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

[ThenNow]

10 minutes ago, CynicalScouter said:

But just like I would hope that BSA supporters would not rally to email flood the attorneys for the TCC, the Coalition, or others in an effort to pressure those lawyers, I would hope that supporters of CSA victims will not do the same.

It won't do any good and might be counterproductive (if, for example, Schiovoni cites it in future pleadings to suggest he is being targeted/harassed).

100%. I believe the "combatants" are set in the arena, representing their respective constituencies and clients, and a barrage from outside the walls won't do much more than increase delay and run up fees. 

Edit: Bombing Chubb is on their dime, though. Flooding their attorney's inbox seems less than productive. Go directly to the court or his client, if at all. My OPINION only.

Edited June 2, 2021 by ThenNow

[Eagle1993]

22 hours ago, CynicalScouter said:

That sure as heck doesn't sound like the mediation went well/we are going to see a breakthrough this week and that TCC is going full bore after the LCs.

From what I have read, the rumor is the TCC is not being included in the negotiations.  Essentially, the BSA has collected a group of claimant representatives >50% and is working with them on a settlement.  There may be some truth as the Coalition agreed to delay the hearing but the TCC objected. 

Does anyone know if the TCC is actively part of the current mediation or are the being excluded?  I know the target is 66%, but I wonder if the judge would accept >50% yes votes and if BSA has identified a path to yes with 42,001 claimants.  There could be a lot out there that are just looking for a quick payout.

[100thEagleScout]

49 minutes ago, Eagle1993 said:

From what I have read, the rumor is the TCC is not being included in the negotiations.  Essentially, the BSA has collected a group of claimant representatives >50% and is working with them on a settlement.  There may be some truth as the Coalition agreed to delay the hearing but the TCC objected. 

Does anyone know if the TCC is actively part of the current mediation or are the being excluded?  I know the target is 66%, but I wonder if the judge would accept >50% yes votes and if BSA has identified a path to yes with 42,001 claimants.  There could be a lot out there that are just looking for a quick payout.

The Bankruptcy Code wouldn’t allow for that.  That’s because they’re drawing in non-debtors to also settle.  The cram down option would have to be the BSA-only toggle.

[ThenNow]

44 minutes ago, Eagle1993 said:

From what I have read, the rumor is the TCC is not being included in the negotiations.  Essentially, the BSA has collected a group of claimant representatives >50% and is working with them on a settlement.  There may be some truth as the Coalition agreed to delay the hearing but the TCC objected. 

Does anyone know if the TCC is actively part of the current mediation or are the being excluded?  I know the target is 66%, but I wonder if the judge would accept >50% yes votes and if BSA has identified a path to yes with 42,001 claimants.  There could be a lot out there that are just looking for a quick payout.

I have no definitive answer, but if either are true this would constitute a horrendous miscarriage of this process. A classic end around in search of a slight of hand score. Regardless, I would be shocked and disgusted if the judge allowed a reduction in the required vote. 

[100thEagleScout]

Of course if BSA were to suddenly declare local councils as part of the whole picture then maybe, but judging from the NAM they are denying the inevitable.

[CynicalScouter]

8 minutes ago, 100thEagleScout said:

Of course if BSA were to suddenly declare local councils as part of the whole picture then maybe, but judging from the NAM they are denying the inevitable.

It isn't inevitable. There are very good legal arguments why LCs should not be considered part of BSA National. And I assure you, if BSA were suddenly to unilaterally "declare local councils are part of the whole" they'd be opening up an entirely new front in this mess with the LCs suing BSA and refusing to turn over a dime absent a court order.

 

Edited June 3, 2021 by CynicalScouter

[100thEagleScout]

1 minute ago, CynicalScouter said:

It isn't inevitable. There are very good legal arguments why LCs should not be considered part of BSA National. And I assure you, if BSA were suddenly to unilaterally "declare local councils are part of the whole" they'd be opening up an entirely new front in this mess with the LCs suing BSA and refusing to turn over a dime absent a court order.

 

How is it not inevitable?  Obviously this would be by region but all of the bigger, wealthier councils also have more liability exposure so every council will be in danger if the cram down happens.

[CynicalScouter]

11 minutes ago, 100thEagleScout said:

How is it not inevitable?  

1. Not every council is facing the same legal situation. For example, the NY councils are, by and large, screwed. Other councils in other states, with no lookback windows and few claims, not so much.
2. We may very, very well have a situation where you have a mini-global or partial-toggle: of the 240 councils, XX agree to participate in the settlement trust, the other councils then basically dare the victims attorneys to come after them in their various state courts. For some councils, this may seem like a better bet especially if they think they won't have to worry about lookback windows. Such a plan, something between the toggle and the global, may be possible.
3. The cramdown toggle only happens if a) the global plan fails and b) the judge agrees to get BSA out of bankruptcy rather than watch it bleed to death. Then, it is 242 different fights. As I said in #2, some councils would be perfectly happy with taking their chances in state courts possibly someday (if their state legislature opens up a lookback window) vs. having to definitely today sell their camp(s). It is a gamble some councils are going to want to take.

Edited June 3, 2021 by CynicalScouter

[CynicalScouter]

27 minutes ago, ThenNow said:

Regardless, I would be shocked and disgusted if the judge allowed a reduction in the required vote. 

She keeps talking about balance of interests. Yes, I understand that the rule is 2/3rds. But this is where it comes a sliding scale.

If BSA's plan goes to a vote and fails to get 2/3rds (66.7%), we are now deep into September (at best) with a failed plan and BSA claiming it is out of cash.

If the vote was 66% does the judge quibble about a few dozen or hundred votes at the risk of BSA dying from bleeding out cash? Doubtful, based on her express desire to see BSA survive.

If the vote was 6.6% does the judge overlook an overwhelming rejection? Of course not.

So, somewhere in the middle there is a number that is close enough that the judge can justify a cramdown. The question is how close is she comfortable with.

[Muttsy]

On 6/1/2021 at 1:25 PM, ThenNow said:

Look backs are not the only way to get around SOLs. There are other recognized tolling theories. Fraudulent Concealment tolling opened the door in Idaho for example. It is a federal court ruling. It is likely to be followed in many states. Plus look back windows are coming fast and furious to a theatre near you. Look for IA, GA, FL, Tx.  Look backs are not blue state phenomena any longer. 
 

the Idaho case is the Judge Winmill decision. https://casetext.com/case/doe-v-boy-scouts-of-am-6

Edited June 3, 2021 by Muttsy

[CynicalScouter]

7 minutes ago, Muttsy said:

Look backs are not blue state phenomena any longer. 

They never really were. NC did it. So did GA (limited I believe to lookbacks against individuals and not corporations to protect the BSA and Catholic Church) and Arkansas. And they were enacted unanimously or nearly so in every state.

[johnsch322]

17 minutes ago, CynicalScouter said:

We may very, very well have a situation where you have a mini-global or partial-toggle: of the 240 councils, XX agree to participate in the settlement trust, the other councils then basically dare the victims attorneys to come after them in their various state courts. For some councils, this may seem like a better bet especially if they think they won't have to worry about lookback windows. Such a plan, something between the toggle and the global, may be possible.

Not sure how this could work.  If hypothetically National and half of the LC's settled and a trust was established who gets access to the trust money.  If claimant  A's LC settled and B's doesn't can B participate and get as much as A (if abuse was even) from the trust? Does B retain his right to sue his LC? If B sues his LC does the portion or percentage given by the other LC's to the trust get deducted from his settlement and go back into the trust? Does the right to retain the ability to sue have a dollar value? Whew seems kind of messy.  I think it will have to be one or the other.

[Muttsy]

I’ll meet your North Carolina and raise you NY, NJ, VT, CN, CA, OR, WA, DC. 
 

AR was a welcome surprise as were bills introduced in OK and again in GA which got outmaneuvered by the insurance and Catholic Church lobby. 
 

My point is to echo the word “inevitable.

The MI AG story is the handwriting on the wall if only the recalcitrants could escape their self-destructive denial. 

[MYCVAStory]

1 hour ago, Eagle1993 said:

From what I have read, the rumor is the TCC is not being included in the negotiations.  Essentially, the BSA has collected a group of claimant representatives >50% and is working with them on a settlement.  There may be some truth as the Coalition agreed to delay the hearing but the TCC objected. 

Does anyone know if the TCC is actively part of the current mediation or are the being excluded?

Absolutely not true.  As I understand and have full confidence in its validity, The TCC's professionals and State court counsels have been in Chicago, TCC present via Zoom.  All have been fully participating along with other mediation parties and will tomorrow as well.  Beyond the court date Friday if it occurs the TCC has a  regularly scheduled Town Hall meeting next Thursday to update survivors and interested parties.  Link will be posted at TCCBSA.COM

[CynicalScouter]

Just now, MYCVAStory said:

As I understand and have full confidence in its validity, The TCC's professionals and State court counsels have been in Chicago, TCC present via Zoom

Good to hear. I know that TCC has said it WAS cut out of some prior mediation sessions in Miami I believe, so I am glad they are "in the room" as it were.