SNEScouter

On 2/22/2024 at 9:59 PM, MYCVAStory said:

The Stay only applied to Trust operations.  The plan is still under appeal and scheduled for an April 9 hearing before the Circuit court of appeals.  No one expects the Circuit to rule before SCOTUS does since any ruling would quickly be reversed if SCOTUS disagrees in Purdue.

The Third Circuit Court of Appeals has asked for briefing, due March 8, addressing "addressing whether the Court should hold this case C.A.V. pending the issuance of the Supreme Court’s decision in Harrington v. Purdue Pharma LP, No. 23-124. "  To me, this seems to make sense.  We'll have a Purdue ruling by the 4th of July.  At this point, the court and parties are better off knowing the Purdue ruling before charging ahead with oral argument and decision.

IMO, the BSA plan will get affirmed regardless of the Purdue outcome, but for different reasons.  If third-party releases are acceptable, then the plan gets affirmed easily.  If third-party release are rejected, the court will still affirm based on equitable mootness.  But the BSA plan is here to stay either way.

19 hours ago, Timbuktu said:

since the council is trying to maintain a monopoly without promoting it, the money never comes Scouting's way.

You seem to think that financial support of the council does not support "Scouting."  That's concerning.

BSA has lots of rules and guidelines about how units are to finance their operations, etc., and who can solicit funds from outside sources.  (Spoiler - the unit cannot solicit).  They're not perfect but they're the rules and simply circumventing them or flouting them isn't the answer IMHO.

SCOTUS vacated the stay.  The settlement trust can resume its work.  Here's the (very brief) language of the order:  "The application for stay presented to Justice Alito and by him referred to the Court is denied.  The order heretofore entered by Justice Alito is vacated."

Edit to include link to order:  https://www.supremecourt.gov/orders/courtorders/022224zr_e2pg.pdf

This is an administrative stay issued by a single justice of the Supreme Court.  It is only guaranteed to last a week-ish - just long enough for the entire Supreme Court to consider whether to further halt proceedings.  That will be a significant ruling.  For now, I suggest not reading too much into this.

8 hours ago, SiouxRanger said:

A trial court could issue a Judgment of doubtful legal propriety, and then authorize immediate implementation of that Judgment, “NOT pending appeal,” thus rendering the court’s judgment “unappealable” due to the doctrine of “equitable muteness.”

Essentially, a lower court can sabotage appeals of its own Judgments by ordering immediate implementation, NOT pending appeals, thus providing the appeals court with the “out” of “we can’t review or reverse the trial court’s judgment because of “equitable mootness.”

Appeals court:  “Even if the trial court is hopelessly wrong, its erroneous judgment has been implemented so extensively, that, per the doctrine of “equitable muteness,” we will not reverse the trial court’s judgment.”

So, the trial court got it all wrong.  The Appeals Court feels its hands are tied and can’t reverse an erroneous trial court judgment, and the wrongs, of a trial court, are not righted.  Hmmm.  American Justice?

At least in the BSA case, that is simply not what happened.  Several courts had the opportunity to reject the plan or at least pause its implementation, and did not.  It wasn't just one trial judge.  The bankruptcy court (Judge Silverstein) first had to confirm the plan, which she did in September 2022 after lengthy proceedings.  Then the district court (Judge Andrews) had to affirm the plan which happened in March 2023.  Plan opponents then moved in the district court to stay implementation of the plan pending appeal, which Judge Andrews denied.  Finally, the Third Circuit Court of Appeals denied a motion to stay implementation of the plan pending appeal on April 19, 2023.  Only then did the plan go into effect.  That's three different courts that looked at the plan before it went into effect.  If any of those courts thought the plan was improper or deficient, they could have paused it or rejected it and they did not.

1 hour ago, swilliams said:

Layman's explanation of "equitable mootness", please?

To quote another poster:

On 8/14/2023 at 9:14 PM, MYCVAStory said:

"The egg has been scrambled so any ruling we make shouldn't undo what has been done. 

Equitable mootness is the idea that so much has happened since plan confirmation in reliance on effectiveness of the plan - property being bought and sold, money being spent, claims being processed, paid and settled, etc. - that it would be impossible to unwind it all.  Therefore, the court simply dismisses the appeals and lets the confirmed plan stay in place.

The BSA and others filed their briefs to the Third Circuit Court of Appeals.  They also moved to dismiss the appeals outright on the basis of equitable mootness and that motion is attached.

BSA MTD Appeal.pdf

Here’s the 18-page ruling.

Order Denying Renewed Stay Motions.pdf

In the U.S. District Court (Delaware), D&V/Lujan filed their motions for a stay pending appeal and stay of the plan on Friday 8/18.  For whatever reason, Omni hasn't made them available.  Perhaps Omni is winding down now that the plan is effective.

Anyway, Judge Andrews has set a briefing schedule.  Briefs opposing the D&V/Lujan motions for a stay pending appeal and stay of the plan are due 9/1.  Replies are due 9/8.

On 8/21/2023 at 9:17 AM, pbcheesehead said:

Our troop formed a subcommittee, chose another Church (Lutheran) who has a history with Scouting units

This was your first problem.  It is the Council's prerogative to enter into agreements with outside organizations to become Charter Orgs.  The troop's unit committee should not have done this without consulting with the Council first and obtaining the Council's blessing.  I also question whether the Lutheran Church leadership fully understands the responsibilities associated with being a Charter Org, since (per your description) it is seemingly handing out signatures on paperwork to multiple units.

On 8/21/2023 at 9:17 AM, pbcheesehead said:

Lutheran Church has an existing Charter for the other unit, and there were no communications from District or Council prior to this.

If I'm reading this correctly (and the facts as presented are not entirely clear), this proposed solution would have the Lutheran Church being the Charter Org for two troops, one of which would be meeting at the Methodist Church that no longer wishes to be a Charter Org?  I can see why the Council would not be thrilled about the Lutheran Church having responsibility for two apparently unrelated troops (this apparently isn't just a boy troop / girl troop pairing, which would likely be fine).

There clearly are issues here and it seems that a meeting with the Council leadership is long overdue.  At that meeting, you all need to agree on the unit's future either as a Council-chartered unit or with a Charter Org that is acceptable to the Council.

On 8/16/2023 at 9:07 PM, MYCVAStory said:

The Dumas and Vaughan attorneys, representing 69 clients, have filed for a Stay with the third district court of appeals. 

The Third Circuit Court of Appeals has denied the stay motions "without prejudice to filing renewed stay motions in the District Court."  They need to take it up with Judge Andrews in the Delaware District Court before the Third Circuit Court of Appeals will consider it.

13 hours ago, Eagle1970 said:

More important than ever, the longer the insurers can hold on to the money, the less it is worth.  The wife an I had breakfast at Denny's the other day for $48.70.  (So much for the $1.99 Grand Slam!).  Simply delaying the inevitable is a win for them (and a loss for survivors).

The settling insurers had to pay the money into escrow, where the funds will be invested until paid over to the Settlement Trust.  If the market does well, the survivors will benefit from it.

On 8/14/2023 at 2:40 PM, Eagle1993 said:

1) Most of the $ comes from insurance companies and little has been paid. What percentage of the billions committed has been paid? I wonder how it will be moot if the powder is still dry.  

This was not easy to find but here it goes...

1) Hartford is paying a total of $787 million of which $137 million was payable on the Effective Date.  See Docket 8816, page 29.

2) Century is paying a total of $800 million of which $50 million was payable on the Effective Date.  See Docket 8907, page 6.

3) Zurich is paying $52.5 million.  As best as I can tell, none of it is payable until appeals are resolved.  See Docket 8907, page 158.

4) Clarendon is paying a total of $16.5 million of which $2.871 million was payable on the Effective Date.  See Docket 8907, page 227.

The above is what the insurers were contractually obligated to pay on the Effective Date with the rest coming due when all appeals are resolved.  It seems they are permitted to pay more earlier at their option.

On 8/11/2023 at 4:00 PM, MYCVAStory said:

This bankruptcy plan is in real peril and Local Councils especially must be pretty damn worried right now.

Respectfully, I must strongly disagree with your assessment of Purdue's impact on the BSA plan.

There is a HUGE difference between BSA and Purdue, which is that BSA's plan has already gone into effect.  Purdue's plan is now stayed and cannot go into effect, if at all, until after SCOTUS rules on the validity of non-consensual third-party releases.  (I agree June '24 is the likely timeframe for that decision.)

We are in unchartered territory here, and so a lot of permutations are possible.  BSA Plan Supporters are not happy to see SCOTUS reviewing nonconsensual third-party releases. 

That said, IMHO, the most likely outcome is that the Third Circuit receives all briefs and decides that the appeals of Lujan, D&V, Certain Insurers, etc. are equitably moot.  Briefing has already begun and so it seems like the Third Circuit ruling could come before a SCOTUS ruling in June '24, but who knows.  Therefore, even if there was reversible error in the BSA Plan approvals, the Third Circuit will likely find that it is powerless to reverse those errors because the plan has already gone into effect.  BSA is now a reorganized debtor and lots of assets have been paid to the Settlement Trustee in exchange for the third-party releases (largely by insurers and Local Councils).  The Settlement Trustee has already started incurring substantial operating expenses against those assets, and might very well start paying at least the expedited $3500 claims before either the Third Circuit or SCOTUS issues any rulings.  There are a lot of other aspects of the plan which also depended (at least indirectly) upon the third-party releases.  It would be virtually impossible for an appeals court to unscramble that egg. 

So even if SCOTUS ultimately finds in Purdue that nonconsensual third-party releases are not permissible, it does not follow that BSA's plan will be imperiled or affected by that ruling.  Today, and certainly by June '24, it will be a practical impossibility to reverse the implementation of BSA's plan of reorganization.  When Plan Supporters file their Third Circuit briefs in the relative near future, you can expect to see a lot of arguments like the above under the heading of equitable mootness.

By the way, equitable mootness is virtually certain NOT to be in issue in Purdue.  Because of the SCOTUS decision to stay the Purdue plan pending SCOTUS's ruling, the Purdue plan will not go into effect before SCOTUS rules, and equitable mootness will not be at issue.  So the Third Circuit is going to apply existing law on equitable mootness, which as I understand tend to favor overruling the various appeals.

7 minutes ago, InquisitiveScouter said:

I have heard anecdotes from Scouters across the country relating instances where councils have sold properties under such restrictions, after waiting a few decades until people forget or donors have passed away, but I have never seen such restrictions in writing on a deed in order to verify those claims. 

Can anyone here provide concrete examples of that practice?

I'd be a little surprised if councils just "waited until people forgot" to then sell land with transfer restrictions.  Buyers and their title insurers generally make sure they are getting good title before paying real money for land.  But it is common for councils to try and transfer such land and, if necessary, to seek court approval under what is known as the "cy pres" doctrine.  I've run into that on several occasions.  People tend to donate small, low-value parcels to councils and impose transfer restrictions on them.  It becomes a burden rather than a benefit, so it often makes sense to get rid of the land via sale or donation to a land trust, for example.

3 minutes ago, curious_scouter said:

They bring no value to units or Scouts/Scouters. 

I disagree.  Every council is different, and I'm sure all councils can do better.  However, council employees are necessary to train leaders, implement programs,  and supervise and support units.  They do not work for free.  Personally I'd rather pay a fee than deal with Friends of Scouting presentations.

This is happening more and more.  Councils are moving towards a user-fee model because Friends of Scouting / other fundraising isn't pulling in the dollars that are needed.

Full press release from BSA on emergence from bankruptcy, including hiring of Mr. Pounder as YP executive:  https://www.scoutingnewsroom.org/press-releases/the-boy-scouts-of-america-bsa-announces-confirmation-of-plan-of-reorganization-and-emergence-from-chapter-11-bankruptcy-to-equitably-compensate-survivors-while-ensuring-scouting-continues-across-the/

BSA filed a Notice of the Effective Date in the bankruptcy court.  It is over.  BSA has emerged from bankruptcy.  The Settlement Trust can begin its work.

Edit to include link to notice:  https://casedocs.omniagentsolutions.com/cmsvol2/pub_47373/5bdd7d51-2fcc-451e-8ed1-4ac76fc4341e_11119.pdf

Lots of movement in the District and Circuit Courts today.

First, Judge Andrews denied the stay motions.

In the Third Circuit, stay motions were filed by the Lujan & D&V claimants, and the Certain Insurers.  BSA & plan supporters filed opposition briefs almost immediately.

Later in the day, a single judge of the Third Circuit entered a temporary stay “… for the sole purpose of allowing the Court an opportunity to review the requests for a stay pending appeal. Nothing herein constitutes a ruling about the merits or a need for more than a temporary stay.”

Now we wait for the Third Circuit to rule on the stay requests in the coming days (weeks?).  If stay motions are denied, expect the plan to go effective & BSA to emerge from Chapter 11 shortly after.

23 minutes ago, Eagle1993 said:

Based on the townhall, it seems like the 1st option above is very unlikely.  There seemed to be a bit of hedging if a temporary stay would be granted ... so there could be a week or two delay in plan effective date. I don't think that would be a shock based on the townhall.

The big unknown and perhaps big shock would be if the if the appeals court issues a stay until they rule.  If that occurs, we could be looking at a long delay (for example, it has been over a year waiting on the appeal ruling of Purdue Pharma).  Plan goes effective Wednesday if no action is taken.

It is not clear to me whether the plan will "go effective" on Wed. 4/12 if a request for a stay is pending to the Third Circuit but has not been ruled upon.  I thought David Moulton suggested at the Town Hall (but memory may be failing me) that even the mere pendency of a stay request would delay the effective date for a little while, even if no court has actually ordered a stay. That would make sense because by its terms, the plan cannot go effective while a stay request is pending unless all of the plan supporters & settling parties agree.  That's in Art. IX.B(1)(c) of the plan (a condition precedent to the effective date is that "no request for a stay of the occurrence of the Effective Date shall be pending").  All of the relevant parties would have to agree for the plan to "go effective" while a stay request is pending and that includes includes Hartford, Century, JP Morgan, etc.

In other words, the effective date will likely be delayed until the Third Circuit denies all stay requests, assuming that are eventually denied.  Of course, if it grants a stay (or if the District Court does), then the effective date will be delayed for a long time.

On 4/7/2023 at 8:23 PM, Eagle1993 said:

Now we wait.  If the District court denies a stay we are down to the appeals court ordering a stay pending their review.  If they don't issue a stay, the plan becomes effective April 12th.  Then, the TCC disappears, the appeal will continue but likely be moot and the trust ramps up big time.  Post bankrupt BSA would emerge and who knows what is on the other side...

At the end of the insurer's reply brief, they said something interesting.  "Because their appellate rights are at risk, the Certain Insurers respectfully state that, absent a stay, notices of appeal will be filed no later than 12:00 pm ET on Monday, April 10, followed by an expedited stay relief request thereafter in the Third Circuit." 

Essentially, they are saying that because it is so time sensitive, they can't wait forever for Judge Andrews to rule on the stay requests.  Presumably this is headed for the Third Circuit today barring a ruling in the next few minutes/hours.  Of course it's anyone's guess how quickly the Third Circuit will act.....

15 minutes ago, Eagle1993 said:

I think the big question is if a court issues a stay during the appeal to this decision (assuming there is one).  Without a stay, it is hard  to imagine an appeal not being moot. 

For those following along at home, it seems like a good time for a look at Rule 8 of the Federal Rules of Appellate Procedure:

https://www.law.cornell.edu/rules/frap/rule_8

The allocation of authority between a bankruptcy court and a district court, and the standard of review that applies, are very complicated legal questions in an already-complicated bankruptcy case.  Here's a somewhat relevant article co-authored by ... you guessed it.... Judge Laurie Selber Silverstein.  https://www.potteranderson.com/newsroom-publications-14.html. 

This article mostly addresses the situation where a bankruptcy court does not have authority to enter a final order on a particular matter.  In that event the bankruptcy judge issues proposed findings of fact and conclusions of law for the district court to consider and adopt after de novo review.  To the best of my knowledge, that's not what happened here, as Judge Silverstein ultimately found that she had authority to enter the confirmation order in its final form, which was then appealed to District Court.  Still it's a useful read.