Chapter 11 announced - Part 12 - District Court

[fred8033]

16 minutes ago, MikeS72 said:

Not sure if it is being pushed more for the propective revenues or due to the fact that I was told by one of the higher up in my council that the bankruptcy court told BSA it cannot show negative balance for the event.

Ouch.  The bankruptcy process itself is a business killer.  It's like hospital fears some of my extended relatives have -->  don't go into the hospital because the hospital might kill you.  Sadly, there is some basis in fact with that.  Bankruptcy legal process is similar.  ... Sometimes companies have to invest in loss leaders for strategic reasons.

 

[Eagle94-A1]

Stupid question regarding

Quote

"settlement extends legal protections to local Boy Scouts councils and churches that were responsible for abuse and that did not file for bankruptcy.  Victims should be able to sue those organizations instead of being forced to seek payment from the Boy Scouts' bankruptcy settlement fund, which will not pay their claims in full, Dumas said."

 My understanding is that post-1976 insurance covers both councils and COs in addition to National. So why wouldn't the councils and COs be covered?

[Eagle1993]

A bunch of filings hit over the last few days.

BSA financial update ... unrestricted liquidity now at $73M (as of end of August).  Down $11M from July and down $161M since start of bankruptcy.

Notice of Appeal to District Court filed 9/22 & 9/23

5afa7f6b-ff0b-4f3b-be07-7ddd14903ae9_10466.pdf (omniagentsolutions.com)

c2df4ef0-e46e-4f47-9fde-73c0837abd91_10472.pdf (omniagentsolutions.com)

Then several detailed filings of those appealing the order...

So far, I don't see the DOJ; however, I'm not sure if they would send anything or just argue in court.  In general, it looks like the non-settling insurers are going after this case individually (I see 15 different insurance companies) along with a couple of groups of claimants.  

• Arch Insurance Company - 52790349-974a-4ece-95e7-6dc5b77eb59d_10507.pdf (omniagentsolutions.com)
• National Union Fire Insurance - b92529d9-9786-44d3-b7b1-625a67a1726c_10508.pdf (omniagentsolutions.com)
• Travelers Casualty and Surety Company - 9298c20f-f03b-4f0a-afff-f620d04e4c32_10509.pdf (omniagentsolutions.com)
• Indian Harbor Insurance Company - aa9ba6a0-d4e5-41c9-99fc-646c3b30469b_10510.pdf (omniagentsolutions.com)
• Munich Reinsurance America - aa9ba6a0-d4e5-41c9-99fc-646c3b30469b_10510.pdf (omniagentsolutions.com)
• Arrowood Indemnity Company - aa9ba6a0-d4e5-41c9-99fc-646c3b30469b_10510.pdf (omniagentsolutions.com)
• General Star Indemnity Company - 1aefc7ec-86d1-4666-b296-37c13cbf4664_10513.pdf (omniagentsolutions.com)
• Continental Insurance & Columbia Casualty - 2a28ea5e-3cdb-413b-808d-b2b8f978c40a_10514.pdf (omniagentsolutions.com)
• Argonaut Insurance Company& Colony Insurance - e26ef6b9-ba5e-40ac-965d-82b6946d923d_10515.pdf (omniagentsolutions.com)
• Allianz Global Risks - 5629d276-6abe-4a66-9559-1bd7f81f1513_10516.pdf (omniagentsolutions.com)
• Traders and Pacific Insurance - 8e25629a-a98e-4d46-84d1-2525253646c8_10517.pdf (omniagentsolutions.com)
• Liberty Liberty Liberty - https://casedocs.omniagentsolutions.com/cmsvol2/pub_47373/6b294191-1490-4029-9ebc-fcd714777bc0_10518.pdf
• Old Republic Insurance - 6cb0fa22-8ad6-45f3-8cf2-ddb13e0ca2ae_10519.pdf (omniagentsolutions.com)
• Gemini Insurance - b3c41443-693a-486f-a5e7-e1bb0ab01e1a_10520.pdf (omniagentsolutions.com)
• D&V Claimants - 12bee4e1-f6e3-45ca-ae69-fc1a67f0019d_10521.pdf (omniagentsolutions.com)
• Great American Assurance Company - 48bfe057-add5-482f-82db-21b0f56319f4_10523.pdf (omniagentsolutions.com)
• Lujan & Wolff - 63f20f61-5d67-4cbe-8bde-7288d615dd5a_10526.pdf (omniagentsolutions.com)  & b3990d44-3023-41e1-bdfd-ad932e0a7cdf_10527.pdf (omniagentsolutions.com)
•  

[PaleRider]

Just saw on Tim Kosnoff's Twitter,

BSA "appeal" to federal district court is "de Novo. De Novo review occurs when a court decides an issue without deference to previous courts decision. Trial de Novo occurs when a court decides all issues as if case is being heard for the first time.

Evidence not docketed in BR court is being offered to district.

Not sure what or why but it's beginning to look like a do over. 

Edited October 5, 2022 by PaleRider
Left out a few words

[MYCVAStory]

8 hours ago, Eagle1993 said:

So far, I don't see the DOJ; however, I'm not sure if they would send anything or just argue in court.  In general, it looks like the non-settling insurers are going after this case individually (I see 15 different insurance companies) along with a couple of groups of claimants.  

The DOJ missed the deadline to appeal.  It's "certain insurers" (Non-Settling ones), Lujan and Dumas clients appealing.  They will make the arguments they made previously, and specifically argue that the Judge applied bankruptcy code incorrectly.

 

[MYCVAStory]

3 hours ago, PaleRider said:

Just saw on Tim Kosnoff's Twitter,

BSA "appeal" to federal district court is "de Novo. De Novo review occurs when a court decides an issue without deference to previous courts decision. Trial de Novo occurs when a court decides all issues as if case is being heard for the first time. Evidence not docketed in BR court is being offered to district.  Not sure what or why but it's beginning to look like a do over.

I suppose the cynic in me would say this is why you hire a bankruptcy attorney to represent you in bankruptcy court.  He isn't one so his post isn't entirely correct.  All isssues aren't being addressed de novo.  The de novo portion of the procedure underway isn't unusual and the District Court will also review some things under an "abuse of discretion" standard which is harder to overrule.   So, strict bankruptcy code issues may be reviewed de novo while more complicated issues that aren't typical may get de novo treatment.  This is all wise because if this heads to further appeal, and that takes more time, then the "problems" need to be identified now and addressed. 

As a reminder, we're also headed into non-zoom territory.  First DC gathering to set out some ground rules is Friday and in-person only.  Beware of reports that start with "I heard from someone who spoke to someone there...."

[PaleRider]

1 hour ago, MYCVAStory said:

I suppose the cynic in me would say this is why you hire a bankruptcy attorney to represent you in bankruptcy court.  He isn't one so his post isn't entirely correct.  All isssues aren't being addressed de novo.  The de novo portion of the procedure underway isn't unusual and the District Court will also review some things under an "abuse of discretion" standard which is harder to overrule.   So, strict bankruptcy code issues may be reviewed de novo while more complicated issues that aren't typical may get de novo treatment.  This is all wise because if this heads to further appeal, and that takes more time, then the "problems" need to be identified now and addressed. 

As a reminder, we're also headed into non-zoom territory.  First DC gathering to set out some ground rules is Friday and in-person only.  Beware of reports that start with "I heard from someone who spoke to someone there...."

Thanks for explaining that.The reason I posted this was to get feedback for a better understanding of this. I don't pay much attention to Kosnoff.Agagain many thanks for explaining this. 

[PaleRider]

On 10/6/2022 at 12:37 AM, PaleRider said:

Thanks for explaining that.The reason I posted this was to get feedback for a better understanding of this. I don't pay much attention to Kosnoff.Agagain many thanks for explaining this. 

You said some things will be reviewed under abuse of  discretion is harder to overrule, does  that mean over rule the BR judges decision?? 

[SiouxRanger]

9 hours ago, PaleRider said:

You said some things will be reviewed under abuse of  discretion is harder to overrule, does  that mean over rule the BR judges decision?? 

The direct answer is Yes-overrule the bankruptcy court's order (in whole or in part).

To go to the Dept. of Justice's website on the issue a district court's scope of review of a bankruptcy court order, go to:

https://www.justice.gov/jm/civil-resource-manual-97-standard-review-mootness-etc

For background and an overview:

The American legal system of trials and appeals is generally structured along the following lines:

TRIAL COURT

The first level is the trial court.  This is where evidence is presented to the court, testimony and documents.  The judge at this level, determines which testimony and documents are "admitted into evidence.

The "finder of fact," either the Judge if a bench trial, or the jury if a jury trial, is (supposed to be) limited to the testimony and documents admitted into evidence, and nothing else.

The judge makes rulings on all matters of law, principally, which laws apply, and interprets them if necessary.

Legal counsel for the parties can object to which evidence is admitted, to which laws are ruled as applicable to the case, and the trial judge's interpretation of those laws.

At the end of the presentation of evidence and rulings on the applicability and meaning of the law, the finder of fact considers the evidence presented and determines from among all the conflicting evidence, what is true or more likely true than that which is not true or less likely true.  To those facts, the law is applied and a ruling made "on the merits."

Typically, evidence, testimony and documents, is only presented at the trial level.  The trial court is the big show.  In most cases, the initial trial is THE PLACE to offer evidence and battle out legal issues.

APPEALS COURTS

If a party believes that an error was made at the trial level, either on the admission of testimony or documents into evidence, the law which was applied to the facts, or an interpretation of the law, or any other matter, that party has the basis of an appeal.

The principal rules applying to appeals are:

1. The party appealing typically MUST have objected to the alleged error during the trial (so as to give the trial court the opportunity to consider and correct the trial court's ruling).  If there is no objection, the objection is waived and will not be considered on appeal. The point is that the system is designed to keep narrowing the scope of the next level of court.

2. The error must be "reversible error," that is, so significant that the ultimate ruling in the case would be reversed on account of the error. Minor errors won't change the outcome.

3.  No new evidence is presented to the appeals court.  If the evidence is not already in the trial court record, it will not be considered.

The role of the appeals court is different depending on the type of error alleged.

With respect to findings of fact, the typical rule is that the appeals court will give the finder of fact great deference on the basis that the finder of fact heard the testimony, saw the witnesses and is in a better position to judge whether the witness was telling the truth, lying, confused, certain, hesitant, or convincing, and to weigh and compare those considerations among the witnesses.  The appeals court will not have the benefit of observing the witnesses. Accordingly, the standard of review applied by the appeals court to findings of fact is an "abuse of discretion." This is a difficult standard to meet, that is, it must be shown that something egregious was done, such as, ignoring overwhelming evidence on one side in favor of scant or no evidence on the other, or the trial court stating certain findings of fact when no evidence was admitted to establish those findings, or ignoring the expert witness for one side when the other side produced no expert testimony in rebuttal.

With respect to matters of law, the appeals court typically reviews those issues de novo, that is, starting at ground zero and giving the trial court little deference.  The reason is that the appeals court judges can read and interpret the law as well as anyone and rulings on legal issues are not dependent on the demeanor of witnesses, but on text in books.

The non-role of appeals courts in taking evidence (conducting evidentiary hearings) is apparent from the frequent appeals court rulings which remand a case back to the trial court to take further evidence, grant a new trial, or directing the trial court to reconsider its ruling(s) in light of the appeals court's ruling(s) on the law.

Appeals to a secondary level of appeals court, such as a supreme court, are somewhat more restrictive yet, in that only certain matters may be appealed to a supreme court "as a matter of right," that is, the supreme court must hear the appeal. Supreme courts typically do not have to hear all appeals that are filed and can simply refuse to hear an appeal. Supreme courts typically preside over several appeals courts which themselves preside over the trial courts in different geographic areas.  If those appeals courts have made conflicting rulings on an important legal issue, the supreme court may consider an appeal that would result in a supreme court ruling that would resolve that conflict state-wide, or nationally.

There are many exceptions and wrinkles to these rules, depending on the state if a state case, or if it is a federal case.

The Dept. of Justice's website on the scope of the district court's review of a bankruptcy court's rulings can be found at (same link as above):

https://www.justice.gov/jm/civil-resource-manual-97-standard-review-mootness-etc

[SNEScouter]

The allocation of authority between a bankruptcy court and a district court, and the standard of review that applies, are very complicated legal questions in an already-complicated bankruptcy case.  Here's a somewhat relevant article co-authored by ... you guessed it.... Judge Laurie Selber Silverstein.  https://www.potteranderson.com/newsroom-publications-14.html. 

This article mostly addresses the situation where a bankruptcy court does not have authority to enter a final order on a particular matter.  In that event the bankruptcy judge issues proposed findings of fact and conclusions of law for the district court to consider and adopt after de novo review.  To the best of my knowledge, that's not what happened here, as Judge Silverstein ultimately found that she had authority to enter the confirmation order in its final form, which was then appealed to District Court.  Still it's a useful read.

 

[PaleRider]

Thanks guys.

[ALongWalk]

On 10/5/2022 at 12:33 PM, Eagle1993 said:

A bunch of filings hit over the last few days.

BSA financial update ... unrestricted liquidity now at $73M (as of end of August).  Down $11M from July and down $161M since start of bankruptcy.

So at this burn rate the BSA has 6 months (5 if you count September) not withstanding any liquidity added due to this recruiting season.

Seems to me this is a huge issue. 

[fred8033]

I'm on withdrawal.  Any news / update?  

[mrjohns2]

On 10/10/2022 at 7:09 AM, ALongWalk said:

not withstanding any liquidity added due to this recruiting season.

Does anyone have last year’s jump due to recruiting? Or is that too hard to sus out? 

[Eagle1993]

From what I can tell, the case is going to District Court for appeal.  District court accepted the case and layed out various ground rules.  I could not find any dates or schedules yet.