MYCVAStory

Buchbinder taking the BSA to task.  Among other things,  "The plan is the opposite of an apology."

Opening pitch about to be thrown out.  Vegas oddsmakers split on whether this will be completed today. 

Monday hearing observations: 

Guam:  Throw everything at the wall and hope something sticks.

Settling Insurers:  This is how you clean the wall.

Girl Scouts:  We may have just lost our trademark case against the BSA via a summary judgement but we don't agree so just ignore all of that.

Judge"  Quietly thinking to herself "This is a day I'll never get back."  Saying out loud: "Okay, I want to wrap this up tomorrow."

US Trustee:  Time to break out my even fancier tie because tomorrow's about third-party releases and it's GO TIME!

Boy Scouts Attorneys:  Yes, your honor, if everyone will just be nice and not object too much we can wrap it up tomorrow.

Everyone else:  Nice try.

1 hour ago, MattR said:

We created another thread for this sub topic. This thread is limited to what we think the judge is interested in and I doubt where other CSA occurs is on her radar.

Can you provide some clarification?  How would that be different than a thread related to the confirmation hearing?  Thanks.

Judge is looking for legal cover:

"Do I feel like I'm weighing in on a dispute I should be weighing in on"

Attorneys would be smart to focus not on the benefits or harm of any parts of this plan, but on the legality of it.

1 minute ago, Eagle1993 said:

BSA counsel just said that if this plan is denied it will result in liquidation of BSA.  

It was an interesting point.  Essentially. the insurers who spoke discussed their experience in Scouting and professed to not want an end to the BSA.  But, that's illogical because no one has argued that this plan failing confirmation will NOT mean the end of the BSA.

Interesting comment from the judge.  Excess Insurer comments that two seperate psychologists said they believed there were many claims that weren't valid.  Judge nodding and says "I noted that but they didn't say the reasons why."  

24 minutes ago, Eagle1993 said:

The certain insurer lawyer finished up on big aspect of their objection, that the deal wasn't negotiated in good faith.  The ending was interesting.  Doren, the lawyer, talked about being a boy scout from 10 - 18 and one of his proudest moments was earning Eagle Scout.  He and the certain insurers do not want BSA to fold.  They want BSA to exit bankruptcy, but with an appropriate plan.  (per them, this plan isn't acceptable).  I only listened to 15 mins or so, and there were almost no questions from the judge.  Would be interesting if she asked about any aspect of his presentation.

It appeared that she wanted to get to the break and knows that there are other objectors so she's probably holding off on questions.  He was effective and did a great job of illustrating his points graphically.  His "appropriate plan" is pretty comical.  The insurers love the status quo.  They get to ignore all the claims that are out-of-statute and  fight the rest one-by-one using time and delay to their advantage.  It'll be interesting to see if she's loading up questions to ask but she also commented that she wants to address today the schedule for the rest of the confirmation.

Pachulski covers for the Judge that the TCC, BSA, FCR and Coalition sat down to address certain insurers' objections regarding Trust operation.  This included STAC does not need to approve neutral in IRP, or approve claims professionals (Trustee may make this decision.  Trustee will get $125K a month.  (Nice work if you can get it but in reality the Trust WILL BE a multi-billion dollar entity so that's probably the going price for a CEO.  I'm still jealous).  Trustee won't have a financial interest with any non-settling insurers.  There were a host of other changes to "clean up" operations that allow the Trustee to act independently.    Today's filing is Docket #9595 and the Trust may be set up as an LLC.  Any disputes between the Trustee, STAC and FCR will take place via ADR (Alternative Dispute Resolution) instead of going back to bankruptcy court all the time. 

This was a LONG presentation of "Courthouse steps" changes addressing concerns before the insurers raise them.  I'll be in my car so I'll leave it up to someone else to post the Judge's reaction.

1 hour ago, ThenNow said:

the objectors are entitled to equal time, righto?

Sort of from an "appearance" and not "time" aspect.  If the judge spoke up and said "I agree with you and don't have any questions" they'd be happy to shut up and yield any time!  The bigger issue is that this was doomed from the start when it came to only taking two days.  The Judge's face said that when Lauria laid out the pre-wedding plan.  Let's look at it another way.  We're all tired of waiting but now more than ever is the time for the Judge to take ALL the time she needs.  This case is unusual and historic in many ways.  She may need to carve out new territory to suit this case best.  Regardless, whatever side you're on I think we all want this confirmation hearing portion to take as long as it needs to at this point.   Puchalski now indicating that they are trying to massage the schedule to be logical. 

Well, maybe it's best to expect it to take a VERY long time and maybe get pleasingly surprised when it doesn't!

5 minutes ago, Eagle1993 said:

It would be interesting to know why this is a battle and the impact if the judge covers this as not a settlement of claims.

To the former, I don't think it's a battle.  This judge said that she was going to have a lot of questions, the objectors certainly will take issue with supporter testimony, and at the end of the day it's up to each to make the right arguments that give her rationale for her decisions.  There will be moments when observers will think "OH, she supports this...." and a minute later "UH, not so fast with that thinking, might have been wrong about that...."  What will be interesting will be to see the "cumulative" nature of her comments and questions by the time this wraps up.

33 minutes ago, johnsch322 said:

How in gods name could she possibly think this process would only take 90 days. 

Perhaps she underestimated there being a TCC that would have immediately demanded a longer claim period.  One of many miscalculations.

1 hour ago, ThenNow said:

At the very least she could have acknowledged the reality of survivors' attenuated quest for closure and made her announcement with a measure of apology. 

Agreed.  I had flashbacks to Wilmington where Survivors gathered when the TCC was being selected and she walked out, said "The BSA is sorry, we'll give Survivors 90 days to get their claims in, and wrap this up quickly."  NO BSA professionals spoke, NO understanding of how difficult it would be for Survivors to come forward, let alone do it in 90 days.

53 minutes ago, Eagle1970 said:

In a sense, an enterprise should not leave bankruptcy with much more than zero.  Do you have an idea of the total non-liquid asset value they will retain?

Grain of salt....in the case of some assets, like Philmont, there is significant debt attached.   Others, like the Summit, have less value according to recent appraisals than the amount spent/contributed in development ($45 Mil versus $400 Mil).  So, the non-liquid assets aren't always what they appear.  

Wednesday and Thursday on the schedule.  Pro Se objections on Thursday 11-12:30.  Debtor is concerned that Pro Se involvement will address their individual claims.  Judge is going to allow comments but not get into claims.  Could be an interesting 90 minutes.  Overall theme is one of doubt that this is going to get wrapped up over two days.  Debtor reminded court that fee issues (Coalition, Pfau/Zalking, Catholics) are a part of seperate court actions outside of this.  Judge nodded in agreement.  One pro se claimant, Cutler, was very involved but his comments were all over the place and included being served with papers that had "The mark of Zorro" on them, Mormonism includes a ritual disembowelment if you give up secrets, Price-Waterhouse should be counting votes, victims thought this was going to be like the Nuremberg trials).  It was hard not to feel a combination of confusion and compassion but the court was patient.  So....starts 10AM Wednesday until it's done.  Judge called it "ambitious" and expects issues to be argued in time allotted provided she doesn't have a lot of questions.   She suggested the objectors should go first so the debtor doesn't spend too much time on issues where others don't disagree.  TONE DEAF comment of the day: Lauria's step-daughter is getting married so she isn't available Friday..."We've been waiting a long time for this."  UHHHHH....yeah....most of us have been waiting decades for our abuse to be addressed.  Unbelievable.

2 hours ago, JBWest said:

I also wonder how long it will take to hear from the pro se claimants, one of whom made a brief but testy appearance on Friday. 

It appeared that the debtor and this pro se Survivor had a history of back-and-forth.  Here's their most resent response to one of his filings: https://casedocs.omniagentsolutions.com/cmsvol2/pub_47373/7b495b94-112f-4176-95ed-c31831a5996b_9525.pdf

3 minutes ago, ThenNow said:

Closing out this week's edition of BSA TV's Series, "As the Bankruptcy Turns,"

Well....the mini-series will come to an end next week or shortly after.  Potentially followed by the spinoff: "The Appeal."  At least we'll know 2-3 weeks after this series concludes what the decision will be.

2 minutes ago, clbkbx said:

Do you have concerns with the validation process? I haven't read the TDP completely but assumed this was part of choosing a competent person to administer the trust.

You've hit the nail on teh head and why it's so critical to have the right INDEPENDANT Trustee and claims administrators in place.  They'll need to balance validation, time, expense....

12 minutes ago, clbkbx said:

Has anyone heard a good estimate of the number of fraudulent claims? An expert this week said her experience was something a bit over 40% but I don't know if it was a comparable group. 

It was NOT a comparable group.  Regardless, it is a reminder of the need for a ROBUST validation process.

This proceeding has backed the Judge into a box.  Typically by now the parties have danced around enough that they are coming to agreements and the Judge can "tweak" them a bit by making it clear where the issues are.  Then, after some hallway negotiations the Judge is asked to bless a mutually consensual plan.  This is anything but.  Between the MASSIVE insurance issues, third-party release challenges that she clearly signaled yesterday, and a host of others there are REAL challenges in place and she could very well say "I'd like to agree that X issue can be agreed to but my hands are constitutionally tied."  All of this is showing that the BSA NEVER should have entered into bankruptcy.  That advice led them into a trap where the mass tort attorneys opened the floodgates.  Instead, the BSA WITH ITS INSURERS should have dealt with cases as they arose, even with that number increasing significantly.  How did their attorneys NOT warn them of the flood they'd create?  Next week's arguments should be interesting and allow for some tea-leaf reading but then it'll be 2-3 weeks until we know anything.  Then, we'll see if the insurers appeal...or maybe the TCC if she tries to cram anything down, and if so, would the Coalition say "We'll take what we can get to pay our bills at this point."  It's a mess and while I suspect the Judge wants to do the right thing, the bankruptcy code thing might get in the way.  Hoping I'm wrong.

1 hour ago, johnsch322 said:

On top of that the lawyer who admitted he didn't really read and just gave his staff a blank POC with his signature on it to use and the biggest bozo who could not explain how his firm submitted POC's without claimant names and I really have doubt to how many actual survivor claimants there are in this bankruptcy.  

Quite right.  This is why an unbiased independent Trustee was so important to the TCC and important to Survivors.  The Coalition wanted its designated Trustee and one can only assume that was to get awards out the door.  If your firm is getting 40% of an award your motivation is to have Trust personnel in place who won't delay that money going out by taking care of that pesky validation.  NO Survivor wants unnecessary delays but if it means money going to those who deserve it only then a reasonable process and wait is time and effort well spent.  At this point, even if the judge confirms and says "The Trust needs to worry about validation" then the insurers have done us all a favor by highlighting the issue.

Hearing ends.   Insurers spent the afternoon raising doubt about the validity of mass tort attorneys' client intake practices.  When asked when closing arguments might be heard Debtor's attorney said she wants to speak again regarding progress on youth protection measures, good faith, and third-party releases.  Additional discussion will be presented related to the TDP, insurance neutrality, and a bunch of other objecting issues.  She saw two days of closing arguments.  Judge has her own list including "Appropriate standard for her decisions related to the TDP and mentioned fair and appropriate"  Also wants discussion of automatic stay issues raised by Guam objectors.  For third-party releases she is interested in why she should grant them IF she has constitutional authority to do so.  Cautioned attorneys that she tends to ask a lot of questions.  Pro Se claimant who is incarcerated will have arrangements made so he can speak.  Debtor must also give opportunity for any pro se objectors who have filed objections be able to make arguments. 

She scheduled it all for Wednesday and Thursday 4/6&7 but has a commitment Thursday AM.  Sounds like a bit of a longshot for it all to be done in two days.

20 minutes ago, ThenNow said:

BSA National just called. They want immediate access to this "Defense Fund" and asked who's been holding out on them. 

It was really a forehead-slapping testimony at times.  "I can tell you that 40-45% of claims are fraudulent."..... 30 minutes later....  "I don't know who's paying me.  The checks come from the Boy Scouts Defense Fund."  Really now?

Coming attraction for Wednesday....Ken Rothweiler to be a witness.  

Schullman's taped deposition up next.  Looked and sounded as you'd expect an attorney to look and sound after he had filed hundreds of clients' POCs.  Unsure, unsteady.  "How many of the POCs you signed did you speak to the client personally?"  "I don't know."   "Did you physically sign every POC"  "No, I did not."  "How were your signatures authorized?"  "I indicated on SmartAdvocate (software) I had reviewed it. so it was afffixed."  "You signed Mr. X's POC on the 12th....you were retained on the 12th....but it wasn't reviewed until the 13th and the client was asked by your associate for additional information.  So why was the POC dated the 12th?"  It's going on like this.  Suggestion to mass tort attorneys; if you're going to take on hundreds or thousands of clients expect this kind of scrutiny and don't save money by NOT having the infrastructure to accurately and personally manage ALL of your clients.  This is red meat for the insurers.