CynicalScouter

My concern here is what is LEGAL. Unjust and immoral aside, a federal bankruptcy judge cannot wave a magic wand and suddenly resurrect 58,000 time barred claims. Not even the TCC, FCR, or Coalition are arguing that's possible. So, can you cite to a single case where a bankruptcy judge resurrected thousands of claims beyond state statutes of limitations? And relatedly, and honestly, what is your particular end goal here? If it is 100% pay out on all 82,500 claims (as it appears to be) how and where exactly do you think the court will get that $104+ billion (at least) from and on what legal argument? Not moral argument, legal argument?

I can find no basis in law that would allow a bankruptcy judge to, in effect, set aside the statutes of limitations in all of these states ("accident of geography") to the tune of 58,000 cases in one fell swoop. If you can provide one, by all means please do. As for the "unavailability of insurance": you cannot get blood out of a stone. If BSA doesn't have the money and doesn't have the insurance coverage to pay out all 82,500 claims at 100% of value (TCC charitably estimated at $104 billion), how exactly it you think the bankruptcy judge can make that suddenly appear? Ordering the insurance companies to pay out on claims that by their very terms are beyond the scope of coverage?

Here's a link to the case. https://www.casemine.com/judgement/us/5914ac6dadd7b0493473d2d0 Please folks note that this is unique to Illinois' fraudulent concealment statute (735 ILCS 5/13-215) which is among the most open in the nation. When the National Conference of State Legislatures, for example, examined this it noted that a host of states such as Mississippi do NOT allow fraudulent concealment to reopen or toll statutes of limitations OR interpret their statutes such that "The standards for proving fraudulent concealment of a claim are so high as to be impracticable." https://www.ncsl.org/research/human-services/state-civil-statutes-of-limitations-in-child-sexua.aspx

That number is derived from the BSA analysis of cases and has been cited by various parties in various briefs throughout the process. It was attached as an exhibit to the Second Amended plan. https://casedocs.omniagentsolutions.com/cmsvol2/pub_47373/213bd53f-b44f-45c9-97fc-246bcb7ca06b_4108.pdf The official numbers as used by BSA (and cited/referenced by the TCC/FCR/Coalition as well in the RSA, so they accept these as accurate) is All Unique & Timely Abuse Claims = 82,458 All Not-Barred, Unique & Timely Abuse Claims = 24,308 Therefore the math works as All Barred, Unique & Timely Abuse Claims (82,458-24,308) = 58,150

That case is not going to suddenly reopen 50,000 claims.

Oh I understand him completely. 1) BSA is utterly beyond redemption. 2) Even if BSA was worthy of redemption, the amount of abuse is such that there's no way it can be saved. I believe as he once put it there's too much abuse and not enough money. 3) Local councils are fruit of the poisoned tree that is BSA OR branches off that tree. 4) Therefore, Silverstein should immediately do the following as to BSA and the LCs. a) Declare all LC assets as part of the BSA "estate" (estate in the bankruptcy sense, not the probate/dead person sense). b) Appoint a trustee to take over BSA operations OR the BSA bankruptcy (or both) c) Said trustee, after having taken possession of all LC assets, will convert the BSA Chapter 11 to a Chapter 7 and immediately shut down all operations and pay out all claims, regardless of SoLs orf evidence levels. All claims are immediately deemed valid. 5) Silverstein should also immediately and simultaneously with 4) as to the insurance companies declare that all claims are valid, regardless of SoLs or evidence presented, as applied to all insurers at their full maximum values. This includes, but is not limited to, setting aside the Hartford agreement and declaring all Chubb assets as are necessary to achieve maximum compensation for all victims. If that means Chubb goes into its own Chapter 11, so much the better.

It may be compassionate, but it has no basis in reality or law. The bankruptcy court cannot suddenly make valid a claim that, under state law, is invalid. If you claim is time-barred under state law, the bankruptcy court isn't suddenly going to make it so. That's why the "Gray" system was put in place to address those instances where it may or may not be possible, statutes of limitation notwithstanding, to press a civil case. And even then it is of questionable legality.

Yes, after the voting takes place. Why should someone with no valid legal claim (time barred) get the same vote as someone with no time bar? what is the legal argument for that? How is that fairness? etc.

The problem is “right thing” depends on perspective. One “right” argument is just let them sort it out later. Another “right” argument is vet now and limit voting and recovery to valid voters, which means 50,000 time barred claimants get thrown out.

And if I am the attorney for victims with valid claims worried my clients are going to get outvoted by invalid claims, I’d might just say “too bad, vet now, however long it takes” Every dollar to an invalid claim is one dollar out of the pocket of my client with the valid claim. Moreover those invalid claims dilute my clients vote (word used was “swamps” their votes). This is the problem with law. It usually is not good vs bad or evil. That is easy. Hard is two people sides both with valid and justified issues and the judge has to select which comes closer to justice.

Yeah, I worked for a firm once that had to do what was once called a "Chinese wall" although that term is no longer considered appropriate. Firewall works. In short, they'd file both or sit it out. Option 1 is attorneys for claimants in states where there is no time bar would file in opposition to the effort to allow those with claims to file. Attorneys for claimants in states with a time bar oppose. The two attorney groups would literally not be allowed to interact with each other on the case anymore. That might be really easier if the attorneys are in completely different states. The California office files one thing (no time bar) and the PA folks file in opposition. Option 2 is sit it out. Take neither side.

I understand. However, many if not a majority of the 14,000 claimants (through their attorneys) with non-time-barred claims disagree. And from the perspective of those attorneys, their job is the maximize the amount their clients get. Every dollar that goes to a victim without a valid claim (due to time-barred/statute of limitations) is one less dollar their client gets. The day is coming, and arguably already is here with some of the briefs, where there will be a reckoning between attorneys for claimants in time-barred states vs. attorneys for claimants in non-time-barred.

Now, to be fair, let me offer the counterpoint to the insurers wanting to vet/depose. There are various, but the Coalition objections are: https://casedocs.omniagentsolutions.com/cmsvol2/pub_47373/872981_2048.pdf 1) Now is not the time, wait for plan confirmation 2) Also, the time may not even be confirmation, wait for post-confirmation and let the settlement trust sort this out. ("To the extent that fraudulent claims exist, they can be vetted in accordance with trust distribution procedures post-confirmation. The Insurers offer no justification as to why this must occur pre-confirmation and in a manner that requires this Court to adjudicate thousands of abuse claims.") 3) 1,400 interrogatories/document production requests + 100 depositions is overly burdensome and disproportional to the needs of the case. If the insurers want to know how many sexual abuse claims are invalid/fraudulent, they can look through their own records of claims they've had to pay out on to figure this out. 4) This has nothing to with the question of whether the reorganization plan is LAWFUL. 5) Discovery this massive would obstruct the reorg plan. BSA has said it needs to be out by August (this was written in February, so keep that in mind) and therefore this massive undertaking would prevent that. 6) This is just a stall tactic by insurers, part of a long line of stalls. 7) The insurers have failed to show they have a good faith reason to ask for this. Etc.

Ah, but here's the thing. The disclosure statement contemplates weeding out the false and invalid AFTER all those claimants vote for the plan. The insurance companies are arguing along with some abuse victims lawyers that the invalid claims (time barred) have no business voting in the first place and that by allowing them to do so they are swamping/diluting the valid-voters. Vet first and let those with valid claims vote later. What the other parties are saying is that the Proof of Claim is prima facie evidence of a valid claim and is enough to get the 82,500 to vote their 82,500 votes.

But even before that is the issue of voting. If it can be shown that 1% of claims are invalid or fraudulent (more likely just invalid) then proceed. But as @Eagle1993so ably showed: there's going to be a percentage threshold where the number of invalid claims are so overwhelming that it would swamp the valid claims/voters. The attorneys for some victims have already said they think that has already happened NOW: 50,000+ claims are invalid due to time barred therefore let's not even waste time with this and declare those 50,000 off the table. The insurance carriers at least want to sample some on the theory that even within those 82,500 in general it is so rife with "fraud" (what the really mean is invalid for failure to meet an evidentiary standard, but "fraud" works better for them so whatever) that all 82,500 (or 14,000 with timely claims at least) need to be reviewed. Vet first, vote later. Just FYI: at 1 claim per minute, reviewing 82,500 claims would take 57 days NON-STOP. At 1 claim per hour, 9.5 YEARS. Non-stop

For those wondering what the insurance companies want to ask those 1,400 claimants if they get the chance, it is on page 32. https://casedocs.omniagentsolutions.com/cmsvol2/pub_47373/870498_1972.pdf Recognize that I post these questions because they do NOT name specific sexual abuse and I agree with the mods we do NOT want that here. However, if the mods need/want to alter and edit I am 100% fine with that. INTERROGATORIES 1. Describe each occasion on which you were sexually abused in connection with Scouting and/or for which You contend BSA, any local council of BSA or any sponsoring organization of BSA was responsible (the “Sexual Abuse”), including the nature, date(s), location(s) and circumstances of the abuse, and indicate whether the abuse occurred at a Scouting activity or event. 2. Please identify each person(s) that sexually abused You, including their name and position with Scouting, if known to You. If the name of the person(s) who sexually abused You is not known to You, please provide all information that you can remember about that person(s), including identifying all physical features that you can remember (e.g., hair color, eye color, height, weight). 3. Please describe the relationship of the person(s) who abused You to BSA and/or Scouting (i.e., troop master, fellow scout, parent volunteer), and how the Sexual Abuse was related to, or arises out of the activities of, Scouting. 4. To the extent that You were not involved in Scouting at the time of the incident(s) of Sexual Abuse, describe how You came to be involved in the Scouting activity or event where such sexual abuse took place. 5. If you have recovered a repressed memory, identify when you first remembered that you had been sexually abused, along with the event(s) that triggered that memory experience. 6. Identify whether and, if so when, you first sought treatment for the Sexual Abuse, along with the identity of the professional(s) and reasons for Your decision to seek treatment or assistance. 7. State whether You or anyone on Your behalf ever informed BSA or anyone else about the Sexual Abuse or discussed the Sexual Abuse with anyone, when such report(s) or discussions occurred and state what, if anything, resulted from that or those report(s) or discussion(s) concerning Your abuse. 8. Describe all injuries, harm or damages that You contend You suffered as a result of the Sexual Abuse. 9. State when and how you came to learn that the injuries set for the in Your Claim Form or in Your response to Interrogatory No. 11 were the result of the Sexual Abuse. 10. Identify the case caption, case number, state of filing, named defendants of any prior lawsuits You filed or were filed on Your behalf against BSA, any local council of BSA or any other organization Relating to the Sexual Abuse, and describe the outcome of the lawsuit(s) (e.g., the case settled, defense verdict, case was dismissed without payment). 11. Identify any settlements or other agreements between You and any Person, including BSA, any local council or any other organization, to resolve claims for injury resulting from the Sexual Abuse, including settlement of any of the lawsuits identified in Interrogatory No. 14*, and state the amount of each such settlement. *This is likely a typo. REQUESTS FOR PRODUCTION 1. All documents, recordings, notes or electronic materials (e.g., e-mails) describing or relating to the incident(s) of the Sexual Abuse, including any reports or complaints to law enforcement, BSA or any other person or entity. 2. All documents, recordings or electronic materials constituting or reflecting any communications that You had with any other person relating to the Sexual Abuse. 3. All Documents Relating to any counseling or other medical or non-medical treatments on account of, or to treat, injuries that You contend resulted from the Sexual Abuse. 4. All Documents Relating to any diagnosis You received in the course of counseling or other medical or non-medical treatments that You received and that relate to the Sexual Abuse. 5. All Documents reflecting or constituting any claim that You have made against any BSA local council or any other sponsoring organization, other than the national BSA organization, on account of the injuries You suffered on account of the Sexual Abuse. 6. All Documents Relating to any prior claim or litigation regarding the Sexual Abuse, including copies of any proofs of claim filed in other bankruptcy cases, and copies of the complaint, any motions filed, discovery responses, document productions, deposition transcripts, verdicts or judgments from any litigation. 7. All formal and informal agreements between You and any person or entity, including BSA, any local council of BSA or any sponsoring organization of BSA, relating to the Sexual Abuse, including settlement agreements. 8. All Documents reflecting payment that You received from any person, including BSA, any local council of BSA or any sponsoring organization of BSA, on account of, or as compensation for, claims for the Sexual Abuse.

One victim I know the instance: he was abused by two people. He filed twice because he thought that was what he was supposed to do. Also it is possible that some of these claims were PER OCCURRENCE.

There's two (and a half) levels here and gets into the difference between false and invalid. I am NOT a lawyer so @ThenNowtell me if I err here. 1) Prima facie: Is there enough evidence to even GENERALLY support the claim at all such that the BSA or the judge or the settlement trustee has enough evidence to proceed? This would get a lot of "invalid" claims. Remember: due process works both ways. If the victim wants to have his claim accepted, there has to be a minimum of evidence. NORMALLY the Proof of Claim meets that prima facie case, but the insurers have indicated based on the amount of fraud in collecting and signing these things by the claims aggregators/their attorneys that the presumption of prima facie validity is waived. 2) Sufficient to prove a claim: and here we'll get into fights about what standard but GENERALLY in civil cases it is a preponderance of evidence. That "burden of proof is met when the party with the burden convinces the fact finder that there is a greater than 50% chance that the claim is true." Insurance companies will want a higher standard like "clear and convincing evidence. ("This burden of proof requires the plaintiff to prove that a particular fact is substantially more likely than not to be true.") How "substantial" is "substantial"? There's literally VOLUMES of books written on this. It's nebulous. The inability to prove a claim does NOT mean it is a fraud. It just makes it "invalid" for purposes of a claim, 3) Sufficient to DISprove a claim: Raw fraud. Evidence demonstrating the claimant perpetrated a fraud, etc. This is a fraudulent/fraud. GENERALLY courts do NOT like getting into fights about whether what a witness said or what a person said was fraudulent because then you have to prove that a) the statement's false AND b) the person making the statement did so WITH INTENT TO DEFRAUD. Much easier to simply dump into category #2: Insufficient to prove the claim. That rejects it without calling someone a flat out liar.

Hartford and Century hired a statistician to come up with a "Sample Claimants" of claims. https://casedocs.omniagentsolutions.com/cmsvol2/pub_47373/870498_1972.pdf

And the answers are: 1. Nope. 2. Zero. Well, sorta. Remember the original claims number was at or near 90,000. One of the reasons: some victims filed multiple claims. So, there was at least a partial vetting, but that's it.

It was listed as a hearing on a pro hac vice motion filed a year ago. Either Omni glitched or the judge just had a hearing on the motion which lasted .5 seconds since no one objects to these things.

One more tidbit here: Hartford as early as February hired a private investigator firm to do research on 100 claimants already and claims to have found, well, let me just post it. Page 66 is an affidavit by the private investigator. https://casedocs.omniagentsolutions.com/cmsvol2/pub_47373/870498_1972.pdf The insurers are going to do everything they can to paint ENOUGH of the 82500 claimants are fraudsters in order to stall this out for years.

I know you are OK with it, but there are a lot of victims as you know who a) were told they would be 100% confidential and anonymous forever b) that they'd never have to do anything other than file that Proof of Claim and c) would certainly never have to be cross-examined about any of this. I honest wonder if 1,400 notices for document discovery go out, how many would be responded to. If 100 deposition notices go out, how many would be declined/dropped/refused.

Here's the other factor: it isn't just the insurers. Many of the other abuse victims and their lawyers have insisted on this/something close to this. They want SOME degree of vetting of these claims. Here's the concern: 1,400 document discovery and 100 depositions. If so much as 1 claim is shown to be outright fraudulent (I don't mean mistakenly saying the person was abused at camp in July 1981 when camp records show the scout were there in June 1981) I mean just flat out "I want the money/I was never even a scout" fraudulent the insurance companies will use it to besmirch all the claimants and insist that the remaining 81000 or so be vetted before voting takes place. Then it comes to the judge's call/decision. But in the meantime, it will take months to depose/do discovery. And, as Kosnoff has already noted, ANY loss on the part of the insurance companies will result in appeals. Now, not ALL appeals stop the clock/stop trial court proceedings, but some do. The Milwaukee Diocese bankruptcy effectively ground to a halt while there were issues in appeal in that case. That could mean another year. And in the meantime, the COs are leaving in droves and BSA's running out of cash, and the victims are forced to worry that a) this is taking too long b) they might be among those required to provide documentary proof c) they might be among those deposed by insurance counsel.

I should note that BOTH discovery motions call for MONTHS of discovery. Item #2 alone will take at least 44 days just to get the first stage done (30 days to demand document discovery + 14 days to decide on which 100 claimants to depose). The 100 depositions could then take months.