Chapter 11 Announced - Part 5 - RSA Ruling

[CynicalScouter]

For those wondering what the insurance companies want to ask those 1,400 claimants if they get the chance, it is on page 32. https://casedocs.omniagentsolutions.com/cmsvol2/pub_47373/870498_1972.pdf

Recognize that I post these questions because they do NOT name specific sexual abuse and I agree with the mods we do NOT want that here. However, if the mods need/want to alter and edit I am 100% fine with that.

INTERROGATORIES   

1. Describe each occasion on which you were sexually abused in connection with Scouting and/or for which You contend BSA, any local council of BSA or any sponsoring organization of BSA was responsible (the “Sexual Abuse”), including the nature, date(s), location(s) and circumstances of the abuse, and indicate whether the abuse occurred at a Scouting activity or event.

2. Please identify each person(s) that sexually abused You, including their name and position with Scouting, if known to You. If the name of the person(s) who sexually abused You is not known to You, please provide all information that you can remember about that person(s), including identifying all physical features that you can remember (e.g., hair color, eye color, height, weight). 

3. Please describe the relationship of the person(s) who abused You to BSA and/or Scouting (i.e., troop master, fellow scout, parent volunteer), and how the Sexual Abuse was related to, or arises out of the activities of, Scouting. 

4. To the extent that You were not involved in Scouting at the time of the incident(s) of Sexual Abuse, describe how You came to be involved in the Scouting activity or event where such sexual abuse took place.

5. If you have recovered a repressed memory, identify when you first remembered that you had been sexually abused, along with the event(s) that triggered that memory experience.

6. Identify whether and, if so when, you first sought treatment for the Sexual Abuse, along with the identity of the professional(s) and reasons for Your decision to seek treatment or assistance.

7. State whether You or anyone on Your behalf ever informed BSA or anyone else about the Sexual Abuse or discussed the Sexual Abuse with anyone, when such report(s) or discussions occurred and state what, if anything, resulted from that or those report(s) or discussion(s) concerning Your abuse.

8. Describe all injuries, harm or damages that You contend You suffered as a result of the Sexual Abuse.

9. State when and how you came to learn that the injuries set for the in Your Claim Form or in Your response to Interrogatory No. 11 were the result of the Sexual Abuse.

10. Identify the case caption, case number, state of filing, named defendants of any prior lawsuits You filed or were filed on Your behalf against BSA, any local council of BSA or any other organization Relating to the Sexual Abuse, and describe the outcome of the lawsuit(s) (e.g., the case settled, defense verdict, case was dismissed without payment). 

11. Identify any settlements or other agreements between You and any Person, including BSA, any local council or any other organization, to resolve claims for injury resulting from the Sexual Abuse, including settlement of any of the lawsuits identified in Interrogatory No. 14*, and state the amount of each such settlement.

*This is likely a typo.

REQUESTS FOR PRODUCTION

1. All documents, recordings, notes or electronic materials (e.g., e-mails) describing or relating to the incident(s) of the Sexual Abuse, including any reports or complaints to law enforcement, BSA or any other person or entity.

2. All documents, recordings or electronic materials constituting or reflecting any communications that You had with any other person relating to the Sexual Abuse.  

3. All Documents Relating to any counseling or other medical or non-medical treatments on account of, or to treat, injuries that You contend resulted from the Sexual Abuse.

4. All Documents Relating to any diagnosis You received in the course of counseling or other medical or non-medical treatments that You received and that relate to the Sexual Abuse.

5. All Documents reflecting or constituting any claim that You have made against any BSA local council or any other sponsoring organization, other than the national BSA organization, on account of the injuries You suffered on account of the Sexual Abuse.

6. All Documents Relating to any prior claim or litigation regarding the Sexual Abuse, including copies of any proofs of claim filed in other bankruptcy cases, and copies of the complaint, any motions filed, discovery responses, document productions, deposition transcripts, verdicts or judgments from any litigation.

7. All formal and informal agreements between You and any person or entity, including BSA, any local council of BSA or any sponsoring organization of BSA, relating to the Sexual Abuse, including settlement agreements.

8. All Documents reflecting payment that You received from any person, including BSA, any local council of BSA or any sponsoring organization of BSA, on account of, or as compensation for, claims for the Sexual Abuse.

[RememberSchiff]

28 minutes ago, CynicalScouter said:

And the answers are:

1. Nope.

2. Zero. Well, sorta. Remember the original claims number was at or near 90,000. One of the reasons: some victims filed multiple claims. So, there was at least a partial vetting, but that's it.

Ok seemingly not much concern until now, perhaps because insurance fraud is commonplace.

From the FBI:

The insurance industry consists of more than 7,000 companies that collect over $1 trillion in premiums each year. The massive size of the industry contributes significantly to the cost of insurance fraud by providing more opportunities and bigger incentives for committing illegal activities. The total cost of insurance fraud (non-health insurance) is estimated to be more than $40 billion per year.  (4.0% fraudulent)

Of the $80 billion in government funding appropriated for (Katrina) reconstruction, it is estimated that Insurance Fraud may have accounted for as much as $6 billion. (7.5% fraudulent)

https://www.fbi.gov/stats-services/publications/insurance-fraud

I like @Eagle1993 suggestion of vetting a random sample and if fraud is less than x%,  move on. Insurers can still go after fraudulent claims after they are paid.

My $0.02,

 

Edited August 27, 2021 by RememberSchiff

[johnsch322]

9 minutes ago, CynicalScouter said:

There's two (and a half) levels here and gets into the difference between false and invalid.

I am NOT a lawyer so @ThenNowtell me if I err here.

1) Prima facie: Is there enough evidence to even GENERALLY support the claim at all such that the BSA or the judge or the settlement trustee has enough evidence to proceed? This would get a lot of "invalid" claims. Remember: due process works both ways. If the victim wants to have his claim accepted, there has to be a minimum of evidence. NORMALLY the Proof of Claim meets that prima facie case, but the insurers have indicated based on the amount of fraud in collecting and signing these things by the claims aggregators/their attorneys that the presumption of prima facie validity is waived.

2) Sufficient to prove a claim: and here we'll get into fights about what standard but GENERALLY in civil cases it is a preponderance of evidence. That "burden of proof is met when the party with the burden convinces the fact finder that there is a greater than 50% chance that the claim is true." Insurance companies will want a higher standard like "clear and convincing evidence. ("This burden of proof requires the plaintiff to prove that a particular fact is substantially more likely than not to be true.") How "substantial" is "substantial"? There's literally VOLUMES of books written on this. It's nebulous.

The inability to prove a claim does NOT mean it is a fraud. It just makes it "invalid" for purposes of a claim,

3) Sufficient to DISprove a claim: Raw fraud. Evidence demonstrating the claimant perpetrated a fraud, etc. This is a fraudulent/fraud. GENERALLY courts do NOT like getting into fights about whether what a witness said or what a person said was fraudulent because then you have to prove that a) the statement's false AND b) the person making the statement did so WITH INTENT TO DEFRAUD. Much easier to simply dump into category #2: Insufficient to prove the claim. That rejects it without calling someone a flat out liar.

And that is why if I am not mistaken that the disclosure statement was set up with a process to weed out the false and invalid claims.  I would also like to believe that the TCC is OK with that process.  The only real valid reason I could see to push for this vetting process at this time is to delay the entire process.  The cost of vetting claims now would negate the savings later.  Only the insurers win if delayed.

[CynicalScouter]

1 minute ago, RememberSchiff said:

I like @Eagle1993 suggestion of vetting a random sample and if fraud is less than x%,  move on. Insurers can still go after fraudulent claims after they are paid.

But even before that is the issue of voting.

If it can be shown that 1% of claims are invalid or fraudulent (more likely just invalid) then proceed. But as @Eagle1993so ably showed: there's going to be a percentage threshold where the number of invalid claims are so overwhelming that it would swamp the valid claims/voters.

The attorneys for some victims have already said they think that has already happened NOW: 50,000+ claims are invalid due to time barred therefore let's not even waste time with this and declare those 50,000 off the table.

The insurance carriers at least want to sample some on the theory that even within those 82,500 in general it is so rife with "fraud" (what the really mean is invalid for failure to meet an evidentiary standard, but "fraud" works better for them so whatever) that all 82,500 (or 14,000 with timely claims at least) need to be reviewed.

Vet first, vote later.

Just FYI: at 1 claim per minute, reviewing 82,500 claims would take 57 days NON-STOP. At 1 claim per hour, 9.5 YEARS. Non-stop

[CynicalScouter]

8 minutes ago, johnsch322 said:

And that is why if I am not mistaken that the disclosure statement was set up with a process to weed out the false and invalid claims.

Ah, but here's the thing. The disclosure statement contemplates weeding out the false and invalid AFTER all those claimants vote for the plan.

The insurance companies are arguing along with some abuse victims lawyers that the invalid claims (time barred) have no business voting in the first place and that by allowing them to do so they are swamping/diluting the valid-voters.

Vet first and let those with valid claims vote later.

What the other parties are saying is that the Proof of Claim is prima facie evidence of a valid claim and is enough to get the 82,500 to vote their 82,500 votes.

Edited August 27, 2021 by CynicalScouter

[johnsch322]

5 minutes ago, CynicalScouter said:

Ah, but here's the thing. The disclosure statement contemplates weeding out the false and invalid AFTER all those claimants vote for the plan.

The insurance companies are arguing along with some abuse victims lawyers that the invalid claims (time barred) have no business voting in the first place and that by allowing them to do so they are swamping/diluting the valid-voters.

Vet first and let those with valid claims vote later.

What the other parties are saying is that the Proof of Claim is prima facie evidence of a valid claim and is enough to get the 82,500 to vote their 82,500 votes.

Personally I am OK with letting all time barred claimants to vote (and I reside in and my abuse occurred in California).  I am also OK with time barred claims getting full shares from the settlement fund.  Their pain and suffering is just as great as my own and if we are thinking fair and equitable how could one think any different.  I can see the argument from the other side but I do not see the morality in it.  

[CynicalScouter]

Now, to be fair, let me offer the counterpoint to the insurers wanting to vet/depose. There are various, but the Coalition objections are:

https://casedocs.omniagentsolutions.com/cmsvol2/pub_47373/872981_2048.pdf

1) Now is not the time, wait for plan confirmation

2) Also, the time may not even be confirmation, wait for post-confirmation and let the settlement trust sort this out. ("To the extent that fraudulent claims exist, they can be vetted in accordance with trust distribution procedures post-confirmation. The Insurers offer no justification as to why this must occur pre-confirmation and in a manner that requires this Court to adjudicate thousands of abuse claims.")

3) 1,400 interrogatories/document production requests + 100 depositions is overly burdensome and disproportional to the needs of the case. If the insurers want to know how many sexual abuse claims are invalid/fraudulent, they can look through their own records of claims they've had to pay out on to figure this out.

4) This has nothing to with the question of whether the reorganization plan is LAWFUL.

5) Discovery this massive would obstruct the reorg plan. BSA has said it needs to be out by August (this was written in February, so keep that in mind) and therefore this massive undertaking would prevent that.

6) This is just a stall tactic by insurers, part of a long line of stalls.

7) The insurers have failed to show they have a good faith reason to ask for this.

Etc.

[CynicalScouter]

5 minutes ago, johnsch322 said:

Personally I am OK with letting all time barred claimants to vote (and I reside in and my abuse occurred in California). 

I understand. However, many if not a majority of the 14,000 claimants (through their attorneys) with non-time-barred claims disagree.

And from the perspective of those attorneys, their job is the maximize the amount their clients get. Every dollar that goes to a victim without a valid claim (due to time-barred/statute of limitations) is one less dollar their client gets.

The day is coming, and arguably already is here with some of the briefs, where there will be a reckoning between attorneys for claimants in time-barred states vs. attorneys for claimants in non-time-barred.

[ThenNow]

Just for gee whiz and because I’ve not had other occasion to share this, behold my favorite excerpt from the AIS website. I mean no harm or offense to those of us represented by AIS, but it makes me chuckle. Here ya go:

...the streamlined nature of settlement process may mean abuse survivors will get the compensation they deserve more quickly and efficiently than having future individual trial dates.

Pah. At least they said, “may.” 

https://abusedinscouting.com/boy-scouts-of-america-bankruptcy/

[johnsch322]

22 minutes ago, CynicalScouter said:

The day is coming, and arguably already is here with some of the briefs, where there will be a reckoning between attorneys for claimants in time-barred states vs. attorneys for claimants in non-time-barred.

Therein lies a dilemma and I will use my own legal representation as an example.  They have offices in the following states AZ, CA, CO, HI, IL, MN, NJ, NY, and PA.  My understanding is that they represent 1600 claimants.  I would say that it would be reasonable to assume that they have claimants in all of those states.  On who's behalf would they file a brief for or against time barred being able to vote?

I think brief is the correct term? @ThenNow?

Edited August 28, 2021 by johnsch322

[CynicalScouter]

7 minutes ago, johnsch322 said:

They have offices in the following states AZ, CA, CO, HI, IL, MN, NJ, NY, and PA.  My understanding is that they represent 1600 claimants.  I would say that it would be reasonable to assume that they have claimants in all of those states.  On who's behalf would they file a brief for or against time barred being able to vote?

Yeah, I worked for a firm once that had to do what was once called a "Chinese wall" although that term is no longer considered appropriate. Firewall works.

In short, they'd file both or sit it out.

Option 1 is attorneys for claimants in states where there is no time bar would file in opposition to the effort to allow those with claims to file. Attorneys for claimants in states with a time bar oppose. The two attorney groups would literally not be allowed to interact with each other on the case anymore. That might be really easier if the attorneys are in completely different states. The California office files one thing (no time bar) and the PA folks file in opposition.

Option 2 is sit it out. Take neither side.

[ThenNow]

16 minutes ago, johnsch322 said:

I think brief is the correct term? @ThenNow?

Well, as a non-litigator, I believe they would be in the form of objections to the RSA or Plan, for example, as has been the case with the firms already mentioned. How would your firm do that? I’m guessing they’re staunchly on the side of the TCC and Coalition arguing that all claims stay in until the Trustee gets ahold of them, which avoids the dilemma. I think.

What he said.   It’s possible they’re already in agreement with the TCC, et al.

Edited August 28, 2021 by ThenNow

[ThenNow]

 

4 minutes ago, CynicalScouter said:

Option 1 is attorneys for claimants in states where there is no time bar would file in opposition to the effort to allow those with claims to file. Attorneys for claimants in states with a time bar oppose. The two attorney groups would literally not be allowed to interact with each other on the case anymore. That might be really easier if the attorneys are in completely different states. The California office files one thing (no time bar) and the PA folks file in opposition.

Hypothetical. You now live in CA, contacted and work with one of their CA attorneys. Your abuse happened in MN. Now, your attorney turns against you and files to bar your claim. That’s a wicket of the sticky variety.

[MYCVAStory]

1 hour ago, CynicalScouter said:

vet first and let those with valid claims vote later.

Alas, the sheer volume and number prevents that.  As well, I suspect there are attorneys who do NOT want their claims vetted.  Why, because that increases the chance that their clients' claims will be denied.  Look at it from the Coalition's standpoint.  If you control a trust, if the judge isn't allowing your fees, if you can cut deals with insurers that will see their NOT objecting to those fees, then who cares where the money goes as long as you GET YOUR 40%.  I hope I'm wrong but if there's word in the next week, on the heels of the RSA expiring and the judge slapping down their fee argument, then you know the Coalition is trying to get their money NOW to pay their bills and don't expect rigorous validation.  Why bother when the faster we can "Get money into the hands of victims" the faster we can get our bills paid.

 

[CynicalScouter]

16 minutes ago, MYCVAStory said:

Alas, the sheer volume and number prevents that. 

And if I am the attorney for victims with valid claims worried my clients are going to get outvoted by invalid claims, I’d might just say “too bad, vet now, however long it takes”

Every dollar to an invalid claim is one dollar out of the pocket of my client with the valid claim. Moreover those invalid claims dilute my clients vote (word used was “swamps” their votes).

This is the problem with law. It usually is not good vs bad or evil. That is easy. Hard is two people sides both with valid and justified issues and the judge has to select which comes closer to justice.