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ThenNow

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Posts posted by ThenNow

  1. 9 minutes ago, TAHAWK said:

    There are many rumors afloat.  Thus it has always been.

    My apologies. I shouldn't have used the word "rumor" and then reinforced it with jocularity. All points are solidly sourced. 

  2. A few random points:

    1) Rumor is, compelling data illustrating the YPT has not been as effective as claimed will be released soon, countering the narrative that the existing program is sufficient and there is no need to address enhanced measures in the Plan. I'm told the data is dispositive. I make no assertion about the effectiveness one way or the other, since I don't know the facts. I do know this is a major issue for many claimants, some of them with positions of influence in the case. If the BSA is unwilling to adopt and implement additional measures, whatever that means, those players will not be supportive of the Plan. Don't shoot the messenger. "I got my news from the Chinese plate!" Another arcane reference and one I use to say, I have it on good authority that this is so.

    2) Continuing with the next verse of, "I heard it through the grapevine," apparently National has until Monday at 4PM ET to satisfy the TCC that they are working on and will produce the requested asset data from the LC's. If that doesn't happen, I'm told, the TCC will formally oppose the BSA's motion to extend the protective injunction shielding the LC's from lawsuits. Joinders to that opposition are expected.

    3) Subject to further scrutiny by the insurers, should the judge grant their motion for Rule 2004 discovery, there are just south of 60,000 potentially time-barred claims among the remaining 83,837.

    4) The guess is that Judge Silverstein may rule on the discovery motion during the March 17 hearing. I heard that one from a little bird. Said plate was otherwise occupied.  

     

    • Thanks 1
  3. 1 hour ago, CynicalScouter said:

    If BSA is forced into liquidation and killed, it may mean slowing these effort down. Unlike the Catholic Church/dioceses (which at the end of the day aren't going anywhere) if BSA is liquidated it would be used as the "see, you'll just kill these programs!" warning.

    One thing I would note on the other side of the "slowing down" argument is the cultural mood against iconic institutions doesn't necessarily result in slowing down reforms. Some people would love to "burn it all down," as has been seen across the country and stated pretty much verbatim in this case. I am not inviting a discussion or debate on culture, ideology or politics, just stating that in the wave of "cancel all vestiges and institutions of the colonizers!", some will see the demise as a thing to be praised and hastened. I hate that, but there it is.

    • Upvote 1
  4. 13 hours ago, TAHAWK said:

    I thick he asked about statute-of-limitations corruption, not bankruptcy.

    I understood his statement to question whether the filing and "litigating" of 95,000 sexual abuse survivor claims against the Boy Scouts of America, an iconic American institution trapped in time with the #METOO movement, would be enough to inspire SoL reform in the area of child sexual abuse. He said he didn't believe it would have any impact. I said several organizations and state legislators disagree. That's all. Sorry if I misinterpreted.

  5. 2 hours ago, ParkMan said:

    I don't think I'd change my point.  I don't think this specific case is enough to drive legislative action.  Sure, the principle may be something that people still advocate over. 

    When Members of Congress take note, in the midst of publicity over the release of the dreaded files and fending off abuse suits, it's on the radar of advocacy groups. In our conversations related to child sexual abuse SoL reform, they specifically mention the BSA and RCC in the same breath. 

    I should have added that CHILD USA and CEO/law professor, Marci Hamilton, have filed friend of the court briefs in BSA cases. They are adamant state that courts are have proper jurisdiction for child sexual abuse cases, not bankruptcy courts.

    image.png.da5a4404c1c70cf57be39d643621269c.png

  6. 2 minutes ago, ParkMan said:

    Guess it's just me then.

    Nah. I'm sure you're not alone. The explosion of the case numbers in particular, plus the fact that CHILD USA and these legislators HATE the use of bankruptcy to dodge child sexual abuse liability is the combined driver. Magnitude, whether legitimate or not, have elevated the case to a Exhibit #1 for abuse liability avoidance abuse. Doubly abusive, if you will.

  7. 1 hour ago, ParkMan said:

    Maybe it's just me - but I don't think this case is a big enough deal to influence legislation.  

    CHILD USA and multiple state legislatures strongly disagree with you on this point. I have spoke with the both groups numerous times about this case and the matter of state by state SoL reform.

    • Upvote 1
  8. 2 hours ago, T2Eagle said:

    In order for BSA to demonstrate that two thirds of its assets are restricted and unavailable to creditors they would need to have been incredibly disciplined in their accounting and bookkeeping over the past century to make sure there was no comingling of the various funds and properties.

    The TCC's Complaint for Declaratory Judgement on the allegedly restricted assets has this at the heart of their contention. "The Debtors' History of Commingling Assets" is the leadoff hitter.

  9. 37 minutes ago, CynicalScouter said:

    This really does make me think there are a LOT of councils who are going to roll the dice and not participate in the bankruptcy in the hope that their statutes of limitations never get reopened.

    I've been thinking that for a while and asked others involved in the case why some LC's, who don't sense a legitimate "threat" to their asset base, would submit to voluntary surrender. The answer is as you stated, plus the BSA wants unanimity in order to be "one and done for all." I still didn't like that answer, because I can see it from a LC's viewpoint.

    If I were risk officer or any officer of a LC, I would know: exactly which legislators and groups are interested in SoL reform; the substance of all bills proposed, when and by whom; the disposition of each with votes cast;" what's going to be proposed; which committee(s) and chairpersons wield control; and so on. Going into this, I would've had a clear sense of the likelihood of seeing a VRA passed in my state. It's an inestimable threat and I can't imagine not having been keenly aware of its every move and machination. Then again, I have the luxury of distance and no need to battle the day to day effort to plug holes in the boat and keep programs afloat. (Another brief poem.) 

    When I survey the map of "closed states," even considering those with pending Victims Rights Act legislation, many of them have legislatures controlled by BSA and/or RCC-inclined Members. Some of these pieces of legislation have come up years in succession, only to die in committee. I know one state has the legislation parked in a committee controlled by a Representative who is Catholic and involved in Scouting. I am not saying that necessarily inclines him to vote against the legislation, but as a matter of fact he is vehemently opposed.

    All that said, as I mentioned several days ago, the current political climate, coupled with the way the claimant side is reacting to the Plan and the amplification of it in the press, I think some VRA legislation could be dislodged in the wake of the case. Maybe. Those who feel totally safe today, may not be in the not too distant future.

  10. 4 minutes ago, CynicalScouter said:

    There was a LOT of legal argument over this, including trying to sue Pope Francis, but the short version is this:

    1) Dioceses are both INDEPENDENT and AUTONOMOUS from the Vatican.

    2) Dioceses are both INDEPENDENT and AUTONOMOUS from each other.

    3) Even if you are able to jump over hurdle #1, the Vatican, as a separate international entity and government, is not touchable for any of this either due to international law in general or the Foreign Sovereign Immunities Act in particular.

    So, each Diocese was out there, on its own.

    In some ways it looks like BSA but for one thing: how much does National control and direct Council operations, rules, and practices?

    Plaintiffs are going to do everything to say the LCs are neither independent nor autonomous.

    BSA is going to do everything to say the LCs are both independent and autonomous.

    Yeah. What he said. (I already loosened the lid, he just took it off...)

    • Upvote 1
  11. 9 minutes ago, Eagle1993 said:

    I guess my question is about Catholic Dioceses.  They have been going through bankruptcy and treated separate.  Why wouldn't the same apply to LCs?

    I have a vague recollection about this somewhere in my little brain. In those cases, an individual Diocese effectively equates to BSA National in this case. The RCC suits aren't against the local churches, though many are named I believe, because they don't have the big dollar assets. The local churches are more like Troops/Units. I don't believe there is a "RCC of the USA" or otherwise, in terms of a legal entity. The Vatican is a sovereign state and not reachable. 

    • Upvote 3
  12. 4 minutes ago, CynicalScouter said:

    The point is however the National charters these LCs, sets the Rules and Regulations and is the receiver for any/all assets should the LC disband. National reserves the right under the Charter and Rules and Regulations to audit, restrict, and direct LCs at National's will or whim

    The plaintiffs argument is that given the above, that LCs are NOT independent (although they may exercise a great deal of autonomy).

    Not knowing a ton about franchises, I have looked at this more like the employee vs. independent contractor scenario, which is more familiar to me and provides a number of boxes to check to see which is which. The BSA and LC's want to say these are completely "independent contractors" who do their own thing, not sufficiently directed and dictated to by National to be deemed an "employee." I know this is apple to oranges, but bear with me.

    When you do a test of employee or indie contractor, you look at the factors of control, autonomy and influence on behavior and the overall relationship. The IRS has a 20 Factor Test, with three categories under which the points are sorted: Financial Control, Behavioral Control and Relationship of the Parties. To avoid applying all the factors, which is not the test one would use for this relationship anyway though I found it helpful, I just can't see how the LC's could be ruled independent, legally autonomous and "uncontrolled" entities. The various and specific Charter Rules and Regulations, especially the rights to subsume assets upon disbanding, do not bode well for a finding of independence. I'm not saying this as a claimant, just trying to look at it as objectively as I can.

    We shall see, indeed.

  13. 8 minutes ago, CynicalScouter said:

    Philmont did, yes. I can recall seeing an appearance sheet and notice.

    Right. I recall now. Thanks to both of you for the prompt. This reinforces the negative inference: the absence of any notices of appearance and/or a reservations of rights reveals the that ain't no "there there," I'm thinkin'.

  14. 10 minutes ago, RememberSchiff said:

    IMHO, the TCC's points on page 19 of Docket 1913 should be resolved before the "Revised Plan" hearing.

    The resolution of those points pretty much holds the keys to the kingdom, me thinks. There's a lot of arguing, resolving and ruling represented on that one page. 

  15. 5 minutes ago, RememberSchiff said:

    IMHO, the TCC's points on page 19 of docket 1913 should be resolved before the "Revised Plan" hearing.

    Docket page 19 or page 19 of the filing? Sorry. Just want to be sure. Oops. I looked. They're concurrent this time...my bad.

  16. 10 minutes ago, walk in the woods said:

    Now, how that would have played out in a bankruptcy court I can't say.  

    Does anyone know if the entity or entities said to hold these restrictive interests/reversionary rights gave notice of appearance of counsel to assert those rights to prevent sale or encumbrance? If I gave some mack daddy property and wanted it back if x or y happened, or if z was no longer going to happen, I would've been asserting those rights from the jump.

  17. 36 minutes ago, RememberSchiff said:

    Attorneys submitted a court filing Wednesday, the deadline for BSA to respond to the complaint, indicating that the committee has agreed to extend the response time until April 2. The judge signed the order that same day.

    Given the BSA's assertion that the properties/assets are restricted and the TCC's exasperation over not receiving timely documentation which fueled the need to file the lawsuit, I say the restrictions are legal fictions. They look legit, but back to my previous quip: they are a ride with a V12 badge on the side but a Volt e-engine. If these were ironclad and locked down, why wouldn't they have handed them over pronto? I could be 100% wrong, but if that were the case, this tap dancing pee-pee dance wouldn't have been necessary. The TCC has given them more time to figure out how they're gonna spin, sell and keep the Fred & Ginger show on the road...

    (One more encoded wink to the old guys.)

    • Upvote 2
  18. 29 minutes ago, Eagle1993 said:

    Has BSA provided this information? 

    Per the statement from the TCC, I believe the answer is an emphatic, "No!"

    If an artificial structure was used to restrict the property in question, it is the same sort of thing that's been going on with transferring real property and liquid assets to trusts, as called out over the summer. You know I am on the "side" of claimants, though not seeking the demise of Scouting, but this sort of stuff was bound to bite back and damage the entire process. The transfers are particularly obvious and onerous, smack in the middle of the reorganization and in the nick of time before the mediation/negotiations started. All this went on in front of God, country and the judge, not to mention the TCC and claimants. It not only looks terrible, but makes us suspicious and mindful that games are being played for the obvious purpose of hiding asset, regardless the reasons given. Ack.

    Posted by MYCVAStory, I believe:

    The plan seeks to force abuse survivors to release the Boy Scouts Local Councils even though not a single local council has filed its own bankruptcy.  Throughout the BSA bankruptcy case, the TCC, as a fiduciary for all abuse survivors, has sought complete disclosure of the local councils’ assets and liabilities to ensure they provide, as they must, adequate compensation in exchange for release of the sexual abuse they are trying to avoid. “Getting information from the local councils has been an uphill fight” observed Douglas Kennedy, co-chair of the TCC, adding “they want to force us to release the local councils but have not provided the financial transparency that is necessary for survivors to make an informed decision on whether to release the local councils where the majority of the abuse occurred.”

  19. 2 minutes ago, Eagle1993 said:

     The donor or source of the asset;

     The identity of the initial recipient of each asset;

     Whether the recipient entity was independent from BSA or was a trust for which the trustee was unrelated to BSA;

     The source, manner, and timing of conveying any alleged donor restriction;

    Exactly. Thanks for this.

  20. 18 minutes ago, InquisitiveScouter said:

    Just curious...when you make a donation and wish to earmark it specifically, with what document is this done?  A simple letter??

    Not being an NGO attorney, but having been an Executive Director of one and an associate pastor of another, this is a sticky wicket of issues and mechanisms. For this purpose and often with this type of thing, it's by way of a restricted deed or reversionary clause, though the latter may negate the gift as tax deductible. Not my area, to restate. Maybe another member is better educated in this. 

    One thing that muddles the area of earmarking and directing funds is there are "advised" donations and "restricted." Back when, we used to call the former "allocated" donations. This may help with these two categories:

    Donors advising on the use of their donation sounds relatively the same as donors restricting the use of their donation, doesn’t it? These are actually very different concepts. Donor advised funds are separately identified accounts that are maintained by a public charity. After the donor makes an unrestricted donation to the donor advised fund/account, the charity has legal control over it. However, an arrangement or agreement has been made between the charity and the donor, where the donor retains advisory privileges on how those funds should be used throughout the existence of that separate account. A donor advised fund tends to be more of a long lived account that receives donations and from which disbursements are periodically made. Even though the donor can advise on the use of the funds, the charity still has the ultimate authority on the use, with the responsibility of ensuring that the use meets the tax exempt mission of the charity. Donor advised funds are carefully watched by the IRS due to past abuse with these funds where the donor essentially has control over the use of the funds, and then uses those funds in a way that results in an economic personal benefit to the donor, while the donor still receives a tax deduction. A charity can actually lose its tax exempt status if an individual uses the charity in some way in order to attain a personal benefit.

    A restricted donation relates to a specific donation, rather than relating to a separate account set up specifically relating to one individual donor’s donations. A donor places either a time or purpose restriction on one specific donation, which is received by the charity and usually pooled into the general operating or investment accounts of the organization. The charity has the responsibility to use the donation in accordance with the donor’s wishes, but after the donor makes the donation, the donor generally does not have any further involvement and does not have any ongoing advisory privileges.

    There is sometimes a misconception that a restricted donation can be made to a tax exempt entity, with the donor-restricted purpose naming an individual to benefit from the donation. Under IRS rules, no tax deduction is allowed if there is a direct personal benefit to the donor or any other person. Also, as mentioned above, a tax exempt entity is at risk of losing its tax exempt status if a personal benefit transaction occurs. For example, if a charity has a scholarship program, there should be an unbiased selection process as well as a conflict of interest policy to prevent personal benefit transactions from occurring.

    https://www.hhcpa.com/blogs/non-profit-accounting-services/what-is-the-difference-between-donor-advised-funds-and-restricted-donations/

    • Thanks 1
  21. 39 minutes ago, CynicalScouter said:

    Both. It is both core and it is restricted.

    This may help explain restrictions, at least a bit. I don't understand the history and structure of the entity created to hold the property or the deal with the note. It goes to the argument for and against it being restricted and assume it is at the center of the push/pull between the BSA and TCC. 

    On the creation of the entity and note, I'm wondering if both were a strategic mechanism to distance the BSA from imposing the restriction on their own, through a legal structure that looks like the "donor" imposed the restriction. Again, I am shooting in the dark...

    Generally, funds are ‘restricted” when a donor places restrictions on their use.  Typically, there are two types of restrictions—permanent or temporary. 

    Permanently restricted funds are those for which the donor says the recipient must retain the assets permanently but may spend some or all of the income for specified purposes.  The Uniform Prudent Management of Institutional Funds Act, adopted in some form in all states except Pennsylvania as the successor to the Uniform Management of Institutional Funds Act, has separate rules for handling this type of funds, which it calls “endowment.”  (See Ready Reference Pages:  “UMIFA Sets Rules for Charitable Endowments” and “New UPMIFA Sets Rules for Management of Charitable Funds.”)

    Temporarily restricted funds are those for which the donor says they must be used only for a specific purpose or after a certain period of time.  The income from permanently restricted funds will be considered temporarily restricted if the donor requires that it be used for certain purposes.  Your question implies that the funds solicited at the event will be temporarily restricted for a certain purpose.

    The key to restriction is that it must be donor-placed.  Boards, acting alone, cannot normally create legally enforceable restrictions.  If, however, a charity solicits funds for a specific purpose, it is generally believed that gifts made for that purpose become restricted for that purpose because the donor, by contributing for the purpose, has adopted the restriction. 

    Most charitable solicitation registration laws (and other state consumer protection laws) require a charity to use funds for the purpose for which they are solicited.  That is one reason why solicitations ought to include broad charitable use language as well as specific intent.  If you get more than you can use, or if the project changes, you can still use the funds for general charitable purposes.

    https://www.nonprofitissues.com/to-the-point/what-court-cases-or-irs-rulings-if-any-define-restricted-funds

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    • Upvote 1
  22. 16 minutes ago, DavidLeeLambert said:

    (at $1000/hour for many of them, of course)

    This may seem odd for an attorney to say, but I can count on one hand (hyperbole) the number of docket notices I've seen that don't contain at least one "Monthly Application for Fee Application and Compensation and Reimbursement of Expenses." It's staggering. If I recall correctly, several are in the $1500 per hour range. (I am retired and never saw that kind of money, whatever that may mean or not.)

    • Sad 1
  23. 4 minutes ago, Eagle1993 said:

    I immediately noted that the word "all" has been deleted from the reiteration of the first prong of the two-part goal:

    "Our Scouting Movement—the national organization and local councils alikehas moral responsibility to compensate victims of past abuse and to continue Scouting’s missionWe understand the gravity of meeting these imperatives, and we are taking the necessary steps to get there."

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