CynicalScouter

Tanc: They aren't asking for a Trust Distribution Procedure, they are looking for a Trust Adjudication Procedure where the trustee (hand picked by the BSA and Coalition) will, in effect, rule against the insurance companies. Moreover, the plan violates the insurance company's rights under the insurance policies: they have the right to go to state court and have due process in a case by case basis.

Insurers make what I think is a good point: the FCR and Coalition want to make this look, talk, walk, and function as if the settlement trustee's decisions are the decision of the bankruptcy court and therefore binding on state courts. The insurance companies want a very clear statement that is NOT the case, that the insurers have their own rights to defend and due process in a court, etc.

For those claiming Kosnoff's Magic Formula that if only the bankruptcy judge lets these claims go back to state court the insurance companies will roll over and play dead. The insurance company lawyer today is, if you read between the lines, BEGGING for this to go back to state court because they know 59,000 claims go away. And because they think they've got a better chance to settle for less for far fewer cases/claims.

This is that Ohio federal case https://www.dispatch.com/story/news/education/2021/09/22/strauss-abuse-federal-judge-dismisses-strauss-abuse-victims-cases-against-osu-citing-statue-limitati/5819599001/

Judge: What do the insurers want for them to NOT object to the plan? Or are you just going to come back and object no matter what I rule? Lawyer: Cannot commit to saying that if you address all our issues TODAY we won't still object. Also, insurers are really, really pushing that the 59,000 claims are timed barred, and therefore should be zeroed out. Those claims should be stricken. Ohio State abuse case, another federal judge ruled that the statute of limitations had expired, therefore must strike the BSA claims that are time barred. This ruling was from LAST WEEK. Therefore, those 59,000 claims need to be removed.

Insurance company objects to $3500 as that would be binding on the insurance companies AND that they were either time barred and/or fraudulent in at least SOME cases.

Perhaps I am wrong, but I thought it was 1) TCC hired CEBR 2) BSA hired JLL 3) Someone hired Keen Not that all three were contracted by TCC. I could be wrong and happy to stand corrected.

Insurers first up: they are offering a "road map" and asking the judge to specifically say what she will/won't do at confirmation especially as to. Coalition fees Third party releases and especially because the abuse occurred not at hands of debtors, but non-debtors overseen by non-debtors LCs and COs Alters contractual rights of insurers and attempting to bind insurance coverage and claims now. This is, in effect, "rule against us your honor and we are going to appeal based on these three items."

Let me show why this is impossible to do for 82,500 claims. Variable 1: Value of claim. For a Tier 1 claim, the BASE claim is ranged from $600,000 (minimum) to $2,700,000 (max). The other tiers are similar. Variable 2: Mitigating Scaling Factors: there are at least 4: Absence of Protected Party Relationship or Presence of a Responsible Party that Is Not a Protected Party; Other Settlements, Awards, Contributions, or Limitations; Statute of Limitations or Repose and BSA’s Discharge; Absence of a Putative Defendant Variable 3: Aggravating Scaling Factors: Impact of the Abuse (Mental Health Issues, Physical Health Issues, Interpersonal Relationships, Vocational Capacity, Academic Capacity, Legal Difficulties); Abuser Profile (the more victims, the more money); Nature of Abuse and Circumstances So just based on this, it is possible to take a single Tier 1 claim and come up with something. Just the statute of limitations issues (Gray 1/2/3 system) ALONE had ranges within ranges (10-25% in Gray 1 states, etc.) So telling a particular victim "you will receive $10-$100k" would be impossible or misleading.

The judge's point was that she wanted "illustrative" examples (victim X, with abuse type Y, in state Z = $A) but that with so many variables offering something more formulaic (which I think TCC was pushing for) to the tune of 82,5000 claims would be impossible or misleading.

Yep. Especially since at recently as LAST WEEK the BSA wanted that option on the ballot. https://casedocs.omniagentsolutions.com/cmsvol2/pub_47373/ce88d5fe-54e9-4b60-a100-584d8909acec_6215.pdf

This is what BSA wants the ballot to look like. The TCC wants each ballot to have the same Accept/Reject box. Immediately below will be a accept-the-$3500 option. This is what it will look like (ignore the blue lines, they'd be black in the real thing)

As expected, the BSA has now changed the way it wants to handle the $3500. Plan 5.0 "In addition, each holder of a properly completed non-duplicative proof of claim asserting a Direct Abuse Claim who filed such Claim by the Bar Date or was permitted by a Final Order of the Bankruptcy Court to file a late claim may elect on his or her Ballot to receive an Expedited Distribution, subject to criteria set forth in the Trust Distribution Procedures, in exchange for providing a full and final release in favor of the Settlement Trust, the Protected Parties and the Chartered Organizations." "In addition, each holder of a properly completed non-duplicative proof of claim asserting a Direct Abuse Claim who filed such Claim by the Bar Date or was permitted by a Final Order of the Bankruptcy Court to file a late claim may elect on his or her Ballot to receive an Expedited Distribution, following the Effective Date, subject to criteria set forth in the Trust Distribution Procedures, elect to receive an Expedited Distribution in exchange for providing a full and final release in favor of the Settlement Trust, the Protected Parties and the Chartered Organizations." So there will be NO $3500 option on the ballot. All victims will be lumped together for voting purposes.

Latest from last night 1) The Plan 5.5 redline is out showing what did and did not change from 5.0. https://casedocs.omniagentsolutions.com/cmsvol2/pub_47373/fa044761-2541-4ebe-9214-2a59347347af_6385.pdf 2) The TCC has filed its proposed solicitation plan and it includes separating out those who want the $3500 payment from those who want to go the settlement trustee route. https://casedocs.omniagentsolutions.com/cmsvol2/pub_47373/32699b05-5103-4435-b6bc-042bf4ce2fa3_6381.pdf 3) Century, which was given permission by the court to depose aggregators but NOT lawyers, went ahead and tried to depose their paralegals instead. Neat trick, but the lawyers are now demanding the court quash the subpoena. https://casedocs.omniagentsolutions.com/cmsvol2/pub_47373/7351aa13-5e91-426f-bc39-8a11feb57867_6380.pdf 4) The FCR and Coalition have submitted a proposed "Plan English" document for Plan 5.0 or 5.5 https://casedocs.omniagentsolutions.com/cmsvol2/pub_47373/45a09064-51b5-4645-8593-7c9899e9abbc_6379.pdf 5) The new BSA disclosure statement https://casedocs.omniagentsolutions.com/cmsvol2/pub_47373/fa044761-2541-4ebe-9214-2a59347347af_6385.pdf

There is already tons of criticism the Eagle program has been watered down to nothing. Telling scouts that they only need 5 required MBs and then can pick 16 of whatever they want is never ever going to fly. at that point if all they need is five required. you could probably complete all Eagle MBs in a month between coin collecting, fingerprinting, and a host of 3-4 hour classroom type MBs.

Not true. Right now there are 12 required plus 9 elective. This would take it to 13 and 8, which was is exactly where it was from 1936-1958. And in fact 1958 raised the number of required to 16. 1965 dropped it back to 11 required 10 elective. And keep in mind unlike in the past several of those “required” have options such as hiking/swimming/cycling or sustainability/environmental science.

Ok, I'll admit to being lost. There's a LOT of hay here, and I cannot find the particular needle that got changed (this is why I love redlined versions). I'll wait for the TCC to indicate what got shifted.

So Century has now issued a subpoena for documents to another aggregator: CaseWorks https://casedocs.omniagentsolutions.com/cmsvol2/pub_47373/8a2ffeb3-5bf3-4357-9e17-1a9545061f12_6378.pdf What specifically are they asking for? This gets back to the forged-signature issue. The want all original proofs of claim and the metadata (to get at I suspect the claim that aggregators changed details of claims). They also specifically want anything to do with Kosnoff because he had claimed someone missued his e-signature or name. I get what they are trying to do, but as the judge I think at one point noted: the fact that attorneys may have forged names onto claims does NOT make the claims automatically false or invalid. The fact that the attorney for the claimant was forging documents should NOT be held against the claimant.

BSA Modified Plan 5.0 (hereafter Plan 5.5) released https://casedocs.omniagentsolutions.com/cmsvol2/pub_47373/2331075e-79d2-41e9-b7ea-86cf476bf03a_6377.pdf Looks like the changes are all in Article X. Effect of Plan Confirmation Channeling Injunction Insurance Entity Injunction Injunction against Interference with Plan Releases Exculpation Injunctions Related to Releases and Exculpation It will take some time to read over.

It is going to be coming in fast and furious tonight. The latest: 1) FCR/Coalition proposed letter for the solicitation package https://casedocs.omniagentsolutions.com/cmsvol2/pub_47373/01a91144-1556-4ebc-9af3-4c9530df76ac_6376.pdf All emphasis in original. Note what gets emphasized: how much and when. "The Coalition and the FCR have worked tirelessly on behalf of survivors to negotiate the terms of a the Plan, which will promptly provide over $1.8 billion to be paid to survivors. It also provides the framework for substantial future settlements that will increase the recovery for survivors. The Plan is currently supported by representatives of approximately 70,000 survivors. The Plan represents the only assured path to recover and pay billions of dollars to survivors of sexual abuse in the BSA’s programs. The only other path for survivors likely involves years of litigation and significant risk that survivors will receive much less than they are assured of receiving under the Plan. In our view, the settlement embodied in the Plan represents the best possible outcome for sexual abuse survivors. It will result in meaningful distributions of billions of dollars in value to survivors following confirmation, without lengthy, expensive and harmful litigation of individual abuse claims. A very brief description of the Plan terms, as pertaining to you and your recoveries, is contained below." 2) TCC files its proposed confirmation schedule. Confirmation hearing pushed back to February 28, 2022. Again: BSA has said it is out of cash by 1Q 2022. https://casedocs.omniagentsolutions.com/cmsvol2/pub_47373/10798e10-7ef0-4fdc-949b-f9e992f936df_6375.pdf

Most people haven’t.

I can think of two reasons: 1) “I want closure”. The prospect of months if not years before the settlement trustee reaches decisions in many of these cases may not be palatable. 2) “I want privacy/I was told this would be anonymous”: there are a lot of victims who were told or expected that all they had to do was file a claim “anonymously” one time last year and never have to do anything else. If they want more than $3500 then at the very least there will be a second round questionnaire that will be used by the trustee along with likely interviews. Victims may not want to subject themselves to that.

Oh and this from Zalkin tells me it is not just changes to disclosure; it is possibly Plan 6.0 (or at the very least 5.5) ” it now appears that the Debtors intend to file a further revised Plan in which Direct Abuse Claimants will not make the election whether or not to receive an Expedited Distribution until after the Plan goes effective.” This all but guarantee la 67%: the people looking to get $3500 and get out will swamp those with higher claims in state courts.

Zalkin is supporting TCC effort to classify claims. Many if not most of his clients are California. He is the one who said in the hearings he could walk into state court and get millions for his clients and has done so. Moreover he previously pushed to have claimants with time barred claims to be removed from voting. https://casedocs.omniagentsolutions.com/cmsvol2/pub_47373/74bba80b-cf0c-4845-92a4-f57c4cb25c6c_6373.pdf ”Whatever the intent, the practical effect of the Debtors’ sudden reversal of position on this issue is to shine an even brighter light on the infirmities of the Debtors’ proposal to classify Direct Abuse Claimants that elect an Expedited Distribution together with those Claimants that do not. A Direct Abuse Claimant that elects a prompt and certain de minimis Expedited Distribution is simply not “substantially similar,” within the meaning of section 1122(a), to a Direct Abuse Claimant that elects to await a determination of its claim value in accordance with the TDPs for at least two reasons…”

My question and this I am not clear on is whether or not the payment timing will matter. For example, does opting for the $3500 mean you drop your claim/you get no vote? You just get a check now? Or does it mean "I vote to approve the plan and, if approved, I'll take the $3500 once approved"? I'd want to see the exact details here. If that $3500 is contingent on a) a yea vote that b) results in an approved plan that is different than “Here is $3500 drop your claim, renounce your right to vote, and go away”