTED OR SOLICITED FOR PARTICIPATION IN INDECENT ACTIVITIES IN THIS YOUTH PROGRAM
• Instituting a zero-tolerance policy against allowing unregistered boys to "visit" activities
• Requiring troops and packs to make sure everyone viewed It Happened to Me, rather than just distributing the video
• Prohibiting one-on-one contact and requiring two-deep leadership earlier (1948 rather than 1988)
• Offering to pay for counseling for boys who had been molested (in 1972, rather than 2012)
• Introduced a toll-free reporting number earlier, and advertised it in both Scout and non-Scout publications
• Or simply shut the whole program down

I am skeptical how much any of those measures would have helped, and they could have opened Scouting up to huge liability in the other direction (libel suits, etc.) There's also only so much you can do when annual registration is $7.00 per boy (late '80s). But if the bankruptcy fails and the abuse claims go to trial against BSA, I'm sure plaintiffs' lawyers will argue that BSA "could have" done some of these things, or other similar things, and that it "would have" protected their clients or made their clients whole earlier.

[ThenNow]

1 hour ago, Eagle1993 said:

Continental's lawyers already have accused the Buffalo Diocese of creating "a system of protecting, transferring, and obscuring the identities of pedophilic priests” that would invalidate insurance coverage.

PERSONAL OPINION: There are significant differences between the facts of the RCC cases that distinguish them from the BSA CSA liability scenario. I believe those differences are critical and place insurers in the direct line of fire to pay on the historic policies.

[Owls_are_cool]

36 minutes ago, DavidLeeLambert said:

here's a list of ideas that plaintiffs' lawyers have suggested, implied, or might agree with.

How many of the 85,000 victims and their families did not report the sexual child abuse to the police? If the BSA can be sued for not acting in the past, what about the families that did nothing?

[CynicalScouter]

13 minutes ago, Owls_are_cool said:

How many of the 85,000 victims and their families did not report the sexual child abuse to the police?

So what?

I've said this over and over: the lawsuits are NOT about failure to report the abuse.

They are about

1. Negligence/Duty of reasonable care - BSA (and COs) had an obligation to look after these kids and not let them be harmed.
2. Negligence in Supervision - the abusive leader was an "agent of [Boy Scouts] was under [Boy Scouts] direct supervision, and control" using BSA methods, uniforms, instruction, etc. They were also suppose to be under the review and supervision of the CO.
3. Negligence in Retention - the abusive leader was not shoved out the door fast enough
4. Negligence in Hiring - (yes a volunteer is "hired" for these purposes) Boy Scouts and the COs failed to do enough of a background check to detect the abuser's tendencies and nevertheless held the abusive leader out as a "competent and trustworthy scout leader, supervisor, servant, teacher, and counselor."

EVEN IF the BSA and COs had reported to the police, they are STILL liable for the above.

 

Edited April 28, 2021 by CynicalScouter

[ThenNow]

18 minutes ago, Owls_are_cool said:

How many of the 85,000 victims and their families did not report the sexual child abuse to the police? If the BSA can be sued for not acting in the past, what about the families that did nothing?

Oversight. Negligent. Stewardship. Negligence. Entrusted into the care. Negligence. Implied duty of care. Negligence.

Badge on the uniform says BSA (Trustworthy, loyal...). Affiliate, associate, agent, sanctioned and approved volunteer, employee...liable.

Edited April 28, 2021 by ThenNow

[CynicalScouter]

1 minute ago, ThenNow said:

Oversight. Negligent. Stewardship. Negligence. Entrusted into the care. Negligence. Implied duty of care. Negligence.

Badge on the uniform says BSA (Trustworthy, loyal...). Affiliate, associate, agent, sanctioned and approved volunteer, employee...liable.

Exactly. This is what I still cannot fathom and that people have been told over and over again.

@Owls_are_cool: i know we've told you this before. The point of the claims is that EVEN IF the police were notified and EVEN IF the abuser was found guilty, that does NOT absolve or release BSA, the Local Councils, or the CO (depending on the particular facts of the case) from civil claims for allowing the abuse to happen in the first place.

Some states called it duty to care (explicit or implied or both).

Some will wrap this into negligence in hiring/retention/supervision. I've also seen (California comes to mind) negligence in training. Etc.

[ThenNow]

13 minutes ago, CynicalScouter said:

I've said this over and over: the lawsuits are NOT about failure to report the abuse.

They are about

1. Negligence/Duty of reasonable care - BSA (and COs) had an obligation to look after these kids and not let them be harmed.
2. Negligence in Supervision - the abusive leader was an "agent of [Boy Scouts] was under [Boy Scouts] direct supervision, and control" using BSA methods, uniforms, instruction, etc. They were also suppose to be under the review and supervision of the CO.
3. Negligence in Retention - the abusive leader was not shoved out the door fast enough
4. Negligence in Hiring - (yes a volunteer is "hired" for these purposes) Boy Scouts and the COs failed to do enough of a background check to detect the abuser's tendencies and nevertheless held the abusive leader out as a "competent and trustworthy scout leader, supervisor, servant, teacher, and counselor."

EVEN IF the BSA and COs had reported to the police, they are STILL liable for the above.

You beat me to it!