Chapter 11 Announced - Part 4 Revised Plan

[CynicalScouter]

One more note:  If you filed a claim against BSA as part of the bankruptcy and it comes time for the trustee to decide how much the insurance companies will pay, the insurance companies MAY let me repeat this MAY demand testimony and cross-examination of the claimant.

Part of the insurance company being able to have their day in court is they have the right to depose the claimants to determine if they were really injured and how much. They may or may not do this in your particular case, but they may.

Remember: the insurance companies

1. do NOT want to pay
2. do NOT want to pay out on false claims and
3. do NOT want to pay one more penny then they have to (e.g. $1 million for a $100,000 claim)

Therefore, they can and likely will demand more information from some claimants and that may mean depositions. They've already asked for at least 100 depositions and if this goes further, I would expect they will ask for more and more.

EDIT: And as absolutely sympathetic as I am to the victims here, I also recognize that the insurance companies and their lawyers have a duty to ensure the insurance companies are not paying out more than they have to. They are businesses, not charities, and are therefore going to demand proof of claims before they start writing checks. And that is in some (many?) of these cases going to mean depositions.

Edited June 29, 2021 by CynicalScouter

[fred8033]

2 hours ago, CynicalScouter said:

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.

... thought I had commented ...

This is why I could see the LC / insurance settlement being more difficult.  LC/insurance can be protected if they participate.  But there will probably still a channel for existing and new parties to sue even after the settlement.  

I'll be extremely interested to learn if the US trustee was right that such settlements might not even be legal.

[fred8033]

@johnsch322  @CynicalScouter  ... I really appreciate the last several posts.  Kudos and thank you for the thought and time you put into it.  I learned alot.

 

Edited June 29, 2021 by fred8033

[Muttsy]

4 hours ago, fred8033 said:

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

BSA and the councils have all the enrollment records. They had no problem digging out this one to promote itself earlier this year: 

 

[mrjohns2]

2 minutes ago, Muttsy said:

BSA and the councils have all the enrollment records.

You make this statement with no proof. Some councils, like ours, are the merger of 7 councils. None of those records were digitalized 20 years ago when they merged. Who knows how well each of the old councils kept their records. Council offices changed many times. 

Do they have some or many enrollment records? Likely, all? No. 

[CynicalScouter]

36 minutes ago, mrjohns2 said:

Do they have some or many enrollment records? Likely, all? No. 

Right, and all that those records are going to do is confirm that yes: John Doe was with Troop 123 in the XYZ Council (which was merged into today's ABC Council) in 1967.

You still have the problem of sufficient proof: is a statement of claim absent any other documentation or anything else sufficient to demonstrate to a trustee the claim is valid? BSA is, in effect, prepared to offer money to not fight that fight 82,500 times. Some/most LCs are going to be willing to do that as well on smaller scales, (10 claims, 100 claims, 1000 claims, etc.). But holdout LCs and definitely the insurance companies are going to fight tooth and claw all 82,500 or, perhaps, offer low ball payout offers ($10,000 on a purported $1 million claim) and indicate that if the claimant doesn't take the offer they'll be deposed/cross-examined/forced to provide more evidence and proof.

At that point BSA and the cooperating LCs will be out of this, but the claimants will be spending the better part of a decade in front of the trustee fighting with the insurance companies.

Edited June 29, 2021 by CynicalScouter

[johnsch322]

6 minutes ago, CynicalScouter said:

Right, and all that those records are going to do is confirm that yes: John Doe was with Troop 123 in the XYZ Council (which was merged into today's ABC Council) in 1967.

You still have the problem of sufficient proof: is a statement of claim absent any other documentation or anything else sufficient to demonstrate to a trustee the claim is valid? BSA is, in effect, prepared to offer money to not fight that fight 82,500 times. Some/most LCs are going to be willing to do that as well on smaller scales, (10 claims, 100 claims, 1000 claims, etc.). But holdout LCs and definitely the insurance companies are going to fight tooth and claw all 82,500 or, perhaps, offer low ball payout offers ($10,000 on a purported $1 million claim) and indicate that if the claimant doesn't take the offer they'll be deposed/cross-examined/forced to provide more evidence and proof.

At that point BSA and the cooperating LCs will be out of this, but the claimants will be spending the better part of a decade in front of the trustee.

So what kind of supporting documents would you be talking about?  It seems that the majority of the claimants told no one about what happened and I have read that for male victims that is prevalent. So there would be no paper trail about the abuse. Most are old enough that if they had told there parents the parents are now deceased. Would the fact that the abusers name is in the perversion files be enough?

[CynicalScouter]

8 minutes ago, johnsch322 said:

Would the fact that the abusers name is in the perversion files be enough?

This is what is going to be before the trustee for years.

Under bankruptcy Rule 3001(f) claims are GENERALLY prima facie evidence of a valid claim.

Quote

A proof of claim executed and filed in accordance with these rules shall constitute prima facie evidence of the validity and amount of the claim.

But that's all they are: prima facie or on its face. That's the absolute lowest level of evidence there is.

The insurance companies can demand more evidence if they believe that is not enough to prove the claim. If the abuser's name was in the IV files (and the subcategory known as P or Perversion files) that would help the case.

That is why these kinds of cases and claims are so hard either in or out of court. Think about it this way:

1. John Doe claims he was abused by Scoutmaster Smith of Troop 123 on December 1, 1967.
2. BSA records indicate that John Doe was a scout in Troop 123 in December 1967 and that Scoutmaster Smith was the Scoutmaster of record.

Ok, so you have a prime facie claim that includes name, date, location, and type of abuse.

The insurance companies are NOT going to simply based on those two data points going to cut a check for $1 million and I would be shocked if a trustee based entirely on those two data points said "that's proof enough that the abuse took place."

That's why when BSA came up with its estimation of claims it was in the $4-$7 billion: they expect that the VAST, VAST majority of these claims are going to be dismissed for inability to prove the claim.

For a sneak preview of what that is going to look like, see this from Century's attorneys. They are going to fight, fight, and fight. Possibly all 82,500. Or they'll make low ball offers. They've already spelled out their plan here. POC = Proof of Claim

https://casedocs.omniagentsolutions.com/cmsvol2/pub_47373/56165724-aaf9-4833-a53d-fd81ae5f5481_5214.pdf

"B. In any event, even where a POC satisfies the Rule 3001(f) standard, if an objector refutes at least one of the POC’s allegations, the burden of proof reverts to the claimant. Even where a POC meets the standard under Rule 3001(f), if the objector produces “evidence which, if believed, would refute at least one of the allegations that is essential to the claim’s legal sufficiency. . . the burden reverts to the claimant to prove the validity of the claim by a preponderance of the evidence.”17 While this is not the place to address the substance of this issue, Century has adduced evidence to rebut the prima facie validity of thousands of POCs, placing the burden on the claimants to present adequate evidence to prove that they possess a “right to payment.” Century expects that in addition to the evidence already before the Court, Rule 2004 discovery will uncover more proof that POCs were improperly generated. Beyond manufacturing POCs, the evidence could identify POCs that were submitted without the alleged creditor’s involvement or any factual basis whatsoever for the claims.Evidence of such deficiencies would (i)strike at the heart of the requirement that, to be allowed, claims must be enforceable against Debtors;19and (ii) rebut the prima facie validity of thousands of POCs."

 

 

[ThenNow]

4 hours ago, CynicalScouter said:

  If you filed a claim against BSA as part of the bankruptcy and it comes time for the trustee to decide how much the insurance companies will pay, the insurance companies MAY let me repeat this MAY demand testimony and cross-examination of the claimant.

Per the Trust provisions in the last iteration, here are the basics, from memory. I’m at a wee cabin. This is what I recall:

1) All claimants must complete and sign a new form (TBD) under oath;

2) They can examine any claimant under oath;

3) They can require any “addition documentation.”I say “any” because I believe it was open ended and not defined or narrowed; and

4) They may call and examine other witnesses, including medical providers and psych counselors. 

Edited June 29, 2021 by ThenNow

[ThenNow]

1 hour ago, CynicalScouter said:

if the objector produces “evidence which, if believed, would refute at least one of the allegations that is essential to the claim’s legal sufficiency. . .

So, what the heck qualifies as “evidence” and “if believed” by whom? The Trustee? Is the assumption that it means a defect like they abuser wasn’t in the Unit, there’s no such camp in Arkansas, you weren’t in Scouting in 1981 and just joined in 1983, we have a guy from your unit who says X didn’t happen, because I was there...? All of the above? The first are relatively doable for a claimant. The last, not so much. Do those terms need to be written into the Settlement Trust provisions? 

[yknot]

1 hour ago, johnsch322 said:

So what kind of supporting documents would you be talking about?  It seems that the majority of the claimants told no one about what happened and I have read that for male victims that is prevalent. So there would be no paper trail about the abuse. Most are old enough that if they had told there parents the parents are now deceased. Would the fact that the abusers name is in the perversion files be enough?

I've brought this up before and it's not entirely the same context, but there is a certain degree of forensics that can be done that can provide some validity even to claims that are missing information. If you know that Scout X claimed abuse during period Y in Z vicinity but is lacking some key data, you can match that up against similar claims made during period Y in Z vicinity. Meaning, if a scout forgot his unit number but knew the time period and location, if there are a dozen other incidents within those same parameters, it lends credence to his claim. 

 

[CynicalScouter]

 

3 hours ago, ThenNow said:

Per the Trust provisions in the last iteration, here are the basics, from memory. I’m at a wee cabin. This is what I recall:

You are exactly right

The section is around page 184: 6. Claims Allowance Process

https://casedocs.omniagentsolutions.com/cmsvol2/pub_47373/2e699803-3fcf-4cc3-9c54-2f36667e9b4a_5371.pdf

Quote

The Settlement Trustee shall evaluate each Trust Claim Submission individually

meaning no mass settlements.

Quote

After a review of the documentation provided by the Abuse Claimant in his or her Proof of Claim, Trust Claim Submission, materials received pursuant to the Document Obligations, and any follow-up materials or examinations (including, without limitation, any Trustee Interview), the Settlement Trustee will either find the Abuse Claim to be legally valid and an Allowed Abuse Claim, or legally invalid and a Disallowed Claim.

Meaning interviews and potentially "examinations" by whomever (including lawyers for the insurance companies)

Quote

The Settlement Trustee must evaluate each Submitted Abuse Claim, including the underlying Proof of Claim, the Trust Claim Submission and/or the Trustee Interview or any other follow-up, and documents obtained through the Document Obligations, and determine whether such Claim is a legally valid Allowed Abuse Claim, based on the following criteria:

And then it lists them in categories

1 hour ago, ThenNow said:

So, what the heck qualifies as “evidence” and “if believed” by whom? The Trustee?

Yep. If the Trustee believes the information is false, the claim is out.

Edited June 30, 2021 by CynicalScouter

[CynicalScouter]

See page 212 ("Incomplete or Suspicious Evidence of Abuse.") and page 189 ("Prevention and Detection of Fraud")

https://casedocs.omniagentsolutions.com/cmsvol2/pub_47373/2e699803-3fcf-4cc3-9c54-2f36667e9b4a_5371.pdf

The standard is "preponderance of the evidence".

This is the extremely, extremely important part.

Quote

If the evidence provided by  the  Abuse  Claimant  does  not  establish  by  a  preponderance  of the evidence that the abuse occurred, the identity of the abuser, the location of the abuse, or when the abuse occurred the Settlement Trustee shall reduce the  points  of  the  Submitted  Abuse  Claim  by  assigning  a  Point  Scaling Factor of less than one.  If the Settlement Trustee believes the evidence provided is deliberately false or misleading, the Settlement Trustee will assign a Point Scaling Factor of zero (0)

and

Quote

If the evidence provided by the Abuse Claimant does not  establish  by  a  preponderance  of  the  evidence  that  the  Protected Party(ies) knew, or had reason to know, that the alleged perpetrator was likely to commit acts of Abuse against individuals involved in Scouting, the Settlement Trustee shall reduce the points assigned to such Claim by assigning a Point Scaling Factor of less than one.  The Settlement Trustee should weigh the strength of the evidence demonstrating knowledge of the risk  of  potential  abuse  by  the  perpetrator  to  determine  the  appropriate factor of mitigation.

Meaning that if the claimant can NOT prove via a preponderance  of the evidence  those two elements, their claim value is multiplied by a number less than 1. If it is show that the information is false, the claim is multiplied by zero and of course anything multiplied by zero = $0

And it is all, entirely, in the hands of the Settlement Trustee to decide if the evidence is sufficient.

Edited June 30, 2021 by CynicalScouter

[CynicalScouter]

Oh, and statutes of limitations are going to play a huge role in this process. If it can be shown, for example, the abuse claim is in a state where there is no lookback window, the claim value can be dropped to basically 1% (Amount of Claim * 0.01).

So what happens if a few years down the road the claim could be revived under a newly enacted lookback window? Yep. Settlement Trustee gets to decide what happens and whether to reopen the claim.

Quote

Statute of Limitations or Repose. If the evidence presented by the Abuse Claimant results in the Settlement Trustee concluding that the subject Abuse Claim could be dismissed or denied in the tort system due to the passage of a statute of limitations or due to a statute of repose, the Settlement Trustee shall apply a Scaling Factor of .01; provided, however,the Settlement Trustee will weigh the strength of any relevant evidence submitted by the Abuse Claimant to determine whether the statute of limitations could be tolled under applicable law based on a Protected Party’s conduct, and may apply a higher Scaling Factor if such evidence demonstrates to the Settlement Trustee that tolling would be appropriate under applicable state law; provided, further, any Direct Abuse Claim that is substantially reduced pursuant to this mitigating Scaling Factor that becomes the subject of statute of limitations revival legislation may be re-determined in the sole discretion of the Settlement Trustee.

[MYCVAStory]

Apparently the TCCBSA website mixed up the day/date for the next Town Hall.  It's been corrected and is Wednesday this month:

NOTICE OF VIRTUAL TOWN HALL MEETINGS HOSTED BY THE OFFICIAL COMMITTEE OF BOY SCOUT ABUSE SURVIVORS

The next TCC Town Hall will be held on Wednesday, June 30, 2021, at 5pm PDT/8pm EDT. 

Zoom link: https://pszjlaw.zoom.us/j/88993247600 (no registration required)

or

Join by phone: 888-788-0099, meeting id 889 9324 7600

To be discussed:

• Status of Boy Scouts disclosure statement
• Status of negotiations with the Boy Scouts, local councils, chartered organizations, and insurers
• Other motions pending before the bankruptcy court
• The plan confirmation process