ThenNow

3 minutes ago, Eagle1970 said:

I just had this understanding through the process that somehow BSA was going to compensate on severity, rather than technicality.

I don’t think you’re in a club by yourself. I believe it is/was a widely held impression. That’s what I thought the day I read the BSA press release.

4 minutes ago, Eagle1970 said:

Are we locked into the same Grey factors for potential future insurance settlements from that trust?

That’s how it reads. Others can confirm. I’ve kinda given up reading  this stuff cover to cover as soon as it lands. I come here for the Cliff Notes and rancid trunk jokes. 

7 hours ago, DavidLeeLambert said:

Where it gets tricky is when the most-serious abuse is in a closed state, but the claimant also reports less-serious abuse in an open state. For example, suppose a Scout was registered in a troop near his home in Utah (closed). The troop took a trip to the Four Corners monument, and he was abused, at the lowest level of severity, while standing in either the Arizona corner or the Colorado corner (both open), but doesn't remember which. Then after he returned home, at the next near-home troop meeting, he was abused again, at the highest level of severity.  Should he get the highest-tier base score multiplied by the "Closed" modifier? Or the lower-tier base score multiplied by the "Open" modifier?

This is me, except no purely open or closed state, per the chart dealio.  Gray 3 is Tier One abuse and Gray 1 and 2 lower tiers. This is all academic, however, because I will win my fraudulent concealment case and be sprinkled with open state fairy dust and receive the Never Surrender merit badge. And yes, I will design it myself and will not get BSA approval. 

51 minutes ago, Eagle1993 said:

are claimants better off rejecting this deal and fighting for a larger LC contribution or accepting what has been offered.  If most claimants are only seeing <$10K total do they think there isn’t much to lose by rejecting the deal?  We will see…

To me, the big question is what happens if it tanks? I’m not doing a better than/less than calculation at this point. I’m doing risk and pain tolerance assessment, which leads me to conclude it’s best to go on to Phase...what phase are we on, again? Let’s call it the CO & Insurance Mud Wrestling Phase, shall we? I don’t expect more to come other than grief and delay if this circles the proverbial. 

9 hours ago, CynicalScouter said:

From the TCC Townhall, the factors appear to have been the professional judgements of the attorneys who were part of the mediation.

Stang discusses it at 29:20-31:30 in this Townhall Video

Ah. I was in a remote area and the video kept dumping on me, so I missed that. Haven’t been able to go back and listen just yet.

Thanks. That’s what I figured. “Objective” turns out to be a tad a subjective and anecdotal, but that’s dandy enough.

16 hours ago, CynicalScouter said:

Gray 1    .50-.70
Gray 2    .30-.45
Gray 3    .10-.25

What objective factors went into creating the Gray area? Cleverly named, btw. Someone is going to have to be prepared to present a compelling case for these significant distinctions. 

And, the Trustee has the ability to force insurers to pay on awards according to these SoL bucking percentages by what mechanism and precedent? I’m still unclear. (My insurance exec wife is dubious.) 

7 hours ago, fred8033 said:

Absolutely ... not knocking lawyers but thinking about costs to resolve the mess. 

I wasn’t referring to the attorneys or costs to resolve or allocation of funds. I’m talking about victim claimants staring down another daunting process of extruding the details of our abuse, again, and dancing through the maze and jumping through the flaming hoops.

50 minutes ago, CynicalScouter said:

I'm just thinking like in any tort it is the place of occurrence. So, and I am really trying to be gentle here, if the abuse occurred in a Gray 1, then continued at summer camp in an Open state, then the instances would be parsed out.

The Settlement statements/detailed documents and interviews are likely going to get very, very specific about what happened where and when, not only for this reason, but among them.

What an ungodly mess this is...

49 minutes ago, CynicalScouter said:

The court has declined to apply the discovery statute to cases of delayed realization of the connection between the abuse and the victim's psychological injury; however, the issue has not been presented in the context of extensive memory repression. The standards for proving fraudulent concealment of a claim are so high as to be impracticable.

Ok. State specific. I’m just reacting to this quote and will need to click to the link later or tomorrow. (I appreciate that you already posted it once.) The first part of that paragraph is about delayed discovery of psychological injury, the other, fraudulent concealment. I’m not seeing the jump to the FC statement, but I will check it out in context. 

9 minutes ago, qwazse said:

There must be cases where the infarctions occurred in one state while the troop hailed from a different state.

There is at least one I know of for p-positive.

8 hours ago, Muttsy said:

Were you abused in any other states? Perhaps out of state travel to a camp or HA facility.

Self-interested curiosity here. If you were abused in Gray 1- Gray 3, how does the Trustee determine into which shade of Gray bucket thou shalt be dropped? What is the abuse Tier in the G1 is different that in G2 is different than that in G3?

4 hours ago, CynicalScouter said:

So even in a "Gray 3" state like Mississippi in which trying to get out of the SoL on the basis of fraudulent concealment is almost impossible,

Is your conclusion of “almost impossible” based on case law and/or statute? 

2 minutes ago, johnsch322 said:

eventually pay because they are still liable and they know they are.

I was just speaking to why they may not be celebrating the Plan. The 3-Ds can also be Delay, Delay & Delay, PLC. 

3 minutes ago, CynicalScouter said:

Some kind of impleader?

1. Victim sues BSA (or the Trust). If BSA sued, BSA brings names Trust/Trustee as real party in interest (since BSA's bankruptcy settles all claims against it and transfers to Trust) and steps aside.
2. Trustee then impleads/third party complaints the insurance company and demands insurance company indemnify?

I want to be there for voir dire and jury selection. They will need to impanel law professors and insurance experts. That’ll be a great trial! 

10 minutes ago, johnsch322 said:

So the question I will ask is: if there is no way that the insurance company's can be sued then why aren't all the insurance company's endorsing the plan?

I’d start with, because they didn’t get their crack at whittling down claims and they wanted BSA and the LCs to take up more of the cash slack so they don’t eventually have to, however that comes to pass. Defend, defend, defend. 

2 minutes ago, CynicalScouter said:

the Channeling Injunction shall not enjoin...the rights of the Settlement Trust and Reorganized BSA (to the extent permitted or required under the Plan) to prosecute any action against any Non-Settling Insurance Company based on or arising from Abuse Insurance Policies that are not the subject of an Insurance Settlement Agreement, subject to any Insurance Coverage Defenses.

I sued Aetna and won a class action settlement for wrongful denial of specific claims. What is the cause of action here? What have they wrongfully refused to pay or denied? Where’s the there there? Is this subsequent to insurers saying, “Go suck eggs! I ain’t paying that!” once the Trustee makes value calculations and subsequent payment demands? 

6 minutes ago, Muttsy said:

 

I once bought a 15 year old BMW from a used car salesman. It kinda went like this. He talked good. The transmission fell out a week later. 

 

I bought a new BMW. Salesman talked real good. Transmission fell out 15 years later. (Actually, 10, but I had to stick with the schtick.)

2 hours ago, MYCVAStory said:

Then, the trust allows some small number of "slam dunk" claims to go to court with much coordination. 

Just trying to understand this part, while I’m waiting to understand the whole legal logistics of who’s on first and who’s on second. So, some handpicked claims will be released from the injunction to enter state court and pursue jury awards. If that ultimately provides the fulcrum leveraging recover for all other claimants, that’s fantastic. How do the test cases get selected? It would seem that any “test plaintiff” take home award should be capped to the $2.7 limit of a tier one claim. Anything above that should go to the Trust. No? Otherwise, the leverage plaintiffs could get awards of 3-5++ x the max Claims Matrix Value and that doesn’t seem right. Meesa cornfussled. 

12 minutes ago, johnsch322 said:

am sure that the insurance carrier would be able to defend in court and these would be jury trials. The slam dunks would be cases where the preponderance of evidence would be pretty overwhelming. It would be explained to the jury that the fact that BSA has BK’ed but that fact has no meaning to the facts. If found liable the court/jury would assign damages and whatever portion would be the insurance carriers would have to be paid by them. That is a bit of simplification but it would be a fair process. It is basically what would have happened if BSA did not enter bankruptcy. 

I don’t get it either. If the BSA and LCs are released, who’s the defendant? If the insurance company, they can’t be sued for non-payment of a non-liquidated claim against an insured that can’t be sued because they’re “immune” from a suit based on the underlying cause of action, which is now a non-cause of action, literally. Wouldn’t it be necessary for these test/leverage cases to occur before the channeling injunction gets set in concrete? I’m lost...

Updated:

https://www.timesunion.com/news/article/Boys-Scout-bankruptcy-plans-angers-some-welcomed-16290807.php

And:

https://www.michigan.gov/ag/0,4534,7-359-92297_47203-563119--m_2011_2,00.html

On 7/2/2021 at 11:18 AM, CynicalScouter said:

Trust Claim Submissions: You need to submit a brand new document with lots more information and be subject to interviews.

Is there an example of this type of document from any other case? I’m eager to see what might be out there to gauge how exhaustive this thing might be. Thanks. 

4 hours ago, MYCVAStory said:

Ask to see the TCC detailed analysis of your LCs finances.  All LCs have received theirs.  Might make for an interesting discussion.

I want to see “mine,” too.

On 7/2/2021 at 11:18 AM, CynicalScouter said:

shall consider supplemental information timely provided by the Abuse Claimant,

I’ve been advised that claimants will have the same discovery rights and powers as a plaintiff. Can anyone confirm or deny? 

Also related to the Trust Claim Submission(s), in what order will claims be assessed or will this be a team of people (committee) charged with wrangling various batches/buckets of claims to move them down the conveyor belt toward the actual Trustee? If by some order, is that first in first reviewed? Still trying to get my head around the sheer logistics and process of this monstrosity. I suppose there is real possibility of a good number of guys taking an Expedited trip to the bank, making things somewhat more manageable. I shake my head reading that last bit. It’s not going to be “manageable” any way you cut it. 

5 minutes ago, CynicalScouter said:

So, the question becomes are victims now going to vote against a plan that is "only" $850 million (with insurance TBD) in a fit of anger and confusion that they are being short changed? Or will the message get through that $850 million is really the best/most that can be gotten out of the BSA and LCs and that the next fight against the insurance companies is where the "real" money is?

As MYCVAStory said well, this crew is far more engaged (hyper-engaged?) than the average claimant. I often wonder what those out yonder are thinking and being told. For me, I’m on to the insurance phase. I don’t think this is getting “bigger and better,” certainly not anytime soon, if ever. Will a “burn it down” endgame serve most claimants in state court? No way. Just consider the 58,000 closed or shades of Gray staters. I’m not saying I no longer care about the LC and BSA piece, I have simply resigned myself to “this is what it is.” As I’ve said repeatedly, I know and trust key players on the TCC and they have done a thankless, yeoman's job on this. If more was to be gotten under the time and competing interests constraints, they would not support the deal. I know others are far less trusting, but I cannot afford to wallow or cast aspersions when I really do not know what, precisely, is going on within the cone of silence. I’m trying to hold the moment loosely, see what comes of the bluster and meanwhile sharpen my knives and pull out my old flint knapping kit to reinforce the stock in my quiver. 

46 minutes ago, Eagle1993 said:

https://www.washingtonpost.com/dc-md-va/2021/07/02/boy-scouts-settlement-abuse-victims/

Is this available for free viewing? 

3 minutes ago, CynicalScouter said:

Ok, to be clear: that would be case by case. Over 50,000 times. Could it happen? Sure. But is it likely for 90-99% of claimants? No.

Yes. Good of you to make that critical distinction. I don’t want to create the wrong impression for anyone. Those cases that have tried to apply a global, “BSA has IVF and failed to disclose and protect all of these plaintiffs,” have not been successful, as far as I know. I’m sure you’re aware of these. Am I correct?

3 hours ago, CynicalScouter said:

There is no scenario here where victims in SoL states get 100% of value. But 1% was absurd. This is the best that can be gotten.

As I’ve said, I disagree. There is a clear path if one knocks out of the park a tolling argument based on fraudulent concealment or other. Yes, I know it is a difficult and exacting proof, but I will make a very serious, studied and tenacious run at it. I don’t intend to fail.