Chapter 11 Announced - Part 6 - Plan 5.0/TCC Plan TBD

[100thEagleScout]

14 minutes ago, DJ72 said:

Vote has been cast.  Will continue to watch the clown show..

You don’t have to answer but was it a yea or nay?

[elitts]

On 11/24/2021 at 8:10 PM, johnsch322 said:

"Equitable compensation" to survivors has never been the goal of the BSA in this bankruptcy.  The only goal that the BSA had was to escape from underneath the liability for the least amount of money possible.  The upper limit of 5 to 10K of potential victims was arrogance on their part.  If that truly was the amount that they had to pay it still would not have been 150-300k payment on average just do the math...225K (average of 150 to 350) X 10,000 = 2.25 Billion.  Initially BSA told LC's and CO's they would not have to contribute and they negotiated with Hartford for a max of 650M so where was that money coming from?

"Equitable compensation" are just public relations terms trying to make the public feel for the BSA.

1.5 billion (no LC payment) / 5,000 = $300,000

1.5 billion (no LC payment) / 10,000 = $150,000

Of course, it's entirely possible when they meant "equitable compensation" they were talking about "making sure everyone with a claim got something" rather than "making sure every victim gets enough to feel satisfied (for lack of a better term)".

As opposed to "the first few hundred victims who file court cases get settlements and everyone else gets nothing".

[johnsch322]

42 minutes ago, elitts said:

1.5 billion (no LC payment) / 5,000 = $300,000

1.5 billion (no LC payment) / 10,000 = $150,000

Of course, it's entirely possible when they meant "equitable compensation" they were talking about "making sure everyone with a claim got something" rather than "making sure every victim gets enough to feel satisfied (for lack of a better term)".

As opposed to "the first few hundred victims who file court cases get settlements and everyone else gets nothing".

At the time of filing the bankruptcy and the wording equitable compensation was used there was no Hartford deal, no LC deal and no CO deal and BSA offered up 250M so

250M/ 5,000 = $50,000

250M/ 10,000 = $25,000

And that was because they were facing 181 lawsuits at the time and wanted to put those suits on hold.

Edited November 29, 2021 by johnsch322

[elitts]

55 minutes ago, johnsch322 said:

At the time of filing the bankruptcy and the wording equitable compensation was used equitable there was no Hartford deal, no LC deal and no CO deal and BSA offered up 250M so

250M/ 5,000 = $50,000

250M/ 10,000 = $25,000

And that was because they were facing 181 lawsuits at the time and wanted to put those suits on hold.

No, this bankruptcy was never about the 181 lawsuits that were already filed, it was about the hundreds or thousands more they knew would be coming after states started rolling back Statutes of Limitations in the face of the other CSA mass-torts (Nassar, Catholic Church, etc.).  Putting a stay on the existing cases was just an added bonus.  With tort claims of this nature, any settlement, bankruptcy or otherwise, was ALWAYS going to be a combination of BSA funds plus insurance payouts, with the insurance payouts being many times higher than the BSA contributions.  In the individual cases that had already settled, BSA likely didn't pay anything much more than attorney fees; but even just the legal fees on thousands more cases would have stretched the BSA budget to the breaking point. 

At any rate, when BSA filed for a bankruptcy re-organization, it did so with full knowledge that any potential settlement fund would be composed of the BSA's 250 million (of what it viewed as "available cash") along with many hundreds of millions or billions of insurance dollars.  The idea behind Settlement Trust funds like this is that you put the BSA's 250 million in the Trust to get things started, then the Trust takes all the processed claims and turns to the insurance companies and says "Here are 6500 claims, your policy limit is ($1,000,000), so you owe us 6.5 billion dollars". And then the Trust would either reach an agreement with the insurance company or take the insurance company to court using the starting 250 million for legal fees.

So NOBODY, EVER, (who actually understands how these things work anyway) expected payments to survivors to be based entirely, or even mostly, upon the funds the BSA would be contributing personally through the bankruptcy reorganization. 

So if I'm on the BSA's legal team in 2019 and I'm assuming we are looking at 10,000 claims with insurance policies that have $1,000,000 per claim limits, it's pretty simple reasoning to think:

We're going to put in 250 million and insurance companies will probably be willing to settle without too much argument at $500,000-$750,000 for every valid claim in open states, so if 1/3 the claims are both valid and in open states, there will be about 2.5 billion eventually in the trust fund.

Edited November 29, 2021 by elitts

[johnsch322]

12 minutes ago, elitts said:

No, this bankruptcy was never about the 181 lawsuits that were already filed, it was about the hundreds or thousands more they knew would be coming after states started rolling back Statutes of Limitations in the face of the other CSA mass-torts (Nassar, Catholic Church, etc.).  Putting a stay on the existing cases was just an added bonus.  With tort claims of this nature, any settlement, bankruptcy or otherwise, was ALWAYS going to be a combination of BSA funds plus insurance payouts, with the insurance payouts being many times higher than the BSA contributions.  In the individual cases that had already settled, BSA likely didn't pay anything much more than attorney fees; but even just the legal fees on thousands more cases would have stretched the BSA budget to the breaking point. 

At any rate, when BSA filed for a bankruptcy re-organization, it did so with full knowledge that any potential settlement fund would be composed of the BSA's 250 million (of what it viewed as "available cash") along with many hundreds of millions or billions of insurance dollars.  The idea behind Settlement Trust funds like this is that you put the BSA's 250 million in the Trust to get things started, then the Trust takes all the processed claims and turns to the insurance companies and says "Here are 6500 claims, your policy limit is ($1,000,000), so you owe us 6.5 billion dollars". And then the Trust would either reach an agreement with the insurance company or take the insurance company to court using the starting 250 million for legal fees.

So NOBODY, EVER, (who actually understands how these things work anyway) expected payments to survivors to be based entirely, or even mostly, upon the funds the BSA would be contributing personally through the bankruptcy reorganization. 

So if I'm on the BSA's legal team in 2019 and I'm assuming we are looking at 10,000 claims with insurance policies that have $1,000,000 per claim limits, it's pretty simple reasoning to think:

We're going to put in 250 million and insurance companies will probably be willing to settle without too much argument at $500,000-$750,000 for every valid claim in open states, so if 1/3 the claims are both valid and in open states, there will be about 2.5 billion eventually in the trust fund.

Which goes right back to the purpose of the bankruptcy was never about “fair and equitable compensation” it was and is still limiting the amount that BSA would have to pay. 

[elitts]

26 minutes ago, johnsch322 said:

Which goes right back to the purpose of the bankruptcy was never about “fair and equitable compensation” it was and is still limiting the amount that BSA would have to pay. 

Nobody has ever argued that the bankruptcy was done primarily for the purpose of compensating survivors, obviously it was done to protect the ability of the organization to keep functioning, like every chapter 13 filing.  But part of the process of a bankruptcy is the legal requirement to notify any potential creditors of the impending case so that everyone has a chance for a piece of the pie, however large or small it is.  So the publications and notices were intended to let any victims who hadn't yet filed suit against the BSA know that if they didn't make a claim now, their ability to do so in the future would be gone.  In this situation "equitable compensation" didn't mean "an amount relative to the pain you suffered from your abuse", it meant "a fair sharing of available funds among all victims".

The alternative to this would have been the distribution of all available funds to only the 181 filers who had already sued the BSA.

Edited November 29, 2021 by elitts

[johnsch322]

1 hour ago, elitts said:

Nobody has ever argued that the bankruptcy was done primarily for the purpose of compensating survivors, obviously it was done to protect the ability of the organization to keep functioning, like every chapter 13 filing.  But part of the process of a bankruptcy is the legal requirement to notify any potential creditors of the impending case so that everyone has a chance for a piece of the pie, however large or small it is.  So the publications and notices were intended to let any victims who hadn't yet filed suit against the BSA know that if they didn't make a claim now, their ability to do so in the future would be gone.  In this situation "equitable compensation" didn't mean "an amount relative to the pain you suffered from your abuse", it meant "a fair sharing of available funds among all victims".

The alternative to this would have been the distribution of all available funds to only the 181 filers who had already sued the BSA.

Or BSA National only with no pennies on the dollar insurance settlement and let LC’s and CO’s fend for themselves. 

[johnsch322]

Sent my vote in..they will have it on Thursday!!

[Eagle1993]

There was a hearing today and while I didn't attend, there is a great series of Tweets from @melissabjacoby

Richard Pachulski from TCC is stating that the AIS firms are essentially messing up this entire process.  The judge must demand they send a joint letter to their claimants or the entire voting process may end up in being subject to debate.  The judge basically said it may be too late, but she doesn't know what authority she would have to demand this of AIS.  TCC said they would amend their motion.  Expect some fast action over the next week or so over:

1) Demand on AIS to send letter.

2) Possible delay of voting deadline (no delay yet, but being requested)

3) Possible appointment of ombudsman.  

Note that TCC has been excluded from all mediation since Summer (confirmed my mediators).  BSA is all in on the coalition.  If they don't come through, I have a hard time seeing National emerge.  You can blame White  & Case if it comes to that.

The judge did shoot down some objections to discovery (coming from several coalition law firms).  Lawyers who sign off on proof of claims are subject to discovery.

I found the Tweet series interesting. 

One issue ... while there are A LOT of claims ... many times, based on historical info, many do not submit votes.  That means those who are voting are more motivated claimants.  That could be a big factor into what we see.

Another issue ... in addition to BSA and insurance companies, several law firms reps are on the line.  If White & Case oversee the downfall of the BSA ... who would hire them again?  If PSZJ law ends up seeing a crap settlement ... they won't get another big claimant committee deal.  Coalition law firms may be facing legal bills that can't be paid if they don't get a quick payout.  A lot going on, just over 2 weeks left until voting closes (unless something changes).

[MattR]

6 minutes ago, Eagle1993 said:

If they don't come through, I have a hard time seeing National emerge.

Why is that? I would think if they don't come through then TCC gets to drive towards another plan/vote.

[Eagle1993]

1 hour ago, MattR said:

Why is that? I would think if they don't come through then TCC gets to drive towards another plan/vote.

I think final plans come through mutual trust.  The BSA and TCC have 0 trust left.  That means nearly every decision will be fought over in court.  I’d rather see BSA say… this is our plan, we believe in it, but we will keep working with the TCC building that trust.  So, even if not stated, if the plan fails they can quickly come to an agreed upon proposal. 
 

I hope I’m wrong, I just think we would be better off if the bankruptcy firms were actually working together in mediation vs fighting every aspect of this case in front of a judge.  

Edited November 30, 2021 by Eagle1993

[ThenNow]

1 hour ago, Eagle1993 said:

Richard Pachulski from TCC is stating that the AIS firms are essentially messing up this entire process.  The judge must demand they send a joint letter to their claimants or the entire voting process may end up in being subject to debate.  The judge basically said it may be too late, but she doesn't know what authority she would have to demand this of AIS.  TCC said they would amend their motion.  Expect some fast action over the next week or so over:

1) Demand on AIS to send letter.

2) Possible delay of voting deadline (no delay yet, but being requested)

3) Possible appointment of ombudsman.  

Note that TCC has been excluded from all mediation since Summer (confirmed my mediators).  BSA is all in on the coalition.  If they don't come through, I have a hard time seeing National emerge.  You can blame White  & Case if it comes to that.

The judge did shoot down some objections to discovery (coming from several coalition law firms).  Lawyers who sign off on proof of claims are subject to discovery.

I found the Tweet series interesting. 

One issue ... while there are A LOT of claims ... many times, based on historical info, many do not submit votes.  That means those who are voting are more motivated claimants.  That could be a big factor into what we see.

Another issue ... in addition to BSA and insurance companies, several law firms reps are on the line.  If White & Case oversee the downfall of the BSA ... who would hire them again?  If PSZJ law ends up seeing a crap settlement ... they won't get another big claimant committee deal.  Coalition law firms may be facing legal bills that can't be paid if they don't get a quick payout.  A lot going on, just over 2 weeks left until voting closes (unless something changes).

A few things:

1) Actually, RP stated that Kosnoff and KR had this thing in a knot long before the infamous email snafu by his firm, which he owned;

2) The PSZJ firm was going to pay all cost associated with the Ombudsperson, however;

3) He withdrew that motion and will redraft a new one based around the court’s authority and duty to force the three firms - though AVA just says, “Vote however you want, this firm of one has got new cats to skin” - to speak with through one communication/voice, however conflicting the advice. At least it needs to be in one letter. This is all built on the Code and Code of Ethics that concur as to forcing co-counsel of differing opinions to get their stuff together and act like adults;

4) David Buchbinder recommended both Kosnoff Law and KR’s firm get gagged as to all direct communications about how to vote on the plan. By the by, Kosnoff’s attorney previous approached KR’s to do a joint clarification and the offer was rebuffed. “Some” people LOVE this drama;

5) Molten argued you can’t interfere with an attorney’s right to communicate with their client;

6) The counter argument was these are not mere “communications” between attorney and client, but solicitations on how to vote. And, they are shooting out of the KR firm like so many Gandalf in the Shire fireworks;

7) RP said the TCC attorneys have heard from many AIS clients who turn in “REJECT” votes and get multiple strong-armed follow up calls from KR’s crew trying them to change their vote. I want to hear from some of those clients;

😎 I highly doubt the judge will delay. She’s behind the 8 ball as it is;

9) The ruling on discovery only goes to venue, not substance. She ruled it is permissible and proper to propound discovery on attorneys who signed proofs of claim. She warned them when they begged her to allow them to do it. Now, as she warned, they have made themselves targets. The basis was POCs are evidentiary in nature in a bankruptcy proceeding and the signatories are affirming they have knowledge of the truth of the statements and do so under penalty of perjury punishable by up to $500,000 and 5 years in the slammer or both; and

10) The Coalition has hired a Mr. Robinson, a high-power US Supremes attorney to fight the discovery. He asked for a stay threatening her being overturned on appeal and she denied.

As to firms getting stink on them, I doubt it. History is replete with A-level players in multiple arenas tanking one day and trading up the next. Anyone who knows the case can see it’s an anomaly and a putrid mess of complexity, ill-motive, third party funding and who knows what degree of aggregator shenanigans.

Hello. And good-bye. For now...

[MYCVAStory]

12 minutes ago, ThenNow said:

9) The ruling on discovery only goes to venue, not substance. She ruled it is permissible and proper to propound discovery on attorneys who signed proofs of claim. She warned them when they begged her to allow them to do it. Now, as she warned, they have made themselves targets. The basis was POCs are evidentiary in nature in a bankruptcy proceeding and the signatories are affirming they have knowledge of the truth of the statements and do so under penalty of perjury punishable by up to $500,000 and 5 years in the slammer or both; and

10) The Coalition has hired a Mr. Robinson, a high-power US Supremes attorney to fight the discovery. He asked for a stay threatening her being overturned on appeal and she denied.

This was the important takeaway of the day.  Whether the TCC refiles its motion or not several parties stated that a fight is coming over the validity of some votes.   The last matter though, and the Judge making a decision, was telling because the Judge made it clear that attorneys who signed claims were to have first-hand knowledge of the claim.  This can come via discussion directly with the client, reading a client's report of what happened, etc.  She signaled this long ago when the issue first came up.  She made it clear then that she ONLY wanted attorneys signing claim forms for their clients when they had enough knowledge of the claim to do so.  So, the discovery then will look like this "Mr. Attorney, tell me about the process you used to determine that claim 12345 you signed was accurate and truthful."  If, and that's a big IF but I suspect it's the reason insurers are pressing this, Mr. Attorney bought clients/claims and didn't do any due diligence then it's going to put those claims and votes in question.  As ThenNow pointed out, it appears to be the reason the Coalition brought in a heavy hitter like Robinson.  It doesn't want the discovery.  In court, always look to see what a party is fighting or preparing to fight the hardest.  It's often its biggest weakness. 

 

[yknot]

23 minutes ago, ThenNow said:

A few things:

1) Actually, RP stated that Kosnoff and KR had this thing in a knot long before the infamous email snafu by his firm, which he owned;

2) The PSZJ firm was going to pay all cost associated with the Ombudsperson, however;

3) He withdrew that motion and will redraft a new one based around the court’s authority and duty to force the three firms - though AVA just says, “Vote however you want, this firm of one has got new cats to skin” - to speak with through one communication/voice, however conflicting the advice. At least it needs to be in one letter. This is all built on the Code and Code of Ethics that concur as to forcing co-counsel of differing opinions to get their stuff together and act like adults;

4) David Buchbinder recommended both Kosnoff Law and KR’s firm get gagged as to all direct communications about how to vote on the plan. By the by, Kosnoff’s attorney previous approached KR’s to do a joint clarification and the offer was rebuffed. “Some” people LOVE this drama;

5) Molten argued you can’t interfere with an attorney’s right to communicate with their client;

6) The counter argument was these are not mere “communications” between attorney and client, but solicitations on how to vote. And, they are shooting out of the KR firm like so many Gandalf in the Shire fireworks;

7) RP said the TCC attorneys have heard from many AIS clients who turn in “REJECT” votes and get multiple strong-armed follow up calls from KR’s crew trying them to change their vote. I want to hear from some of those clients;

😎 I highly doubt the judge will delay. She’s behind the 8 ball as it is;

9) The ruling on discovery only goes to venue, not substance. She ruled it is permissible and proper to propound discovery on attorneys who signed proofs of claim. She warned them when they begged her to allow them to do it. Now, as she warned, they have made themselves targets. The basis was POCs are evidentiary in nature in a bankruptcy proceeding and the signatories are affirming they have knowledge of the truth of the statements and do so under penalty of perjury punishable by up to $500,000 and 5 years in the slammer or both; and

10) The Coalition has hired a Mr. Robinson, a high-power US Supremes attorney to fight the discovery. He asked for a stay threatening her being overturned on appeal and she denied.

As to firms getting stink on them, I doubt it. History is replete with A-level players in multiple arenas tanking one day and trading up the next. Anyone who knows the case can see it’s an anomaly and a putrid mess of complexity, ill-motive, third party funding and who knows what degree of aggregator shenanigans.

Hello. And good-bye. For now...

Welcome back!

[Eagle1993]

36 minutes ago, MYCVAStory said:

This was the important takeaway of the day.  Whether the TCC refiles its motion or not several parties stated that a fight is coming over the validity of some votes.   The last matter though, and the Judge making a decision, was telling because the Judge made it clear that attorneys who signed claims were to have first-hand knowledge of the claim.  This can come via discussion directly with the client, reading a client's report of what happened, etc.  She signaled this long ago when the issue first came up.  She made it clear then that she ONLY wanted attorneys signing claim forms for their clients when they had enough knowledge of the claim to do so.  So, the discovery then will look like this "Mr. Attorney, tell me about the process you used to determine that claim 12345 you signed was accurate and truthful."  If, and that's a big IF but I suspect it's the reason insurers are pressing this, Mr. Attorney bought clients/claims and didn't do any due diligence then it's going to put those claims and votes in question.  As ThenNow pointed out, it appears to be the reason the Coalition brought in a heavy hitter like Robinson.  It doesn't want the discovery.  In court, always look to see what a party is fighting or preparing to fight the hardest.  It's often its biggest weakness. 

 

This isn’t the judge’s first rodeo.  Some of the coalition law firms are looking to be similar to some Talc law firms who didn’t do proper claims assessments.  She ended up throwing out votes from these claims as they couldn’t be validated claimants.   
 

So, if these law firms cannot show how they vetted the claims within the next few weeks, I expect many of those votes could be tossed.  This will likely help the anti plan side as the concentration of questionable claims seems to be owned primarily by coalition law firms.  

 

https://www.reuters.com/legal/transactional/ex-jj-talc-supplier-considering-new-path-judge-nixes-bankruptcy-plan-votes-2021-10-13/

Silverstein said it's not clear the Bevan clients even have valid claims against Imerys because the firm did not conduct due diligence on whether they'd been exposed to the company's talc.

"In other words, Bevan & Associates simply printed out a list of its clients in excel spreadsheet format and slapped it behind a Master Ballot," the judge wrote.