Chapter 11 Announced - Part 5 - RSA Ruling

[johnsch322]

 

 

 

 

Kosnoff Law

 

@SexAbuseAttys

·

11h

 

Dear hens in the Henhouse. http://Scouter.com I love you, well, at least some of you. You are the most intelligent, acerbic commentators on the BSA and the bankruptcy. Following your exchanges is incredibly edifying. Sadly, many of you don’t understand me. Listen to me here:

 

I wonder who he doesn't like?

[T2Eagle]

5 hours ago, SiouxRanger said:

I absolutely agree.

I cannot conjure up even a hint of a wisp of a legally sound argument to support a time barred claim recovering anything.

The reason time barred claims are being allowed, indeed solicited, as part of the bankruptcy, is that the intent of this, or any other bankruptcy is to discharge all of the organization's debts, even if they haven't completely ripened yet.

Specifically, BSA knows that not only does it have potential financial liability to claimants who are newly empowered by changes in SOL periods, it also knows that it faces potential ongoing liability if/when more states change their SOLs.

Let's say that all time barred claims were stricken, and only currently open state claims were allowed to be paid, and the bankruptcy proceeded with just those claims.  The magnitude of just those claims would exhaust all of the assets available to pay them, including all of the available insurance coverage.  If, the day after that bankruptcy ended and all the non barred claims were paid, a state like Texas changed its SOL laws,  the claims from Texas, now not time barred, would be sufficient to drive the new BSA back into bankruptcy, with even less assets and no insurance proceeds available to pay claimants.  And this would happen every single time any state changed its SOL.

Bankruptcy law is designed to prevent just such serial bankruptcies and proceedings.  The goal of bankruptcy is to have an organization emerge free of ANY pre-existing debts. 

So, claimants, even from time barred states, are entitled to some compensation now in exchange for the discharge of any future claim they might otherwise have had.  The specific value of that claim is probably less than that of someone who is not time barred because of the greater uncertainty.  But all of these claims are to some extent uncertain because even the most perfect claim would still be reliant on the many vagaries that can arise in any trial or legal proceeding --- that is to say there's no guarantee that any individual would prevail in court at the same time knowing that some are more likely to prevail than others.

[CynicalScouter]

Oh I understand him completely.

1) BSA is utterly beyond redemption.

2) Even if BSA was worthy of redemption, the amount of abuse is such that there's no way it can be saved. I believe as he once put it there's too much abuse and not enough money.

3) Local councils are fruit of the poisoned tree that is BSA OR branches off that tree.

4) Therefore, Silverstein should immediately do the following as to BSA and the LCs.

a) Declare all LC assets as part of the BSA "estate" (estate in the bankruptcy sense, not the probate/dead person sense).

b) Appoint a trustee to take over BSA operations OR the BSA bankruptcy (or both)

c) Said trustee, after having taken possession of all LC assets, will convert the BSA Chapter 11 to a Chapter 7 and immediately shut down all operations and pay out all claims, regardless of SoLs orf evidence levels. All claims are immediately deemed valid.

5) Silverstein should also immediately and simultaneously with 4) as to the insurance companies declare that all claims are valid, regardless of SoLs or evidence presented, as applied to all insurers at their full maximum values. This includes, but is not limited to, setting aside the Hartford agreement and declaring all Chubb assets as are necessary to achieve maximum compensation for all victims. If that means Chubb goes into its own Chapter 11, so much the better.

Edited August 28, 2021 by CynicalScouter

[David CO]

1 hour ago, johnsch322 said:

 

I wonder who he doesn't like?

(Raising my hand and waving it wildly in the air)

Ooh!  Me, me, pick me!!!

[ThenNow]

2 minutes ago, David CO said:

(Raising my hand and waving it wildly in the air)

Ooh!  Me, me, pick me!!!

I’m thinking those who’ve repeatedly equated him with certain members of the animal kingdom and vigorously defended BSA might get picked ‘first team all stars’ this round, my friend. Who knows, maybe he’ll post and let us all know.

[skeptic]

1 hour ago, johnsch322 said:

 

 

 

 

Kosnoff Law

 

@SexAbuseAttys

·

11h

 

Dear hens in the Henhouse. http://Scouter.com I love you, well, at least some of you. You are the most intelligent, acerbic commentators on the BSA and the bankruptcy. Following your exchanges is incredibly edifying. Sadly, many of you don’t understand me. Listen to me here:

 

I wonder who he doesn't like?

Oh, those of us with even a modicum of awareness and ability to evaluate beyond the hype understand you Mr. K.  That is why certain large, unsavory scavenger birds are used in referral sometimes.  

[johnsch322]

4 minutes ago, skeptic said:

Oh, those of us with even a modicum of awareness and ability to evaluate beyond the hype understand you Mr. K.  That is why certain large, unsavory scavenger birds are used in referral sometimes.  

As I have said previously he seems to be the most interesting character in the circus.  He would definitely be someone who I would like to have a conversation with.

[skeptic]

6 minutes ago, johnsch322 said:

As I have said previously he seems to be the most interesting character in the circus.  He would definitely be someone who I would like to have a conversation with.

The question that comes to mind for me is if that is even possible.  A conversation in theory has give and take, and actual discussion.  Hmmmm.🙄

 

[SiouxRanger]

2 hours ago, Eagle1993 said:

Then you have an issue where SOL is a bit squishy as argued in the Illinois case mentioned earlier in one of these threads.  The Illinois courts basically said the SOL for child sex abuse are not applicable if there was a coverup

I am not familiar with that case having come late to this forum, but it sounds like the court held that the statute of limitations was tolled for the period of concealment.  This is a common doctrine, applicable in cases of  those out of the country, in military service, minors, and where a cause of action is concealed.  I doubt the court held that the the statute of limitations was no longer applicable.

If you recall the citation, I'll check it out.

 

2 hours ago, Eagle1993 said:

If you remember back to pre bankruptcy, the reason BSA faced a major risk was that they were headquartered in New York prior to 1954. 1954 to 1978 they were in New Jersey and post 1978 in Texas.  One argument is that the claims against BSA should follow the SOL rules of those states from those times. 

So, consider the case of a scout abused in one state, whose council's office is in another, in 1955.  Perhaps 3 potentially different statutes of limitation are applicable:  1.  the scout's home state SOL to the abuser and CO, the LC's home state's SOL to the LC, and, New Jersey's SOL to National.

2 hours ago, Eagle1993 said:

So… unless the court plans to go case by case, state by state and determine how state law applies

That is exactly what should be done because that approach follows the actual law in effect as applicable to each scout.  There is no justice in denying an Abuse Victim the benefit of a favorable SOL relative to him because National managed to find itself charged by so many that it is too troublesome and cumbersome to figure out the actual applicable law and accord that Abuse Victim the benefit of that law.

The other problem is that we have a court just making up a rule.  Every Supreme Court nominee faces the gauntlet of questions about whether the judiciary "makes law" or "finds the law."  Those hearings are intense.

3 hours ago, Eagle1993 said:

Now I agree that SOL could be factored in on payouts;

The problem with that procedure is that it is post vote, and if applying the applicable SOL at that point results in no recovery for that Claimant Voter, it will not undo their vote, the die already having been cast.

This would not be such a concerning issue were the suspected number of Claimants with potentially time-barred claims some small percentage of the total.  But some posters have expressed/speculated perhaps as many as 40,000 or more.  That's about 50% and likely will drive the election.  And further, they will be voting based on their hopes of turning a phantom recovery into cash.

[SiouxRanger]

2 hours ago, T2Eagle said:

The reason time barred claims are being allowed, indeed solicited, as part of the bankruptcy, is that the intent of this, or any other bankruptcy is to discharge all of the organization's debts, even if they haven't completely ripened yet.

In the case of the time barred claims, they not only ripened, but expired. The purpose of bankruptcy is to discharge valid, enforceable debts.

For individual debtors, virtually all their claims are known as of the date they file bankruptcy. These are claims known as of the date of filing.

For corporate debtors, such as a manufacturer of trucks, there is a greater likelihood of claims arising in the future based on facts existing prior to the date of filing of the bankruptcy.  I think these would be based on warranties extended, or a tort theory, like negligence or products liability.  The buyer of a debtor's manufactured truck before the bankruptcy filing, cannot know as of the date of the bankruptcy filing that the axle will fail a year after the filing causing an accident, can hardly be expected to make its claim a year in advance of the accident.  Some provision for those claims must be made in the bankruptcy proceeding but I do not know how that is handled. These are a class of claims likely to arise post-filing, and though the identity of the claimants and amount of the claims is unknown as of the filing of the bankruptcy, the liability is statistically known and reserves are carried on the debtor's books.

Time barred Claimants in National's bankruptcy are a whole other type.  These claims arose from facts occurring prior to the filing, and those Claimants' rights were barred by Statues of Limitation prior to the filing.  Apparently, these Claimants are included on the chance, or in the expectation, that some day, the statues of limitation applicable to some or all of them will be reopened.  I think that happening is extremely remote-but yet it happened in some states.  I cannot recall a situation where a statute of limitations was reopened for potential claimants.   There may be cases others here are aware of, but I am not.  I think it is rare.

National's strategy may be that "if we include the time barred claims in the bankruptcy and they recover something, the likelihood of statutes of limitation being reopened is even more remote, and the Discharge Order will bar their claims."  There is some merit in this argument.  And it even serves as a rationale for insurers to contribute to a procedure that compensates time barred claimants. But it only goes so far.  Insurers are the keepers of the country's statistics.  Their interest will stop when the cost exceeds their projected cost of fighting tooth and nail.

To the extent that time barred Claimants are afforded a vote, it should be a weighted vote.  Claimants with legally enforceable claims against wealthy LC's,  and CO's should receive a proportionately greater number votes relative to time barred Claimants.

At least that would afford a balance between their differences in position.

[Eagle1993]

59 minutes ago, SiouxRanger said:

If you recall the citation, I'll check it out.

Doe v. Boy Scouts of America, 2016 IL App (1st) 152406.

[CynicalScouter]

6 minutes ago, Eagle1993 said:

Doe v. Boy Scouts of America, 2016 IL App (1st) 152406.

That case is not going to suddenly reopen 50,000 claims.

[CynicalScouter]

1 hour ago, SiouxRanger said:

But some posters have expressed/speculated perhaps as many as 40,000 or more.

That number is derived from the BSA analysis of cases and has been cited by various parties in various briefs throughout the process.

It was attached as an exhibit to the Second Amended plan.

https://casedocs.omniagentsolutions.com/cmsvol2/pub_47373/213bd53f-b44f-45c9-97fc-246bcb7ca06b_4108.pdf

The official numbers as used by BSA (and cited/referenced by the TCC/FCR/Coalition as well in the RSA, so they accept these as accurate) is

• All Unique & Timely Abuse Claims = 82,458
• All Not-Barred, Unique & Timely Abuse Claims = 24,308

Therefore the math works as

• All Barred, Unique & Timely Abuse Claims (82,458-24,308) = 58,150

[Muttsy]

“There’s too much confusion, can’t get no relief.”

First, SOL is not an on/off switch. It is nothing more than a DEFENSE to a lawsuit. Defenses like plaintiff complaints require proof. 
 

There are defenses to the defense of SOL. Fraudulent concealment, disability tolling, repressed memory, the location of the tort is not where the abuse occurred but in the board meeting rooms in Washington DC, New Brunswick, NJ where the negligent acts of commission or omission took place. These are complex discovery matters involving documents, depositions of current and former executives and board members. 
 

Now, how much do you think the cost of defense is for the carriers who are contractually bound to defend these cases. and must develop facts to support a single motion to dismiss on statute of limitations grounds. Answer: A Lot. Now multiply that by 50,000 claims the carriers call invalid. 
 

Imagine the 5000 cases in FL or TX and the trial judge rules that it cannot dismiss on summary judgment and that a jury should decide disputed issues of fact about the viability of the SOL defense.  Now how much is the cost of defense then?

Everyone seems to forget that it was BSA that solicited survivors to come forward from EVERY state regardless of the SOL rules of that state.  Why not just solicit claims from window states, ya know, the “valid” ones. Answer: Because they wanted a complete bar to all claims not just the ones where they were hosed - NY, NJ, North Carolina, VT, CA, PA etc. Note also that since the bankruptcy filing Feb 20, 2020 two more states AR and LA passed windows. GA came close and IA will likely pass next legislative session. 
 

So consider that the carriers’ arguments are mostly BS. And people are advocating that these victims shouldn’t even get a vote? I strongly agree with others here who call that out for what it is — immoral and unjust. (moderator edit - remove sexually explicit language) Do those who disagree honestly believe a scout who was victimized once in say NY get 1.5M while another scout was violently victimized multiple times should be given 10% of what a similarly abused victim  from an open state should get? Really?  (/moderator edit)

I believe the virtues represented by the commenters on this forum cannot be squared with throwing some victims under the bus because of the accident of geography or the vagaries of the law or the unavailability of insurance in a particular coverage year. 

Edited August 31, 2021 by RememberSchiff

[CynicalScouter]

17 minutes ago, Eagle1993 said:

Doe v. Boy Scouts of America, 2016 IL App (1st) 152406.

Here's a link to the case.

https://www.casemine.com/judgement/us/5914ac6dadd7b0493473d2d0

Quote

Assuming a special relationship existed between youth scouting organization and former member, giving rise to a duty to disclose material facts concerning the existence of a cause of action, genuine issue of material fact as to whether organization's alleged fraudulent concealment prevented former member from discovering his claim until certain organizational records were published precluded summary judgment in favor of organization on statute of limitations grounds in member's action alleging that he was sexually abused as a child by scouting troop leader.

Please folks note that this is unique to Illinois' fraudulent concealment statute (735 ILCS 5/13-215) which is among the most open in the nation.

When the National Conference of State Legislatures, for example, examined this it noted that a host of states such as Mississippi do NOT allow fraudulent concealment to reopen or toll statutes of limitations OR interpret their statutes such that "The standards for proving fraudulent concealment of a claim are so high as to be impracticable."

https://www.ncsl.org/research/human-services/state-civil-statutes-of-limitations-in-child-sexua.aspx