CynicalScouter

Once again BSA is stretching mediation privilege to the limit. Now it is Green, who again was NEVER a mediator or a mediation party, claiming mediation privilege as to why he won’t turn anything over “Mr. Green, for his part, has asserted mediation privilege to withhold hundreds of documents when he was never appointed mediator of anything. The Moving Insurers attempted to resolve the issues covered in the Motion to Compel with Mr. Green prior to filing. But Moving Insurers were communicating with counsel for Mr. Green until September 16, 2021 when Mr. Green’s counsel only then confirmed that Mr. Green was not a party to an executed mediation agreement in these cases.”

Another: they are demanding disclosure from BSA about why the coalition plan to get paid which the judge previously rejected in the RSA is being put back in as a plan 5.0 again they want the judge to order disclosure over the weekend https://casedocs.omniagentsolutions.com/cmsvol2/pub_47373/358b9ecb-570b-495c-920e-cdd2caca3339_6284.pdf

Going to be coming in all weekend long I think. latest: insurers demanded documents and disclosure from Eric Green the proposed settlement trustee. Reading between the lines of the brief he told the insurers to go away. The insurers are insisting on discovery about Green and his ties to Brown Rudnick, why he was rejected as a mediator, etc. AND they want the disclosure before the September. 21 hearing. https://casedocs.omniagentsolutions.com/cmsvol2/pub_47373/503ae7b0-6c44-4cc8-96aa-5377439f7252_6282.pdf

The TCC is now going after e aggregators as well. https://casedocs.omniagentsolutions.com/cmsvol2/pub_47373/b1ef0e34-e1b2-4e08-8518-ba80917eb5c1_6271.pdf In short the insurers have gotten permission to depose and get document production from the aggregators and the insurers have to share what they get with TCC. however in the unlikely event the insurers don’t pursue discovery the TCC wants a placeholder: if the insurance companies don’t depose the TCC will. Why would they want this? If the insurance companies cut a deal that leaves the TCC all alone. this could be nothing but the TCC being safe or it could mean that they’ve got wind of century ready to cut a deal.

The lawyers will claim they didn't do it, the aggregators did, I suspect.

Correct, anyone can file anything. But the motion to dismiss will appear based on the SoL.

Let's be clear: the Coalition has already admitted to some of the practices the insurers are alleging, they are just claiming they had a good reason/were justified. https://casedocs.omniagentsolutions.com/cmsvol2/pub_47373/872931_2043.pdf "8. As the bar date deadline approached, law firms were left with a choice: file the attorney-signed form based on the information gathered to date or file nothing and put the client at risk of being denied compensation for his or her injuries. This timing is made clear by the Insurers’ own Motion. Of the 15 attorneys the Insurers seek to depose for allegedly signing too many proofs of claim in a day, those proofs of claim were executed in the final week leading up to the bar date. See Motion at 5. Certain of these attorneys’ law firms filed several thousand claims, only a small percentage of which were attorney signed.3 9. But putting this aside, a reasonable decision under the circumstances was for the attorney to file the attorney-signed claim form, as permitted by the Bankruptcy Rules and this Court’s order. See Docket No. 1551; FED. RULE. BANKR. P. 3001(b); FED. RULE. BANKR. P. 9009(a). The alternative—miss the bar date and place the client in a position where he or she could be denied compensation—was not a viable option. 10. The fact that many attorneys—well over 15— when faced with this choice, filed attorney-signed forms—in some instances all at once and in a single day—does not indicate “outright fraud,” violations of “Rule 11,” a failure to conduct a “pre-complaint investigation,” or that lawyers sat at a desk and signed claims “every 32 seconds.” Motion at 2, 15, 25. It suggests that attorneys made a proper decision under the circumstances to protect their clients’ rights."

Which is absolutely their defense: we were running out of time so we have to make a decision: to NOT get a claim in or to mass sign. They admit they mass signed.

How dark and wide does the cloud need to be before the judge issues an order asking for ALL claims to be vetted now? This is the conundrum. The insurers attempted an "omnibus objection" to ALL claims and at the time she said she didn't even think she could do that. But what might happen if, say, she was convinced that claims coming from particular aggregators were no longer prima facie valid? Now, instead of 82,500 claims, we have 10-15 thousand? That may be something I can see her chewing on.

But much of this is speculative. Out of the 51,000 or so time barred claims, how many would be filed/convert to state lawsuits? We have one data point: NY, where 5,100 claims turned into 1300 or so lawsuits, around 25%. Threatening insurance companies with "I'll see you in court" is somewhat of an idle threat. Insurance companies LIVE in court. But let's plot this out. 51,000 claims and 1% (510) turn into lawsuits? Do you know how much civil litigation there is nationwide each year in state courts? 15 million annually. Tort cases? At least 490,000 cases (likely more) https://www.courtstatistics.org/csp-stat-nav-cards-first-row/csp-stat-civil But let's bump that up to 5100: 10% of all time barred cases turn into lawsuits. 5,100*100,000 for settlements= $5.1 billion or roughly what BSA says is owed all victims (they put it as $4-$7 billion). So, the insurers have a choice: Pay out $5 billion Pay out nothing, dare the plaintiffs to back into state courts and, against ALL odds, get the statute of limitations waived or otherwise overcome. THOUSANDS of times. It ain't happening. In other words, if the threat is "we will just go back to state court" I suspect the answer is going to be "Be our guest".

Stenulson's declaration. This is going to be devastating. Details about the claims were made up: "Sometimes we were told to change the details of a caller's story in order to make their claims see more viable, but I was not comfortable with that directive." Blank claims had the signatures of claimants forged. Specifically, the signature that the claimant used ON THEIR CONTRACT WITH AIS OR OTHER LAWFIRMS were then cut-and-pasted onto the Proof of Claim. Claimants who had changed their minds were told their claims would be removed. They weren't. Duplicate claims were filed. Claimants were told the law firms were shooting for at least $100,000 per claim. Claimants were told their claims would be anonymous (not true, the court was clear they would be confidential, not anonymous). And she's already signed a document under perjury and is apparently prepared to testify to this on September 21.

Official agenda for September 21. This is going to take days. https://casedocs.omniagentsolutions.com/cmsvol2/pub_47373/4f52d21d-78cf-439e-8095-b3773e04d777_6258.pdf I would expect Item #8 (TCC efforts to delay hearing at least 2 weeks) to be first. Then, if the motion is rejected, jump to Item #1 which is Plan 5.0. BSA does not plan to call witnesses. HOWEVER, Century will, including Mosby and at least 6 people associated with the claimed fraud in the collection of proofs of claim including Kosnoff. Roger Mosby, President and CEO- Boy Scouts of America Pretty clear why they want him. What did you know, and when did you know it. Erich Speckin, President of Speckin Forensic Laboratories Charles Fox, Vice President of Operations and Special Investigations Unit at CoventBridge Group Larry F. Stewart, Chief Forensic Scientist and President/Owner of Global Forensic Services, LLC Paul Hinton, Principal of The Brattle Group in New York City David McKnight, Senior Associate in the Litigation and Finance Practice of The Brattle Group These are forensics, signature and claims experts who will testify that the lawyers signatures were mass-stamped or outright duplicated on these forms (and therefore the attorneys failed to do their due diligence) AND that in some cases the signatures of victims appear forged Veronica Stenulson, Former employee of Reciprocity Industries LLC (August 2020 through November 2020) https://casedocs.omniagentsolutions.com/cmsvol2/pub_47373/e6463ebf-5761-47e7-9e21-2a9358c45549_3857.pdf Will testify that she was part of the mass aggregation of claims and that unsavory/unethical/illegal means were used to get proofs of claim Tim Kosnoff, Licensed attorney that established Kosnoff Law PLLC Will be called regarding a statement he made in his Rule 2019 disclosure that https://casedocs.omniagentsolutions.com/cmsvol2/pub_47373/f26f9981-f41d-42bd-adbd-d7996d12f44f_5924.pdf So, clearly in addition to any legal arguments against Plan 5.0, the insurers are going to be going full bore into "the claims are fraudulent" route.

Depends 1) Under the alternate-CO model, the other CO. For example, while you may be renting space/facility use agreement with the Methodist church, the VFW post is your CO, therefore someone selected by the VFW signs. 2) If you are using the Council-as-CO model, someone from council.

The same way that California can impose higher emissions standards than other states. The Supreme Court has said that the commerce clause does not mean states cannot impose requirements on businesses doing business in that state PROVIDED it treats its own "domestic" businesses the same. For example, if California's emissions rules said "All cars manufactured outside of California are not required to meet the emissions standards; all other cars must" that would violate the commerce clause. It's sometimes called the dormant commerce clause: states are free to enact their own tort laws SO LONG AS they hit every company from everywhere equally. https://en.wikipedia.org/wiki/Dormant_Commerce_Clause First question, does NY opening up its statute of limitations impact interstate commerce? Sure. Second question: does it have as its PURPOSE to discriminate against commerce from other states? In other words, is NY picking on BSA because BSA is in Texas? No. Third question: does it have as its EFFECT to discriminate against commerce from other states? In other words, even if NY didn't mean to pick on BSA because BSA is in Texas, is that the result? Again, no. That ends the discussion. But the fourth question (we didn't get to) is even if NY could be shown to be discriminating against BSA because it was based in Texas, is there some justification for picking on Texas? Etc.

Which is why Zalkin and Pfau have argued one way to address this is apply the scaling system (Gray 1/2/3 or some other system) on the FRONT end. For example: 1) A victim from an open statute of limitations state gets $1 or 1 vote. 2) A victim from a closed state (like Alabama) gets 10 cents or 1/10 of a vote. This addresses the imbalance of a) victims with live claims in the here and now against b) speculative claims that may or may not ever be eligible to enter in a state court some day in the future. It also means trying to parse out 82,500 claims and "weighing" them and telling some victims they are more or "less" worthy than others. Nightmares on top of nightmares. BSA called this putting the cart before the horse: use the scaling factors at the BACK end (settlement trust), not now.

This is where civil procedure folks go insane, but, GENERALLY (and note the word here, GENERALLY) the laws of the state in which the alleged tort took place are applicable as to any/all defendants If a North Carolina scout was taken to a summer camp in Georgia and sexually abused there, Georgia law applies. Therefore, if the NC scout wanted to sue, they would have to go to a GA court and sue the LC and BSA under Georgia law. Now, let me give two big, massive, exceptions. 1) Long-arm statute: allows for a court to obtain personal jurisdiction over an out-of-state defendant on the basis of certain acts committed by an out-of-state defendant, provided that the defendant has a sufficient connection with the state. New York is famous/infamous for this. If you are a Texas company and you advertise to customers in NY your defective toaster on your website, NY will assert you are doing business in the state and therefore subject to NY courts (and NY tort law). There's another version of this in... 2) Place of occurrence was NJ, NY, or DC (not Georgia): Let's use that North Carolina scout abused in a Georgia summer camp for a second. The council controlling that camp is a Georgia council. Based on the statute of limitations in GA, the scout's claim against BSA and the LC ran out of time years/decades ago. BUT some lawyers have tried to claim that while the ABUSE happened in Georgia, the NEGLIGENCE AND COVER-UP of the abuse was directed and controlled by BSA National which was headquartered at various times in DC (Congressional Charter), NJ, and NY, had the IV files, etc. Those three are important because they have opened up the statute of limitations (NY was temporary) in the past. This is a novel approach and argument and so far has been untested in court (the bankruptcy paused those cases for now). The other version is that NC/GA scout again. The abuse was in Georgia, but the abuse also took place back at the troop in NC (which had a statute of limitations window open). Therefore, while the GA abuse may be time barred, the NC abuse may not be.

So, what would you propose on the subject of voting: review all 82,500 claims NOW and those with a valid claim not prohibited by a statute of limitations gets to vote?

Awesome. You assume all CORs were elderly (they were not) and if you want to claim all charter agreements going back to at least 1920 were signed by senile old folks (therefore the COs are not liable) be my guest.

Nothing new that I can see: plan is wonderful, blah, blah save your objections for Confirmation, but this is new (or maybe I missed it) The Best Interests Test Does Not Apply to Non-Profit Debtors and, Even If It Does, It Cannot Be Determined at the Disclosure Statement Stage And BSA is making the case for why all claimants, even those in SoL states, should get a vote. The Temporary Allowance of Abuse Claims at $1.00 Solely for Voting Purposes Is Proper BSA is arguing, in effect, that giving $1 to EVERY claimant now is find since the settlement trustee can figure out the SoL issues later, and oh by the way, this is the best and only way to do this, otherwise we'll spend forever and a day deciding who gets to vote. So, it is futility argument: we are letting everyone vote NOW because the alternative (trying to parse out 82,500 claims values including statute of limitations issues) is "unworkable".

Section 1 is a lengthy discussion of why everything the insurers say is wrong, wrong, wrong in opposing the plan Section 2 amounts to "attorneys for lots of victims agreed to this deal, so let's make this deal happen" ("The Amended Plan and the TDP are the Product of Extensive Negotiations Between the Most Significant Stakeholders in the Chapter 11 Cases.") A key element: the Trustee will be allowed to permit claims outside the statute of limitations but subject them to an as yet undisclosed "scaling" factor (see page 22) They cite to TDP Art. VIII.E.(iii) which cites to "Schedule 1" which I cannot find. So, this brief is all about "insurers are wrong, wrong, wrong". Not a word about the TCC. BUT BSA just filed their reply, so let's see. BSA Reply brief against the TCC. 218 pages here folks. Stand by https://casedocs.omniagentsolutions.com/cmsvol2/pub_47373/94298a74-87db-4cbf-a0aa-5de1846320fa_6249.pdf

FCR/Coalition support for Plan 5.0 600 pages, but only 1-28 are discussion, rest is depositions https://casedocs.omniagentsolutions.com/cmsvol2/pub_47373/8282a0ca-1622-4461-910b-2868d85658e9_6246.pdf

Ad Hoc Committee of Local Councils filing in support of Plan 5.0 and opposing TCC motion to adjourn for at least two weeks https://casedocs.omniagentsolutions.com/cmsvol2/pub_47373/9c040598-7905-453b-b4c7-1aa8020f2f76_6245.pdf Summary Plan 5.0 is really just Plan 4.0 and the RSA with a few changes. Therefore, no need to delay the hearing. The court already approved the RSA which forms the basis for Plan 5.0 so again, no need to delay. "neither the BSA nor its creditors can afford more delay" Plan 5.0 addresses most of the TCC's complaints about lack of disclosure in Plan 3.0 and 4.0. All local council contributions are now published. All the other problems the TCC has should wait until plan confirmation, let's just get to a vote. BSA is running out of money, which means BSA has less to contribute to a Settlement Trust, which has already dropped $30 million The victims deserve to get their money faster As it is, BSA's already having this drag out across the critical recruiting season (September/October) and its primary fundraising season (November/December). Longer this goes, less likely it is BSA survives.

Judge Likely to Rule for Boy Scouts in Trademark Case With Girl Scouts

One thing that struck me about this is how that $500 million + $100 M came about and how the language changed from Plan 4.0 to now 5.0. Plan 4.0: Local Council Settlement Contribution – General https://casedocs.omniagentsolutions.com/cmsvol2/pub_47373/1ec7e1fa-b4a3-43e4-aca0-6539d0b659e2_5484.pdf "(1) at least $300 million of Cash to be paid on the Effective Date; (2) Unrestricted properties with a combined Appraised Value (as defined below) of $200 million (the “Property Contribution”), which shall be reduced on a dollar for-dollar basis by any cash payment amount in excess of $300 million, provided that the methodology and procedures related to property selection and acceptance are provided for below; and (3) the DST Note, in the principal amount of $100 million, issued by the DST on or as soon as practicable after the Effective Date.3 The principal terms of the DST Note are set forth in the DST Note Mechanics described below." Did you catch that? Plan 5.0: Where did the property go? "(a) $500 million, comprised of at least $300 million in Cash with the balance in property, exclusive of insurance rights, (b) the DST Note, a $100 million interest-bearing variable-payment obligation note issued by a Delaware statutory trust on or as soon as practicable after the Effective Date, and (c) the Local Council Insurance Rights." So, gone is even the vaguest hint of $200 M in property. So, and I should have done it earlier, how much property is being offered for the deal? Around $111 million. The rest is cash ($408 M)

Yeah, and I admit I could have been clearer, but I did note my data was But I think this is the broader point. Which is the broader point. The way some people were acting it was as if their entire council was going to be reduced to 3 Cub Scout belt loops and a pencil. MOST councils, even with my limited data set, were taking no more than 16.39% cuts to Total Net Assets. 17% is not terrific, and it will cause some councils to be forced to merge, but it is not catastrophic across the board.