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Chapter 11 Announced - Part 6 - Plan 5.0/TCC Plan TBD


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This is Doug Kennedy, a member of the TCC.  First, I want to thank all of you for your comments over the past 18 months.  Your comments and those in other forums, whether I disagree with them or not,

A few months ago, one of the posters here offered some great advice I thought.  Type what you intend  to say. Set it aside for a few minutes and look at it again before you press "post". Does it

Normally I wouldn't discuss user issues, but given his profile pic and signature I'm going to make an exception: Regardless of the impression given by his profile picture and signature line, Cyni

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22 minutes ago, ThenNow said:

One is an element of the bankruptcy Plan. That’s the Disclosure Statement. The other, discovery, is a general element of litigation, taking various forms, that is one party going on a spelunking expedition to mine data and statements from another party. Let’s call it legal “Go Fish.”

In state courts one usually follows the other. This from my Utah courts friends

Disclosure and discovery are mixed in time, in approximately the following order:

https://www.utcourts.gov/howto/courtprocess/disclosure-discovery.html

  • initial disclosures;
  • fact discovery;
  • expert disclosures;
  • expert discovery; and
  • pretrial disclosures.

"Approximately" is doing some heavy lifting here, but you get the idea.

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27 minutes ago, ThenNow said:

One is an element of the bankruptcy Plan. That’s the Disclosure Statement. The other, discovery, is a general element of litigation, taking various forms, that is one party going on a spelunking expedition to mine data and statements from another party. Let’s call it legal “Go Fish.” Each in turn:

The disclosure statement is a document that must contain information concerning the assets, liabilities, and business affairs of the debtor sufficient to enable a creditor to make an informed judgment about the debtor's plan of reorganization. https://www.uscourts.gov/services-forms/bankruptcy/bankruptcy-basics/chapter-11-bankruptcy-basics

This is the formal process of exchanging information between the parties about the witnesses and evidence they'll present at trial. Discovery enables the parties to know before the trial begins what evidence may be presented. ... Depositions enable a party to know in advance what a witness will say at the trial. https://www.americanbar.org/groups/public_education/resources/law_related_education_network/how_courts_work/discovery/

 

One of the significant differences between disclosure and discovery, is that the disclosure is "crafted" by the debtor to show what the debtor wants to reveal-and in whatever light the debtor believes will present a favorable view of the disclosure and elicit votes approving it.  Something akin to lawyers taking over the marketing and sales departments.

Discovery, on the other hand, allows a party to a lawsuit to request documents, computer data, nearly anything even remotely connected to the litigation, so that the requesting party can examine it, and draw their own conclusions  regarding its relevance to the case.

In one sense, discovery of documents, computer data, etc., the requesting party receives unaltered historical data-that is, it is backward looking.  The documents were generally created in the ordinary course of operations-in the -heat of battle.  They were not prepared (usually) with litigation in mind.

Another type of discovery pertains to depositions of human beings after a lawsuit has been commenced.  Its does allow the requesting party an opportunity to hear what the opposing party's witnesses will say at trial.  (And, if they change their story between the deposition and trial, to impeach them and undermine their credibility as a witness.) But, contrary to discovery related to documents, etc,, the witness knows litigation is in progress and may be able to shape their testimony to be more favorable to the party who calls them as a witness. Generally, a deposition witness is questioned about documents which were discovered through document discovery.  This type of discovery is both backward-looking (pertaining to historical documents obtained through document discovery), and forward-looking, in that the witness has a chance to shape their testimony in the deposition to cast the best light.

(Asking for a brief explanation was smart.  Volumes have been written on this topic.  "Trial attorneys" spend 95±% of their time requesting, reviewing, analyzing, and interweaving discovered materials into their trial plan.  Actual courtroom time is minuscule compared to trial preparation.)

Perhaps others have more to add?

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28 minutes ago, CynicalScouter said:

In state courts one usually follows the other. This from my Utah courts friends

Disclosure and discovery are mixed in time, in approximately the following order:

https://www.utcourts.gov/howto/courtprocess/disclosure-discovery.html

  • initial disclosures;
  • fact discovery;
  • expert disclosures;
  • expert discovery; and
  • pretrial disclosures.

"Approximately" is doing some heavy lifting here, but you get the idea.

Document discovery (letters, memos, reports, contracts, etc.) and discovery of tangible things (a failed valve, for example) is generally done first. 

THEN, depositions follow, and the witnesses are questioned about those documents and failed valves, so you can learn what they will say in court about those documents and failed valves. 

If the depositions were done first, there would be little to question the witness about.

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3 hours ago, Muttsy said:

Correction: “Nobody’s life, liberty or property is safe while the legislature is in session.” 
 

I know for a fact that people supposedly dead on the statute in bad states are getting 50-100k. The cost and risk to the carrier isn’t worth litigating the issue with the plaintiff. 

I would have to see this to believe it-all of the facts and circumstances, applicable statutes, contracts, etc..

My favorite is the divorce client who claims his buddy at the shop "got to keep his house."

Insinuating that the guy always gets to keep the house, or that the buddy's lawyer was really good.

Well, generally, it turns out the buddy gave up his pension plan benefits in an equal value exchange, or some other asset the buddy is not bothering to mention. "Always got to look like a winner."

Statutes of limitation are pretty much made of granite.

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2 minutes ago, SiouxRanger said:

Statutes of limitation are pretty much made of granite.

So upon what principles did the grey scale originate.  It would seem to me that the claimant says that the crime occurred in some state that was statue of limitations barred or not.  If not barred, then the claimant could collect the maximum that can be negotiated whereas if time barred there could not be an award.  How does a scale apply?

To be clear, I am not saying that some group should not receive compensation - just trying to understand how a grey scale could be constructed.

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2 hours ago, CynicalScouter said:

The fact is it is a fantasy a pure pure fantasy to suggest that suddenly all the statutes of limitation are going to go away or that 100% of victims will get 100% of claim value.

CynicalScouter is absolutely correct.

Heavens, for all that folks hate that legal process is interminable-we are going to kill off the only thing that puts an end to it:  statues of limitation?

 

Can't win, can't break even, can't get out of the game.

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7 minutes ago, SiouxRanger said:

Statutes of limitation are pretty much made of granite

Exactly. There is this magical:fantasy idea that all that needs to happen is to get the 50000+ time barred claims into state courts and suddenly a) all the statutes of limitations will go away and/or b) the insurance companies will pay millions per claim.

even in the scenario @Muttsydescribe we are talking 50-100k. Not the millions and millions.

and the idea that somehow you’re going to threaten insurance companies with court is a joke. First you have to find a lawyer willing to work on contingency in the face of a case where the statute of limitations ran out decades ago. Then you have to conjure up an insurance company incapable of filing a motion to dismiss.

I could see insurers paying of “nuisance value” of 10-30k to settle some. But at that point that is the same amount victims are getting through the BSA plan.

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7 minutes ago, vol_scouter said:

How does a scale apply?

There is “difficult” to overcome the statue of limitations and there is impossible. That scale came in from the TCC lawyers professional opinion on what the real possibility was to find a way around the limitations. Places like Alabama were listed as “closed”: no chance. Etc.

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23 minutes ago, vol_scouter said:

So upon what principles did the grey scale originate.  It would seem to me that the claimant says that the crime occurred in some state that was statue of limitations barred or not.  If not barred, then the claimant could collect the maximum that can be negotiated whereas if time barred there could not be an award.  How does a scale apply?

To be clear, I am not saying that some group should not receive compensation - just trying to understand how a grey scale could be constructed.

Excellent question. I was late to the game here and know little of the "grey scale" concept as discussed in this forum.

My understanding, and I could be entirely incorrect, is that the gray scale originated from National in an early Plan.

IF, and only IF that is the case, the question becomes, why would National include clearly time-barred claimants as a class of creditors to receive some payment?  And the only answer I can come up with is that National wanted to appear that it was trying to "equitably compensate" abuse survivors.

My second best idea (at least to me), is that there is the possibility, however remote, extremely remote, that some states might reopen their statutes of limitation to create a pathway for time-time barred abuse survivors to receive compensation by litigation.  And this just might happen if state legislatures, after watching National's bankruptcy leave its citizen abuse survivors high and dry, are disgusted by the bankruptcy result.  So, my thought is that insurance companies just might be willing to pay something not to risk opening a much larger can of worms.  So, the lowest percentage gray scale value might be applied to states with constitutional prohibitions as mentioned by CynicalScouter, and higher gray scale percentages for states with no constitutional prohibitions, and legislatures more likely to reopen the statute of limitations.  But this is only food for thought.

And my third best and most cynical idea is that National knew the time-barred claimants would likely not recover anything in its bankruptcy but included them anyway in the hopes that they could be enticed to file a claim and by sleight-of-hand, allowed to vote on National's Plan, then National would be able to stack the deck toward Plan approval by adding a huge voting block of those with no hope who surely will vote in favor of the possibility of receiving something as opposed to the bleak certainty of nothing.

(Let everyone in Paraguay vote in favor of whether they ought to get $15,000, and I predict voter turn out will be nearly 100%.)

The gray scale to me is that area on ancient maps marked, "Unknown."

 

Edited by SiouxRanger
Added the third best paragraph. And another plug for Paraguayan voting.
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6 minutes ago, SiouxRanger said:

IF, and only IF that is the case, the question becomes, why would National include clearly time-barred claimants as a class of creditors to receive some payment?  And the only answer I can come up with is that National wanted to appear that it was trying to "equitably compensate" abuse survivors.

It was the TCC that demanded it as part of the RSA/Plan 4.0 in order to get the TCC onboard.

BSA’s Plan 3.0 was to give time barred claims 1% of claim value per the abuse matrix. So the “Tier 1” abuse would be $6,000-$27,000

Edited by CynicalScouter
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21 minutes ago, CynicalScouter said:

There is “difficult” to overcome the statue of limitations and there is impossible. That scale came in from the TCC lawyers professional opinion on what the real possibility was to find a way around the limitations. Places like Alabama were listed as “closed”: no chance. Etc.

I am just going to say that given the infinite number of variables in making such an evaluation, the reading of tea leaves must play some part.

As an example:  "We rate State A as having an 8% probability of reopening its statute of limitations."

How is that 8% determined?

There are time considerations in getting the job done.  If 2 or 4 years, then will the political makeup of the legislature change yay or nay?  A new Governor who is more or less likely to sign the bill?  And if vetoed, will the then (in the future political makeup of the legislature) be able to override a veto?  (Say, "Tea leaves.")

And, how many abuse survivor claimants will actually file a claim?  Or still be alive to file a claim?  Will the right to file a claim die with the abuse survivor claimant, or survive as an enforceable right held by the estate of the deceased abuse survivor?  Will the executor of the deceased abuse survivor's estate, perhaps after canvassing the estate's beneficiaries, persist in pursuing a now revived claim, or will the beneficiaries elect to just "move on?"  (More tea leaves.)

You get the point.

 

And, that there are different levels to the gray scale means that there are folks who actually think (and perhaps they have sound data to support their scale) that they can put a percentage on each of the infinite (and really, maybe only 10 or 20 significant factors are material to the outcome) factors which would affect the viability of a claim.

But if there is science and statistics behind the levels of the gray scale, everyone should be given the benefit of that information.

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16 minutes ago, CynicalScouter said:

It was the TCC that demanded it as part of the RSA/Plan 4.0 in order to get the TCC onboard.

BSA’s Plan 3.0 was to give time barred claims 1% of claim value per the abuse matrix. So the “Tier 1” abuse would be $6,000-$27,000

Boy, I would love someone to explain to me why National thought this would be simple, and "we'll be out of this by Fall."

It ALMOST looks like all of these issues are catching the principal folks (National, TCC, and such) off guard. 

(The process we are now in is that the main players are digging deeply into all the minutiae that affects them;  the issues are exploding exponentially and will entangle and consume the litigation process.  It is rapidly becoming a "Gordian Knot."  Alexander the Great untied the Gordian Knot by slicing it in half with his sword, thereby fulfilling prophecy and conquering Asia.  The only person who can untie National's Gordian Knot is the Judge.)
 

A recorder of deeds office many years ago was run by a group of extremely competent ladies.  Everything they did was perfect.  Not kidding.

There was a sign on the wall behind the main counter:

"Don't start vast projects with half-vast ideas."

And another favorite is:

"Don't start a land war in Asia."

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56 minutes ago, CynicalScouter said:

and the idea that somehow you’re going to threaten insurance companies with court is a joke. First you have to find a lawyer willing to work on contingency in the face of a case where the statute of limitations ran out decades ago. Then you have to conjure up an insurance company incapable of filing a motion to dismiss.

I could see insurers paying of “nuisance value” of 10-30k to settle some. But at that point that is the same amount victims are getting through the BSA plan.

Right on.

Insurance companies cannot be threatened buy mere mortals.  Not by single plaintiff cases.  Hartford might be very concerned but only on account of the mass tort aspect of this.  Even then, it seemed to be able to work a sweet deal to limit its liability.

I can easily see insurers paying $0.00 for nuisance value in time-barred states.

And finding a lawyer willing to work on a contingency basis facing an expired statute of limitations against an insurance company?  Good luck won't help-you'll need a miracle.

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