ThenNow

Yes, it is quite possible that the Plan, as initially proposed, is widely disfavored. Then, it will get pushed and pulled. That's what I'm anticipating and I think they will be filing it sooner rather than well into March. The judge will be loathe to cramdown in this case.

Most of the large firms and consortiums are getting 40% in this matter. As a retired attorney and claimant in this case, I find it ghastly. Also, this Chapter 11 cannot be compared to mustering and advancing complex civil litigation or a significant tort case, class action or otherwise. There is considerably less lawyering to be done. Where is the long process of drafting complaints and early motions then discovery - interrogatories, document requests, depositions, witness gathering, trial prep and, etc.? It's almost non-existent. The 'complaint' was a 12-page check the box with additional lines for brief narrative. It's telling that a fair number of survivors completed the Proof of Claim without counsel. It wasn't needed. Very unique, as well, is the existence of an plaintiffs/claimants advocacy group, here the TCC. For the most part, they arguably represent the best interest of all claimants and carry the water. The majority of attorneys and firms don't have to do anything to advance the process. Admittedly, the other mediation parties are working hard and investing a great deal of time and resources. The TCC could be considered the 'lead plaintiff' as in a class action, but they get no additional consideration or award for their efforts. Plus, there are 9 of them and the Debtor/defendant pays their legal fees. Okay. I'll stop. Maybe that helps.

Any Reorganization Plan that excludes all of the state SOL time-barred claims will not pass and the BSA will move to liquidate. No one other than TK, et al., wants that. In my assessment, after the discovery to whatever degree it is allowed, the legitimate sexual abuse survivor claimants, including the 54,400 you note, will have a vote. Let's see if the soon to be released Plan makes any note of how the otherwise time-barred claims will be classified or treated. As an abuse survivor claimant, I don't believe all 54,400 of those claims were vetted and legitimate. That is partly gut and sniff test, partly an attorney's assessment after reviewing as many of the filings as I've had time to review. There are just too many 'fast and loose' tactics were involved in mining these claims, not the least of which is having a single attorney sign hundreds of claims in rapid succession on a single day or series of days. I truly hope Judge Silverstein slaps them down for it, as she warned she would. Anyway... The BSA made it loud and clear and public that they were gathering all current, pending and potential claims into the Chapter 11, without caveat or condition. Set aside the SOL element, since this is not a state court litigation, and read what they said. Any effort to discard all of these claims, if otherwise sound and vetted, will be a complete and utter PR disaster. I will be part of the effort to make that a reality, if they try it. Roger Mosbey: The BSA...has filed...Chapter 11...to achieve two key objectives: equitably compensate victims who were harmed during their time in Scouting...[the BSA] intends to use the Chapter 11 process to create a Victims Compensation Trust that would provide compensation to victims...the proposed Trust structure will provide equitable compensation to all victims..." Jim Turley: "We believe that all victims should receive our support and compensation...the BSA has initiated restructuring to ensure we can equitably compensate all victims of past abuse in Scouting...come forward and file claims so you can receive compensation from this Trust...we believe you and we believe in compensating you." This is not a matter of an easy line item deletion, by any means.

Is there a way to get full access to the article? It is locked, being a member subscription service. Thank you.

I suppose that’s little consolation for you guys. However, state (plaintiffs’) attorneys, National, LC’s, CO’s, and their respective insurance companies are pushing for exclusion of all claims from states that have not enacted Statute of Limitations reform. That would knock out a huge number of abuse victims. In all candor, which I strive to maintain, as one of them I can’t say that is my hoped for outcome. I’m sorry, but it will be very hard to have gone through this and have others with less onerous experiences be the only ones to receive any recompense. Brutally, brutally difficult.

Just FYI, approximately 10,000 Proofs of Claim have been found to be either fraudulent or duplicates.

Correction: That was badly banged up and scarred nickel if ever there was one.

The Sexual Abuse Survivor Proof of Claim Form, at Sec. 4, Sub P H requests, in pertinent part, the "name and location of the organization that hosted meetings of your Scouting unit, during the time of the sexual abuse." Although it includes a caveat that the CO's, "are not currently parties to the bankruptcy," the question wouldn't be in the POC if there was anything other than the intention to pursue them in the same manner as the LC's. The LC's liability/involvement in the bankruptcy is similarly caveated. I realize you are aware of this, but I think the need to defend against asserted culpability and/or contribute to the yet to established Victims' Compensation Trust is coming. The Methodist Church is clearly braced for it. CO's that are oblivious and believe they are only tangentially a part of Scouting will be caught unaware and unprotected. Further, if national is a shell of its former self, including depleted of assets, preemptive claims against the BSA won't mean much. In states where the SL's are lifted or subject to a look back window, the CO's will now be more clearly a target, as they have raised their heads to seek defense by the BSA. Effectively, they have self-identified as parties to the abuse, targets and viable sources of recovery and awards. Again, just my shiny nickel. I'm too verbose for that to qualify as two cents.

Ha! I needed that!

Yup. I watch the payment requests appear on the docket like clockwork. I know both can be flawed, ill-motivated and driven by sweeping 'cattle drive' campaigns for any and all possible claims, valid or not, but this highlights some of the procedural advantages of class actions over mass tort bankruptcies. For example: one class representative for the entire class, putative or certified; a certification process within which a class of "similarly situated" proposed plaintiffs must be at least facially vetted and blessed by the court; one set of attorneys bringing the case; and one team negotiating the settlement on behalf of the class. Contrary to popular belief, the plaintiffs don't always receive the same award. Also, by the by, "similarly situation" doesn't equate to of equal value. It's about how the claim arose and on what basis they were damaged or disadvantaged by the actions/inactions of the defendant(s). Just some more useless information one may or may not care to know.

Gotcha. Thank you. Truly. I’m not a piteous person nor someone who enjoys being an attorney on many days, watching the negative stereotype being solidified in the minds of many. I’ll drone and repeat myself to say that I believe tort reform is so overdue and simultaneously unlikely that I have a pit in my stomach watching what goes on. It’s atrocious. I say that even though my father died of cancer at 63, likely due to years of exposure to toxic chemicals. As to filing a claim in this case, I’ll offer some context. I had been waiting to have some avenue of recourse since after my breakdown in 2001. I pursued all legal angles and, although other abused men were found, vetted and contacted by law enforcement, none were willing to come forward. Each are about 7-10 years younger than I am and live in or near our hometown. I completely understood. For what it’s worth, it never crossed my mind to pursue the BSA, our Local Council or Chartering Organization. Not once. I still have: all my medals; merit badge and OA sashes; pocket patches; neckerchiefs; first draft Eagle Application; some merit badge and rank cards; the panoramic photo of my Vigil honor cohorts and I when we received our new sashes; Summer Camp, Cub Days Staff patches and such; excursion and wilderness patches; my grandfather‘s, father’s and uncle’s Scout knives, along with mine; as well as my dad’s and my Cub and Boy Scout Handbooks. I got rid of that bloody deep sea diver skill award belt, however. All I wanted was a chance to put him in jail. A civil remedy was secondary, at best. The filing on February 18 of this year was the open window and, more than likely, the one and only redress I will ever have. As others have stated and I repeated, I hate that he is not in the mix to stand account for his crimes. Further, again for general gee whiz, I am not represented in this matter, potentially to my financial detriment. I wanted this to be my fight on behalf of my wife and kids, far more than mine. My ‘weapons’ are admittedly blunted and I frustrated and stymied, standing outside the process peering in. As I watch and see what has come of it, the tens of millions of dollars flying out of the door for attorneys multiple times a month, it exacerbates the pain and familiar feelings of powerlessness and being ‘abused’. That may not be relevant or experiential understandable to some, but that’s where I am. I shouldn’t suggest that some of the claims are unfounded, specious or truly contrived, but that’s also the way I feel. I appreciate you guys allowing me to be a part of this. If anyone judges me for what I’m doing, I don’t have a problem with that. None. It may be hurtful, but as my grandpa liked to say, I’m pretty much “touch as a two-dollar steak.”

I’m not sure I understand. Are you saying you would appreciate it if I did or appreciate that I have? Before I address the assertion that I made a “decision to join a massive class action,” which this is not, I’d like to be clear. Thank you. Side note: Is it truly the case that most of the prolific posters here have a close connection to someone who was sexually abused as a child and/or an accused child sexual abuser? I’m surprised, but that means a lot to me, knowing there is that foundation balancing everyone’s perspective.

Well said. A wiser, more pithy distillation would be very difficult to find.

Is this the question?

I wish them well and pray they have less of a ‘body of evidence’ than I and many others do. I’m sure you’re of great support and comfort to them.

I understand your point, temporally. I wonder if you know someone well who was repeatedly sexually abused as a child and told no one for 10, 20, 30 or 40 years. If you knew me, for example, I assure you, you’d see a “body.” There’s enough evidence and wreckage, as I said previously, to render a speedy verdict.

Excellent point as to details of abuse. As to the surrounding facts to establish, timeframe, place and actors, I would still think these elements would be known or discoverable, based on where the claimant lived, the location of the local Troop, and the Troop and LC rolls. Hopefully, someone will at least perform that level of due diligence.

Gotcha! Not a worry. I didn’t mean to be abrupt.

This is an excellent point and, begs another comment. As a survivor, I don't quite understand how someone could remember little or nothing about their abuse/abuser to a degree that they can't provide sufficient detail to allow it to be even limitedly corroborated. I understand it theoretically from the standpoint of repressed, suppressed and faded memories. Personally and experientially, not much is faded or foggy or cloudy or forgotten.

Well, they are in some cases. I'm not sure what you mean. The Chapter 11 is unique because it allows any and all claimant who allege abuse against an adult Scouting volunteer to file, regardless state law or statutes of limitations. That's the focus of this case. I'm not in the weeds on individual cases, but if I have the chance, I will certainly sue him, others, his wife and everyone I can factually and legally justify naming.

I do believe the accused have the right to face their accuser(s) and defend themselves. When dead, that's obviously impossible. Here is something you may or may not find interesting or relevant. This is a theoretical framework hatched in my little brain, based on studying psychology, Complex PTSD derived from long-term child sexual abuse and some elements of the law. See what you think. Statutes of limitations are critical to ensure stale claims/allegations aren't brought to court after witnesses are dead, documents shredded, memories faded, physical evidence tampered with, crime scene contaminated, and the like. In the case of murder, we consider the crime so heinous that we impose no such limitations. We consider the possibility that one human being willingly and maliciously took the life of another is sufficient basis to overcome all of the objections summed up in the notion that too much time has passed. In 1991, Leonard Shengold published his important book, "Soul Murder." To distill, he posits that child sexual abuse, and other severe abuses, result in "psychic and spiritual annihilation." As I consider statutes of limitations on bringing claims and prosecutions for child sexual abuse, when I equate those acts with "soul murder," I feel completely justified in calling for lifting those limitations. Although I am obviously alive and able to think and function, if you knew my story you wouldn't completely dismiss out of hand the comparison of these two crimes. My story is by no means the worst. Not by far. I'm not too proud to say that an objective person could look at periods of my life and use the word "annihilated" to describe what they see. Taking the theory a step further, if the abuser is equated to a "soul murderer," those who participate in, facilitate, hide, obfuscate or even fail to report the crime are, in fact and by law, accessories to that crime, to one degree or another. Enter other adults who tacitly consent or passively condone such acts, like Local Councils, Chartering Organizations and BSA National. Under my theory, they are accessories before and/or after the fact. They are not only a convenient target with money, they have some measure of responsibility. HOWEVER, I agree that times have changed and we know SO much more about the behavior of predators, the need to train and protect kids, monitor and qualify leaders, and all that's being done in Scouting and other youth organizations. I merely share this to lend my perspective on how the BSA situation might be seen through a different, and perhaps new, lens.

The only element of accountability being discussed is public disclosure of the names of abusers. I think that's the only thing the Court could order as part of the settlement. I know some survivor claimants and/or attorneys have that goal. As I mentioned, I don't like it for two reasons: (1) if my state creates a look back window by enacting the Victims Rights Act, I want to be able to surprise my abusers with a lawsuit and criminal prosecution; and (2) it doesn't seem right to accuse people publicly after anything less than a proper legal investigation of the allegations. As I mention elsewhere, this is claim validation and corroboration process is unlikely to involve anything close. For survivors or especially attorneys who are seeking public humiliation of these men and, more likely than not additional clients, they can use the Court to effectively defame and publicly convict people with impunity. That has bad public policy and immorality written all over it, in my view.

Claim validation is going to be incredibly complicated with the vast number on file with the Court. If I were cynical, I'd say that was part of the reason one group has gathered so many clients; to choke the system and force an allocation of the Trust by simple division. That creates a scenario where potentially specious claims get validated by virtue of an inability to challenge them. Time just doesn't permit it, if the BSA is going to stop bleeding money to pay lawyers already tapping the estate at every turn. Love them or hate them, the insurance company's lawyers will probably be the most aggressive in attacking that wholesale acceptance of claims. BSA, as well, but maybe less so. Ideally and properly, and this is why Troop and LC rolls have been sought by the insurance companies and Tort Claimants Committee, there should be a factual investigation to determine if the people and places included in a claim were where they are said to have been at the times alleged. That would be a step one. Establishing higher level detail and/or corroboration of the allegations of abuse will be tricky. Also, as I understand it, the level of proof required is only the “by a preponderance of the evidence" standard, as in more likely than not to have happened. Once the basic circumstantial facts of people, places and things are confirmed, the rest will be difficult to dispute or disprove. The Official Sexual Abuse Survivor Claim Form requests information on the LC, Chartering Organization, other leaders in the Troop or LC, and, etc. I've been told some men don't remember so much as the adult's name. Some have a nickname or nothing at all for detail, not even the name of the place where the Troop met. That's not much to go on. Since there are so many claims, I imagine confirming basic facts will be done as best they can and quickly. As to corroboration, that rises to a level of investigation and interviewing they will not take, in my opinion. In my case, they have enough information to indict, prosecute, and convict several people, calling witnesses all day long if this were a criminal case. Assuming they satisfy a threshold level of factual context, when it finally comes to determining the 'value' of each abuse claim, which is the unfortunate bottom line here being solely about allocated pennies, the Authorized Reviewer(s) will be given a TBD agreed upon metric or grading scale by which to measure and rank the claim. Factors to be weighed include: the fragility/susceptibility of the claimant to damage from abuse; the presence and manner of grooming; the intensity and duration of the abuse; if others were involved in the abuse acts; did the abuser use pornography, take photos or make videos; was there threat of force, violence, stated or implied ramifications for refusal or disclosure; was there special treatment and inducement/rewards; and what were the impacts of the abuse on the claimant's life in multiple areas, including physical, psychological, financial, relational, sexual, educational and professional. There are numerous excellent examples of what the grading and ranking methods look like, particularly from some of the Roman Catholic Church and USA Gymnastics cases. How is all this going to be legitimately verified and established? I don't know. It is a high mountain of claims to trek and lots of data to mine (or not). Again, if the choke point was created both as a means of making more money and to overwhelm the system, it may well work. At the end of the day, the mediators could recommend they slice the pie through a default, “Everyone gets an equal piece because we don't know who deserves more or less." That will be another travesty of the situation. I believe there are lawyers who would strongly object to that, but when negotiations start happening and payday is in sight, the level of compromise that can be sold to a client is about the persuasive skills of the attorneys, the inclination of the deep pockets to settle and the desire of the client/claimants to be done with it and get something. That said, I think the Coalition of Abused Scouts for Justice is the 800 pound gorilla in the mediation room, wielding the largest client list and, thus, enormous power to accept or refuse a proposed Plan of Reorganization.

Indeed. However, large number of current Chapter 11 claimants live in states that have not yet adopted the Victims Rights Act. Without that statutory change, allowing a 'look back' suspension of retrospective statutes of limitations that currently bar such actions, whether civil or criminal, they have no legal recourse. Under the VRA, survivors would be able to pursue claims against their abuser, as well as any Local Councils and Chartering Organizations that do not participate in funding the Victims' Compensation Trust to gain future protection and release of past claims.

You are exactly on point. It seems people don't think much about that, instead focusing on the other two. It is an absolutely critical piece. Further, deterence by virtue of locking the doors and being on high alert isn't completely effective without repercussions. If someone does manage to pass through undetected and commit a crime of abuse, it must be met with the other side of deterence - grave consequences. There is a reason you see surveillance cameras next to statements to the effect that, "Violators will be prosecuted to the full extent of the law." From my reading of massive amounts of data and history, down to reading 50 year-old individual reports from parents to Scout Leaders to Troops to Local Councils and then to local police, the failure to prosecute was equally as destructive as was inadequate vetting and training. Vetting only goes so far if someone has not been caught or credibly accused before they apply. Knowing that previous perpetrators have been aggressively prosecuted, sued and publicly disclosed, is a powerful weapon in combatting child abuse. Is it enough on its own? No. Is a multi-pronged approach to background check, train, enforce rigorous requirements of 2 adults person, and etc., coupled with prosecution a worthy adversary against would be perpetrators? Absolutely. A complete program to protect and deter has to include prosecution and public disclosure. And, it has to be swift and decisive. That requires empowering kids and youth to know what is right, wrong and how to have a voice. No easy task. In fact, it may be the most difficult thing in the moment, especially knowing that boys abused by men often don't report for years after the abuse. Over-reporting and false accusations are possible, but less likely in the context of child sexual abuse than other crimes. (Per the data I've reviewed.) If I were in charge, I would include in the training process a summary of law enforcement and legal processes in the case of an accusation. Leaders should know what is involved, as should parents, to my thinking. Because most people 'know' what they know about law and the judicial system from what they see on television, it is neither accurate nor helpful in a real world situation. In fact, it's counterproductive.