Chapter 11 Announced - Part 4 Revised Plan

[CynicalScouter]

1 hour ago, ThenNow said:

What is the abuse Tier in the G1 is different that in G2 is different than that in G3?

I'm just thinking like in any tort it is the place of occurrence. So, and I am really trying to be gentle here, if the abuse occurred in a Gray 1, then continued at summer camp in an Open state, then the instances would be parsed out.

The Settlement statements/detailed documents and interviews are likely going to get very, very specific about what happened where and when, not only for this reason, but among them.

 

Edited July 6, 2021 by CynicalScouter

[ThenNow]

49 minutes ago, CynicalScouter said:

The court has declined to apply the discovery statute to cases of delayed realization of the connection between the abuse and the victim's psychological injury; however, the issue has not been presented in the context of extensive memory repression. The standards for proving fraudulent concealment of a claim are so high as to be impracticable.

Ok. State specific. I’m just reacting to this quote and will need to click to the link later or tomorrow. (I appreciate that you already posted it once.) The first part of that paragraph is about delayed discovery of psychological injury, the other, fraudulent concealment. I’m not seeing the jump to the FC statement, but I will check it out in context. 

[ThenNow]

50 minutes ago, CynicalScouter said:

I'm just thinking like in any tort it is the place of occurrence. So, and I am really trying to be gentle here, if the abuse occurred in a Gray 1, then continued at summer camp in an Open state, then the instances would be parsed out.

The Settlement statements/detailed documents and interviews are likely going to get very, very specific about what happened where and when, not only for this reason, but among them.

What an ungodly mess this is...

[fred8033]

2 hours ago, ThenNow said:

What an ungodly mess this is...

Absolutely ... not knocking lawyers but thinking about costs to resolve the mess.   

• Subtract 30% percent taken off the top for winning a settlement
• Subtract expenses to get settlement
• Subtract trustee manage trust ... Subtract cost to assign point value / deal with case specifics, ( $500 ?? per hour ... 5 or 10 hours each)
• Subtract victim's lawyer's cut 

Settlement or no settlement.  Chap 11 or Chap 7 ...  I just don't see any path forward where victim's get significant cash from BSA / LCs.   

The only good is moving this forward to the next step.  

... And I just remember that all money in the settlement is not equal.  It was earlier asserted that LC funds contributed by camp sales target the victims that were in that LC.  Imagine trying to figure out who was in the LC.  Or if the scout in another LC camped at that camp?  Or was that LC really part of the other LC at that time? 

Edited July 6, 2021 by fred8033

[fred8033]

On 7/4/2021 at 8:21 PM, ThenNow said:

Just trying to understand this part, while I’m waiting to understand the whole legal logistics of who’s on first and who’s on second. So, some handpicked claims will be released from the injunction to enter state court and pursue jury awards. If that ultimately provides the fulcrum leveraging recover for all other claimants, that’s fantastic. How do the test cases get selected? It would seem that any “test plaintiff” take home award should be capped to the $2.7 limit of a tier one claim. Anything above that should go to the Trust. No? Otherwise, the leverage plaintiffs could get awards of 3-5++ x the max Claims Matrix Value and that doesn’t seem right. Meesa cornfussled. 

 

On 7/4/2021 at 8:37 PM, MYCVAStory said:

As suggested, there would probably be a pre-arranged negotiation so that the selected case would pay back to the Trust a significant percentage so that it's a win-win.  The claimant if they prevail receives an amount closer to the suggested "value" and other claimants via the trust will share in the trust's "percentage." 

 

I accept your analysis.  I'm just surprised at the conclusion.  It's not parallel to the earlier discussion of proceeds from LC camp sales.  .

The $850m (or whatever the number is) ... isn't really $850m equally shared.   The LCs funding via camp sales would then have the camp sales proceeds split by those who were in that LC.  So, if a camp was sold for $5m and there were 100 victims in that council, then the $5m (after settlement percent and expenses) would become $50,000 (minus settlement percent and expenses) for each of the 100 victims.  ... Heck, imaging trying to figure out which admin expenses were applied to that camp sale?  

So, it was earlier asserted the camp sales targeted specific injuries.  There is nothing more specific than awards to specific victims.  I'm not sure how that would feed back to a general trust if camp sales are not assigned to the general trust.   Costs to do the lawsuit could be paid by the settlement, but assigning the award to a general trust does not seem parallel to assigning camp sales to those in the owning camp's LC.  

Perhaps I misunderstood something earlier.

 

[ThenNow]

7 hours ago, fred8033 said:

Absolutely ... not knocking lawyers but thinking about costs to resolve the mess. 

I wasn’t referring to the attorneys or costs to resolve or allocation of funds. I’m talking about victim claimants staring down another daunting process of extruding the details of our abuse, again, and dancing through the maze and jumping through the flaming hoops.

[ThenNow]

16 hours ago, CynicalScouter said:

Gray 1    .50-.70
Gray 2    .30-.45
Gray 3    .10-.25

What objective factors went into creating the Gray area? Cleverly named, btw. Someone is going to have to be prepared to present a compelling case for these significant distinctions. 

And, the Trustee has the ability to force insurers to pay on awards according to these SoL bucking percentages by what mechanism and precedent? I’m still unclear. (My insurance exec wife is dubious.) 

[CynicalScouter]

1 hour ago, ThenNow said:

What objective factors went into creating the Gray area?

From the TCC Townhall, the factors appear to have been the professional judgements of the attorneys who were part of the mediation.

Stang discusses it at 29:20-31:30 in this Townhall Video

"States where it is extremely difficult, and I am saying this based on the collective experience of trial lawyers who literally have hundreds of years, collectively, hundreds of years of experience litigating sexual abuse claims. And those states in that category get highly, highly discounted. And then there is the inbetween and the chart is what the chart is. I want to make clear the chart has the support of the plaintiffs groups. I won't say it has the support of every plaintiff's lawyer, because that would be untrue. But that is where we came out collectively."

https://www.dropbox.com/s/bv6jlthb1b95s6m/BSA Town Hall 7-1-2021.mp4?dl=0

[CynicalScouter]

1 hour ago, ThenNow said:

And, the Trustee has the ability to force insurers to pay on awards according to these SoL bucking percentages by what mechanism and precedent? I’m still unclear. (My insurance exec wife is dubious.) 

That's Kosnoff's claim as well: the Settlement Trustee under the BSA version 4.0 is going to value claims and sit as a mini-judge to value all 82,500 claims and make binding determinations as to value.

The insurance companies are going to argue no trustee has that authority OR can be granted such authority by the court.

 

[CynicalScouter]

On 7/4/2021 at 10:54 AM, MYCVAStory said:

NOW is the time for everyone connected to the BSA to be screaming for transparency.  The lack of it has put us all in this position and must end.   Ask to see this "NDA."

My Council is not the only one that was told that in order to participate in the settlement/bankruptcy tals they had to sign a NDA. Moreover, I know for a fact and this is in the court record that anything coming out of the mediation talks is covered by a mediation NDA as well.

https://www.lohud.com/story/news/local/2021/07/06/boy-scouts-properties-listed-sale-dutchess-putnam-and-rockland/5350976001/

"Greater Hudson Valley Council officials have said in a Facebook post that they were required to sign a nondisclosure agreement regarding the national organization's bankruptcy, so specific financial figures, such as the precise dollar amount the council looks to contribute to the compensation trust, can’t be shared at this time. “However, we can say that our Council has been assigned to pay a non-negotiable multi-million-dollar payment,” the Facebook post on June 25 said."

That said, the BSA plan contemplates a document being filed in the next few weeks indicating how much each LC has committed to contributing to the settlement. We'll know then precisely how much each Council is on the hook for.

 

[CynicalScouter]

This is what Greater Hudson Valley posted to FB. https://www.facebook.com/GHVBSA/posts/10158711920823375?comment_id=10158711940903375&reply_comment_id=10158712014783375

 

Quote

[Commenter's name deleted by me] Sorry, I understand your frustration. With the NDAs and not have a firm number until recently it’s been difficult to communicate. Thank you for all you do for Scouting, we will keep everyone up to date as things progress. [Post author's name deleted]

 

 

 

[T2Eagle]

I think binding is a pretty loosely used term here.  At the end of the day, just like with BSA and the LCs, this is going to be a negotiated settlement with the insurers without many issues being actually, fully, litigated.

The legal questions are multiplicitous and varied.  With many of them having little or no direct precedent.  So litigation would look like full a trial type procedure in Bankruptcy court, followed by the loser appealing and another trial in Federal District Court, followed by the loser appealing in Federal Circuit Court.  That's a decade plus of thousand dollar an hour attorneys.

The insurance companies almost certainly have a better sense than anyone else of what their probability adjusted exposure is,  calculating risk is literally their reason for existing.  They have a number they're probably willing to pay that reflects that, and it is almost certainly not the high numbers that some have bandied about.

I suspect the Hartford settlement is pretty close to the scope of what the rest of the settlements are going to look like.  I think the victims' attorneys would be doing their clients a better service if they were downplaying how much bigger the next round of recovery is going to be. 

 

[DavidLeeLambert]

16 hours ago, ThenNow said:

If [a claimant was] abused in Gray 1- Gray 3, how does the Trustee determine into which shade of Gray bucket [the claimant is] dropped? What [if] the abuse Tier in the G1 is different that in G2 is different than that in G3?

So I can't cite the exact Plan page from memory, but I believe it said that each claim would be classified based on the most-serious incident of abuse, and the openness bucket would be based on any state in which the claim "could have been" presented in civil court. I would interpret that in favor of the claimant, so that if there's a connection between the claim and two states, one more-open that the other, the more-open one would count; but if the TDP could be interpreted otherwise, that might be something to object to before it's sent out for vote.

Where it gets tricky is when the most-serious abuse is in a closed state, but the claimant also reports less-serious abuse in an open state. For example, suppose a Scout was registered in a troop near his home in Utah (closed). The troop took a trip to the Four Corners monument, and he was abused, at the lowest level of severity, while standing in either the Arizona corner or the Colorado corner (both open), but doesn't remember which. Then after he returned home, at the next near-home troop meeting, he was abused again, at the highest level of severity.  Should he get the highest-tier base score multiplied by the "Closed" modifier? Or the lower-tier base score multiplied by the "Open" modifier?

In such a case perhaps the Trustee could apply an aggravating factor, or mitigate the closed status using a factor in the upper end of the range rather than the bottom.  But if the TDP could be clearer about that situation than it is, that could also be raised as an objection.

Here's a map showing which states are which tiers, for "closed" claimants in each state.

 

Edited July 6, 2021 by DavidLeeLambert
updated image legend

[Muttsy]

3 hours ago, DavidLeeLambert said:

So I can't cite the exact Plan page from memory, but I believe it said that each claim would be classified based on the most-serious incident of abuse, and the openness bucket would be based on any state in which the claim "could have been" presented in civil court

Why is there no mention of the DC theory? There is a multiple plaintiff lawsuit pending in federal court in DC. 

It has been reviewed by legal experts in civil procedure and they say it is very meritorious. It goes like this:

It does not matter WHERE the abuse occurred. 

The negligent acts were committed by National Leadership over decades in meetings and decisions that took place in DC. Where the consequences of that negligence occurred are not relevant for jurisdictional purposes. 

BSA is incorporated under the laws of the District. The federal charter is legally meaningless honoraria. 

DC passed a window statute in May 2019. That window is still open because bankruptcy tolls the running of the statute of limitations. 

Diversity jurisdiction exists in federal court under Article III. (Residents of different states may sue in federal court.)

The upshot is that every claimant from a "bad" state would have the ability to file in the DC federal court alleging that the SOL of DC is what applies, not the SOL of the state in which the abuse occurred. 

A related and similarly meritorious theory is the NJ strategy. NJ is an open state. BSA was headquartered in and committed tortious acts in the state of New Jersey from the early 1940's until the late 1970's when BSA moved its headquarters to Irving, TX. Many of the perversion files were created when BSA was headquartered in Brunswick, NJ. 

None of this has been mentioned in the Plan, the Plan Disclosure Statement or this RCS term sheet thingy. 

Kosnoff is right. The mass tort hedge funds using lawyers as fronts is what is driving this thing known as the Coalition. I'd love to see the loan agreements these lawyers signed with these Wall Street hedge fund loan sharks. 

Century was on to something months ago demanding to see these disclosures. These loan docs would make the mob blush. 22% APR; 24 month balloons coming due shortly. This "deal" stinks because it is being driven by panicked lawyers who are in hock up to their eyebrows on borrowed money that financed their TV ad campaigns and law firms. How does a two lawyer law firm like Slater, Slater Schulman get the dough to finance a TV campaign that enabled them to sign up 14,000 clients in three months???

 

Just now, Muttsy said:

Why is there no mention of the DC theory? There is a multiple plaintiff lawsuit pending in federal court in DC. 

https://www.washingtonpost.com/dc-md-va/2020/01/07/these-former-boy-scouts-want-use-new-dc-law-sue-over-alleged-sexual-abuse/

[CynicalScouter]

2 hours ago, Muttsy said:

Why is there no mention of the DC theory? There is a multiple plaintiff lawsuit pending in federal court in DC. 

Because I think for several reasons:

1. Does it in any way affect how much BSA is going to be able to offer here? Let's say that you are able to somehow get every SoL lifted/erased after months if not years of litigation. Does that in any way change that fact that a) BSA is running out of money (we can debate when it will run out, but it will eventually) NOW and/or b) somehow magically conjure up more for BSA to contribute to a victims settlement fund?
2. Even if you can get the SoL lifted for claims against BSA, that doesn't translate into claims against an LC. A claim against BSA National may be able to be shoehorned into DC or NJ, but that would NOT apply to any claims against a local council since the local council was HQed and operated in some other state. A Wisconsin council is not subject to DC law or claims arising out of DC or NJ statutes.
3. Even if you could again somehow shoehorn in BSA National AND somehow assert a DC statute of limitations window applies to, say, a Wisconsin Council (and every other council, including those based overseas like Transatlantic) see item 1(b): does that fact in any way somehow magically conjure up more for BSA to contribute to a victims settlement fund? Or LCs?