Chapter 11 Announced - Part 4 Revised Plan

[RobertCalifornia]

9 hours ago, fred8033 said:

BSA is trying to stay in business.  I'm disgusted at the costs, but I really can't blame BSA.  It's the cost of our legal system. ... The only way to stop BSA's legal expenses is to reach an agreement.   

Fees are fees I suppose. However, it does seem like BSA has dragged their feet.

For instance, why are so many claimants still not assigned to a state or council? It is not difficult to ascertain if a person lived in X town or attended X camp in X year, there is a high probability that person was in X council. 

We know membership records were not computerized unless someone typed those names into databases. We know councils can shred paper copies of membership forms after 3 years. I just wonder how good the national records are for the past.

We know there are people that participated in scouting, yet because mom did not sign the form or send money...that scout never was registered. 

There are plenty of people who confuse the boys and girls club with scouting. And, the club could have had a scout group. Same for the Royal Rangers and other groups who will sometimes claim to be a scout until  person digs deeper and finds out it is not a BSA group.

BSA laid a bunch of people off last year and many got severance. You would think that the national office would want to use people vs. paper scanners to plug in and research the missing data. The TCC has stated that people will write the council name in the wrong area. But because the council name is left blank where the scanner reads then a council is not assigned. 

At this point, I would sure hope that humans are updating the data. 

[RobertCalifornia]

Councils should keep copies of their board minutes and insurance policies. But, how many of those records are actually complete? How many scout executives just shredded those old records on their way out the door so they could leave the next guy a cleaner office?

 

[mrjohns2]

13 minutes ago, RobertCalifornia said:

Fees are fees I suppose. However, it does seem like BSA has dragged their feet.

For instance, why are so many claimants still not assigned to a state or council? It is not difficult to ascertain if a person lived in X town or attended X camp in X year, there is a high probability that person was in X council. 

Wouldn't that be up to the claimant? 

[fred8033]

1 hour ago, johnsch322 said:

It is hard for me to imagine a case by case situation or what insurer or even council charter org.  since all of the fight against the insurers  will be funded from the same pool of money.  If the insurance company that is liable for my case settled for myself (and all others they covered) and legal cost for that recovery was XX but another insurance carrier settled for the same amount but cost of recovery was 4 times XX or more it would turn into a logistical nightmare.

Of course this is just how I see the future but then I also have no magical ball.

Me too.  I have no magical hat either.  BUT, it seems like we are in for some type of mapping / tracking of insurer paid versus victim was in which org and when.  Same reasoning as property sales from a LC would get allocated to a specific set of scouts that was victimized from that area and not for all 84,000 scouts in the case.  ... Some policies will have limits.  Some won't have umbrella coverage for these cases.  I'm sure will be pooled as similar coverage.

Is the real question ... is there one or two major insurers for this whole thing?  Is it really just Chubb and (???) for most of BSA and the LCs?  Or are there other insurers involved.  Are there different COIs involved?  The 1970 COI has no limit versus 1980s has a limit per case and the 1990s has a overall limit per policy?  

It seems like a mess to litigate.

[fred8033]

1 hour ago, RobertCalifornia said:

Fees are fees I suppose. However, it does seem like BSA has dragged their feet.

For instance, why are so many claimants still not assigned to a state or council? It is not difficult to ascertain if a person lived in X town or attended X camp in X year, there is a high probability that person was in X council. 

BSA has to hand over evidence.  Physical and computer files.  BUT, who does the leg work when the data is incomplete?  Who hunts for yet more evidence?  That seems to be on the side driving the lawsuit.  

So if the data is incomplete, I really can't blame BSA for that.  Most organizations probably have poor membership records from 10, 20 years ago.  Definitely from 40 years ago.

Edited June 29, 2021 by fred8033

[johnsch322]

6 minutes ago, fred8033 said:

BUT, it seems like we are in for some type of mapping / tracking of insurer paid versus victim was in which org and when.  Same reasoning as property sales from a LC would get allocated to a specific set of scouts that was victimized from that area and not for all 84,000 scouts in the case.  ... Some policies will have limits.  Some won't have umbrella coverage for these cases.  I'm sure will be pooled as similar coverage.

One of the messy parts I see for mapping/tracking is how resources will be deployed and to which cases.  If claim "A" was given only cursory attention, very little resources from the trust but claim "B's" claim was given extreme attention and more resources put into it and they both were paid on an individual basis would that not open the trust/trustee to be liable for negligence?  How would claim "A's" lawyer feel if this were to happen? 

[fred8033]

1 hour ago, johnsch322 said:

My thoughts are there will be settlements from the insurance company's. 

Perhaps I'm forgetting some previous answer.  This overlaps with how LCs can settle.  I don't understand it.  BSA can settle because they are going thru bankruptcy and that ends past liabilities (usually).  But LCs and insurance companies are not going bankrupt.  There is no class action.  So, I'm really not sure how insurance companies (or LCs) can settle.  What prevents a state AG or a victim or a victim claim group suing in a state changes SOLs (first time or a second time SOL change).  ... Does this need to be first certified on a larger class action basis?  

It's probably already been said a few times in these threads.  I am having trouble following how the case might unfold ... beyond it's a huge mess.

[johnsch322]

10 minutes ago, fred8033 said:

Perhaps I'm forgetting some previous answer.  This overlaps with how LCs can settle.  I don't understand it.  BSA can settle because they are going thru bankruptcy and that ends past liabilities (usually).  But LCs and insurance companies are not going bankrupt.  There is no class action.  So, I'm really not sure how insurance companies (or LCs) can settle.  What prevents a state AG or a victim or a victim claim group suing in a state changes SOLs (first time or a second time SOL change).  ... Does this need to be first certified on a larger class action basis?  

It's probably already been said a few times in these threads.  I am having trouble following how the case might unfold ... beyond it's a huge mess.

My understanding is that the LC's that contribute (not sure if they all will) by a channeling mechanism.  Insurance company's if they settled could essentially do the same as Hartford has tried (but TCC and others have said no).  The insurance settlements (if they happen) post bankruptcy will be with the trust settlement trustee.  Neither the LC's nor the insurance have to bankrupt to settle though some may as a result.  I am not sure about state AG's suing (though they could bring charges).  LC's that contribute I believe will not be subject to SOL lawsuits as they will be deemed to have settled with the victims.  If others on the forum with more legal could help me out here I would appreciate it.

[CynicalScouter]

To be clear: other than BSA, there is no "pooling" of victims. That is why this is going to take years/a decade to sort out.

Each claim will have to be reviewed, one at a time to determine

1) Facial validity: is there enough information to even gauge which LC, CO, and therefore which insurance policy or policies are involved here? If not, is that amenable at this point? In other words, can claimants file amended claims? The insurance companies have said in some of their documents they don't think so, but then again, they would.

2) Detailed validity: did the claimant provide enough information to prove the claim or demonstrate a claim? How much information/evidence is enough? That's for the trustee to decide.

3) Based on #2, how much is that claimant entitled to, using the abuse claims matrix?

4) Who has to pay what, exactly? The cleanest example I use is that the trustee determines that the claimant is entitled to $1 million, that amount divided between the BSA, the LC, and the insurance company. BSA has said it will contribute around $6,000 per victim (I know, that's oversimplified, just work with me a second). Then let's say the specific LC is producing $10,000 per victim. $1 million - $6000 - $10000 = $984,000 judgement against the insurance company.

Repeat that process 82,500 times.

[CynicalScouter]

13 minutes ago, johnsch322 said:

LC's that contribute I believe will not be subject to SOL lawsuits as they will be deemed to have settled with the victims. 

Right. LCs who participate are not subject to abuse claims prior to February 18, 2020. They have until July 7 or 9 to vote.

LCs that participate are deemed "Protected Parties" as in "protected" by the bankruptcy settlement. There are 7 groups of "protected".

https://casedocs.omniagentsolutions.com/cmsvol2/pub_47373/75cad6f2-cc34-4b0c-896f-0d26815b1189_5368.pdf

(i) the Debtors = BSA

(ii) Reorganized  BSA = the BSA that emerges from bankruptcy

(iii)  the  Related  Non-Debtor Entities = Arrow WV, The Boy Scouts of America Foundation, etc.

(iv) the Local Councils, so long as the total amount given into the settlement is at least $500,000,000 ("For the avoidance of doubt, if the aggregate of the Local Council Settlement Contribution is not contributed to the Settlement Trust as set forth above, then no Local Council shall be treated as a Protected  Party  under  the  Plan.")

(v) the Contributing Chartered Organizations

(vi) the Settling Insurance Companies, including Hartford

(vii) all of such Persons’ Representatives; provided, however, that no Perpetrator is or shall be a Protected Party.

Edited June 29, 2021 by CynicalScouter

[CynicalScouter]

42 minutes ago, fred8033 said:

But LCs and insurance companies are not going bankrupt.  There is no class action.  So, I'm really not sure how insurance companies (or LCs) can settle.  What prevents a state AG or a victim or a victim claim group suing in a state changes SOLs (first time or a second time SOL change).  ... Does this need to be first certified on a larger class action basis?  

Because this is a related action: many/most (if not all, it is close) of these claims are claims against BSA and the LCs. That's the tricky part and why everyone has said at various points that this is a weird/odd/rarely used way to get a class-action mass tort type situation in a bankruptcy and why the U.S. Trustee filed in their objection a question of whether this was even legal.

https://casedocs.omniagentsolutions.com/cmsvol2/pub_47373/241d24f2-4d85-482f-a433-da28b3f8ce3e_3581.pdf

Quote

Apart from a few passing references to section 105 of the Bankruptcy Code and the Court’s equity powers, the Disclosure Statement does not identify any legal authority for the Channeling Injunction, nor does the Disclosure Statement attempt to reconcile this relief with the stringent limitations placed by this Court on non-consensual third-party releases. The United States Trustee reserves judgment on whether the Plan ultimately will be confirmable, but the Disclosure Statement should not be approved until the Debtors have at the very least elucidated the legal argument on which they intend to rely.

There will likely be an opt-out option where a victim can object to the plan and seek to sue the LC (BSA will be covered by the bankruptcy) in state court.

Edited June 29, 2021 by CynicalScouter

[johnsch322]

16 minutes ago, CynicalScouter said:

To be clear: other than BSA, there is no "pooling" of victims. That is why this is going to take years/a decade to sort out.

If what you say is true and I have no reason to doubt you there will be many disappointed claimants.  

 

19 minutes ago, CynicalScouter said:

Each claim will have to be reviewed, one at a time to determine

1) Facial validity: is there enough information to even gauge which LC, CO, and therefore which insurance policy or policies are involved here? If not, is that amenable at this point? In other words, can claimants file amended claims? The insurance companies have said in some of their documents they don't think so, but then again, they would.

2) Detailed validity: did the claimant provide enough information to prove the claim or demonstrate a claim? How much information/evidence is enough? That's for the trustee to decide.

3) Based on #2, how much is that claimant entitled to, using the abuse claims matrix?

That sounds like low hanging fruit will be first maybe.  Perhaps this will be where individual claimants lawyers (if they have one will be needed).  Here in California to file a lawsuit if over a certain age you need a psychiatrist to evaluate you and render an opinion if he believes it was true (my lawyer has mine).  

 

23 minutes ago, CynicalScouter said:

4) Who has to pay what, exactly? The cleanest example I use is that the trustee determines that the claimant is entitled to $1 million, that amount divided between the BSA, the LC, and the insurance company. BSA has said it will contribute around $6,000 per victim (I know, that's oversimplified, just work with me a second). Then let's say the specific LC is producing $10,000 per victim. $1 million - $6000 - $10000 = $984,000 judgement against the insurance company.

I would think this would be the harder part.  I know that you have stated previously that if an insurance company doesn't pay what the trustee deems they must than the trustee can go to the court and have them held in contempt.  My question for this would be that doesn't give the insurer their day in court can you clarify please?

[CynicalScouter]

14 minutes ago, johnsch322 said:

My question for this would be that doesn't give the insurer their day in court can you clarify please?

The insurer's "day in court" if you will is at steps #1 and #2. The trustee will operate like a mini-judge, hearing testimony and evidence, reviewing documents and briefs, etc.

Appointing a trustee (or special master, or judicial hearing officer, or some other quasi-judicial officer) to hear victims claims is not unheard of and happens often in mass tort cases.

To oversimplify again, the trustee will have all the power and authority of the bankruptcy court judge SUBJECT TO THE JUDGE'S OVERSIGHT. So, the insurance companies will have their day in court before the trustee, appointed by the court to handle such matters. When the trustee speaks, it is with the bankruptcy court judge's voice.

The insurance company is going to argue to the trustee somethings along the lines of

1. No, the claimant didn't give enough information to prove their claim therefore it should be dismissed
2. Yes, the claimant gave information, but it's a $100,000 claim not a $1 million claim
3. Yes, the claimant gave information, and ok sure it's a $1 million claim, but the insurance plan for that particular year had a $500,000 cap therefore the claimant is not going to get more than that from the insurance company.

Etc. If they absolutely don't like it, then they'll refuse and then they'll go before the actual bankruptcy court judge, who will almost certainly tell them to do what they are told.

Insurance companies are not going to outright disobey a court order to pay someone something and again, the trustee is acting on the orders of the bankruptcy court. They'll object. They'll appeal. But if the trustee says this is what they have to pay, that's what they have to pay (subject to appeal).

Edited June 29, 2021 by CynicalScouter

[johnsch322]

3 minutes ago, CynicalScouter said:

The insurer's "day in court" if you will is at steps #1 and #2. The trustee will operate like a mini-judge, hearing testimony and evidence, reviewing documents and briefs, etc.

Appointing a trustee (or special master, or judicial hearing officer, or some other quasi-judicial officer) to hear victims claims is not unheard of and happens often in mass tort cases.

To oversimplify again, the trustee will have all the power and authority of the bankruptcy court judge SUBJECT TO THE JUDGE'S OVERSIGHT. So, the insurance companies will have their day in court before the trustee, appointed by the court to handle such matters. When the trustee speaks, it is with the bankruptcy court judge's voice.

The insurance company is going to argue to the trustee somethings along the lines of

1. No, the claimant didn't give enough information to prove their claim therefore it should be dismissed
2. Yes, the claimant gave information, but it's a $100,000 claim not a $1 million claim
3. Yes, the claimant gave information, and ok sure it's a $1 million claim, but the insurance plan for that particular year had a $500,000 cap therefore the claimant is not going to get more than that from the insurance company.

Etc.

One other question (for now) I was told by a lawyer that once BSA filed for bankruptcy I could not be cross examined.  What do you know about this?  Thank you for taking questions and answering.

[CynicalScouter]

9 minutes ago, johnsch322 said:

One other question (for now) I was told by a lawyer that once BSA filed for bankruptcy I could not be cross examined.  What do you know about this? 

Speak to your attorney, but there's a short term and long term ramification.

IN THE SHORT TERM if you had sued, then when BSA filed for bankruptcy everything stopped/stayed/paused. So, let me give and example.

John Smith sued BSA and the Local Council in January 2020 in New Mexico state court. The BSA filed bankruptcy in February 2020. That STOPPED all proceedings in Smith vs. BSA and the LC. That means FOR NOW John Smith cannot be deposed or cross examined by BSA or the LC pending the conclusion of the bankruptcy. That's the short term.

IF however the bankruptcy collapsed and BSA couldn't come to an a bankruptcy agreement or IF the BSA got a bankruptcy agreement and the LC did not, then Smith vs. BSA and the LC goes forward and yes, as part of a civil case, the plaintiff may be deposed/asked for evidence in their case and if it goes to trial yes they can be called to testify.

It is simply a matter of law that in a civil case, the plaintiff can be cross-examined if it goes to trial or if a deposition it requested. In the case of sexual abuse, for obvious reasons, defense counsel does NOT want to cross-examine a victim of sexual abuse in front of a jury. But they can ask for information and a deposition and yes cross-examine.

Edited June 29, 2021 by CynicalScouter