Cburkhardt

Ochoa's main point is that the court did not hold National BSA vicariously liable for instances when local units or councils errantly used the term "girl scout" during the early weeks implementing the new program.  He thinks that is a potentially appealable legal issue.  GSUSA would have to prove that the local actors were acting as employees of National when they took the actions, that the actions  were a requirement of employment and that a tort occurred.  I think it is fairly weak, in that the employment link is very distant, the action was not a condition of any employment and the facts alleged, if true, did not give rise to a tortious injury or harm (because GSUSA was not able to prove harm -- consumer confusion).  The offered "proof" of confusion turned out to be inadmissible hearsay.    

Venturing enrollment has decreased significantly during the course of recent BSA challenges.  This thread will focus on: What could or should be done now to increase the membership and prospects of the Venturing program as in independent BSA program unit?  Feel free to comment on both administrative and programmatic elements of Venturing, including its advancement program.  Please focus only on Venturing and not Sea Scouts or Exploring.  Next week I will post a thread asking for suggestions on how Venturing might be structured as part of Scouts BSA – so please defer that discussion until then.    

Few lawyers would “bank on” winning a fee petition. That said, I like the BSA’s chances in this case. I read the Complaint when it was first filed, the Dismissal Order and Fee Petition and a few things stick out.

There was an overall lack of evidence of consumer confusion. Only a few copies of mixed-up local church bulletins or unit-produced fliers and some conclusory allegations that misuse of the GSUSA trademark had been encouraged.  In the dismissal order the judge found that after many GSUSA witnesses, no single instance of confusion or brand tarnishment was proven.  Not good.

The judge found that not a single Polaroid factor favored the GSUSA case. My read is that the judge’s calls on these legal factors are well-reasoned.

I can sense no apparent misjudgment on legal or fact issues. There is no apparent abuse of discretion. If anything, the judge appears to have gone to near-unreasonable lengths to allow GSUSA to prove a case. So, I sense there is not a strong basis for the appeal.

Going back to the Fee Petition, it cites internal GSUSA communications produced during discovery (after an attempt to hide them) to the affect that the case was knowingly filed as an anti-competitive move in coordination with a PR effort to smear the BSA program effort.  If the documents are sufficiently supportive on these issues, the case law will favor the fee award – the size of which will only continue to grow during the appeal.  I am not experienced with trademark law and do not know the procedural behavior of the litigants, so I can only wonder of sanctions against the Plaintiff attorneys might apply here as well.

Litigation is a tough game. When the trademark case was filed, uninformed parties thought the BSA’s future was a bit in doubt. If the trademark case is proved to have lacked legal and factual merit, it might be characterized as a calculated effort to insert meritless and expensive litigation to lessen chances of a successful reorganization.  This trademark case interfered with efforts to form our all-girl program units – that was my personal experience during formation of our girl Cub Den and Scouts BSA Troop for Girls.  That might have been a “rational” (but certainly unethical) business wager back then, but it failed because the BSA will be emerging from bankruptcy in reasonable shape. Unless I am missing something significant, it is time for the GSUSA to settle on the fees and move beyond this bitter fight.  I do not see how it benefits them to continue.

BSA Seeking $16+ Million from GSUSA regarding dismissed Trademark Suit

Below is introductory text of a BSA Motion to recover $16+ Million of attorneys fees and costs incurred by the BSA during the recently-dismissed trademark suit filed by the GSUSA against the BSA.  The link to the full motion document, which provides granular information of what organizational moves GSUA was making proximate to the Scouts BSA announcement, is pasted below.  It is worth the read.

“Preliminary Statement

By any measure, this trademark case is “exceptional” under the fee award provision of the Lanham Act. That is, it “stands out from others.” As the summary judgment evidence showed, Girl Scouts of the United States of America (“GSUSA”) filed this lawsuit for an improper, anticompetitive purpose, with the Court finding that “[i]n truth, Girl Scouts’ complaint is based, not on concern for trademark confusion, but on fear for their competitive position in a market with gender neutral options for scouting.” SJ Order at 21. Under binding Second Circuit precedent, GSUSA’s decision to initiate litigation against the BSA as a competitive ploy satisfies the exceptional case standard under the Lanham Act without more.  But there is more. GSUSA’s claims were substantively meritless, which also makes this an exceptional case. Lacking any evidence of actual confusion, GSUSA nonetheless pressed the absurd argument that the BSA should not be permitted to use its long-standing SCOUT-formative trademarks for programs that included both male and female members, despite having already done so for 50 years. Indeed, on summary judgment, GSUSA failed to persuade the Court that even a single factor weighed in GSUSA’s favor to support a likelihood of confusion finding under the Polaroid test.  After improvidently filing this case for an improper purpose and with baseless claims, GSUSA then pursued it for years in an excessively costly and contentious manner. Examples include the following:

GSUSA designated twenty witnesses to provide 30(b)(6) testimony on two topics concerning instances of alleged consumer confusion, for which none of those witnesses had actual, first-hand knowledge.

GSUSA resisted producing documents until ordered by the Court, as reflected by the parties’ discovery motion practice.

GSUSA improperly redacted hundreds of produced documents on grounds of purported “non-responsiveness” in an attempt to conceal highly relevant information evidencing the meritless nature of GSUSA’s claims.

GSUSA concealed its communications with its PR agency on highly relevant subjects such as GSUSA’s attempts to undermine the BSA’s reputation through an orchestrated smear campaign in the run-up to the filing of this lawsuit, resulting in the BSA’s service of a Rule 11 motion and GSUSA’s voluntary dismissal of its tarnishment claims.

GSUSA submitted a massive 151-page response and counterstatement to the BSA’s 17-page statement of undisputed facts on summary judgment, which failed to comply with the Local Rules and reflected a transparent attempt to manufacture disputed facts where none existed.

Abuse of the legal system for anti-competitive ends – especially against a non-profit entity devoted to youth programs – should not be countenanced. The BSA respectfully requests that the Court find that the BSA is entitled to its reasonable attorneys’ fees and related nontaxable expenses for this exceptional case. Upon the granting of this motion, the BSA will submit a fee application setting forth and supporting its calculations of those fees and expenses and their reasonableness.”

Here is the full Motion:  https://www.law360.com/articles/1486390/attachments/0 

Correction:  My final paragraph about Lone Scouts was directed to "Scoutmaster Fred" cited in RememberSchiff's post.

I find some of the above postings about girls in Scouts BSA to be rather speculative and uninformed.  As founding Scoutmaster of a now-50+ member Scouts BSA Troop for Girls, my experience and direct observation is that our girls are attracted to the program for the identical reasons as boys are.  My experience is also that our Scouts successfully organize and lead our troop in ways that are different – playing to the things girls emphasize and strengths they have at the Scouts BSA ages.  Our operation works supremely well as a single-gender organization. for reasons I do not need to fully understand.  There is no way our chartered organization, parents, adult leaders or youth would consider making our Troop co-ed.

The fact that government schools and many churches have fully co-ed youth activities is fine, but irrelevant in deciding whether an outdoor-oriented Scouts BSA Troop is better or worse off being co-ed.  Our Troop is not a French club or bible study organization.  We conduct an aggressive outdoor program that matches the best I have come to know in my Scouting years.  My “opinion” is a strong one:  we would not have arrived where we are if we were not an all-girl Troop and many of the good things our young people benefit from would melt-away in a co-ed environment.  This would include the idea of all-girl and all-boy patrols in the same troop. 

I have come to observe a few partnered Troops in our area that have a “girl patrol” integrated into what is effectively a single troop.  This is not in keeping with the letter or spirit of our BSA regulations.  The successes of these organizations are limited.  If and when troops are provided the option to have a co-ed presence within a single troop, you should not expect a rush from the many quite successful Scouts BSA Troops for Girls to participate.

To the original poster:  I suggest that a Scouts BSA Troop for Girls be formed on the basis of serving a wider geographic area and that it be located at a chartered organization without any other Scouting program.  I find Scouter leadership affiliated with some long-standing Scouts BSA Troops for Boys don’t prefer introducing girl programming anywhere in proximity to their successful units.  Sometimes these folks unwittingly restrain the growth of an all-girl Troop located at the same chartered organization.  The girls in your community need and deserve a strong, large Scouts BSA Troop that stands alone.  With prioritization and strong drive, Scouters with a singular focus on that project can pull it together fairly easily – certainly by this fall.  This is just now hard to do.  My view is that the Lone Scout approach is a work-around that is only appropriate in the limited circumstances that program was designed to address.  I regret your Lone Scout Eagle was not able to experience the unobstructed joy our first five Eagles have lived in our Scouts BSA Troop for Girls.  

A different take.

To the original post:   I hope Scoutmasters come to experience that OA provides a means through which Scouts who have demonstrated skill in managing a Troop can experience managing larger projects and organizations with more-diverse personalities.  This is not the express purpose of OA, but OA friends who have been with Scouting for 50+ years uniformly point to their OA experience as the first time when they stepped out of their early lives to manage larger challenges.  I have always understood the cheerful service and Native American culture aspects of OA, but to me OA demonstrates value when Scouts put on a large event or organize a contingent to attend an above-council event at some distant location.  These are complicated challenges for a 14 or 15 year-old, and the ones who prevail become early-stage candidates to lead larger organizations achieving important objectives.  I don’t know many former lodge chiefs who became failures in their life endeavors.  I urge Scoutmasters to allow these elections – but only if there is reasonable assurance of compliance with YPT.

Adult advisors of OA organizations are a varied group. Some are successful former unit leaders and genuine leaders of their districts, councils, businesses or communities.  Unfortunately, others are people who have not been able to rise to a respected level of leadership among adults.  For these, OA adult roles can easily become an outlet to press less-than-successful leadership tactics and model questionable character traits to younger persons who are easily impressed.  In today’s vigilant environment, a unit leader who behaves in this manner is quickly identified and dealt with.    Because our unit does not influence selection of adults advising of OA youth, I made it my business as Scoutmaster to understand the character of adults advising our local OA before authorizing unit elections.  I’m happy I did so.  The first Eagle of our fledgling three-year-old Scouts BSA Troop was just elected Lodge Chief of our large metropolitan-scale Lodge.  I could not possibly provide her the challenge and coaching she is now ready for and continue to operate our 54-Scout Troop.  If I had prevented OA elections, I would have held her back from what will be a great chance for this Scout to learn and shine.  She is ready, and my role as a unit leader is not to hold her back -- it is to help develop the leadership capabilities of newer Scouts who view her as a model to follow. 

This is where I come down:  Personally evaluate the character of the adults involved in your local OA group.  If things check-out, allow the elections.  A more-challenging leadership opportunity should not be denied to your young adult members.  If you sense questionable behavior, take appropriate action to prevent harm to our young people.

Reconciling vile acts and tragic impacts with the potential beauty of experiencing life seems so unlikely – so impossible.  And, questions which seem so distant to the bystander or uninvolved.  The Holocaust was “long ago”; South African apartheid was “far away”; and child sex abuse happened “somewhere else”.  As abused individuals turn to the aftermath of the bankruptcy I wish them comfort in however they continue processing their thoughts.

To focus the discussion, may I ask what your interests (if any) are for personal future BSA involvement?  Would there be any particular focus to that activity and is there anything you would wish to accomplish?

Dear Friend: 

Because of professional obligations toward a client, I have not been able to comment on the bankruptcy proceedings and have largely been absent from the site since the filing.  I posted these questions because I hope as a human being there is some potential for reconciliation as these matters continue to be processed by individuals.  Everyone is welcome to comment. 

Here's to a splendid Easter weekend for everyone, Cburkhardt

Involvement of Abused Alumni Post-Bankruptcy?  Other than persons appointed to serve on governance committees as a result of the bankruptcy settlement, do you think BSA alumni who were abused will return to serve youth in the BSA?  If so, what do you think they should or will do as BSA volunteers?  Is a sense of reconciliation or forgiveness likely or even possible?  Will BSA volunteer parents of today’s daughters and sons and those who step forward to lead the BSA in the future be perpetually held to account for the negligent oversight and evil acts of the past?  I ask commenters to be honest but also charitable in their views.  This is springtime and Easter – a time of potential renewal in all of us and the organizations to which we belong. 

YPT “Business as Usual” these days is “Hyper Vigilance”

A principal reason the BSA will continue is that YPT is taken very seriously by today’s unit leaders.   My personal YPT experience as leader of two units (Scoutmaster of Troop with 51, Skipper of Ship with 28), is that there is a highest-level of vigilance and enforcement in the YPT program currently in place.  Everyone is watching everyone.  The parents watch the unit volunteers.  The unit leaders watch each other, the parents and anyone who walks near a meeting or campsite.  The youth watch the adults and each other.  National is watching the councils and the councils are all over the volunteers and chartered organizations.  The chartered organization executive leadership regularly inquires about … just about everything.  The same takes place at summer camp and with council programs, such the Order of the Arrow.  Nobody is exempt from strict application of the YPT rules and parents freely make suggestions and report failure to comply with YPT in the strictest manner possible.  Non-complying people are excluded from the program the moment a risk is identified.

Evil exists in this world, so our two units will always be vigilant to protect our young people from evil individuals who would do them harm.  Our unit volunteers and I look forward to each upgrade to YPT and enhancement of training materials.  Enhancements to registration, camping and other key practices to choke-off remaining risk points will be welcomed.  That said, I have a hard time imagining how an evildoer could slip through the barriers our units currently maintain -- but I always assume there is someone out there who would try.  Perpetrators who might seek to do harm to our involved young people would pay, and very dearly.  I can say with pride that our youth participants are safer with us than they are at school, church, sports activities and maybe even at home.  We spend at least 25% of our time making sure this is working.  I would hope that even abused commenters on this site would be proud and supportive of our unit volunteers and, after visiting us, might even be comfortable allowing their children to join us – or even become leaders themselves.    

The above is just my personal experience and that of the relatively large number of youth, leaders, parents and chartered organization folks involved with our two units.  Because I am a very experienced scouter, some might think the above is an exception to a “looser” norm.  That is not my view, because this is what I observe of other units at our camporees and during summer camp.  Is vigilance encouraged by the bankruptcy and related proceedings?  Absolutely -- and I believe Scouting and society are favorably changed as a result.  What will not change is the need for vigilance and the wisdom of quality unit leaders.

The BSA will continue.  I look forward to the coming changes and the additional helpful YPT vigilance and enhanced protocols.  I look forward to a BSA that is worthy of everyone.  Even to those who experienced the unforgivable.

There are three purple national committee-oriented patches.  The National Executive Board (a huge group) has its purple patch worn by its members.  Just under them is the equally large National Advisory Council, which has its own patch.  It is mainly comprised of either former National Executive Board members who no longer want to fulfill executive board responsibilities or people who are being considered for National Executive Board membership or are being honored for distinguished service or financial contributions.  Finally, if a Scouter is formally appointed to the national committee system but not a member of the Executive Board or Advisory Council, that person wears a National Committee patch.  Members of small temporary committees to study and advise on a narrow topic are not formally part of the national committee system and are not provided a purple patch.  Perhaps that is what you mean by "sub-committee".   The national commissioner organization has its own patches, which are easily purchased and specialized for just about every function.  Of these patches, the Advisory Council patches are almost never seen, because it meets so infrequently and its members never wear uniforms (and therefore do not request them).  All of this information is likely outdated due to the bankruptcy and the inevitable sweeping-away of the previous and complex national BSA governance system.

From your explanation, it seems clear that Bob is not adding value in delivering resources and constructive oversight from the CO.  My prescription would be to have a senior Council volunteer officer meet with the executive officer of the CO (one is always identified on the Charter) and make a change.  The unavoidable solutions are that either the CO steps-up and replaces Bob with one of the CO’s real members, or the Troop volunteers and CO sever the relationship and the Troop moves to a different CO.  Trying to baby-around with the situation by working with Bob to accommodate his desires is going to fail.  Cut directly to a solution by involving authority.

As for Dave's attitude toward COs, I think COs are a great resource when properly engaged and the unit leader understands and cooperates.  I base this on being a unit leader of both a stand-alone all-girl Troop and a Ship. 

The Troop CO is a modest Episcopal Church where the COR and Committee Chair are on the Vestry (the Episcopal Church term for the volunteer “church council”).  They deliver scads of resources and solid advice.  They get the members of the Parish involved in supporting us.  Regarding the few incidents when I had a parent or outsider causing unusual trouble, they handled it so I could continue to be productive.  The troublesome “Bobs” of Scouting are easily dealt with when the Troop CO relationship is productive.  The executive officer and COR handle it and the “Bobs” either become cooperative or their relationship with the unit is terminated.

The Ship CO is our metropolitan-wide Coast Guard Auxiliary Division.  They get our young people access to everything and help provide the program instruction.  They stand behind our Skippers Staff and me in a visible way.  The Division Commander is the Committee Chair and one of his subcomponent Flotilla Commanders is the COR.  The Coast Guard is well represented on our committee.  They regard the Ship as truly a part of their mission.  This CO would immediately sense a “Bob” personality and prevent trouble from the start.

Having an effective CO and obtaining meaningful benefits from the relationship is not difficult.  The volunteers running the unit just need to make sure the COR is someone respected within the CO and then actually involve the person and the executive officer in the unit.  I invited the Church Rector (who serves as the CO executive officer) to visit our Troop at summer camp.  The Coast Guard Division Commander is a radio expert, so I had him teach the Sea Scouts a seminar on marine radio use.  Give them a chance to feel included and valued and you will have CO support.  Another benefit is that a good CO is a real help in providing a layer of YPT oversight.  Our COR really understands YPT and is very helpful in our avoiding inadvertent mistakes.  Some might fear a CO will bring in unknowledgeable meddlers into the troop environment.  While that is possible, it is not likely if the right people are involved.  The typical CO is loaded with Scouting alumni who can be effective volunteers.

For all these reasons, I hope the option of having a CO relationship will continue into the future.  Our two units would lose a lot if we were just tenants “using a room”.  The Sea Scout Ship would not be able to continue without the involvement of its CO.

Family Scouting:

As I have understood the BSA's use of the term "Family Scouting", it means operating a linked-Troop concept and not the idea of having non-Scouter family members going along on monthly campouts.  Our all-girl Troop is a stand-alone unit and is therefore not "Family Scouting".  I do not support non-Scouter family members attending monthly campouts and offer the following experience as support. 

For the last two years we experimented by celebrating the end of the program year with a combined May campout and Court of Honor at a nearby location.  The families were invited to drive out for a mid-day COH on Saturday -- and that worked perfectly.  We also invited families to camp overnight if they wished (there are special YPT rules for doing this, which we followed).  I will not be advising we allow them to camp with us next May, as some family members became meddlesome and disrupted the campout (and their own girl's participation and enjoyment).  Unlike Scouts, adult family members arrive with precise expectations of what their Scout and family should be experiencing, and this often differs from a traditional Scout weekend campout.  We actually lost a youth member over this, when a parent camping overnight declared that the Troop did not "measure up" to his childhood Troop memories because we did not require Scouts to participate in continuous advancement "classes" throughout the weekend.  A few others adults complained about the weather, food quality and similar matters -- on what anyone on this blog would regard as a "near-perfect" campout.  It would be impossible to provide a traditional outdoor Scouting program to Scouts if such family members and their disruptions were present on monthly campouts.  No Scoutmaster staff would be willing to deal with the accompanying disruptions.

"Family Scouting" in its strict implementation is the sharing of a Chartered Organization and Troop Committee.  Problems arise when Troop Committees and Scoutmasters break the rules and start "combining" things.  I urge you avoid such things.

Shortage of Female Scouters with Outdoor Experience:

We are starting our third September as an all-girl Troop, and for the first time I believe we have a sufficient number of female Assistant Scoutmasters who are genuinely experienced and enthused about the outdoor program.  Our large all-girl Troop has ten ASM's and now four of them are experienced female campers who present great role models.  We have others who are willing to camp, but prefer to provide other needed service to the Troop.  I think this is going to be a significant positive change for us.  These people are necessary and exist -- but it takes extra work to find and involve them.

Scoutmaster of 48-Girl Troop Responds

Q:        Does anyone have examples of successful new girl troops that are actually operating independently?

A:        In our Council, we have a number of unlinked girl Troops that are large, outstanding units.  These Troops operate nearly identically to large, successful all-boy Troops.  I am Scoutmaster of one of these.  We have 48 girl members, 4 patrols a 9-person scoutmaster staff and an 18-person Troop Committee.  The Troop is fully youth led.  This summer we took 33 Scouts to our council summer camp and 14 to high adventure experiences.  We should have three Eagles by year-end and each is achieving this in a traditional and rigorous manner – none of those 18-month concentrated efforts.  You can learn about us at:  https://www.ScoutsBsaDcGirls.org.

Q:        Are the boy troops doing girls a disservice by offering the fully coed program?

A:        As we are all-girl, we do not have this experience.  My observation of troops that take the disallowed “girl patrol” approach is that the girl patrols are smaller, less effective and experience an inferior program in comparison to our large, traditional patrols.  At summer camp, there were 20 units in camp and seven were all-girl troops.  There were no integrated “girl patrol” troops present.  The all-girl troops appeared to be functioning well.

Q:        Do you agree that policies will change soon and that troops are going to go fully coed in the near future?

A:        I regretfully believe it will eventually happen and that the result will be reduction in the number of all-boy or all-girl troops.

Q:        If nothing changes, how are the struggling girls troops supposed to improve their quality of program so that it is on par with the girl patrols in the boy troops?  Should adult leaders share some of the leadership to help things get off the ground?

A.        I do not agree with the underlying assumption.  All-girl troops that operate in a full and robust manner are far better units for girls and offer them more opportunity than so-called “girl patrol” troops.  In our district, we have two unlinked and one linked girl troops.  All seem to be working out well.  The unlinked Troops are bigger and have better programs, because they have Troop Committees and scoutmaster staffs that concentrate on providing strong program for girls.  Girl troops that are struggling need help on the fundamentals from fellow unit leaders and commissioners.  The program and organizational structure does not need any change or adaption.

Q:        GSUSA competition.

A.        We do not compete with GSUSA in our locality.  We are intensely outdoor and they are not.  Our SPL and PLC run things.  In their local program the adults dominate. It is an apples and oranges comparison.  We have several youth and adult members who are former GSUSA members and three girls who are dual registered.  The above observations come from them and not me.

Q:        “My reason against girls in troops is that their natural instinct of organization disrupts the growth of boys learning to organize.”

A:        I think Eagledad is on to something here.  Our girls are highly organized from age 11 and onward.  They participate in two-hour planning sessions, sitting still and without losing a single thought.  Young boys are less likely to experience natural leadership growth in that circumstance.  Girls launch into more-sophisticated leadership efforts at a younger age because their fellow Scouts are at a similar developmental plane.  We should not hold these girls back from those kinds of activities if they are ready for it.  I think it would be less effective to mix same-age boys into that process, because boys should not be expected to “sit still” and “be quiet” like girls.  Boys should be free and encouraged to engage in boy-appropriate behaviors as they discover their own leadership styles.

Dear Moderators and Friends,

Last year some of you may recall that I actively hosted three lengthy postings in advance of the bankruptcy filing.  My purpose was to prepare the way for a great reorganization filing that I believed would result in a plan agreement and approval within six months or so after the filing date.  The discussions were serious and hundreds participated.  COVID destroyed that possibility, leading some claimants   Attorneys to smell blood in the water.  They have gone in for the kill and Scouting as we know it could end.

Several commenters joined claimants attorneys by going for the kill as well, primarily by posting one-liner personal attacks and down arrows against commenters attempting to balance the need to provide justice for victims of past with a desire to continue serving youth in the future.  They comment in disruptive ways and despise every aspect of our the national, council and district structures and volunteer leaders.  They further despise any citizen willing to work for pay to advance Scouting.  

The monitors of this site have chosen to allow the proliferation of often-abusive commentary.  This has led to a diminishment of quality and a need for thoughtful commenters to just take “time off” from the abuse on this site.  I regret to share that I have concluded some of these individuals are acting in concert with interests seeking to drive the BSA into liquidation.

If the moderators want to restore seriousness of purpose regarding discussion of the bankruptcy on this site, amid the crisis of whether Scouting will have a future at all, some of us might be willing to seriously re-engage.  For instance, the ultimate issue will be upon us in just a few weeks — whether and how much local councils should contribute to the victim’s trust in exchange for a local council discharge.  This should receive a thorough discussion in order to inform viewers on a matter they can impact in their local councils.

I comment  in my own name, am proud of everything I have said and thank Scouting.com for having allowed me to share thoughts during these years of change.  However, I encourage all thoughtful commenters to wait for a thoughtful reply from the moderators before investing serious time in posting analysis on this next, existential phase of the bankruptcy.  If management of this site wants a serious discussion on this potential “final issue”, it can have it.  However, it will need its moderators to directly curtail intentional disruptors.

Sincerely,

cburkhardt

Inquisitive:  The point is that eroding the confidence of BSA professionals and volunteers regarding the post-bankruptcy future of the BSA by continuing to pound negative PR well after the claims filing deadline has rationality for the claimant attorneys -- at least the ones that favor liquidation.  If the core of the BSA were to lose faith in its long-term future, the Judge could take that into account in determining whether to approve a reorganization or order a liquidation.

The future will largely be defined by the result of the private negotiations going on right now.  Because it may be extraordinarily difficult to come to an agreement acceptable to all major parties, a principal determinant of BSA's future may be  whether there can be a financial arrangement the Judge will deem acceptable to order as a cramdown.  She is uniquely empowered to balance all of the factors commenters have posted to this string.  She really has in her hands the discretion to make the call here.  That is why bankruptcy judges are often thought of as one of the most powerful commercial figures in the business and industrial world. 

One factor she will consider in approving a settlement or ordering a cramdown is whether the BSA has the ability to continue forward after the reorganization.  Claimant attorneys who are seeking a liquidation and destruction of the BSA know this and are taking public relations steps to make the post-bankruptcy operations appear hopeless.  They are, very directly, seeking to undermine the confidence of our professional and volunteer core through some of the outlandish things they have been saying.

 Here is the answer to the question regarding whether BSA professionals/retirees would have an economic incentive to favor liquidation over reorganization.  If the pension benefit guarantee fund were to take over the account, the longer-time and higher-paid employees will have their monthly payouts significantly reduced.  Some of the monthly checks would get cut from the 15K-20K/ month range down to $5K/month.  So they overwhelmingly favor reorganization.  For lowest-paid  or short-term employees there is not much of an issue.

The claimant's attorneys want the largest possible amount placed into a Victims Trust Fund, so they have the economic motivation to file as many claims as possible and argue that, within the totality of claims filed, all are valid.  The insurance companies want the lowest possible amount placed into the Victim's Trust Fund, so they have the economic motivation to uncover fraud and other facts that would diminish the value of the totality of claims filed.  In a way, the BSA is somewhere in-between, because it wants to see justice done for victims via payments, but also wants to retain sufficient funds and assets in order to reorganize post-bankruptcy.  The lawyers for claimants and the insurance companies will present effective arguments during the private negotiations from the extreme ends of the case -- indeed this is probably already going on.  If there is no agreement among the claimants, insurance companies and BSA, the Court will eventually decide what total amount it believes is required to fund the Victim's Trust Fund and force it on everyone in a process having the delightful technical term of "cramdown".  Or, the Court could determine there is a gross insufficiency of funds and the case could be dismissed and converted to liquidation.  As I've shared before in more detailed postings, despite the public relations rhetoric of some claimant attorneys, claimants would get less under liquidation because in liquidation BSA current and future retirees are in "first position" via a federal agency.

As to CynicalScouter's thoughts on the BSA expressing its views on the degree of fraud in a court filing, the BSA cannot be forced to do so and really would not benefit by doing so.  Whatever the BSA thinks about the veracity of the claims in totality can be argued privately during the negotiations.

One last item is that individual claims will not begin to be processed by the bankruptcy trustee until after the total amount of the Victim's Trust Fund is determined and mostly-funded.  At that point the BSA is more-or-less out of the situation, because it will be the claimant's attorneys vs. the bankruptcy trustee as to whether and how much an individual claimant should be awarded.  If the Trustee awards too much to individual claimants, it will drain the trust fund too quickly and run out of cash -- looking pretty stupid in the process.  If the trust fund was to run out, the BSA cannot be required to contribute more.  I suppose former BSA personnel or volunteers might be accessed as witnesses in those trustee proceedings, but the BSA and councils (only the ones that contribute to the trust fund) will have already had their liability discharged at that point. 

Remember, the current process is that all parties are trying to negotiate an overall dollar amount that goes into a large trust.  The existence of fraud at this point is a factor that the trustee and judge take into account in determining the overall amount necessary to pay valid claims.  If the trustee/judge conclude that a percentage of the claims are likely to be fraudulent, they will order a smaller amount to go into the trust.  The insurance companies are just trying to lower the overall dollar amount of the trust at this point.  If their allegations prove true, the amount to fund the trust will indeed be smaller.  The BSA can simply let the insurance companies carry the burden of making those arguments.   The insurance companies only need to make a stastical case at this time supporting an overall fraud level.  The resistance on the part of claimant’s counsel is calculated to deny the insurance companies facts to argue fraud in the negotiation.

Individual claims will be processed only after the trust is established.  The trustee will evaluate the claims for truthfulness only at that time.  Those who have submitted fraudulent claims can be subjected to criminal or disciplinary penalties.  I once experienced a bankruptcy judge disbar from bankruptcy practice an opposing attorney for having encouraged his client to run up her charge cards just before filing a personal bankruptcy.  The lawyer lied about it to the judge.  When I brought the bankrupt client into court and she testified the guy told her to do it, he was banned from the court.  If the coalition attorneys conspired to defraud the court, they will eventually be held to account.
 

Claimant’s counsel, who hope to make billions and retire afterward,  might view professional discipline  as a cost of doing business if they are able to generate sufficient fees from their non-fraudulent claims.

Quick answer to CynicalScouter:  I think a reasonable funding window could be 1-2 years.  That is plenty of time to marshal assets and submit a trust contribution.  Just my speculation though.