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Chapter 11 Announced - Part 4 Revised Plan


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1 minute ago, CynicalScouter said:

That's not how bankruptcy works.

The idea in a bankruptcy is that ALL claims and ALL costs of the BSA are wrapped up and done and that there is no future payments coming. Something like counseling (which can go on for years/decades) is not going to be part of the bankruptcy.

What COULD happen is that a separate agreement or something is reached.

That is what I am proposing.  And on a personal level, as a decent human, I fully support those direct expenses (especially counseling) be addressed.

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@CynicalScouter Thanks from me and frankly, surely everyone, for tracking on the status of National's bankruptcy pleadings, and the procedural steps, past and pending, in the Bankruptcy case. And your

Okay. Enough. If you aren't talking about court proceedings then drop it.  It would be a shame to lock this thread now.

A few random observations from watching this bankruptcy unfold over the past several months: The focus has clearly been on protecting the national organization first and then the local councils.

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3 minutes ago, Eagle1970 said:

Is "time-barred" an absolute?  I have heard of instances where memories were repressed and other theories.  Looking at my State statute, it sure looks like time-barred is time-barred.

There are a litany of exceptions such as you mentioned, but we are talking generally time-barred means time-barred. You have until XX years from abuse or until you reach the age of YY.

Now, of those 58,000+ time-barred claims, there may be SOME that can get around the time-bar. And the settlement plan BSA laid out even contemplates that the Settlement Trustee may be able to work that out on a CASE BY CASE basis, but that's not going to cover all 58,000+ people in time barred states and requires a lot of legal work.

Here's the relevant section.

Quote

Statute of Limitations or Repose. If the evidence presented by the Abuse
Claimant results in the Settlement Trustee concluding that the subject Abuse Claim
could be dismissed or denied in the tort system due to the passage of a statute of
limitations or due to a statute of repose, the Settlement Trustee shall apply a Scaling
Factor of .01; provided, however, the Settlement Trustee will weigh the strength of
any relevant evidence submitted by the Abuse Claimant to determine whether the
statute of limitations could be tolled under applicable law based on a Protected
Party’s conduct, and may apply a higher Scaling Factor if such evidence
demonstrates to the Settlement Trustee that tolling would be appropriate under
applicable state law;
provided, further, any Direct Abuse Claim that is substantially
reduced pursuant to this mitigating Scaling Factor that becomes the subject of
statute of limitations revival legislation may be re-determined in the sole discretion
of the Settlement Trustee.

 

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3 minutes ago, ThenNow said:

Currently, the only defense with traction that I can find is tolling of the SoL based on fraudulent concealment. From my lawyer's brain perspective, the whole thing is fascinating. It's a longstanding theory that is being successfully applied to the BSA CSA cases.

 

If fraudulent concealment is at all effective in tolling the SoL in BSA cases, doesn't that potential then become a factor in the insurance settlements?

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7 minutes ago, Eagle1970 said:

If fraudulent concealment is at all effective in tolling the SoL in BSA cases, doesn't that potential then become a factor in the insurance settlements?

You would have to demonstrate, on a case by case and claim by claim basis, that it occurred.

And in some states with such provisions "The standards for proving fraudulent concealment of a claim are so high as to be impracticable."

https://www.ncsl.org/research/human-services/state-civil-statutes-of-limitations-in-child-sexua.aspx

So, maybe that works in a few cases, but you are still talking about years of litigation either in a court or before the Settlement Trustee.

It is not going to blanket-cover 58,000+ claims

Edited by CynicalScouter
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17 minutes ago, CynicalScouter said:

the Settlement Trustee will weigh the strength of
any relevant evidence submitted by the Abuse Claimant to determine whether the
statute of limitations could be tolled under applicable law based on a Protected
Party’s conduct, and may apply a higher Scaling Factor if such evidence
demonstrates to the Settlement Trustee that tolling would be appropriate under
applicable state law;

Still don't get this fudge factor. "Higher Scaling Factor" than 1% or the applicable Upscaling Claim Value (factors), as they're called? Specifically, Consideration of Aggravating Factors, Abuser Profile and Impact of the Abuse. If a valid case for tolling is accepted by the Trustee and s/he does NOT kick the claim into open state status, that would be mind boggling and contrary to law.

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Posted (edited)
5 minutes ago, ThenNow said:

If a valid case for tolling is accepted by the Trustee and s/he does NOT kick the claim into open state status, that would be mind boggling and contrary to law.

I'm guessing this is to allow for something like "Claimant has made a plausible or prima facie case that the statute should be tolled, but not reached [LEVEL OF PROOF/BURDEN LEVEL] therefore rather than accepting the claim at 100% or 1% it will be accepted at [higher Scaling Factor]"

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4 minutes ago, CynicalScouter said:

rather than accepting the claim at 100% or 1% it will be accepted at [higher Scaling Factor]"

Got it.

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Posted (edited)

I assume something's off with the clerk's office or Omni today because NOTHING has been filed or posted to Omni yet today. Not just the RSA, nothing at all.

Edited by CynicalScouter
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3 hours ago, CynicalScouter said:

 

Suggesting either

  1. Poor recording keeping by councils over the years/decades/century
  2. A lot of false claims
  3. Some combination of #1 and #2

Regardless of #2, I absolutely guarantee that #1 was a factor.  There's no way the constant stream of record keeping problems I've seen discussed on here are new issues.

2 hours ago, Eagle1970 said:

The civil SoL is all about protecting corporations against liability.  And it is political in many States.

Actually it really isn't, it's about keeping the courts from being burdened with cases that are practically impossible to actually litigate with confidence in the result because so much time has passed.  SoL were invented well before the personhood of corporations and before the advent of the large class-action lawsuit with crazy awards.

 

2 hours ago, Eagle1970 said:

I can't even imagine a valid claimant voting for approval, unless they are desperate for a couple of dollars.  Why would this win approval.  Why would attorneys support it.  I simply don't get it.

If a bad plan is likely to get you more money than no plan, the bad plan wins and rational people could vote for it.  In the absence of a deal abuse claimants would basically get nothing because right now, they don't even have a legal claim against the BSA, only the possibility of a claim.  If a liquidation DID happen, by the time all the higher priority claims got paid the chances of there being anything left for victims would be low.  And if the BSA disappears, the ability of claimants to pursue claims against the insurance companies would be greatly impaired. 

 

 

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43 minutes ago, CynicalScouter said:

I assume something's off with the clerk's office or Omni today because NOTHING has been filed or posted to Omni yet today. Not just the RSA, nothing at all.

The document is 40GB with 39GB of "please, please, please" followed by "vote for this".

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52 minutes ago, CynicalScouter said:

I assume something's off with the clerk's office or Omni today because NOTHING has been filed or posted to Omni yet today. Not just the RSA, nothing at all.

Insurance company pre-emptive request to cancel July 20 hearing.

https://casedocs.omniagentsolutions.com/cmsvol2/pub_47373/67a7e046-be35-4050-bd0c-ccdbc228bfc2_5461.pdf

Quote

Although the Moving Insurers have not seen the new Plan or Disclosure Statement, a limited review of the proposed RSA and TDPs sent to the Moving Insurers in draft form last Friday evening (June 25th) starkly reveals that the new Plan will materially modify the Third Amended Plan.

 

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2 hours ago, johnsch322 said:

What I don't believe is that this is over.  I do believe that there will be more SOL states.  My optimism is for others I live in California and my abuse occurred in California.  This is not over.

It is immoral and unjust to ever treat similarly abused and affected survivors differently based on the accident of geographic location of the abuse or the capriciousness of state legislatures. Compensation should reflect material aspects of what was inflicted and it’s short, intermediate and long term effects on the boy/man. 
 

Two other points. While this mess is a real stinker, it doesn’t mean checkmate against survivors. 
Two important legal concepts to ponder: 

1: insurance companies have a nearly absolute “duty to defend” even if they assert a “reservation of rights” to maintain inter alia that the claim is time-barred  

2. SOL is a legal defense that is raised in these cases but people somehow think it means an automatic dismissal of the case. It doesn’t  The defense must support a motion to dismiss on SOL with EVIDENCE  

Where does the defense get the evidence?

Through litigation discovery e.g. interrogatories, depositions, requests to admit etc  Civil defense law firms are not charitable organizations  The cost to litigate each case is borne by the insurance company. Just the discovery and motion practice to get the SOL dismissal motion ruled upon is $15-50k per plaintiff depending on local legal market rates.  One case? Ok  40 cases? Ok. 50,000 cases? No way.

In a case like this, SOL is economically irrelevant. Remember, too, that there are potent plaintiff defenses to the defense of SOL  In this case, fraudulent concealment is a major one  BSA, LC’s and many CO’s KNEW of the pedophile permeability of scouting for a century and fraudulently concealed that information from scouts and scout parents  How much would it cost Chubb and the others to litigate those fact issues, even if they won some of them? Other courts will say the defense is a fact question for a jury. Ching-ching the cost of defense for the ins carriers shoots to 500k-2M dollars per trial. The carriers understand the economics  The TCC and the Eagles apparently do not  

Then there is the latent discovery defense to SOL  This is recognized in many non-window states  Last week even Louisiana’s Supreme Court recognized the defense and Louisiana hasn’t been on the radar screen as a beacon of hope for abuse survivors. 
 

The latent injury discovery defense to the SOL defense is a very complex and di$covery intensive exercise. Expert witnesses, medical and psychological records, school, military records, depositions of parents, siblings, childhood friends — all to prove or disprove that the survivor had psychological injuries he did not discover until within the last three years or whatever the SOL period for personal injury cases is in a particular state. 
 

This is why even a cram down for BSA that leaves LC’s and CO’s legally exposed is far preferable because the carriers will be forced to defend an impossible number of cases. 
 

The case will be won in the multitude of lawsuits leading inevitably to hundreds of LC and CO bankruptcies.  This is where your real CSA lawyers will earn their fees. Not the bankruptcy types who charge hundreds of millions, fail and then convince victims to “take it or leave it.”

Leave it.

 

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19 minutes ago, Muttsy said:

Compensation should reflect material aspects of what was inflicted and it’s short, intermediate and long term effects on the boy/man.

And in the context of the bankruptcy, that is not going to happen. There is no way the insurance companies are going to be forced to pay the same for a claim that is timely and valid vs. one that is valid but time barred. Unjust? Unfair? Perhaps yes. But no bankruptcy judge is going to, in effect, put aside all state statutes of limitations.

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Posted (edited)

 

49 minutes ago, Eagle1993 said:

Insurance company pre-emptive request to cancel July 20 hearing.

And I have to say, I think the Insurance Companies (this is NOT just Century, this looks like all the insurance cos) have a point for two reasons:

1) They are asking for at least 28 days from when BSA files whatever it is they are about to file to review and respond. I'm not sure I buy 28 days, but I sure think more than 7 days is in order (assuming something gets filed today).

2) That time frame also gives other interested parties, like the U.S. Trustee, time to come in and speak/file statements on whatever it is that BSA is about to put forth.

That said, the insurer's statement also includes several key moves. I'll start by saying it is questionable ethics to put what is likely attorney work product (the draft RSA) into a public court document.

1) "In particular, the changes to the terms for the allowance and valuation of claims (i.e., the TDPs,of which there are now one set, instead of two), which are the heart of a mass tort case, represent a sea change in the direction of this case." That means that somewhere there was a meeting between the TCC's $102 billion estimate and BSA's $4-7 billion.

2) Insurers complain that after BSA and LCs cut their deal, the let TCC/FCR/Coalition write the rest of the RSA. Boo hoo.

3) The COs are confirmed to be uncovered by the plan (as of now) "it appears that changes to the Plan and TDPs are contemplated to leave the charitable organizations associated with scouting outside the protections afforded by the Plan making the releases offered by the plan illusory."

4) The role of the Settlement Trustee is being massively revamped. "The TDPs will now ask the Court to adjudicate BSA’s “liability” and any insurance coverage for the Abuse Claims."

5) The "Expedited Distributions" are upped from $1,500 to $3,500. Remember: these are the "take this and release your claim" payouts that require claimants to do nothing else.

Edited by CynicalScouter
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