Chapter 11 Announced - Part 9 - Confirmation Hearing

[Eagle1993]

Certain insurers going after SOLs, showing case after case being dismissed depending on SOL.  Also showing Kansas dismissing revival due to constitutional issues.  Lawyer claiming this is the only case they are aware of where claims outside SOLs are included.

Basically, looking to prepare to show that cases outside SOLs do not have valid claims. (my guess)  Note I'm not a lawyer or judging this opinion, just highlighting what was discussed in trial.

[ThenNow]

9 minutes ago, Eagle1993 said:

Certain insurers going after SOLs, showing case after case being dismissed depending on SOL.  Also showing Kansas dismissing revival due to constitutional issues.  Lawyer claiming this is the only case they are aware of where claims outside SOLs are included.

Basically, looking to prepare to show that cases outside SOLs do not have valid claims. (my guess)  Note I'm not a lawyer or judging this opinion, just highlighting what was discussed in trial.

Also, Jacobs noted that NC's "reviver" was found unconstitutional. To wit, open (window) state claims could later be un-opened by virtue of the laws being unconstitutional. As in, openness might be in flux.

Edited March 15, 2022 by ThenNow

[Muttsy]

3 hours ago, ThenNow said:

Also, Jacobs noted that NC's "reviver" was found unconstitutional. To wit, open (window) state claims could later be un-opened by virtue of the laws being unconstitutional. As in, openness might be in flux.

Intermediate appellate panel. 2-1.  Appeal to NC Supreme Court. Only instance I can think of where an appellate court ruled that a revival statute violated the state constitution. SCOTUS has ruled in other contexts that civil statutes of limitations are matters of "legislative grace" i.e. what the legislature giveth it can take away. No federal constitutional right in a statute of limitation defense. 

[Eagle1993]

Further discussions about how to get around SOLs.  For example, in Idaho and then elsewhere, plaintiffs used the fraudulent concealment claims.  BSA legal team said they saw the legal theory increased after the success in Idaho.  

There are also other ways around SOLs depending on states.

[ThenNow]

59 minutes ago, Muttsy said:

Intermediate appellate panel. 2-1.  Appeal to NC Supreme Court. Only instance I can think of where an appellate court ruled that a revival statute violated the state constitution. SCOTUS has ruled in other contexts that civil statutes of limitations are matters of "legislative grace" i.e. what the legislature giveth it can take away. No federal constitutional right in a statute of limitation defense. 

Just updating the testimony and stating his argument, since our court reported was off duty. That's it.

[Muttsy]

Thank you. I hope that puts to rest the absolutist non-sense spouted for years on this forum about statute of limitations. Fraudulent concealment tolling is most likely viable in almost every state. It is thermonuclear for the defense which is why he testified that BSA settled cases it believed ought to be barred because it could not take the chance. In Hacker case in Illinois, that blast resulted in an 89M dollar hit. 

This alone demonstrates the appalling inadequacy of the settlements in this Plan. Anybody want a re-vote now that you understand?

 

[fred8033]

14 minutes ago, Muttsy said:

Thank you. I hope that puts to rest the absolutist non-sense spouted for years on this forum about statute of limitations. Fraudulent concealment tolling is most likely viable in almost every state. It is thermonuclear for the defense which is why he testified that BSA settled cases it believed ought to be barred because it could not take the chance. In Hacker case in Illinois, that blast resulted in an 89M dollar hit. 

This alone demonstrates the appalling inadequacy of the settlements in this Plan. Anybody want a re-vote now that you understand?

I doubt it puts the argument to rest.  ... but we've been thru that discussion repeatedly and the discussion only gets ugly.  ... but then again, this agreement case is so complex I'd prefer a BSA only bankruptcy.  

 

Edited March 15, 2022 by fred8033

[DJ72]

14 minutes ago, Muttsy said:

 

This alone demonstrates the appalling inadequacy of the settlements in this Plan. Anybody want a re-vote now that you understand?

 

I have been a NO ever since the inadequacy of the Hartford settlement.  

[Eagle1970]

Even with a strong case for tolling the SOL via fraudulent concealment or delayed discovery, survivors abused in Grey states max out at the top end of their scaled bracket, i.e. Grey 3 @ .25.  Should the scaling get another look?  The scaling lost logic to me after the NC ruling.  If other window states face similar constitutional issues OR have that potential, it would be questionable to treat them as open, when the window could be reversed.

 

[ThenNow]

9 hours ago, Eagle1970 said:

Even with a strong case for tolling the SOL via fraudulent concealment or delayed discovery, survivors abused in Grey states max out at the top end of their scaled bracket, i.e. Grey 3 @ .25.

TDP reference language, please? 

[JBWest]

On 3/14/2022 at 1:56 PM, Eagle1993 said:

No details, just PPT level info.  10 regions, 8 councils by region and the statement in a note "preemptive consolidation". 

Edit ... They also had a statement about too much collaboration slows us down.  Take that as a sign on how this will be  done.

This is good news, as we need to hit the ground running once we get out of the woods.

[Eagle94-A1]

36 minutes ago, JBWest said:

This is good news, as we need to hit the ground running once we get out of the woods.

I am not so sure. Sounds local volunteers will be pushed aside. I see a lot of headaches with all the mergers

[Eagle1970]

3 hours ago, ThenNow said:

TDP reference language, please? 

I'm referring only to the Mitigating Scaling Factors based on SOL. (p 189).  As you know, I'm not a legal scholar.  Nor am I represented by one.  But I do wonder how these factors can be imposed when windows are being challenged.

Mitigating Scaling Factor Ranges for Statutes of Limitation or Repose by State Legend Tier Scaling Factor Open 1.0 Gray 1 .50-.70 Gray 2 .30-.45 Gray 3 .10-.25 Closed .01-.10

[Eagle1993]

Today lawyer from certain insurers is cross examining an expert witness from BSA ... one who has some expertise in TDPs.  Tried to get the expert thrown out, was denied.  Now questioning vetting of claims, how it will be possible to really go through all of these claims and likely the cost of the trust and timing, etc.  

I have no idea why she is going down this path.  So far, I haven't heard anything of note but perhaps others are listening more closely.

 

[Muttsy]

She is awful. It was a 20 minute cross x that she's dragging out to four hours or longer. 

She is rigid in her thinking and demonstrates little understanding of how sexual abuse cases are actually handled in the tort system. 

She spent 90 mind-deadening minutes to make the point that the claim review process is not the tort system.. Yes you are right Ms. McNally. Does your client prefer to face 84,000 claims in the tort system? If the claims review process is gong to adopt all of the procedures found in the tort system, then this Plan cannot be confirmed.