CynicalScouter

Judge about to issue a big ruling for or against BSA. BSA wanted to simply release ONLY those portions of the board documents that made the RSA look good and then claim the rest was mediation privilege. There was literally a document (presentation slide to the BSA Board) that included ONLY the RSA and "privileged"redacted/blacked out the TCC/Coalition and BSA offers that led to the RSA. The insurance companies want a ruling that either the ENTIRE slide comes in or NONE of it comes in. And I suspect the rest of the document(s) are going to be similarly treated. Judge is ticked. She's expressing concern that bankruptcy courts use mediation all the time for issues and that if mediation privilege is abused to cover anything and everything that becomes a problem. She is taking a break and wants the slide emailed to her chambers to review and will decide whether it is ALL in, NONE in, or if BSA is correct and can hide portions as "privileged". Break 2:01pm Eastern for judge to review the slide. Recess until 3pm. One other possibility is that the judge will give BSA a choice: either let the entire document in (and the others) or else Whitman shuts up and the BSA's effort to argue that the RSA is the result of sound business judgement gets kneecapped.

Whitman continued: lots of objections by insurers regarding Whitman's testimony due to lack of discovery. At this point Whitman's testimony is being offered to suggest that the payments to the Coalition are good because having the Coalition's support going forward will help in additional negotiations. The insurers are convincing the judge to strike/keep out whole portions of Whitman's testimony because BSA played this little game where Whitman's advice to the board was redacted/withheld during depositions and discovery BUT is now being offered ambush style. She's said at least once if not twice BSA's lawyers are "skating" as in "skating close" to having even more stricken.

Whitman testimony: He's BSA's bankruptcy/reorg/restructuring advisor. BSA entered into the Hartford agreement after much deliberation. However, the Hartford agreement was predicated on the court's approval of it. Moreover, after the Hartford agreement came out, it became clear that the FCR/TCC/Coalition would never, ever accept it. (Therefore, Whitman is implying the judge should NOT approve the Hartford agreement at this point because to do so would be to scuttle the RSA plan and be a major setback to the bankruptcy).

The fact is children were sexually abused. Downplaying it and defending BSA at all costs, claiming they are all (or most all) liars isn't helping. Denial won't help BSA survive.

Next up: Insurance companies discovery motion on plan to pay the Coalition's legal fees upfront/ahead of everyone else. Chubb/Century is claiming collusion/quid pro quo regarding Coalition's acceptance of the RSA. In short, the claim is that the Coalition's lawyers got bribed into taking the RSA deal by having their fees paid for ahead of everyone else. Therefore, BSA and the Coalition need to release how it was that element got added in. How did BSA decide that the Coalition's fees were "reasonable" at all, much less this plan to pay? Coalition response: Really what Chubb/Century wants is drafts of the RSA which are mediation privileged. Judge: That's not what Chubb/Century wants. He wants to know how the Coalition pay-ahead-of-all-others plan came about. Not drafts of the RSA. Coalition response: We haven't submitted any bills yet, but the Coalition gets paid up to $10.5 million. Judge: How did you come up with $10.5 million? How did you get that number? The BSA/debtor came up with that number themselves? Coalition: Yes. Coalition: Also, we get $950,000 a month going forward. That's a cap, not a guaranteed number. Judge: The Coalition produced no documents to BSA about how to get to that $10.5 million or anything else? Coalition: There may have been an Excel sheet of fees to date. Judge: Ok, Chubb/Century. There are no documents. Chubb/Century: There's no way board did due diligence then. And there MUST have been emails outside of a mediation session. There must be emails. Judge: I'm hearing that there is nothing, so there's nothing. 12:38pm We are now on to the main course: the RSA and witness testimony. I'll tried to write it down and come back later.

Sadly, there are still people here trying to downplay the child sexual abuse. You are right: if there wasn't a problem, we wouldn't be here. But some people are still claiming BSA had (and has) no child sexual abuse problem.

Next discovery issue: Century/Chubb's refusal to release information about Century and Chubb's assets. "The 20 billion dollar elephant in the room is Chubb". Judge: why is this relevant to TODAY? Answer: It is a gating issue to the Hartford settlement. Judge: Century/Chubb's refusal to produce will be dealt with later. We are not here to approve the Hartford deal.

Listening to the hearing (stepped away for 30 minutes). We are still in the depths of the discovery mess and mediation privilege. In the broadest strokes: 1) The insurance companies say that BSA wants the judge to rule the RSA was done in a "good faith" manner (key term here folks, pay attention) and that a "good faith" determination will allow BSA to then loop the insurance companies into massive claims later. Therefore, the insurance companies get access to EVERYTHING. They are also claiming that BSA is engaged in illegal collusion with the TCC/Coalition/FCR. 2) The BSA is saying that the insurance companies do not get to see "how the sausage gets made". Also object strongly to the idea that there was improper collusion. Judge rules: the testimony will come in today. The judge will consider the discovery objections as she listens. "I am surprised there was not a board resolution" by the BSA. Judge notes: mediation is often used in bankruptcy and cloaking EVERYTHING in mediation privilege like BSA is using it like this is unusual. "I will be thinking about this." We will have testimony and if at the end of the day she feels like parties were harmed by the lack of information BSA's privilege claims she will turn back to it then. 11:52am Eastern - 5 minute break

Just FYI I have work but will try to listen to the hearing. So far IT/Zoom problems have caused the hearing to stop in the first minute.

It’s not conjecture we know for example sexual abuse victims that died before 2020 couldn’t possibly have filed claims. so if you wanna go down this road of claiming that only 82,000 people were abuse victims or all 82,000 are a bunch of liars by all means go down that road

Just to be clear there’s the emergency preparedness merit badge and emergency preparedness award. The award is in fact discontinued. usscouts.org is NOT an official source for info

I’ve mentioned this before and I’ll say it again: trying to use the number of sexual abuse claims filed in this case as an indicator of how prevalent abuse was in BSA is methodologically unsound. we don’t KNOW how many scouts were abused. All we know, maybe, is 82,500 people claim abuse. There were likely thousands if not tens of thousands more victims who did not file for a host of reasons. Moreover given that BSA deliberately destroyed files from the “perversion files” subcategory of the IVF files we will never know the full scope. What we do know is BSA has a history of denying, destroying, and deflecting. We know for example when BSA did its own internal “safety” review it did not even acknowledge or allow the internal reviewer access to the P files. That led to the statement a scout was more likely to drown in scouts than to be sexually abused. Of course we now know that was a flat out lie and BSA’s own files showed that.

Yep. They knew. The question in the Oregon case and others was: 1) Did BSA do enough to stop it? 2) Did BSA active attempt to cover it up? What BSA argued, successfully I might add in some cases but not all, is that they did the best they could to try and keep the "perverts" out by creating these files in the first place. Some juries agreed, others felt BSA could have and should have done more.

No, they literally called them the "perversion files" or "P files" since at least the 1930s. It started as the Red Flag Files, were later renamed the Confidential Files, and finally renamed to the Ineligible Volunteer (IV Files). It was subdivided into the 6 categories I mentioned: Morals (M) Financial (F) Leadership (L) Criminal (C) Theft (T) Perversion (P) There are contemporaneous notes indicating at least since the 1930s that scout officials used the words "perversion file" or "p file". For more information see this from the BSA's own official review of their practices in this area. https://filestore.scouting.org/filestore/youthprotection/pdf/WarrenReport.pdf

I posted about this in June. There is still some confusion. The official name was the Ineligible Volunteer Files (IVF). A person could be added to the IVF for a variety of reasons, https://documents.latimes.com/boy-scouts-paper-trail-of-abuse-documents/ There were six categories Perversion Morals Financial Leadership Theft Criminal Clearly for purposes of the sexual abuse lawsuit(s) going back into the 1990s, some of these were more relevant than others. The "Perversion" files, while the biggest subset, were not the ONLY subset, however people mislabel ALL the IVF files as the "perversion" files.

So I think Century is calling BSA's bluff on the documents and depositions that BSA says are not subject to discovery. In short, and with Century putting a lot of things confidential, BSA is claiming a truck load of documents and whole sections of BSA depositions are protected and/or privileged, in particular mediation privilege Century's solution appears to file ALL the contested documents and depositions with the court and have the judge review them (the publicly available versions are redacted, so no sneak peaks). https://casedocs.omniagentsolutions.com/cmsvol2/pub_47373/0bd2073b-8b3a-4524-9947-4c4130f49d80_5975.pdf Tomorrow could be mostly complaints about BSA not producing documents to the insurers The insurers and/or Chubb and Century in particular not producing documents to the TCC/FCR/Coalition Hartford in particular not producing documents for the TCC/FCR/Coalition And remember: the hearing is on a clock. It starts at 10am but the judge has another hearing at 2:30pm. The entire day may turn into a food fight over discovery and have zero to do with the actual RSA.

We shall see. That's not clear how she's going to handle these discovery squabbles, etc.

No. Well, probably not. Back in February/March an agreement was reached to allow those claimants who were running out of time/open window to file suit against BSA and the LCs but those lawsuits would be automatically stayed pending the bankruptcy. Maybe? That's going to be hard to tell until we start to get reviews of who signed what.

Just to give a headsup on a line of objections that have been filed by hundreds of victims at this point that is almost verbatim the same. This particular objection is just an example, but covers the 5 major objections. https://casedocs.omniagentsolutions.com/cmsvol2/pub_47373/95224a9d-6156-46f9-adfa-dc46f3a262d2_5963.pdf In short the five (and my attempts at translation are) (i) why should victims in time-barred states (whose claims are right now worth $0) be given the same vote as someone with a valid, timely, multi-million dollar claim? Moreover, since there are TENS of THOUSANDS of time-barred claims, those votes will "swamp" the votes of those victims with timely, valid claims. In other words there should only be 14,000 voters (at most) and the other 59,500 sexual abuse claimants should get no say in this matter. Put another way: why should 59,500 people whose claims amount to $0 (due to time barred) outvote the rest? (ii) Why should a victim who potentially can recover tens or hundreds of thousands from the larger/more wealthy council have their vote "swamped" by those victims whose claims are against smaller, poorer councils that may only be valued at hundreds of dollars if not a few thousand? (iii) BSA says $200 million is the best it can do. LCs say $650 million is the best they can do. While there's adequate data on BSA's exact financial status to determine if $200 million really is the best BSA can do, we have NO data on LCs. (iv) Until we know exactly how much the COs are on the hook for, there's no way there should be a vote. (v) Until we know exactly how much insurance companies will or won't have to pay (or at least the risks that the insurance companies may ultimately pay out squat due to coverage caps, etc.) there's no way there should be a vote

BSA is now filing its responses to several objections to the RSA and BSA's failure to provide documents. https://casedocs.omniagentsolutions.com/cmsvol2/pub_47373/596a4985-acba-414a-bc9f-80ad5dabec36_5961.pdf In short, BSA argues 1) All these objections need to wait until the confirmation hearing AFTER a vote takes place. 2) BSA produced all documents it could 3) Century had argued that, in effect, the BSA Board had a conflict of interested because of the member's relationships with LCs. It's complicated, but suffice to say BSA insists there was no conflict.

And no sooner do I post about last minute orders, here they come. https://casedocs.omniagentsolutions.com/cmsvol2/pub_47373/0ed29558-48a9-49a3-938a-50e877a37823_5958.pdf https://casedocs.omniagentsolutions.com/cmsvol2/pub_47373/67542b72-acce-439e-88df-0e2e6b3efb60_5959.pdf https://casedocs.omniagentsolutions.com/cmsvol2/pub_47373/50c67700-1634-4a65-82b3-9e4eb0f7ff95_5960.pdf In short, ALL discovery motions (BSA's refusal to turn over docs to the insurers, the insurer's refusal to turn over docs to the TCC/FCR/Coalition) will be argued tomorrow.

So, for tomorrow's hearing there remains several motions regarding the failure of various entities to produce documents. So, absent a literally last minute order on these issues, they'll be pending during tomorrow's hearing. We should also expect this will be two days and include testimony (BSA said it "intends to call") in support of BSA and the RSA from Devang Desai (volunteer member of the National Executive Board, National Executive Committee and Bankruptcy Task Force of the BSA) Roger C. Mosby (President and CEO of the BSA), Daniel Ownby (Volunteer Chair of the National Executive Board of the BSA) Brian Whittman (Managing Director of Alvarez & Marsal North America, LLC) And on the objectors side, Hartford "reserves the right" to call Mr. John Kinney (Executive Vice President of The Hartford) as a witness in support of its objection to this matter Reserves the right means that Hartford doesn't HAVE to call Kinney to testify, but if they want to, everyone is now on notice that might happen. I would expect his testimony to be regarding the Hartford deal that Hartford/BSA had a deal and BSA cannot back out of it now. Remember: if the Hartford deal stays in, the RSA is dead.

Yep. Raiding the endowment and other restricted funds just to keep the doors open will only last but so long.

In the end, however, his two goals appear to be incompatible. Killing off BSA and possibly the LCs: this results in LESS recovery for victims because the ensuring lawsuits and bankruptcies will likely result in fewer assets for victims to recover from. Maximizing victim benefit: if that's his end goal, he would want a (crippled) BSA and LCs who could make good on more money.

Right but he's convinced himself and others that the LCs are just free money and all they have to do is get the LC assets declared part of BSA/National's assets and that the money rolls in.