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LUJAN & WOLFF LLP\nChristopher D. Loizides Delia Lujan Wolff\n1225 King Street, Suite 800 238 Archbishop Flores St., Suite 300\nWilmington, DE 19801 Hagatna, Guam 96910\nTelephone: (302) 654-0248 Telephone: (671) 477-8064/5\n\n Attorneys for Appellants Lujan Claimants\n 1\n Case number 22-cv-01237-RGA is a lead case consolidated with District Court\ncases 22-cv-01237, 22-cv-01238, 22-cv-01239, 22-cv-01240, 22-cv-01241, 22-cv-01242, 22-cv-\n01243, 22-cv-01244, 22-cv-01245, 22-cv-01246, 22-cv-01247, 22-cv-01249, 22-cv-01250, 22-cv-\n01251, 22-cv-01252, 22-cv-01258, and 22-cv-01263. Lujan Claimants\u2019 appeal is docketed in the\nDistrict Court at 22-cv-01258-RGA.\n\f Case: 23-1664 Document: 271-1 Page: 2 Date Filed: 05/27/2025\n\n\n\n\n TABLE OF CONTENTS\n\n\nTABLE OF AUTHORITIES ii\nRULE 35.1 STATEMENT OF COUNSEL 1\nINTRODUCTION 3\nBACKGROUND 4\nARGUMENT 7\n I. The majority\u2019s decision to apply \u00a7363(m) to plan sales\n conflicts with Third Circuit precedent and places this Court\n in the minority among circuits considering the question. 7\n A. Expanding \u00a7363(m) to apply to plan sales conflicts with this\n Court\u2019s prior decisions. 7\n B. By applying \u00a7363(m) to the Confirmation Order, the majority\n deepens a circuit split and places this Court in the minority. 9\n II. Dismissal of the appeal conflicts with the Supreme Court\u2019s\n decision in MOAC Mall. 11\n III. En banc review is necessary to address whether \u00a7363 can be\n used to allow into a reorganization plan and protect from\n appellate review unlawful provisions including nonconsensual\n third-party releases invalidated in Purdue. 13\n IV. The majority\u2019s finding of related-to jurisdiction over\n claims between nondebtors conflicts with Third Circuit\n precedent and is unsupported by the record. 15\nJOINDER 18\nCONCLUSION 18\nCOMBINED CERTIFICATIONS 20\nEXHIBIT 1: PANEL OPINION\nEXHIBIT 2: JUDGMENT\n\n\n\n\n i\n\f Case: 23-1664 Document: 271-1 Page: 3 Date Filed: 05/27/2025\n\n\n\n\n TABLE OF AUTHORITIES\n\nCases\n\nCinicola v. Scharffenberger, 248 F.3d 110 (3d Cir. 2001) ............................... 1,8,13\nHarrington v. Purdue Pharma L.P., 603 U.S. 204 (2024) ............................ 1,3,13,15\nIn re Bardos, No. CC-13-1316-PaKuBl, 2014 WL 3703923\n (B.A.P. 9th Cir. July 25, 2014) ..........................................................................9,10\nIn re Combustion Eng\u2019g, Inc., 391 F.3d 190 (3d Cir. 2005) ....................... 1,3,15,16\nIn re Energy Future Holdings, 949 F.3d 806 (3d Cir. 2020) ..................................1,8\nIn re Fieldwood Energy LLC, 93 F.4th 817 (5th Cir. 2024) ...................................10\nIn re ICL Holding Co., 802 F.3d 547 (3d Cir. 2015) ........................................ 1,7,14\nIn re Joshua Slocum Ltd., 922 F.2d 1081 (3d Cir. 1990) ..........................................9\nIn re Made in Detroit, Inc., 414 F.3d 576 (6th Cir. 2005) .......................................10\nIn re One2One Commc\u2019ns, LLC, 805 F.3d 428 (3d Cir. 2015) ..............................12\nIn re PWS Holding Corp., 228 F.3d 224 (3d Cir. 2000).........................................1,7\nIn re Texas Extrusion Corp., 844 F.2d 1142 (5th Cir. 1988)...................................10\nMiami Ctr. Ltd. P\u2019ship v. Bank of New York, 838 F.2d 1547 (11th Cir. 1988) .....10\nMOAC Mall Holdings LLC v. Transform Holdco LLC,\n 598 U.S. 288 (2023) ................................................................................. 1,3,11,12\nPacor, Inc. v. Higgins, 743 F.2d 984 (3d Cir 1984) ......................................... 1,3,15\n\n\nStatutes\n\n11 U.S.C. \u00a7 363 .............................................................................. 3,6,7,8,9,12,13,14\n11 U.S.C. \u00a7 363(b) .................................................................................. 7,8,10,11,13\n11 U.S.C. \u00a7 363(c) .................................................................................. 7,8,10,11,13\n11 U.S.C. \u00a7 363(l) ......................................................................................................7\n11 U.S.C. \u00a7 363(m) ................................................................ 3,7,8,9,10,11,12,13,14,\n11 U.S.C. \u00a7 363(o) .....................................................................................................7\n11 U.S.C. \u00a7 364(e) ................................................................................................9,12\n11 U.S.C. \u00a7 365 ..........................................................................................................9\n11 U.S.C. \u00a7 1123(a)(5)(B) .........................................................................................9\n\n\n\n\n ii\n\f Case: 23-1664 Document: 271-1 Page: 4 Date Filed: 05/27/2025\n\n\n\n\nL.A.R. 35.1 STATEMENT OF COUNSEL\n\n I express a belief, based on a reasoned and studied professional judgment, that\n\nthe panel decision is contrary to decisions of the United States Court of Appeals for\n\nthe Third Circuit and the Supreme Court of the United States, and that consideration\n\nby the full court is necessary to secure and maintain uniformity of decisions in this\n\ncourt, i.e., the panel\u2019s decision is contrary to the decisions of this Court in In re PWS\n\nHolding Corp., 228 F.3d 224 (3d Cir. 2000), In re ICL Holding Co., 802 F.3d 547\n\n(3d Cir. 2015), In re Energy Future Holdings, 949 F.3d 806 (3d Cir. 2020), Cinicola\n\nv. Scharffenberger, 248 F.3d 110 (3d Cir. 2001), In re Combustion Eng\u2019g, Inc., 391\n\nF.3d 190 (3d Cir. 2004), and Pacor, Inc. v. Higgins, 743 F.2d 984 (3d Cir 1984), and\n\nthe Supreme Court in MOAC Mall Holdings LLC v. Transform Holdco LLC, 598\n\nU.S. 288 (2023), and that this appeal involves a question of exceptional importance,\n\ni.e., whether 11 U.S.C. \u00a7363 can be used as a backdoor to allow into a plan and\n\nshield from appellate scrutiny nonconsensual third-party releases which the Supreme\n\nCourt found unlawful in Harrington v. Purdue Pharma L.P., 603 U.S. 204 (2024).\n\n /s/ Christopher D. Loizides\n Christopher D. Loizides\n Loizides, P.A.\n 1225 North King Street, Suite 800\n Wilmington, DE 19801\n Phone: 302.654.0248\n Email: loizides@loizides.com\n\n and\n\fCase: 23-1664 Document: 271-1 Page: 5 Date Filed: 05/27/2025\n\n\n\n\n LUJAN & WOLFF LLP\n\n /s/ Delia Lujan Wolff\n Delia Lujan Wolff\n Suite 300, DNA Bldg.\n 238 Archbishop Flores St.\n Hagatna, Guam 96910\n Phone: (671) 477-8064/5\n Facsimile: (671) 477-5297\n Email: dslwolff@lawguam.com\n\n Attorneys for Lujan Claimants\n\n\n\n\n 2\n\f Case: 23-1664 Document: 271-1 Page: 6 Date Filed: 05/27/2025\n\n\n\n\n INTRODUCTION\n\n The majority\u2019s decision to dismiss this appeal of plan confirmation as\n\nstatutorily moot \u201cstretches\u201d 11 U.S.C. \u00a7363(m) in contravention of that statute\u2019s\n\nclear indication that it does not apply to plan sales, thereby conflicting with this\n\nCourt\u2019s earlier decisions recognizing the difference between \u00a7363 sales and plan\n\nsales and deepening a circuit split while placing this Court in the minority. In doing\n\nso, the majority preserves and bars review of plan provisions that the Supreme Court\n\nin Harrington v. Purdue Pharma L.P., 603 U.S. 204 (2024), found unlawful less than\n\none year ago\u2014and, as the concurrence presciently observes, opens a wide door to\n\nfurther misuse of \u00a7363(m). Dismissal of the appeal also conflicts with the Supreme\n\nCourt\u2019s decision in MOAC Mall Holdings LLC v. Transform Holdco LLC, 598 U.S.\n\n288 (2023), holding that \u00a7363(m) takes as a given that courts will exercise\n\njurisdiction over covered authorizations and that \u00a7363(m) only constrains the effect\n\nof successful reversal or modification of covered authorizations.\n\n The majority\u2019s finding of related-to jurisdiction based independently on\n\nshared insurance and automatic contractual indemnification radically broadens\n\nbankruptcy courts\u2019 jurisdiction over third-party claims against nondebtors, on the\n\nheels of Purdue\u2019s narrowing bankruptcy courts\u2019 power over these claims. Ignoring\n\nboth the holding in In re Combustion Eng\u2019g, Inc., 391 F.3d 190 (3d Cir. 2004), and\n\nthis Court\u2019 seminal test in Pacor, Inc. v. Higgins, 743 F.2d 984 (3d Cir 1984), the\n\n\n 3\n\f Case: 23-1664 Document: 271-1 Page: 7 Date Filed: 05/27/2025\n\n\n\n\nmajority finds related-to jurisdiction despite a lack of evidence in the record to\n\nsupport either BSA\u2019s shared insurance with all nondebtors at all relevant times and\n\nBSA\u2019s automatic indemnification liability as to nondebtors.1\n\n BACKGROUND\n\n Lujan Claimants are 75 survivors of child sexual abuse in Guam who hold a\n\nunique position in this case in the strength of their claims, the extent to which those\n\nclaims were vetted, and available third-party sources of recovery. Most were boy\n\nscouts. All were abused in scouting, the earliest in 1955 and the latest in 1981. After\n\nGuam eliminated its statute of limitations for past child sexual abuse in 2016, all\n\nLujan Claimants, except two, filed lawsuits against the Boy Scouts of America\n\n(\u201cBSA\u201d) for their abuse. In fact, more than 25% of the 275 lawsuits pending against\n\nBSA at the time BSA filed for bankruptcy in 2020 are Lujan Claimants\u2019 lawsuits. 2\n\nPrepetition, at least 70 Lujan Claimants were deposed by BSA and engaged in\n\nextensive discovery. All Lujan Claimants have direct action claims against insurers\n\nand independent, non-derivative claims against other nondebtors, including local\n\ncouncils, chartered organizations and non-chartered Roman Catholic Entities. Lujan\n\nClaimants each value their claims against nondebtors to be worth millions of dollars\n\n\n1\n This petition focuses on issues where the majority opinion conflicts with Third\nCircuit precedent. Lujan Claimants do not waive but reserve any and all other\narguments in any petition for writ of certiorari.\n2\n This is unlike more than 82,000 other abuse Survivors who filed proofs of claim in\nBSA\u2019s bankruptcy case and had no prepetition lawsuits pending against BSA.\n 4\n\f Case: 23-1664 Document: 271-1 Page: 8 Date Filed: 05/27/2025\n\n\n\n\nbut, under the plan, will receive no more than a tiny fraction of that. Their claims\n\nagainst nondebtors were stolen for the benefit of the Settling Insurers and other\n\nnondebtors who paid nothing.\n\n Over the objections of Lujan Claimants and others, the Bankruptcy Court\n\nconfirmed a plan of reorganization on September 8, 2022, that provides for the\n\nnonconsensual release and injunction of third-party claims against nondebtors,\n\nunprecedented in breadth. In addition to BSA, more than 250 local councils, over\n\n100,000 chartered organizations, an unknown number of nonchartered-Roman\n\nCatholic Entities, and numerous insurers are discharged of liability for claims of\n\nSurvivors alleging child sexual abuse in scouting. Lujan Claimants appealed the\n\nnonconsensual third-party releases and injunctions 3 in BSA\u2019s plan, among other plan\n\nerrors.\n\n Included as part of the plan are insurance policy buybacks which involve the\n\ndenominated \u201csale\u201d by BSA of its liability insurance policies as well as local council\n\nliability policies in which BSA has no interest. As the \u201csale\u201d or cancellation of an\n\ninsurance policy cannot relieve the insurer of liability for asserted claims, the \u201csale\u201d\n\nof the policies did not do the Settling Insurers much good. What they were really\n\nafter was not estate assets (i.e., BSA policies)\u2014what \u00a7363(m) protects on its face\u2014\n\nbut the Survivors\u2019 claims against them\u2014claims that are indisputably not estate\n\n\n3\n \u201cReleases\u201d refers both to the nonconsensual third-party releases and injunctions.\n 5\n\f Case: 23-1664 Document: 271-1 Page: 9 Date Filed: 05/27/2025\n\n\n\n\nproperty. Other nondebtors such as local councils, chartered organizations, and non-\n\nchartered Roman Catholic Entities (who are not insured under any of the purchased\n\npolicies) also benefit from the releases. The \u201csales\u201d were approved by the\n\nBankruptcy Court in a single order, i.e., the order confirming the plan (\u201cthe\n\nConfirmation Order\u201d). No separate motion was ever filed under \u00a7 363.\n\n Lujan Claimants timely appealed to the District Court, which affirmed. Lujan\n\nClaimants repeatedly moved for stays of the Confirmation Order, which were denied\n\nexcept for a 6-day stay by the Supreme Court. After this Court denied stay, the plan\n\npurportedly went into effect on April 19, 2023. Several months later, BSA and\n\nSettling Insurers filed motions to dismiss the appeals based on equitable and\n\nstatutory mootness. A three-judge panel of this Court refused to grant dismissal on\n\neither basis, stating that \u201c[t]he Appellees\u2019 arguments leave us unpersuaded at this\n\npreliminary stage that equitable or statutory mootness apply in the particular\n\ncircumstances of this case.\u201d ECF 163 at 3. No material changes have occurred since\n\nthen to warrant the majority\u2019s dismissal for statutory mootness. The only significant\n\nevent occurred at the Supreme Court six months later.\n\n On June 27, 2024, the Supreme Court issued its landmark opinion in Purdue,\n\nholding that the Bankruptcy Code does not authorize a bankruptcy court to grant\n\nnonconsensual third-party releases\u2014and presumably putting an end to this abusive\n\npractice. Yet, less than one year later, the majority issued a decision dismissing this\n\n\n 6\n\f Case: 23-1664 Document: 271-1 Page: 10 Date Filed: 05/27/2025\n\n\n\n\nappeal as statutorily moot and preserving the same nonconsensual third-party\n\nreleases invalidated in Purdue. A Judgment was filed May 13, 2025.\n\n ARGUMENT\n\n I. The majority\u2019s decision to apply \u00a7363(m) to plan sales conflicts with\n Third Circuit precedent and places this Court in the minority among\n circuits considering the question.\n\n A. Expanding \u00a7363(m) to apply to plan sales conflicts with this Court\u2019s\n prior decisions.\n\n This Court has long recognized that \u00a7363 sales are outside a plan of\n\nreorganization. In re PWS Holding Corp., 228 F.3d 224, 229-30 (3d Cir. 2000) (\u201c\u00a7\n\n363 \u2026 governs the sale of assets outside of the reorganization plan\u201d); In re ICL\n\nHolding Co., 802 F.3d 547, 549 (3d Cir. 2015) (\u00a7363 sale is \u201coutside a plan of\n\nreorganization\u201d). This is consistent with the text of \u00a7363, which Judge Rendell\n\nemphasized in her concurrence \u201cdistinguishes between sales under \u00a7 363(b) and (c)\n\nand sales under a plan,\u201d (Concurring Op. at 4), and provides \u201cclear indication that\n\n[\u00a7363(m)] does not apply to sales in reorganization plans,\u201d (id. at 2.). The\n\nconcurrence explained:\n\n Subsection \u00a7 363(l) applies to the \u201cuse[,] sale, or lease of property\u201d that\n occurs \u201cunder subsection (b) or (c) of [\u00a7363] or a plan under chapter 11\n \u2026 of this title.\u201d By contrast, \u00a7363(m) applies only to a sale or lease\n authorized \u201cunder subsection (b) or (c) of [\u00a7 363].\u201d Similarly, \u00a7 363(o)\n applies to \u201ca sale under [\u00a7363],\u201d and has been interpreted (albeit, in\n decisions that do not bind this Court) to apply to \u00a7 363 sales only, not\n plan sales. Tellingly, the drafters of subsection (o) originally\n considered language that would have made the provision applicable to\n a \u201csale by a trustee or transfer under a plan of reorganization.\u201d In the\n 7\n\f Case: 23-1664 Document: 271-1 Page: 11 Date Filed: 05/27/2025\n\n\n\n\n end, however, Congress adopted narrower language, such that the\n provision applies to only a \u201csale under this section,\u201d and not a \u201ctransfer\n under a plan of reorganization.\u201d Similarly, the drafters of \u00a7 363(m)\n could have considered (and adopted) language that brought plan sales\n within its ambit. Instead, \u00a7 363(m) narrowly applies to \u00a7 363(b) and\n (c) sales, not plan sales. As the majority notes, \u201cthe inclusion of\n language in one section of a statute, but omission of it in another,\n generally \u2018convey[s] a difference in meaning[.]\u2019\u201d\n\n(Concurring Op. at 4-5 (internal citations omitted).) The majority\u2019s decision to treat\n\nthe insurance policy buybacks\u2014sales entirely within BSA\u2019s plan\u2014as \u00a7363 sales\n\nrenders Congress\u2019 careful efforts to distinguish between these transactions\n\nmeaningless and should not stand.\n\n The majority\u2019s reliance on In re Energy Future Holdings (\u201cEFH\u201d), 949 F.3d\n\n806 (3d Cir. 2020), and Cinicola v. Scharffenberger, 248 F.3d 110 (3d Cir. 2001), to\n\napply \u00a7363(m) to the Confirmation Order is misplaced because those cases involved\n\nthe bankruptcy court first issuing an order preliminarily approving a \u00a7363 sale and\n\nthen a second order authorizing the sale. EFH, 949 F.3d at 819-20; Cinicola, 248\n\nF.3d at 122. 4 In those cases, \u00a7363(m) applied to the appeal of the second order\n\nbecause the second order was \u201cinextricably intertwined\u201d with the first order\n\napproving the sale and the bankruptcy court clearly intended the second order to\n\noperate in conjunction with the first order. EFH, 949 F.3d at 819-20; Cinicola, 248\n\n\n4\n This Court in EFH placed significant reliance on its prior holding in Cinicola. But\nit may be noted that Cinicola itself involved two separate orders, neither of which\nwere confirmation orders. In any case, there was only one order here\u2014a\nconfirmation order, not a sale order.\n 8\n\f Case: 23-1664 Document: 271-1 Page: 12 Date Filed: 05/27/2025\n\n\n\n\nF.3d at 125-26. Here, there is no separate pre-confirmation \u00a7363 order first\n\napproving the policy buybacks; the sales were approved only by the Confirmation\n\nOrder. Therefore, the Confirmation Order is not inextricably intertwined with any\n\n\u00a7363 sale order and the Bankruptcy Court did not clearly intend the Confirmation\n\nOrder to operate in conjunction with any other sale order, which does not exist.\n\nThose cases do not support the majority\u2019s decision.\n\n Importantly, this Court previously recognized that only two provisions of the\n\nBankruptcy Code\u201411 U.S.C. \u00a7\u00a7363(m) and 364(e)\u2014specifically require a stay\n\npending appeal. In re Joshua Slocum Ltd., 922 F.2d 1081, 1085 (3d Cir. 1990).\n\nAcknowledging that \u00a7363(m) does not apply to assignments of leases under 11\n\nU.S.C. \u00a7365, this Court \u201cdecline[d] to interpret the mootness principles in such a\n\nway that would, in effect, create a third situation where parties are required to seek\n\na stay, i.e., the assignment of leases under \u00a7365.\u201d Id. By extending \u00a7363(m)\u2019s\n\nprotection to plan confirmation, the majority departs from precedent and does\n\nexactly what this Court earlier declined to do.\n\n B. By applying \u00a7363(m) to the Confirmation Order, the majority deepens\n a circuit split and places this Court in the minority.\n\n Most circuits considering the question have held or strongly suggested that\n\n\u00a7363(m) does not apply to plan sales. The Ninth Circuit has held that \u00a7363(m) did\n\nnot apply to a sale under a plan because such sales \u201care not subject to \u00a7363, but are\n\nauthorized by [11 U.S.C. \u00a71123(a)(5)(B)].\u201d In re Bardos, No. CC-13-1316-PaKuBl,\n 9\n\f Case: 23-1664 Document: 271-1 Page: 13 Date Filed: 05/27/2025\n\n\n\n\n2014 WL 3703923, at *9 (B.A.P. 9th Cir. July 25, 2014). The Eleventh Circuit has\n\nheld that \u201c\u00a7 363(m) \u2026 applies only to the sale of the debtor\u2019s property by the trustee\n\npursuant to \u00a7363(b) or (c). Section 363(m) does not apply where the debtor\u2019s assets\n\nhave been sold . . . pursuant to a plan of liquidation.\u201d Miami Ctr. Ltd. P\u2019ship v. Bank\n\nof New York, 838 F.2d 1547, 1553 (11th Cir. 1988). Although declining at that time\n\nto decide whether a plan sale can be shielded by \u00a7363(m), the Fifth Circuit has\n\ndoubted whether \u00a7363 applies to a sale of property pursuant to a reorganization plan\n\nsince \u201c[t]here is a definite implication that [\u00a7363(b) and (c)] concern the trustee\u2019s\n\nauthority during the administration of the estate and not at the final disposition of\n\nthe property of the estate pursuant to a plan of reorganization.\u201d In re Texas Extrusion\n\nCorp., 844 F.2d 1142, 1165 (5th Cir. 1988).\n\n Rather than following this Court\u2019s earlier approach to \u00a7363, the majority takes\n\nthis Court down a path joined only by the Sixth Circuit. Lujan Claimants have found\n\nthat only the Sixth Circuit has explicitly held that \u00a7363(m) applies to a plan sale.5\n\nIn re Made in Detroit, Inc., 414 F.3d 576, 582-83 (6th Cir. 2005). However, that\n\ncourt failed to address \u00a7363\u2019s language which clearly distinguishes between \u00a7363(b)\n\nand (c) sales and plan sales and provides that \u00a7363(m) only applies to \u00a7363(b) or (c)\n\nsales. In contrast, Lujan Claimants have raised this textual argument which the\n\n\n5\n In In re Fieldwood Energy LLC, the Fifth Circuit affirmed a district court\u2019s\ndismissal of an appeal of a plan sale as statutorily moot, but it did not specifically\naddress whether \u00a7363(m) applies to plan sales. 93 F.4th 817, 821-25 (5th Cir. 2024).\n 10\n\f Case: 23-1664 Document: 271-1 Page: 14 Date Filed: 05/27/2025\n\n\n\n\nconcurrence held valid.\n\n II. Dismissal of the appeal conflicts with the Supreme Court\u2019s decision in\n MOAC Mall.\n\n In MOAC Mall, the Supreme Court held that \u00a7363(m) does not limit an\n\nappellate court\u2019s adjudicatory capacity, but that it \u201ctakes as a given the exercise of\n\njudicial power over any authorization under \u00a7 363(b) or \u00a7 363(c).\u201d 598 U.S. at 299.\n\nThe Supreme Court stated that, \u201cgiven \u00a7 363(m)\u2019s clear expectation that courts will\n\nexercise jurisdiction over a covered authorization, it is surely permissible to read its\n\ntext as merely cloaking certain good-faith purchasers or lessees with a targeted\n\nprotection of their newly acquired property interest, applicable even when an\n\nappellate court properly exercises jurisdiction.\u201d Id. at 300. Instead of limiting\n\njudicial power, \u00a7363(m) is \u201ca mere restriction on the effects of a valid exercise of\n\nthat power when a party successfully appeals a covered authorization.\u201d Id. at 303.\n\nAnd that constraint is \u201cinapplicable where the sale \u2026 was made to a bad-faith\n\npurchaser \u2026 , or if the sale \u2026 is stayed pending appeal, or \u2026 if the court does\n\nsomething other than \u2018revers[e] or modif[y]\u2019 the authorization.\u201d Id. at 299.\n\n MOAC Mall means that \u00a7363(m) cannot be invoked to dismiss an appeal. If\n\nthere is Article III jurisdiction, appellate courts must hear the appeal on the merits\n\nand reverse, modify, or do something other than reverse or modify. Nothing in\n\n\u00a7363(m) mandates that appellate courts first determine as a threshold issue whether\n\neffective relief can be granted without affecting the validity of the sale, before\n 11\n\f Case: 23-1664 Document: 271-1 Page: 15 Date Filed: 05/27/2025\n\n\n\n\nhearing the appeal. Unlike the chicken-or-the-egg mystery, it is obvious which must\n\ncome first\u2014a successful reversal or modification of a covered authorization,\n\nfollowed by a \u201cmere restriction on the effects of a valid exercise of that power.\u201d\n\n In In re One2One Commc\u2019ns, LLC, 805 F.3d 428 (3d Cir. 2015), Judge\n\nKrause expressed similar reasoning. In rejecting the argument that the Bankruptcy\n\nCode \u201cexpress[es] a policy favoring the finality of bankruptcy decisions\u201d through 11\n\nU.S.C. \u00a7\u00a7 363(m), 364(e), and 1127(b),\u201d and that equitable mootness fills a gap in\n\nthe Code created by the absence of a provision limiting appellate review of plan\n\nconfirmation orders, Judge Krause stated: \u201cBy their terms, \u00a7\u00a7 363(m) and 364(e)\n\ndo not prevent an appellate court from hearing an appeal, or even from granting a\n\nparticular remedy; they simply prevent the appellate court\u2019s remedy from affecting\n\ncertain transactions.\u201d Id. at 443 (Krause, J., concurring) (emphasis in original).\n\n The majority opinion dismissing the appeal clearly contravenes MOAC Mall.\n\nRather than exercise its \u201cunflagging\u201d jurisdiction over the appeal of the\n\nConfirmation Order (which Lujan Claimants maintain is not a covered authorization)\n\nand decide whether to reverse, modify, or do something else, the majority first\n\nfocuses on whether certain aspects of \u00a7363(m) apply\u2014\u00a7363 sale, lack of stay, good\n\nfaith purchaser, relief\u2014and then dismisses the appeal when it concludes that certain\n\nrelief requested by Lujan Claimants would affect the validity of the insurance policy\n\nbuybacks. The majority fails to hear the appeal and then fails to turn to remedy only\n\n\n 12\n\f Case: 23-1664 Document: 271-1 Page: 16 Date Filed: 05/27/2025\n\n\n\n\nafter first hearing the appeal. The majority\u2019s outright dismissal without hearing the\n\nappeal grossly exceeds \u00a7363(m)\u2019s \u201cmere restriction on the effects of a valid exercise\n\nof [jurisdiction over a covered authorization]\u201d and is an abdication of Congress\u2019\n\n\u201cclear expectation that courts will exercise jurisdiction over a covered\n\nauthorization.\u201d\n\n If \u00a7363(m) applies, whether relief can be fashioned that does not affect the\n\nvalidity of the sale should be determined by lower courts. See Cinicola, 248 F.3d at\n\n128 (this Court remanding to district court the issue of whether the requested relief\n\nwould affect the validity of the \u00a7363 transaction). Limited relief is available, e.g.,\n\nproviding adequate compensation to Lujan Claimants for their interests in the\n\npolicies and proceeds and re-classifying Lujan Claimants. ECF 66 at 61-64, 74-75.\n\n III. En banc review is necessary to address whether \u00a7363 can be used to\n allow into a reorganization plan and protect from appellate review\n unlawful provisions including nonconsensual third-party releases\n invalidated in Purdue.\n\n The majority\u2019s dismissal of the appeal as statutorily moot sets a \u201cdangerous\n\ntransactional precedent,\u201d (Concurring Op. 10), providing a road map for plan\n\nproponents to protect from appellate review nonconsensual third-party releases\n\ninvalidated in Purdue. Under the majority\u2019s reasoning, merely authorizing a sale in\n\na plan purportedly under \u00a7363(b) or (c) and claiming that unlawful plan provisions\n\nsuch as the nonconsensual third-party releases are integral to the sale are enough to\n\nmeet certain requirements for \u00a7363(m) to apply.\n 13\n\f Case: 23-1664 Document: 271-1 Page: 17 Date Filed: 05/27/2025\n\n\n\n\n The concurrence rightly concludes that the majority\u2019s approach invites\n\n\u201cmischief\u201d by plan proponents. (Concurring Op. 15.). \u201cSo long as a court authorizes\n\nan intra-plan sale under \u00a7 363, the other plan provisions are shielded from review,\n\nas they may have conceivably affected the sale price.\u201d (Id. at 9.) As discussed\n\nearlier, this is contrary to the language of \u00a7363(m), which clearly indicates it does\n\nnot apply to plan sales.\n\n The majority wrongly suggests that its ruling is \u201cnarrow.\u201d (Op. 36.) The\n\nmajority\u2019s decision to extend \u00a7363(m)\u2019s protection to local councils, chartered\n\norganizations, and nonchartered Roman Catholic Entities \u201cflies in the face\u201d of ICL\n\nHolding Co., where this Court stated that \u201cwhile \u00a7 363(m) aims to make sales of\n\nestate property final and inject predictability into the sale process, we don\u2019t think it\n\ndoes so at all costs and certainly not for non-purchasers.\u201d 802 F.3d at 554. As none\n\nof these nondebtors are parties to the sales, the majority erroneously expands\n\n\u00a7363(m) to bar review of Lujan Claimants\u2019 challenge to the nonconsensual release\n\nof their claims against these nondebtors. Indeed, the majority\u2019s holding could\n\nsubject almost any transaction to protection under \u00a7363(m). As the concurrence\n\nargues eloquently:\n\n What happened here goes far beyond what \u00a7 363 contemplates. Rather\n than merely protecting the purchaser's \u201cnewly acquired property\n interest,\u201d the majority shields from review the non-consensual third-\n party releases that the Supreme Court invalidated in Purdue. This sets\n a dangerous transactional precedent, one that will result in Article III\n courts not having the capacity to review Confirmation Orders if the\n 14\n\f Case: 23-1664 Document: 271-1 Page: 18 Date Filed: 05/27/2025\n\n\n\n\n parties agree to call key intra-plan transactions \u201csales.\u201d Indeed, today's\n decision relegates the Supreme Court's holding in Purdue to a mere\n plan-drafting guide\n\n As the majority\u2019s decision revitalizes unlawful releases struck down in\n\nPurdue, rehearing en banc is essential to address this issue of exceptional\n\nimportance.\n\n IV. The majority\u2019s finding of related-to jurisdiction over claims between\n nondebtors conflicts with Third Circuit precedent and is unsupported\n by the record.\n\n In determining subject matter jurisdiction over Lujan Claimants\u2019 claims\n\nagainst nondebtors, the majority failed to apply the test set forth in Pacor, which is\n\n\u201cthe seminal test for determining \u2018related to\u2019 jurisdiction over third party claims.\u201d\n\nCombustion Eng\u2019g, 391 F.3d at 226. Under the test, if a primary lawsuit between\n\ntwo nondebtors would have no effect on the debtor\u2019s estate and was at best a mere\n\nprecursor to a second lawsuit asserting a potential third-party claim for\n\nindemnification against the debtor, then there is no related-to jurisdiction over the\n\nprimary lawsuit. Id. Here, there is at most only the first lawsuit and no second\n\nlawsuit brought by a nondebtor against BSA for indemnification has accrued and,\n\nthus, there can be no related-to jurisdiction over Lujan Claimants\u2019 claims against\n\nnondebtors.\n\n The majority erroneously found related-to jurisdiction based on the\n\nindependent grounds of shared insurance and contractual indemnification. This\n\n\n 15\n\f Case: 23-1664 Document: 271-1 Page: 19 Date Filed: 05/27/2025\n\n\n\n\nconflicts with Combustion Eng\u2019g, where this Court noted that courts finding related-\n\nto jurisdiction over claims against nondebtors based in part on shared insurance\n\npolicies have relied not only on extensive record findings regarding the terms and\n\noperation of the subject policies, but also on additional evidence of automatic\n\nliability against the debtor. Id. at 232-33. Here, there were no findings regarding\n\nthe terms and operation of each of the policies and there is no evidence of automatic\n\nliability against BSA. Even if there were automatic liability, there are no second\n\nlawsuits filed against BSA for indemnification. Thus, the majority erred in finding\n\nthat either shared insurance or contractual indemnification alone may be sufficient\n\nto establish related-to jurisdiction.\n\n The record does not support the majority\u2019s finding of related-to jurisdiction\n\nbased on shared insurance. The table below shows the extent of BSA\u2019s sharing of\n\ninsurance with nondebtors, which was only as to insurance policies bought by BSA\n\n(\u201cBSA Insurance\u201d).\n\n\n Entity Period of Shared BSA Insurance with BSA\n\n Local Councils 1976 to present (except Hartford 1976-1977)\n\n Chartered Organizations (e.g., 1976 to present (except Hartford 1976-1977)\n Archbishop of Agana)\n Non-chartered Roman Catholic Never\n Entities (e.g., Capuchin\n Franciscans)\n\n\n\n 16\n\f Case: 23-1664 Document: 271-1 Page: 20 Date Filed: 05/27/2025\n\n\n\n\nIn fact, the majority found only that \u201cBSA and the nondebtor, would-be defendants\n\nshared liability insurance coverage since at least 1976,\u201d (Op. 31), reflecting that BSA\n\ndid not share its insurance with nondebtors prior to 1976. There is no evidence that\n\nBSA ever shared insurance with non-chartered Roman Catholic Entities such as the\n\nCapuchin Franciscans, against whom all but 2 Lujan Claimants have scouting abuse\n\nclaims. Also, there is no evidence that BSA was insured under any separate\n\ninsurance policies purchased by nondebtors. Therefore, there can be no related-to\n\njurisdiction over Lujan Claimants\u2019 claims against local councils and chartered\n\norganizations for abuse that occurred before 1976, no related-to jurisdiction over\n\nLujan Claimants\u2019 claims against non-chartered Roman Catholic Entities, and no\n\nrelated-to jurisdiction over Lujan Claimants\u2019 claims against insurers that separately\n\ninsured any nondebtors, based on shared insurance.\n\n The record also does not support the majority\u2019s finding that BSA had non-\n\ncontingent, automatic indemnity obligations. The majority erroneously found\n\nrelated-to jurisdiction based on indemnity obligations between BSA and nondebtors\n\nthat automatically result in indemnification liability against BSA. (Op. 31-32.) The\n\nmajority did not address any of the numerous arguments raised by Lujan Claimants\n\nagainst BSA\u2019s automatic indemnification liability, such as the lack of any prepetition\n\nagreement by BSA to indemnify local councils, BSA\u2019s admission in its solicited\n\nDisclosure Statement openly denying indemnification liability as to chartered\n\n\n 17\n\f Case: 23-1664 Document: 271-1 Page: 21 Date Filed: 05/27/2025\n\n\n\n\norganizations, BSA\u2019s active pursuit (through the filing of a proof of claim and\n\namended proof of claim) for indemnification and contribution for child sexual abuse\n\nclaims in Guam against bankrupt chartered organization Archbishop of Agana,\n\nBSA\u2019s history of settling scouting abuse claims in Guam without settling claims\n\nagainst the chartered organization, and the lack of any argument or evidence that\n\nBSA is automatically liable to indemnify non-chartered Roman Catholic Entities.\n\n JOINDER\n\n Lujan Claimants join in the Petition for Rehearing of the D&V Claimants and\n\nincorporate it as if fully stated herein.\n\n CONCLUSION\n\n For the foregoing reasons, the Court should grant rehearing en banc.\n\n\n Dated: May 27, 2025. Respectfully submitted,\n\n /s/ Christopher D. Loizides\n Christopher D. Loizides\n Loizides, P.A.\n 1225 North King Street, Suite 800\n Wilmington, DE 19801\n Phone: 302.654.0248\n Email: Loizides@loizides.com\n\n and\n\n LUJAN & WOLFF LLP\n\n /s/ Delia Lujan Wolff\n Delia Lujan Wolff\n Suite 300, DNA Bldg.\n 238 Archbishop Flores St.\n 18\n\fCase: 23-1664 Document: 271-1 Page: 22 Date Filed: 05/27/2025\n\n\n\n\n Hagatna, Guam 96910\n Phone: (671) 477-8064/5\n Facsimile: (671) 477-5297\n Email: dslwolff@lawguam.com\n\n Attorneys for Lujan Claimants\n\n\n\n\n 19\n\f Case: 23-1664 Document: 271-1 Page: 23 Date Filed: 05/27/2025\n\n\n\n\n COMBINED CERTIFICATIONS\n\n I hereby certify the following:\n\n 1. At least one of the attorneys whose names appear on this petition is a\n\nmember of the bar of this Court.\n\n 2. This petition complies with the type-volume requirements set forth in\n\nFederal Rule of Appellate Procedure 40(d)(3)(A) because the petition contains 3,829\n\nwords. The petition also complies with the typeface requirements of Federal Rule\n\nof Appellate Procedure 32(a) because it was prepared in 14-point Times New Roman\n\nfont, a proportionally spaced typeface, using Microsoft Word.\n\n 3. On May 27, 2025, I electronically filed the foregoing petition with the Clerk\n\nof the Court for the United States Court of Appeals for the Third Circuit by using\n\nthe appellate CM/ECF system. Participants in the case are registered CM/ECF users\n\nand service will be accomplished by the appellate CM/ECF system.\n\n 4. Pursuant to L.A.R. 40.1(a), no paper copies of this petition will be filed\n\nunless directed by the Clerk.\n\n 5. This document was scanned for viruses using Norton\u2122 360 Deluxe, and\n\nno virus was detected.\n\n Dated: May 27, 2025. Respectfully submitted,\n /s/ Christopher D. Loizides\n Christopher D. Loizides\n Loizides, P.A.\n 1225 North King Street, Suite 800\n\n 20\n\fCase: 23-1664 Document: 271-1 Page: 24 Date Filed: 05/27/2025\n\n\n\n\n Wilmington, DE 19801\n Phone: 302.654.0248\n Email: Loizides@loizides.com\n\n\n\n\n 21\n\f","ocr_status":2,"date_upload":"2025-05-28T05:34:28.519970-07:00","document_number":"271","attachment_number":1,"pacer_doc_id":"003014998398","is_available":true,"is_free_on_pacer":null,"is_sealed":null,"document_type":2,"description":"Petition for Rehearing by Panel and the Court En Banc","acms_document_guid":""},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/440828759/","id":440828759,"tags":[],"absolute_url":"/docket/67166181/271/2/in-re-boy-scouts-of-america-and-delaware-bsa-llc/","date_created":"2025-05-28T05:28:24.368873-07:00","date_modified":"2025-05-28T05:28:24.368895-07:00","sha1":"","page_count":96,"file_size":666858,"filepath_local":null,"filepath_ia":"","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":"","ocr_status":null,"date_upload":null,"document_number":"271","attachment_number":2,"pacer_doc_id":"003014998399","is_available":false,"is_free_on_pacer":null,"is_sealed":null,"document_type":2,"description":"Exhibit \"1\" to Petition (Court's Opinion)","acms_document_guid":""},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/440828760/","id":440828760,"tags":[],"absolute_url":"/docket/67166181/271/3/in-re-boy-scouts-of-america-and-delaware-bsa-llc/","date_created":"2025-05-28T05:28:24.384473-07:00","date_modified":"2025-05-28T05:28:24.384495-07:00","sha1":"","page_count":19,"file_size":102200,"filepath_local":null,"filepath_ia":"","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":"","ocr_status":null,"date_upload":null,"document_number":"271","attachment_number":3,"pacer_doc_id":"003014998400","is_available":false,"is_free_on_pacer":null,"is_sealed":null,"document_type":2,"description":"Exhibit \"2\" to Petition (Court's Judgment)","acms_document_guid":""}],"date_created":"2025-05-28T05:28:01.173192-07:00","date_modified":"2026-05-27T14:14:00.178831-07:00","date_filed":"2025-05-27","time_filed":null,"entry_number":271,"recap_sequence_number":"2025-05-27.001","pacer_sequence_number":5369527,"description":"ECF FILER: Petition filed by Appellant Lujan Claimants for Rehearing before original panel and the court en banc. Certificate of Service dated 05/27/2025. Service made by ECF. [23-1664] (CDL) [Entered: 05/27/2025 01:27 PM]","tags":[]},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/docket-entries/425255556/","id":425255556,"docket":"https://www.courtlistener.com/api/rest/v4/dockets/67166181/","recap_documents":[{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/439387593/","id":439387593,"tags":[],"absolute_url":"/docket/67166181/270/1/in-re-boy-scouts-of-america-and-delaware-bsa-llc/","date_created":"2025-05-13T11:11:17.499034-07:00","date_modified":"2026-05-27T14:14:00.144245-07:00","sha1":"","page_count":3,"file_size":14976,"filepath_local":null,"filepath_ia":"","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":"","ocr_status":null,"date_upload":null,"document_number":"270","attachment_number":1,"pacer_doc_id":"003014988220","is_available":false,"is_free_on_pacer":null,"is_sealed":null,"document_type":2,"description":"Judgment Entered","acms_document_guid":""},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/439387596/","id":439387596,"tags":[],"absolute_url":"/docket/67166181/270/2/in-re-boy-scouts-of-america-and-delaware-bsa-llc/","date_created":"2025-05-13T11:11:23.520851-07:00","date_modified":"2025-05-15T14:58:38.405789-07:00","sha1":"","page_count":15,"file_size":36362,"filepath_local":null,"filepath_ia":"","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":"","ocr_status":null,"date_upload":null,"document_number":"270","attachment_number":2,"pacer_doc_id":"003014988224","is_available":false,"is_free_on_pacer":null,"is_sealed":null,"document_type":2,"description":"Notice of Judgment","acms_document_guid":""}],"date_created":"2025-05-13T11:11:17.479593-07:00","date_modified":"2026-05-27T14:14:00.118267-07:00","date_filed":"2025-05-13","time_filed":null,"entry_number":270,"recap_sequence_number":"2025-05-13.002","pacer_sequence_number":5364639,"description":"JUDGMENT, Affirmed In Part and Reversed In Part and Remanded. Costs taxed against Costs shall be taxed against Appellants in Nos. 23-1664, 23-1665, 23-1666, 3-1667, 23-1668, 23-1669, 23-1670, 23-1671, 3-1672, 23-1674, 23-1675, 23-1676, 23-1677, 23-1678, and 23-1780, and against Appellees in No. 23-1673.. [23-1664, 23-1665, 23-1666, 23-1667, 23-1668, 23-1669, 23-1670, 23-1671, 23-1672, 23-1673, 23-1674, 23-1675, 23-1676, 23-1677, 23-1678, 23-1780] (SB) [Entered: 05/13/2025 12:09 PM]","tags":[]},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/docket-entries/425255555/","id":425255555,"docket":"https://www.courtlistener.com/api/rest/v4/dockets/67166181/","recap_documents":[{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/439387592/","id":439387592,"tags":[],"absolute_url":"/docket/67166181/269/in-re-boy-scouts-of-america-and-delaware-bsa-llc/","date_created":"2025-05-13T11:11:17.455647-07:00","date_modified":"2026-05-27T14:14:00.043492-07:00","sha1":"cdd4c68662f2f473e4d0607751340d3fd1244180","page_count":95,"file_size":583338,"filepath_local":"recap/gov.uscourts.ca3.119811/gov.uscourts.ca3.119811.269.0.pdf","filepath_ia":"https://archive.org/download/gov.uscourts.ca3.119811/gov.uscourts.ca3.119811.269.0.pdf","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":"Case: 23-1664 Document: 269 Page: 1 Date Filed: 05/13/2025\n\n\n\n\n PRECEDENTIAL\n\n UNITED STATES COURT OF APPEALS\n FOR THE THIRD CIRCUIT\n ________________\n\n Nos. 23-1664, 23-1665, 23-1666, 23-1667, 23-1668, 23-1669,\n 23-1670, 23-1671, 23-1672, 23-1673, 23-1674, 23-1675,\n 23-1676, 23-1677, 23-1678 & 23-1780\n ________________\n\n\n In re: BOY SCOUTS OF AMERICA and DELAWARE\n BSA LLC,\n Debtors\n\n LUJAN CLAIMANTS,\n Appellants in No. 23-1664\n\n LIBERTY MUTUAL INSURANCE COMPANY; THE\n OHIO CASUALTY INSURANCE COMPANY; LIBERTY\n INSURANCE UNDERWRITERS, INC.; LIBERTY\n SURPLUS INSURANCE CORPORATION,\n Appellants in No. 23-1665\n\n DUMAS & VAUGHN CLAIMANTS,\n Appellants in No. 23-1666\n\n THE CONTINENTAL INSURANCE COMPANY;\n COLUMBIA CASUALTY COMPANY,\n Appellants in No. 23-1667\n\fCase: 23-1664 Document: 269 Page: 2 Date Filed: 05/13/2025\n\n\n\n\n NATIONAL UNION FIRE INSURANCE CO OF\n PITTSBURGH PENNSYLVANIA; LEXINGTON\n INSURANCE COMPANY; LANDMARK INSURANCE\n COMPANY; THE INSURANCE COMPANY OF THE\n STATE OF PENNSYLVANIA,\n Appellants in No. 23-1668\n\n INDIAN HARBOR INSURANCE COMPANY,\n Appellant in No. 23-1669\n\n OLD REPUBLIC INSURANCE COMPANY,\n Appellant in No. 23-1670\n\n TRAVELERS CASUALTY AND SURETY COMPANY,\n INC.; ST. PAUL SURPLUS LINES INSURANCE\n COMPAN; GULF INSURANCE COMPANY,\n Appellants in No. 23-1671\n\n GREAT AMERICAN ASSURANCE COMPANY; GREAT\n AMERICAN E&S INSURANCE COMPANY,\n Appellants in No. 23-1672\n\n ALLIANZ GLOBAL RISKS US INSURANCE COMPANY;\n NATIONAL SURETY CORPORATION; INTERSTATE\n FIRE & CASUALTY COMPANY,\n Appellants in No. 23-1673\n\n ARGONAUT INSURANCE COMPANY; COLONY\n INSURANCE COMPANY,\n Appellants in No. 23-1674\n\n GEMINI INSURANCE COMPANY,\n Appellant in No. 23-1675\n\n\n\n\n 2\n\fCase: 23-1664 Document: 269 Page: 3 Date Filed: 05/13/2025\n\n\n\n\n GENERAL STAR INDEMNITY COMPANY,\n Appellant in No. 23-1676\n\n ARROWOOD INDEMNITY COMPANY,\n Appellant in No. 23-1677\n\n TRADERS AND PACIFIC INSURANCE COMPANY;\n ENDURANCE AMERICAN SPECIALTY INSURANCE\n COMPANY; ENDURANCE AMERICA INSURANCE\n COMPANY,\n Appellants in No. 23-1678\n\n ARCH INSURANCE COMPANY,\n Appellant in No. 23-1780\n ________________\n\n On Appeal from the United States District Court\n for the District of Delaware\n (D.C. Nos. 1:22-cv-01237, 1:22-cv-01238, 1:22-cv-01239,\n 1:22-cv-01240, 1:22-cv-01241, 1:22-cv-01243, 1:22-cv-\n 01244, 1:22-cv-01245, 1:22-cv-01246, 1:22-cv-01247, 1:22-\n cv-01249, 1:22-cv-01250, 1:22-cv-01251, 1:22-cv-01252,\n 1:22-cv-01258, 1:22-cv-01263)\n District Judge: Honorable Richard G. Andrews\n ________________\n\n Argued on November 6, 2024\n\n Before: KRAUSE, SCIRICA, and RENDELL, Circuit Judges\n\n (Opinion filed: May 13, 2025)\n\n\n\n\n 3\n\fCase: 23-1664 Document: 269 Page: 4 Date Filed: 05/13/2025\n\n\n\n\n Gilion C. Dumas [ARGUED]\n Dumas & Vaughn, LLC\n 3835 NE Hancock St., Suite GLB\n Portland, OR 97212\n\n Charles J. Brown, III\n Gellert Scali Busenkell & Brown LLC\n 1201 N. Orange St., 3rd Fl.\n Wilmington, DE 19801\n\n Counsel for Appellants Dumas & Vaughn Claimants\n\n Delia Lujan Wolff [ARGUED]\n Lujan & Wolff LLP\n Suite 300, DNA Bldg.\n 238 Archbishop Flores St.\n Hagatna, Guam 96910\n\n Christopher D. Loizides\n Loizides, P.A.\n 1225 King St., Suite 800\n Wilmington, DE 19801\n\n Counsel for Appellants Lujan Claimants\n\n Deirdre M. Richards\n Fineman Krekstein & Harris PC\n 1300 N. King St.\n Wilmington, DE 19801\n\n Susan N. Gummow\n Foran Glennon Palandech Ponzi & Rudloff P.C.\n 222 N. LaSalle St., Suite 1400\n\n\n\n\n 4\n\fCase: 23-1664 Document: 269 Page: 5 Date Filed: 05/13/2025\n\n\n\n\n Chicago, IL 60601\n\n Theodore J. Boutrous Jr.\n Richard J. Doren\n Blaine H. Evanson\n Gibson, Dunn & Crutcher LLP\n 333 South Grand Ave.\n Los Angeles, CA 90071\n\n Michael A. Rosenthal\n James Hallowell\n Seth M. Rokosky\n Gibson, Dunn & Crutcher LLP\n 200 Park Ave.\n New York, NY 10166\n\n Joseph T. Baio [ARGUED]\n Christopher J. St. Jeanos\n Patricia O. Haynes\n Willkie Farr & Gallagher LLP\n 787 Seventh Ave.\n New York, NY 10019\n\n Counsel for Appellants National Union Fire Insurance\n Company of Pittsburgh, Pa., Lexington Insurance\n Company, Landmark Insurance Company, and the\n Insurance Company of the State of Pennsylvania\n\n Ronald P. Schiller\n Matthew A. Hamermesh\n Hangley Aronchick Segal Pudlin & Schiller\n One Logan Square, 27th Fl.\n Philadelphia, PA 19103\n\n\n\n\n 5\n\fCase: 23-1664 Document: 269 Page: 6 Date Filed: 05/13/2025\n\n\n\n\n Kathleen M. Miller\n Smith, Katzenstein & Jenkins LLP\n 1000 West St., Suite 501\n P.O. Box 410\n Wilmington, DE 19899\n\n Counsel for Appellant Arch Insurance Company\n\n Kathleen K. Kerns\n Paul A. Logan\n Post & Schell, P.C.\n Four Penn Center, 13th Fl.\n 1600 John F. Kennedy Blvd.\n Philadelphia, PA 19103\n\n George R. Calhoun\n Ifrah PLLC\n 1717 Pennsylvania Ave., N.W., Suite 650\n Washington, DC 20006\n\n Counsel for Appellants Argonaut Insurance Company\n and Colony Insurance Company\n\n Michael J. Joyce\n Joyce, LLC\n 1225 King St., Suite 800\n Wilmington, DE 19801\n\n Lorraine Armenti\n Michael Hrinewski\n Coughlin Midlige & Garland, LLP\n 350 Mount Kemble Ave.\n\n\n\n\n 6\n\fCase: 23-1664 Document: 269 Page: 7 Date Filed: 05/13/2025\n\n\n\n\n PO Box 1917\n Morristown, NJ 07962\n\n Counsel for Appellant Arrowood Indemnity Company\n\n Maria A. Sawczuk\n Goldstein & Mcclintock LLLP\n 501 Silverside Rd., Suite 65\n Wilmington, DE 19809\n\n David Christian\n David Christian Attorneys LLC\n 105 W. Madison St., Suite 1400\n Chicago, IL 60602\n\n Counsel for Appellants Continental Insurance\n Company and Columbia Casualty Company\n\n William H. White Jr.\n Kiernan Trebach LLP\n 1233 20th St., NW, 8th Fl.\n Washington, DC 20036\n\n John E.W. Baay II\n Gieger Laborde & Laperouose, LLC\n 701 Poydras St., Suite 4800\n New Orleans, LA 70139\n\n Counsel for Appellant Gemini Insurance Company\n\n\n Kelly A. Green\n Smith, Katzenstein & Jenkins LLP\n\n\n\n\n 7\n\fCase: 23-1664 Document: 269 Page: 8 Date Filed: 05/13/2025\n\n\n\n\n 1000 West St., Suite 501\n P.O. Box 410\n Wilmington, DE 19899\n\n Mary E. Borja\n Gary P. Seligman\n Ashley L. Criss\n Wiley Rein LLP\n 2050 M St. NW\n Washington, DC 20036\n\n Counsel for Appellant General Star Indemnity\n Company\n\n Konrad R. Krebs\n Clyde & Co US LLP\n 340 Mt. Kemble Ave., Suite 300\n Morristown, NJ 07960\n\n Alexander E. Potente\n Bruce D. Celebrezze\n Clyde & Co US LLP\n 150 California St., 15th Fl.\n San Francisco, CA 94111\n\n David Christian\n David Christian Attorneys LLC\n 105 W. Madison St., Suite 1400\n Chicago, IL 60602\n\n\n Bruce W. McCullough\n Bodell Bove, LLC\n\n\n\n\n 8\n\fCase: 23-1664 Document: 269 Page: 9 Date Filed: 05/13/2025\n\n\n\n\n 1225 N. King St., Suite 1000\n Wilmington, DE 19801\n\n Counsel for Appellants Great American Assurance\n Company and Great American E&S Insurance\n Company\n\n Kathleen M. Miller\n Smith, Katzenstein & Jenkins LLP\n 1000 West St., Suite 501\n P.O. Box 410\n Wilmington, DE 19899\n\n Lloyd A. Gura\n Pamela J. Minetto\n Mound Cotton Wollan & Greengrass LLP\n One New York Plaza 44th Fl.\n New York, NY 10004\n\n Counsel for Appellant Indian Harbor Insurance\n Company\n\n Douglas R. Gooding\n Jonathan D. Marshall\n Bryana T. McGillycuddy\n Choate, Hall & Stewart LLP\n Two International Place\n Boston, MA 02110\n\n Kim V. Marrkand\n Mintz, Levin, Cohn, Ferris, Glovsky and Popeo PC\n One Financial Center\n Boston, MA 02111\n\n\n\n\n 9\n\fCase: 23-1664 Document: 269 Page: 10 Date Filed: 05/13/2025\n\n\n\n\n R. Karl Hill\n Seitz, Van Ogtrop & Green, P.A.\n 222 Delaware Ave., Suite 1500\n Wilmington, DE 19801\n\n Counsel for Appellants Liberty Mutual Insurance\n Company, Ohio Casualty Insurance Company, Liberty\n Insurance Underwriters, Inc., and Liberty Surplus\n Insurance Corporation\n\n Marla S. Benedek\n Cozen O\u2019Connor\n 1201 N. Market St., Suite 1001\n Wilmington, DE 19801\n\n Counsel for Appellants Traders and Pacific Insurance\n Company, Endurance American Specialty Insurance\n Company, and Endurance American Insurance\n Company\n\n Louis J. Rizzo, Jr.\n Reger Rizzo & Darnall LLP\n 1521 Concord Pike\n Brandywine Plaza West Suite 305\n Wilmington, DE 19803\n\n Counsel for Appellants Travelers Casualty and Surety\n Company, Inc., St. Paul Surplus Lines Insurance\n Company and Gulf Insurance Company\n\n Stephen M. Miller\n Carl N. Kunz, III\n\n\n\n\n 10\n\fCase: 23-1664 Document: 269 Page: 11 Date Filed: 05/13/2025\n\n\n\n\n Morris James LLP\n 500 Delaware Ave., Suite 1500\n Wilmington, DE 19801\n\n Counsel for Appellant Old Republic Insurance\n Company\n\n Margaret H. Warner\n Ryan S. Smethurst\n Alex M. Spisak\n McDermott Will & Emery LLP\n The McDermott Building\n 500 North Capital St., NW\n Washington, DC 20001-1531\n\n Counsel for Appellant Allianz Global Risks US\n Insurance Company\n\n David M. Fournier\n Troutman Pepper Locke LLP\n 1313 N. Market St., Suite 5100\n P.O. Box 1709\n Wilmington, DE 19899\n\n Harris B. Winsberg [ARGUED]\n Matthew G. Roberts\n Parker, Hudson, Rainer & Dobbs LLP\n 303 Peachtree St. NE, Suite 3600\n Atlanta, GA 30308\n\n Todd C. Jacobs\n John E. Bucheit\n Parker, Hudson, Rainer & Dobbs LLP\n\n\n\n\n 11\n\fCase: 23-1664 Document: 269 Page: 12 Date Filed: 05/13/2025\n\n\n\n\n Two N. Riverside Plaza, Suite 1850\n Chicago, IL 60606\n\n Counsel for Appellants Allianz Global Risks US\n Insurance Company, Interstate Fire & Casualty\n Company, and National Surety Corporation\n\n David R. Kuney\n 9200 Cambridge Manor Ct.\n Potomac, MD 20854\n\n Counsel for Amici Curiae Honorable Eugene Wedoff\n (Ret.) And Law Professors Ralph Brubaker, David\n Epstein, George Kuney, David Kuney, Jonathan Lipson,\n Juliet Moringiello, Chrystin Ondersma and Lawrence\n Ponoroff in Support of Appellants Dumas & Vaughn\n Claimants\n\n Michael Huston [ARGUED]\n Perkins Coie\n 2525 E Camelback Rd., Suite 500\n Phoenix, AZ 85016\n\n Jessica C. Lauria\n Glenn M. Kurtz [ARGUED]\n White & Case LLP\n 1221 Ave. of the Americas\n New York, NY 10020\n\n Matthew E. Linder\n White & Case LLP\n 111 South Wacker Dr.\n Chicago, IL 60606\n\n\n\n\n 12\n\fCase: 23-1664 Document: 269 Page: 13 Date Filed: 05/13/2025\n\n\n\n\n Ronald K. Gorsich\n White & Case LLP\n 555 South Flower St., Suite 2700\n Los Angeles, CA 90071\n\n Derek C. Abbott\n Andrew R. Remming\n Sophie Rogers Churchill\n Morris, Nichols, Arsht & Tunnell LLP\n 1201 North Market St., 16th Fl.\n P.O. Box 1347\n Wilmington, DE 19899\n\n Counsel for Appellees Boy Scouts of America and\n Delaware BSA, LLC\n\n Philip D. Anker [ARGUED]\n Wilmer Cutler Pickering Hale & Dorr LLP\n 7 World Trade Center\n 250 Greenwich St.\n New York, NY 10007\n\n Daniel N. Brogan\n Gregory J. Flasser\n Bayard\n 600 N King St., Suite 400\n Wilmington, DE 19801\n\n Counsel for Appellees Hartford Accident and Indemnity\n Company, First State Insurance Company, Twin City\n Fire Insurance Company, and Navigators Specialty\n Insurance Company\n\n\n\n\n 13\n\fCase: 23-1664 Document: 269 Page: 14 Date Filed: 05/13/2025\n\n\n\n\n Stephen H. Warren\n O\u2019Melveny & Myers LLP\n 400 South Hope St.\n Los Angeles, CA 90071-2899\n\n Tancred Schiavoni\n Nicole Molner\n O\u2019Melveny & Myers LLP\n Seven Times Square\n New York, NY 10036\n\n Jonathan D. Hacker [ARGUED]\n O\u2019Melveny & Myers LLP\n 1625 Eye St., N.W.\n Washington, DC 20006\n\n Counsel for Appellee Century Indemnity Company\n\n David Elbaum\n Simpson Thacher & Barlett LLP\n 425 Lexington Ave.\n New York, NY 10017\n\n Stamatios Stamoulis\n Stamoulis & Weinblatt\n 800 N West St., 3rd Fl.\n Wilmington, DE 19801\n\n Counsel for Appellees Federal Insurance Company and\n Westchester Fire Insurance Company\n\n Matthew G. Summers\n Ballard Spahr LLP\n\n\n\n\n 14\n\fCase: 23-1664 Document: 269 Page: 15 Date Filed: 05/13/2025\n\n\n\n\n 919 N. Market St., 11th Fl.\n Wilmington, DE 19801\n\n Counsel for Appellees Clarendon National Insurance\n Company, River Thames Insurance Company Limited,\n and Zurich American Insurance Company\n\n Robert D. Cecil, Jr.\n Tybout, Redfearn & Pell\n 501 Carr Rd., Suite 300\n Wilmington, DE 19899\n\n Counsel for Appellees American Zurich Insurance\n Company, American Guarantee Insurance Company,\n and Steadfast Insurance Company\n\n R. Craig Martin\n DLA Piper, LLP (US)\n 1201 North Market St., Suite 2100\n Wilmington, DE 19801\n\n Counsel for Appellees Ad Hoc Committee of Local\n Councils\n\n\n Robert S. Brady\n Edwin J. Harron\n Kenneth J. Enos\n Ashley E. Jacobs\n Young Conaway Stargatt & Taylor, LLP\n Rodney Square\n 1000 North King St.\n Wilmington, DE 19801\n\n\n\n\n 15\n\fCase: 23-1664 Document: 269 Page: 16 Date Filed: 05/13/2025\n\n\n\n\n Kami E. Quinn [ARGUED]\n Emily P. Grim\n December L. Huddleston\n Kyle Y. Dechant\n Gilbert LLP\n 700 Pennsylvania Ave., SE, Suite 400\n Washington, DC 20003\n\n Counsel for Appellee Future Claimants\u2019 Representative\n\n Eric R. Goodman\n David J. Molton\n Brown Rudnick\n 7 Times Square, 47th Fl.\n New York, NY 10036\n\n Rachel B. Mersky\n Monzack Mersky McLaughlin & Browder\n 1201 North Orange St., Suite 400\n Wilmington, DE 19801\n\n Counsel for Appellee Coalition of Abused Scouts for\n Justice\n\n David M. Klauder\n Bielli & Klauder, LLC\n 1204 N. King St.\n Wilmington, DE 19801\n\n Thomas E. Patterson\n Daniel J. Bussel\n Klee Tuchin Bogdanoff & Stern\n 1801 Century Park East, 26th Fl.\n\n\n\n\n 16\n\fCase: 23-1664 Document: 269 Page: 17 Date Filed: 05/13/2025\n\n\n\n\n Los Angeles, CA 90067\n\n Counsel for Appellees Pfau Cochran Vertetis Amala\n PLLC and Zalkin Law Firm, P.C.\n\n Gregory G. Garre\n Eric J. Konopka\n Latham & Watkins LLP\n 555 Eleventh St., NW, Suite 1000\n Washington, DC 20004\n\n Counsel for Amici Curiae Certain Contributing and\n Participating Chartered Organization in Support of\n Appellees\n\n Adam J. Tragone\n University of Pittsburgh School of Law\n 321 Barco Law Building\n 3900 Forbes Ave.\n Pittsburgh, PA 15260\n\n Evan Smola [ARGUED]\n Hurley McKenna & Mertz, P.C.\n 20 S. Clark St. Ste. 2250\n Chicago, IL 60603\n\n Counsel for Amici Curiae Boy Scout Claimants Florian\n Gorski, Estate of Harry Babcock, Douglas Kennedy,\n Robert Zillox, Craig Miller, Kristofer Pyorre, Theodore\n W., and Frank S. in Support of Appellees\n\n\n\n\n 17\n\fCase: 23-1664 Document: 269 Page: 18 Date Filed: 05/13/2025\n\n\n\n\n ________________\n\n OPINION OF THE COURT\n ________________\n\n KRAUSE, Circuit Judge.\n\n These appeals arise from the horrific history of sexual\n abuse in the Boy Scouts of America\u2019s ranks. For decades, that\n abuse permeated scouting programs, ranging from single\n instances of harassment to serial offenses of sexual penetration.\n In recent years, more and more brave victims of this abuse have\n come forward and filed lawsuits against the Boy Scouts of\n America and others in the tort system to recover for the harm\n they suffered, prompting Debtors Boy Scouts of America and\n Delaware BSA, LLC (collectively BSA or the Debtors) in 2020\n to declare bankruptcy and to commence years of negotiations\n with claimants, insurers, and other interested parties towards a\n global resolution for the thousands of tort claims against BSA\n and related entities. That plan (the Plan), confirmed by the\n Bankruptcy Court more than two years ago, among other\n things, provides for the creation of a trust (the Settlement\n Trust), funded by the sale of certain assets and contributions\n from BSA and other nondebtors, to pay out distributions to\n abuse claimants. The Plan became effective in April 2023 after\n the District Court affirmed the Bankruptcy Court\u2019s\n confirmation order (the Confirmation Order).\n\n Four groups of appellants now appeal that decision,\n seeking varied forms of relief. Two of these groups, the Lujan\n Claimants and the Dumas & Vaughn (D&V) Claimants,\n collectively represent 140 abuse victims and ask us to reverse\n the Confirmation Order and throw out BSA\u2019s Plan in its\n\n\n\n\n 18\n\fCase: 23-1664 Document: 269 Page: 19 Date Filed: 05/13/2025\n\n\n\n\n entirety. That relief is warranted, they argue, because the Plan\n incorporated so-called \u201cnonconsensual third-party releases\u201d\u2014\n releasing their claims against nondebtors without their\n consent\u2014which the Supreme Court held are impermissible\n under the Bankruptcy Code last term. See Harrington v.\n Purdue Pharma L.P., 603 U.S. 204 (2024). The other two\n groups, the Certain Insurers and Allianz Insurers, seek\n narrower relief. The former asks for the addition of language\n in the Plan and Confirmation Order to make clear that their\n rights and defenses under assigned insurance policies are\n preserved. The latter seeks amendment to the Confirmation\n Order, in essence, to ensure that they retain the rights they\n would have had outside of bankruptcy to collect on their\n defense costs and excess liability claims, though now drawn\n from the Settlement Trust.\n\n As explained in more detail below, we will decline the\n Lujan Claimants\u2019 and D&V Claimants\u2019 invitation to reverse\n the Confirmation Order at this late stage and will dismiss their\n appeals because the Bankruptcy Code precludes us from\n reaching the merits of their claims. The narrow relief advanced\n by the Certain Insurers and Allianz Insurers, however, does not\n trigger the same statutory bar, so we reach the merits, but with\n different consequences for these two groups of appellants: The\n Certain Insurers\u2019 claims fail because the Confirmation Order\n and Plan already preserve their rights and defenses under their\n policies, while the Allianz Insurers are entitled to relief\n because the Confirmation Order impermissibly releases their\n claims under their policies.\n\n Accordingly, we will dismiss the Lujan Claimants\u2019 and\n D&V Claimants\u2019 appeals, affirm as to the Certain Insurers\u2019\n claims, and reverse as to the Allianz Insurers\u2019 claims.\n\n\n\n\n 19\n\fCase: 23-1664 Document: 269 Page: 20 Date Filed: 05/13/2025\n\n\n\n\n I. Background\n\n A. The Boy Scouts of America\n\n These consolidated appeals come to us on an extensive\n procedural record, but the facts that precipitated BSA\u2019s\n bankruptcy long predate its filing. Chartered by Congress in\n 1916 as a non-profit corporation, BSA\u2019s charitable mission\n includes preparing young people for life by instilling in them\n values like trustworthiness, kindness, friendliness, and\n helpfulness. It carries out this mission and delivers scouting\n programs through a network of national, regional, and local\n entities. BSA sits atop this structure and \u201cdevelops and\n disseminates the structure and content of the Scouting\n program, owns and licenses intellectual property, and\n establishes merit badge requirements and membership\n qualifications.\u201d1 In re Boy Scouts of Am. and Del. BSA, LLC,\n 650 B.R. 87, 106 (D. Del. 2023). Below BSA lie\n approximately 250 Local Councils\u2014each a distinct non-profit\n organization incorporated under state law\u2014that cover various\n geographical regions throughout the country and that charter\n local organizations, recruit scouts and leaders, and enforce\n BSA policies. Finally, Local Councils operate in conjunction\n with Chartered Organizations\u2014often schools, religious\n institutions, and civic associations\u2014that provide facilities and\n support for scouting activities.\n\n 1\n BSA also wholly owns or controls seven nondebtor affiliates:\n BSA Asset Management, LLC; BSA Commingled\n Endowment Fund, LP; BSA Endowment Master Trust;\n National Boy Scouts of America Foundation; Learning for\n Life; Arrow WV, Inc.; and Atikaki Youth Ventures Inc. and\n Atikokan Youth Ventures Inc.\n\n\n\n\n 20\n\fCase: 23-1664 Document: 269 Page: 21 Date Filed: 05/13/2025\n\n\n\n\n Since 1935, BSA had purchased insurance policies that\n covered a variety of potential liabilities, including abuse\n claims. Local Councils and Chartered Organizations, which\n were not covered as insureds under BSA\u2019s policies before\n 1971, purchased independent insurance policies. Beginning in\n the 1970s, however, BSA offered the option for Local Councils\n to pay a premium to be included as insureds under BSA\u2019s\n policies, which many Local Councils elected to do. And from\n 1975 onward, BSA included all Local Councils as insureds,\n with Chartered Organizations gaining coverage in 1976.\n\n The need for that insurance became painfully apparent\n in the decades that ensued. What began as a trickle of\n seemingly isolated claims in the 2000s steadily increased as the\n degree and pervasiveness of the abuse came to light. Between\n 2017 and 2019, BSA resolved about 250 abuse claims for\n approximately $150 million. Meanwhile, many states enacted\n revival statutes enabling survivors to assert claims that were\n previously barred by statutes of limitation, and by 2019, it\n became apparent that BSA could not continue to defend\n individual abuse claims on a cases-by-case basis and would\n need to declare bankruptcy.\n\n B. BSA\u2019s Petition and the Plan\n\n On February 18, 2020, BSA filed for bankruptcy\n protection in the District of Delaware. The Bankruptcy Court\n set a \u201cbar date\u201d of November 16, 2020, meaning all prepetition\n creditors (such as abuse claimants) had to file proofs of claim\n by that date to have an allowable claim. As of the bar date,\n creditors had filed over 100,000 proofs of claim, of which\n 82,209 were unique and timely abuse claims. The Bankruptcy\n\n\n\n\n 21\n\fCase: 23-1664 Document: 269 Page: 22 Date Filed: 05/13/2025\n\n\n\n\n Court estimated the total value of abuse claims as between $2.4\n and $3.6 billion.\n\n To resolve this massive liability and achieve a global\n resolution of abuse claims, the Bankruptcy Court appointed\n mediators to facilitate discussions among the parties, and the\n Debtors \u201cengaged in near-continuous mediation with every\n major constituency in the Chapter 11 Cases.\u201d BSA Answering\n Br. 17. These negotiations eventually yielded the Plan at issue\n in this appeal that establishes the Settlement Trust funded with\n approximately $2.48 billion in noncontingent assets\n contributed by BSA and various nondebtors. The vast majority\n of that funding\u2014over $1.6 billion\u2014derives from the proceeds\n of BSA\u2019s sale of its liability insurance policies back to a group\n of its pre-petition insurers (the Settling Insurers). This\n \u201cInsurance Policy Buyback\u201d is effectuated through a series of\n individual, but materially identical, settlement agreements\n between BSA and each of the Settling Insurers that provide for:\n\n (i) the payment by the insurer of an agreed\n amount on an agreed schedule to the Settlement\n Trust to be used to pay Abuse Claims; (ii) the\n assignment of the Local Council Insurance\n Policies to the estate and the sale of the Local\n Council Insurance Policies and the BSA\n Insurance Policies . . . to the insurer under \u00a7 363\n free and clear of all claims and interests of all\n parties; and (iii) a complete release from all\n parties . . . of all causes of action arising out of\n their respective insurance policies and any\n liability for Abuse Claims.\n\n\n\n\n 22\n\fCase: 23-1664 Document: 269 Page: 23 Date Filed: 05/13/2025\n\n\n\n\n In re Boy Scouts of Am. and Del. BSA, LLC, 642 B.R. 504,\n 562\u201363 (Bankr. D. Del. 2022). That third provision\u2014\n contemplating nonconsensual third-party releases\u2014enables\n the Settling Insurers to \u201cobtain a complete release of liability\n for Abuse claims on behalf of themselves, the named\n insured(s) under their policies and any additional insureds\n (whether specifically named or categorically identified).\u201d Id.\n at 563.\n\n In addition to establishing the Settlement Trust, the Plan\n sets forth the Trust Distribution Procedures that govern\n distribution of trust assets to individual claimants. The Trust\n Distribution Procedures establish four mechanisms for\n distributing payments for allowed abuse claims: (a) the\n Expedited Distribution election, (b) evaluation under the\n Claims Matrix, (c) the Tort System Alternative, and (d) the\n Independent Review Option.\n\n Claimants who choose the Expedited Distribution\n election must have submitted a timely proof of claim for\n scouting-related abuse and have personally signed the proof of\n claim, affirming its veracity. Upon meeting these criteria, a\n claimant is entitled to a distribution from the Settlement Trust\n of $3,500 as satisfaction for his claim.\n\n The Claims Matrix election offers a more rigorous and\n individualized assessment of abuse claims. To make this\n election, a claimant must (1) make a Trust Claim Submission\n to the Settlement Trust, which includes a completed\n questionnaire signed under oath, producing all records in his\n possession related to the abuse (including records indicating\n monetary recoveries or expected recoveries on account of the\n abuse), and agreeing to produce further records as requested by\n\n\n\n\n 23\n\fCase: 23-1664 Document: 269 Page: 24 Date Filed: 05/13/2025\n\n\n\n\n the Settlement Trustee; (2) consent to an interview (including\n by healthcare professions) conducted by the Settlement\n Trustee; and (3) consent to sworn written or oral examination.\n The Settlement Trustee screens these submissions for\n compliance and disallows those that do not meet these criteria.\n\n Satisfactory submissions proceed to the second stage of\n evaluation where they are screened for compliance with the\n General Criteria defined in the Trust Distribution Procedures.2\n Satisfaction of the General Criteria results in an Allowed\n Abuse Claim, which is then run through the Claims Matrix and\n Scaling Factors that assign monetary values to claims\n involving particular types of abuse.3 This calculation yields a\n\n 2\n The General Criteria are: (1) identification of alleged acts of\n abuse; (2) identification of the abuser by name or information\n that enables the Settlement Trustee to determine whether the\n abuser was an employee, agent, or volunteer of a covered\n entity; (3) the alleged abuse relates to scouting and a Protected\n Party may \u201cbear legal responsibility\u201d; (4) identification of the\n date of abuse directly or indirectly; and (5) identification of the\n location the abuse took place.\n 3\n As laid out in the Debtors\u2019 disclosure statement, the Claims\n Matrix divides claims into six tiers and sets the range of values\n for Allowed Abuse Claims from $3,500 to $2.7 million. While\n the maximum matrix values for a given tier set the ceiling for\n that category of claim, the base matrix value is \u201cmerely a\n starting point for the calculation\u201d of a claim\u2019s value. In re Boy\n Scouts of Am. and Del. BSA, LLC, 642 B.R. 504, 544 (Bankr.\n D. Del. 2022). The Scaling Factors determine where, within a\n given Claims Matrix tier value range, a claim falls \u201cbased on\n evidence regarding the BSA\u2019s . . . historical abuse settlements,\n litigation outcomes, and other evidence.\u201d App. 20723.\n\n\n\n\n 24\n\fCase: 23-1664 Document: 269 Page: 25 Date Filed: 05/13/2025\n\n\n\n\n claimant\u2019s proposed allowed claim amount which, if the\n claimant is satisfied or takes no further action to contest,\n becomes the amount that a claimant is entitled to receive from\n the Settlement Trust. Alternatively, a claimant may ask the\n Settlement Trustee to reconsider the calculation within thirty\n days of receipt.\n\n A claimant dissatisfied with the Settlement Trustee\u2019s\n initial or reconsidered proposed allowed claim amount may\n elect to pursue the Tort System Alternative and have that\n amount reviewed \u201cby a court of competent jurisdiction.\u201d In re\n Boy Scouts, 642 B.R. at 544. Under this election, the amount\n a claimant may receive from the Settlement Trust \u201cis the final\n judgment less any payments actually received and retained by\n the [claimant], but if the claimant receives a judgment in excess\n of the Maximum Matrix Value for the applicable tier, that\n additional amount is subordinate in right of distribution to the\n prior payment in full\u201d of all other allowed abuse claims. Id.\n\n Finally, a claimant may elect to pursue the Independent\n Review Option, which \u201ccontemplates recoveries above the\n values stated in the Claims Matrix and is designed to permit\n [claimants] with higher value claims to potentially receive a\n higher award and directly trigger excess insurance coverage.\u201d\n Id. Within six months of the effective date of the Plan, a\n claimant could seek an individualized evaluation of his claim\n \u201cby a neutral third party (a retired judge with tort experience\n on a panel maintained by the Settlement Trust)\u201d who, after\n accounting for the \u201crelative shares of fault and the standard of\n proof\u201d under governing law, makes a settlement\n recommendation to the Settlement Trustee. Id.\n\n\n\n\n 25\n\fCase: 23-1664 Document: 269 Page: 26 Date Filed: 05/13/2025\n\n\n\n\n The Settlement Trustee, in turn, may accept or reject the\n neutral\u2019s settlement recommendation. If the Trustee accepts\n the recommendation, that amount becomes the allowed claim\n amount, and the Trustee must provide notice to any applicable\n non-consenting insurer.4 If the Trustee rejects the neutral\u2019s\n recommendation, the claimant may sue the Settlement Trust in\n any court of competent jurisdiction to liquidate his claim. But\n this option is not without risk. If the neutral recommends, and\n the Trustee accepts, a settlement of zero, the claimant neither\n receives a distribution from the Settlement Trust nor can he\n pursue his claim in a separate action.\n\n C. Confirmation\n\n On September 29, 2021, the Bankruptcy Court\n approved the Debtors\u2019 disclosure statement, permitting them to\n begin solicitation for the Plan. The Plan carried approval from\n each of the nine classes of creditors entitled to vote on it.5 After\n their initial solicitation, the Debtors continued to work with\n interested parties to resolve remaining disputes. Through these\n efforts, BSA secured additional insurance settlements which\n resulted in greater contributions from BSA, Local Councils,\n and the Settling Insurers to the Settlement Trust. The Debtors\n\n 4\n If the insurer declines to provide coverage, the Settlement\n Trustee may sue the insurer under the insurance policy in a\n collateral proceeding.\n 5\n Classes 1 and 2 are unimpaired and, under the Bankruptcy\n Code, are conclusively deemed to accept the Plan without\n being entitled to vote. See 11 U.S.C. \u00a7 1126(f). Class 10 is\n fully impaired and therefore deemed to reject the Plan. See id.\n \u00a7 1126(g). The remaining nine classes of creditors enumerated\n in the Plan were authorized to and did vote on the Plan.\n\n\n\n\n 26\n\fCase: 23-1664 Document: 269 Page: 27 Date Filed: 05/13/2025\n\n\n\n\n incorporated these post-solicitation settlements and\n modifications into the Plan, submitted and disseminated\n supplemental disclosures to affected creditors (those in Classes\n 8 and 9), and offered those creditors the opportunity to change\n their votes given the modifications. Following an extension of\n the voting period, Classes 8 and 9 voted to accept the Plan by\n an even greater margin.\n\n But not all class members were so solicitous. Thirty-\n nine parties filed objections to the Plan\u2019s confirmation, with\n the objectors falling into two broad groups\u2014non-settling\n insurance companies and direct abuse claimants. In\n commendably thorough and inclusive proceedings, the\n Bankruptcy Court held a twenty-two-day confirmation trial\n that featured fifteen days of testimony from twenty-six\n witnesses and over 1,000 exhibits, followed by seven days of\n oral argument. On July 29, 2022, that Court issued its 269-\n page confirmation opinion, meticulously analyzing the\n objections to the Plan and approving many of its key elements,\n but declining to confirm the Plan in its entirety. See In re Boy\n Scouts, 642 B.R. 504. It then proceeded to hold two more\n hearings and, on September 8, 2022, issued supplemental\n findings of fact and conclusions of law and entered the\n Confirmation Order confirming the Plan. See In re Boy Scouts\n of Am. and Del. BSA, LLC, No. 20-10343, 2022 WL 20541782\n (Bankr. D. Del. Sep. 8, 2022).\n\n D. Procedural History\n\n On appeal, the District Court, after reviewing the Plan\n and record and hearing two days of oral argument, affirmed the\n Confirmation Order in its own 155-page opinion. The Plan\n went effective on April 19, 2023 (the Effective Date).\n\n\n\n\n 27\n\fCase: 23-1664 Document: 269 Page: 28 Date Filed: 05/13/2025\n\n\n\n\n Appellants then initiated these appeals.6 After opening\n briefs were filed, Appellees moved to dismiss all claims as\n equitably and statutorily moot. The parties briefed these\n motions, as well as the effect of the Supreme Court\u2019s\n intervening decision in Purdue, and we now consider these\n issues along with the merits of these appeals.\n\n II. Jurisdiction and Standard of Review\n\n The District Court had jurisdiction over the appeal from\n the Confirmation Order pursuant to 28 U.S.C. \u00a7 158(a). We\n have jurisdiction under 28 U.S.C. \u00a7 158(d)(1) and \u00a7 1291, and\n exercise \u201cplenary review of an order from a district court sitting\n as an appellate court in review of a bankruptcy court.\u201d In re\n Exide Techs., 607 F.3d 957, 961\u201362 (3d Cir. 2010). We thus\n employ the same standard of review as the District Court,\n \u201creview[ing] the bankruptcy court\u2019s legal determinations de\n\n 6\n Appellants\u2019 motions for a stay of the Confirmation Order\n were denied by the District Court on April 11, 2023, and by\n this Court just over a week later. Appellants renewed their\n application for a stay of confirmation and these appeals after\n the Supreme Court granted certiorari in Harrington v. Purdue\n Pharma, L.P., 603 U.S. 204 (2024). We again denied those\n applications, this time without prejudice to Appellants filing a\n renewed motion in the District Court, which they promptly did.\n Three days after the District Court denied that renewed request\n on October 3, 2023, Appellants again sought a stay from this\n Court, which we denied. Appellants then filed an emergency\n stay application in the Supreme Court in light of its then-\n pending decision in Purdue. After entering a brief\n administrative stay, the Supreme Court denied Appellants\u2019\n application on February 22, 2024.\n\n\n\n\n 28\n\fCase: 23-1664 Document: 269 Page: 29 Date Filed: 05/13/2025\n\n\n\n\n novo, its factual findings for clear error and its exercise of\n discretion for abuse thereof.\u201d In re Trans World Airlines, Inc.,\n 145 F.3d 124, 131 (3d Cir. 1998).\n\n III. Discussion\n\n While Appellants raise a number of different claims,\n most lie beyond our purview. We proceed below by addressing\n four issues: (A) the Bankruptcy Court\u2019s subject matter\n jurisdiction; (B) statutory mootness under \u00a7 363(m) of the\n Bankruptcy Code; (C) the application of equitable mootness to\n these appeals; and (D) the merits of the Certain Insurers\u2019 and\n Allianz Insurers\u2019 claims.\n\n A. The Bankruptcy Court\u2019s Jurisdiction\n\n We begin, as we must, with jurisdiction. See George v.\n Rushmore Serv. Ctr., LLC, 114 F.4th 226, 234 (3d Cir. 2024).\n The Lujan and D&V Claimants argue the Bankruptcy Court\n lacked jurisdiction over \u201cclaims against nondebtors local\n councils, chartered organizations, religious orders, and insurers\n . . . [because] any prepetition case against these nondebtors\n cannot bind BSA and therefore cannot determine any rights,\n liabilities, or course of action of BSA.\u201d Lujan Opening Br. 11.\n We agree with the District Court that, at a minimum, the\n Bankruptcy Court properly exercised related-to jurisdiction\n over these third-party claims.\n\n Bankruptcy jurisdiction has four varieties: (1) cases\n under the Bankruptcy Code; (2) proceedings \u201carising under\u201d\n the Code, meaning rights or remedies expressly provided by\n the statute; (3) proceedings \u201carising in\u201d a bankruptcy case,\n meaning those that would not exist outside of bankruptcy; and\n\n\n\n\n 29\n\fCase: 23-1664 Document: 269 Page: 30 Date Filed: 05/13/2025\n\n\n\n\n (4) proceedings \u201crelated to\u201d a bankruptcy case, often causes of\n action under non-bankruptcy law. See In re Resorts Int\u2019l, Inc.,\n 372 F.3d 154, 162 (3d Cir. 2004); In re Essar Steel Minn., LLC,\n 47 F.4th 193, 197 (3d Cir. 2022). The first three categories fall\n within bankruptcy courts\u2019 \u201ccore\u201d statutory jurisdiction, In re\n Combustion Eng\u2019g, Inc., 391 F.3d 190, 225 (3d Cir. 2004),\n which they may \u201chear and determine\u201d without intervention\n from the district court, 28 U.S.C. \u00a7 157(b)(1). The fourth\n category, proceedings \u201crelated to\u201d a bankruptcy case, is\n generally considered \u201cnon-core,\u201d In re Combustion Eng\u2019g, 391\n F.3d at 225, and bankruptcy courts have to \u201csubmit proposed\n findings of fact and conclusions of law to the district court\u201d for\n plenary review and entry of a final judgment, 28\n U.S.C. \u00a7 157(c)(1).\n\n This case deals with proceedings \u201crelated to\u201d a\n bankruptcy case. A proceeding relates to a bankruptcy case\n when \u201cthe outcome of that proceeding could conceivably have\n any effect on the estate being administered in bankruptcy.\u201d\n Pacor, Inc. v. Higgins, 743 F.2d 984, 994 (3d Cir. 1984)\n (emphasis omitted), abrogated on other grounds by Things\n Remembered, Inc. v. Petrarca, 516 U.S. 124 (1995). We have\n defined a \u201cconceivable effect\u201d to mean \u201cthe outcome could\n alter the debtor\u2019s rights, liabilities, options, or freedom of\n action (either positively or negatively) and which in any way\n impacts upon the handling and administration of the bankrupt\n estate.\u201d Id.\n\n\n\n\n 30\n\fCase: 23-1664 Document: 269 Page: 31 Date Filed: 05/13/2025\n\n\n\n\n Here, we address two bases for the Bankruptcy Court\u2019s\n related-to jurisdiction.7 First, shared insurance policies may\n serve as a basis for related-to jurisdiction. See In re\n Combustion Eng\u2019g, 391 F.3d at 232\u201333. As the Bankruptcy\n Court found, and as the record supports, BSA and the\n nondebtor, would-be defendants shared liability insurance\n coverage since at least 1976. Because these policies carry\n various per-occurrence and aggregate coverage limits,\n successful prosecution of Appellants\u2019 claims would result in\n \u201c[a] dollar-for-dollar reduction of [BSA\u2019s] available insurance\n coverage.\u201d In re Boy Scouts, 650 B.R. at 131. Thus, an effect\n on the estate is likely, let alone conceivable, and that is more\n than sufficient to impose the requisite \u201cspecter of direct impact\n on the res of the bankrupt estate\u201d to support related-to\n jurisdiction. In re Quigley Co., 676 F.3d 45, 58 (2d Cir. 2012).\n\n Second, related-to jurisdiction may exist where there\n are \u201cindemnity obligations between the debtor and non-debtor\n that automatically result[] in indemnification liability against\n the debtor.\u201d In re Combustion Eng\u2019g, 391 F.3d at 226; see also\n In re W.R. Grace & Co., 900 F.3d 126, 139 (3d Cir. 2018). As\n\n 7\n The Bankruptcy and District Courts concluded that the Lujan\n and D&V Claimants\u2019 claims had a conceivable effect on, and\n thus \u201crelated to,\u201d BSA\u2019s estate on four alternative bases: (1)\n shared insurance coverage among BSA and the nondebtors; (2)\n BSA\u2019s and Local Councils\u2019 obligation to indemnify Chartered\n Organizations; (3) an identity of interest among BSA and the\n nondebtors; and (4) BSA\u2019s residual interest in Local Council\n property. Because we conclude that BSA\u2019s shared insurance\n and its indemnity obligations are sufficient to confirm the\n existence of related-to jurisdiction, we have no need to address\n the remaining two.\n\n\n\n\n 31\n\fCase: 23-1664 Document: 269 Page: 32 Date Filed: 05/13/2025\n\n\n\n\n the Bankruptcy Court found and, again, as the record supports,\n BSA\u2019s contractual and corporate relations with Local Councils\n and Chartered Organizations give rise to non-contingent,\n automatic indemnity obligations, including those asserted\n through thousands of proofs of claim in BSA\u2019s bankruptcy.\n Appellants\u2019 claims against Local Councils and Chartered\n Organizations therefore conceivably affect the bankruptcy\n estate, and the Bankruptcy Court properly exercised related-to\n jurisdiction on that basis.\n\n True, the Bankruptcy Court did not submit proposed\n findings of fact and conclusions of law to the District Court for\n final determination. See 28 U.S.C. \u00a7 157(c)(1). But doing so\n is not necessary where, as here, a bankruptcy court exercises\n its related-to jurisdiction as part of the plan confirmation\n process. See In re Millennium Lab Holdings II, LLC, 945 F.3d\n 126, 133 (3d Cir. 2019), abrogated on other grounds by\n Harrington v. Purdue Pharma, L.P., 603 U.S. 204 (2024). As\n we have explained in applying Stern v. Marshall, 564 U.S. 462\n (2011), in a similar scenario in In re Millennium, when a\n bankruptcy court \u201cresolves a matter that is integral to the\n restructuring of the debtor-creditor relationship,\u201d it may\n constitutionally resolve third-party claims. In re Millennium,\n 945 F.3d at 135. And implicit in that holding is the recognition\n that bankruptcy courts have statutory authorization to finally\n determine third-party claims over which they have related-to\n jurisdiction during the plan confirmation process.\n\n In short, because the Lujan and D&V Claimants\u2019 claims\n against nondebtors have a conceivable effect on BSA\u2019s estate,\n the Bankruptcy Court properly exercised related-to jurisdiction\n over those claims. And because the Bankruptcy Court resolved\n those claims in the context of confirming the Plan, it did not\n\n\n\n\n 32\n\fCase: 23-1664 Document: 269 Page: 33 Date Filed: 05/13/2025\n\n\n\n\n need to submit proposed findings of fact and conclusions of\n law to the District Court.\n\n B. Statutory Mootness\n\n Having concluded the Bankruptcy Court properly\n exercised jurisdiction, we turn to Appellees\u2019 first argument for\n dismissal of these appeals\u2014that they are \u201cstatutorily moot\u201d\n under \u00a7 363(m) of the Bankruptcy Code. Importantly, not only\n is statutory mootness the primary argument the Settling\n Insurers advance on appeal\u2014and one the Debtors join\u2014but it\n is a protection for which the Bankruptcy Code expressly\n provides. Thus, we decline to resort to the judge-made doctrine\n of equitable mootness before evaluating these appeals under\n the statutory mootness provision contained in the Bankruptcy\n Code. Cf. Pearson v. Sec\u2019y Dep\u2019t of Corr., 775 F.3d 598, 603\u2013\n 04 (3d Cir. 2015) (considering statutory tolling before\n equitable tolling and concluding that, where statutory tolling\n disposed of the issue, the court \u201cneed not address\u201d the judge-\n made equitable doctrine).\n\n No doubt, that statutory bar to relief on appeal is\n applicable in limited circumstances and, as we caution below,\n is constrained by explicit statutory criteria and the careful\n scrutiny of the reviewing judge. See infra Section III.B.2. But\n even so, we agree with Appellees that it applies here, and the\n relief the Lujan Claimants and D&V Claimants seek is\n therefore precluded.\n\n Below, we address, first, the mechanics of \u00a7 363(m)\n and, second, the statute\u2019s application to these appeals and the\n Lujan and D&V Claimants\u2019 arguments that \u00a7 363(m) does not\n bar the relief they request.\n\n\n\n\n 33\n\fCase: 23-1664 Document: 269 Page: 34 Date Filed: 05/13/2025\n\n\n\n\n 1. Section 363(m)\u2019s Mechanics\n\n We and our sister circuits have referred to \u00a7 363(m)\u2019s\n bar as \u201cstatutory mootness\u201d since it imposes \u201ca constraint . . .\n on our capacity to fashion relief.\u201d In re Energy Future\n Holdings Corp., 949 F.3d 806, 820 (3d Cir. 2020). That\n subsection provides:\n\n The reversal or modification on appeal of an\n authorization under subsection (b) or (c) of this\n section of a sale or lease of property does not\n affect the validity of a sale or lease under such\n authorization to an entity that purchased or\n leased such property in good faith, whether or\n not such entity knew of the pendency of the\n appeal, unless such authorization and such sale\n or lease were stayed pending appeal.\n\n 11 U.S.C. \u00a7 363(m).\n\n In other words, when confronted with a challenge to a\n \u00a7 363(b) sale, the reviewing court must first \u201cascertain[] that\n the appeal is from an authorization of a sale, that the purchase\n was made in good faith, and that the sale was not stayed.\u201d In\n re Energy Future Holdings, 949 F.3d at 821. If those\n circumstances are met, the court then must determine \u201cwhether\n a remedy can be fashioned that will not affect the validity of\n the sale.\u201d Id. (quoting Krebs Chrysler-Plymouth, Inc. v. Valley\n Motors, Inc., 141 F.3d 490, 498\u201399 (3d Cir. 1998)). That\n determination requires close scrutiny. If the remedy does not\n affect the sale\u2019s validity, the court may entertain the appeal.\n But if it would necessarily affect the sale\u2019s validity, the relief\n is unavailable, so the appeal must be dismissed. The answer is\n\n\n\n\n 34\n\fCase: 23-1664 Document: 269 Page: 35 Date Filed: 05/13/2025\n\n\n\n\n easy where the requested relief \u201cwould materially increase or\n decrease the purchase price,\u201d but other remedies, too, may fall\n into that category with \u201ccareful study[,] depending on the\n nature of the claim and the type of relief sought.\u201d Id.\n\n In restricting appeals for this narrow category of\n appeals, Congress chose \u201cto promote the policy of . . . finality.\u201d\n Krebs Chrysler-Plymouth, 141 F.3d at 500. And this policy\n serves an important role in the bankruptcy process. Debtors\n often enter bankruptcy in dire financial straits with the value of\n their assets depreciating rapidly\u2014the proverbial \u201cmelting ice\n cube.\u201d Sometimes, in order to avoid a liquidation or risk\n further dissipation and losses to the estate, \u201cit is more\n advantageous for the debtor to begin to sell as many assets as\n quickly as possible in order to [e]nsure that the assets do not\n lose value.\u201d Fla. Dep\u2019t of Revenue v. Piccadilly Cafeterias,\n Inc., 554 U.S. 33, 57 (2008) (Breyer, J., dissenting) (quotation\n omitted). Section 363(b) permits just that: a debtor may, with\n approval from the bankruptcy court, \u201cuse, sell, or lease . . .\n property of the estate\u201d outside the ordinary course of business.\n 11 U.S.C. \u00a7 363(b)(1).\n\n But without assurance that a \u00a7 363(b) sale is final,\n potential purchasers of estate assets would be chilled from\n dealing with the debtor, causing assets to languish idly while\n the bankruptcy progresses, all the while hemorrhaging value\n and undermining the very purpose \u00a7 363(b) aims to serve.\n Section 363(m) provides the protection that \u00a7 363(b) sales\n require. Indeed, absent its protections, \u201cpurchasers of\n bankruptcy estate assets could be dragged into endless rounds\n of litigation to determine who has what rights in the property,\u201d\n which not only would disrupt the efficient flow of commerce,\n \u201cbut would also substantially reduce the value of the estate.\u201d\n\n\n\n\n 35\n\fCase: 23-1664 Document: 269 Page: 36 Date Filed: 05/13/2025\n\n\n\n\n In re Rare Earth Mins., 445 F.3d 359, 363 (4th Cir. 2006)\n (quotation omitted). By sheltering unstayed sale\n authorizations to good-faith purchasers from \u201creversal or\n modification on appeal,\u201d \u00a7 363(m) serves Congress\u2019s goals of\n \u201cattract[ing] investors and help[ing] effectuate debtor\n rehabilitation,\u201d Cinicola v. Scharffenberger, 248 F.3d 110, 122\n (3d Cir. 2001)\u2014goals we will not lightly discard.\n\n To be sure, \u201cwhile \u00a7 363(m) aims to make sales of estate\n property final and inject predictability into the sale process . . .\n it does [not do] so at all costs.\u201d In re ICL Holding Co., Inc.,\n 802 F.3d 547, 554 (3d Cir. 2015). By its terms, \u00a7 363(m) only\n prohibits \u201creversal or modification on appeal\u201d of a \u00a7 363(b)\n \u201cauthorization.\u201d It does not prohibit all appeals, but only those\n in which the authorization was not \u201cstayed pending appeal.\u201d\n And it does not prohibit the appeal of challenges to all sales\n and leases, but \u201conly those challenges that would claw back the\n sale from a good-faith purchaser.\u201d Id. Plus, it bars only those\n challenges where the relief sought would affect the \u201cvalidity of\n the sale.\u201d In re Energy Future Holdings, 949 F.3d at 821. So\n in the normal course, \u00a7 363(m) permits challenges \u201cthat are so\n divorced from the overall transaction that the challenged\n provision would have affected none of the considerations on\n which the purchaser relied\u201d and to \u201ccollateral issues not\n implicating a central or integral element of a sale.\u201d In re\n Pursuit Cap. Mgmt., LLC, 874 F.3d 124, 139 (3d Cir. 2017)\n (quoting In re Westpoint Stevens, Inc., 600 F.3d 231, 249 (2d\n Cir. 2010)).\n\n In short, \u00a7 363(m) precludes judicial review of a narrow\n and well-defined category of cases, so we turn now to whether\n this is one of them.\n\n\n\n\n 36\n\fCase: 23-1664 Document: 269 Page: 37 Date Filed: 05/13/2025\n\n\n\n\n 2. Application to These Appeals\n\n We can quickly dispense with the application of\n \u00a7 363(m) to the Certain Insurers and Allianz Insurers, and so\n address those appeals before turning to the appeals of the Lujan\n and D&V Claimants.\n\n a. The Certain Insurers and Allianz\n Insurers\n\n The Certain Insurers and Allianz Insurers each seek a\n limited form of relief sufficiently collateral to the Insurance\n Policy Buyback and, therefore, their appeals avoid triggering\n \u00a7 363(m).\n\n The Certain Insurers seek what they characterize as\n \u201cminimal, but critical, modifications to the Plan to ensure that\n their rights are preserved\u201d under their insurance policies\n assigned to the Settlement Trust. Certain Insurers Opening Br.\n 7. These changes include (1) elimination of language in the\n Plan that makes the Certain Insurers\u2019 rights \u201csubject to the\n terms of the Plan and the Confirmation Order\u201d; (2) inclusion\n of language in the Plan requiring the Settlement Trustee to\n balance the rights of the Certain Insurers along with other\n interested parties when administering the Settlement Trust; and\n (3) inclusion of a provision requiring the Settlement Trustee to\n \u201cconsider any further limitation on Abuse Claimants\u2019 recovery\n in the tort system\u201d when determining a claimant\u2019s entitlement\n to compensation. Id. at 7\u20138.\n\n None of these requested changes to the Plan implicate\n the terms of the Insurance Policy Buyback; instead, they\n reduce primarily to modifications ensuring that the Certain\n\n\n\n\n 37\n\fCase: 23-1664 Document: 269 Page: 38 Date Filed: 05/13/2025\n\n\n\n\n Insurers\u2019 interests are protected and considered in the\n administration of the Settlement Trust. So rather than seeking\n relief \u201cimplicating a central or integral element of a sale,\u201d the\n Certain Insurers\u2019 requested relief is sufficiently \u201cdivorced from\n the overall transaction\u201d such that, if granted, it would \u201caffect[]\n none of the considerations on which the purchaser relied.\u201d In\n re Pursuit Cap. Mgmt., 874 F.3d at 139. Accordingly,\n \u00a7 363(m) poses no barrier to our consideration of the merits of\n their appeal.\n\n The same goes for the Allianz Insurers. Like the Certain\n Insurers, the Allianz Insurers propose targeted changes that\n implicate neither the terms nor the validity of the Insurance\n Policy Buyback. Specifically, they contend that the\n Confirmation Order\u2019s \u201cjudgment reduction clause\u201d\n impermissibly releases contribution and indemnity claims they\n would otherwise have against the Settling Insurers. As a fix,\n they propose modifications to the Confirmation Order to\n require the Settlement Trustee to pay these released claims to\n the extent they accrue. This change does not implicate any\n provision of the Insurance Policy Buyback\u2014indeed, the\n Allianz Insurers\u2019 argument takes as a given the existence of the\n Settlement Trust, funded in part by the proceeds of the\n Insurance Policy Buyback and the release of their claims\n against the Settling Insurers. And in proposing that the\n Settlement Trust, rather than the Settling Insurers, cover the\n cost of satisfying their released claims, the Allianz Insurers\n have not asked for relief that \u201cwould materially increase . . .\n the purchase price\u201d paid by the Settling Insurers. In re Energy\n Future Holdings, 949 F.3d at 821; cf. In re ICL Holding Co.,\n 802 F.3d at 554 (concluding that reallocation of escrowed\n funds to satisfy administrative expenses was not barred by\n\n\n\n\n 38\n\fCase: 23-1664 Document: 269 Page: 39 Date Filed: 05/13/2025\n\n\n\n\n \u00a7 363(m)). For these reasons, the Allianz Insurers\u2019 appeal\n likewise does not implicate \u00a7 363(m).\n\n b. The Lujan and D&V Claimants\n\n The Lujan Claimants and D&V Claimants, however, are\n differently situated, and we have little difficulty concluding\n that the relief they seek would affect the validity of the\n Insurance Policy Buyback authorized by the Confirmation\n Order. These Claimants have steadfastly urged us to reverse\n the Confirmation Order and vacate the Plan in its entirety. But\n the Confirmation Order contains the authorization for the sale\n of BSA\u2019s insurance policies. See In re Boy Scouts, 2022 WL\n 20541782, at *10\u201311. Granting these Claimants\u2019 requested\n relief would reverse on appeal an authorization made pursuant\n to \u00a7 363(b)\u2014the very result \u00a7 363(m) prohibits.\n\n Our concurring colleague disagrees, asserting that the\n buyback of some of the Settling Insurers\u2019 policies has yet to\n occur because it is \u201cexpressly condition[ed]\u201d on the\n Confirmation Order becoming a \u201cFinal Order\u201d as defined in\n the settlement agreements. Concurring Op. 12. But this\n contention is doubly mistaken.\n\n First, as counsel for the Settling Insurers represented to\n us at oral argument, and as is borne out in the Plan, the\n Insurance Policy Buyback was completed on the Effective\n Date, meaning \u201cthe policies have been sold.\u201d Oral Arg. Tr.\n 76:6; see also App. 975 (\u201cNotwithstanding anything to the\n contrary and for the avoidance of doubt, the Abuse Insurance\n Policies [including Hartford\u2019s and Zurich\u2019s policies] shall be\n sold by the Debtors to the applicable Settling Insurance\n Companies free and clear of all liens, claims, encumbrances,\n\n\n\n\n 39\n\fCase: 23-1664 Document: 269 Page: 40 Date Filed: 05/13/2025\n\n\n\n\n interests or other rights on the Effective Date on the terms and\n as provided in the applicable Insurance Settlement\n Agreement.\u201d).\n\n Second, even if that were not the case, \u00a7 363(m) speaks\n in terms of unstayed authorizations under \u00a7 363(b)\u2014it does\n not include an inchoate requirement that a \u00a7 363(b) sale be\n consummated or otherwise effectuated. See In re Rickel Home\n Ctrs., Inc., 209 F.3d 291, 298 (3d Cir. 2000) (recognizing that\n for \u00a7 363(m) to apply, \u201cthe underlying sale or lease must not\n have been stayed pending appeal\u201d and \u201creversing or modifying\n the authorization to sell or lease would affect the validity of the\n sale or lease,\u201d and holding that \u201c[appellant]\u2019s appeal on this\n point, absent a stay, is moot\u201d (emphasis added)); Krebs\n Chrysler-Plymouth, 141 F.3d at 493, 500 (holding appeal from\n \u00a7 363(b) sale was moot where purchaser had paid only 10% of\n purchase price \u201cbecause [appellant] did not receive a stay of\n the sale pending appeal\u201d); Pittsburgh Food & Beverage, Inc.\n v. Ranallo, 112 F.3d 645, 651 (3d Cir. 1997) (holding that\n \u00a7 363(m) barred appeal \u201cbecause of [appellant]\u2019s inability to\n obtain a stay of the bankruptcy court\u2019s order approving the\n sale\u201d (emphasis added)).\n\n As we have explained, \u00a7 363(m) kicks in when (1) \u201cthe\n appeal is from an authorization of a sale [under \u00a7 363(b)]\u201d; (2)\n \u201cthe purchase was made in good faith\u201d; and (3) \u201cthe sale was\n not stayed.\u201d In re Energy Future Holdings, 949 F.3d at 820.\n Those conditions are met here: (1) the Confirmation Order\n unambiguously authorizes \u201c[t]he sale of the [Settling Insurers\u2019\n policies] . . . pursuant to section[] 363,\u201d In re Boy Scouts, 2022\n WL 20541782, at *10; (2) the Bankruptcy Court found that the\n Settling Insurers \u201care each good faith purchasers for value\n within the meaning of section 363(m),\u201d id. at *8; and (3) the\n\n\n\n\n 40\n\fCase: 23-1664 Document: 269 Page: 41 Date Filed: 05/13/2025\n\n\n\n\n Confirmation Order\u2014including the Insurance Policy\n Buyback\u2014was not stayed. So \u00a7 363(m) applies to this\n \u00a7 363(b) authorization.\n\n As for the concurrence\u2019s contentions that \u201c[s]ection\n 363(m) clearly contemplates not only an authorized sale, but a\n completed sale\u201d and \u201can appeal cannot affect the validity of a\n sale that has not happened,\u201d Concurring Op. 14, both our\n precedent and common sense disagree. As explained above,\n we have identified three conditions to \u00a7 363(m)\u2019s application,\n and all are satisfied here. See In re Energy Future Holdings,\n 949 F.3d at 820. And just as the fact that ongoing performance\n does not negate the existence of a contract, the fact that every\n last cent has not been handed over does not mean a sale has not\n occurred. So just as a party\u2019s breach would affect the\n contractual relationship, invalidation of the releases at this late\n stage would affect the validity of the sale to which BSA and\n the Settling Insurers agreed. By any measure, \u00a7 363(m) applies\n here.\n\n In an effort to avoid this conclusion, the Claimants raise\n a bevy of arguments, but none is persuasive.8 First, they argue\n\n 8\n At the outset, the Lujan and D&V Claimants assert that\n because they advance constitutional claims\u2014namely due\n process claims\u2014we must reach the merits before passing on\n statutory mootness. But \u201cwe cannot consider [those claims] if\n the appeal . . . is moot under 11 U.S.C. \u00a7 363(m).\u201d In re Pursuit\n Cap. Mgmt., LLC, 874 F.3d 124, 133 (3d Cir. 2017). And as\n we have previously held, \u00a7 363(m) does not except certain\n types of claims from its appellate moratorium\u2014even\n constitutional ones. In re Energy Future Holdings Corp., 949\n\n\n\n\n 41\n\fCase: 23-1664 Document: 269 Page: 42 Date Filed: 05/13/2025\n\n\n\n\n that, because the Insurance Policy Buyback is not a sale\n \u201coutside a plan of reorganization,\u201d it is not a \u00a7 363(b) sale at\n all, making \u00a7 363(m) inapplicable by its own terms. Lujan\n Claimants Opp. Mot. to Dismiss 5; see also D&V Claimants\n Opp. Mot. to Dismiss 21. But we dispatched this argument\n years ago. In Cinicola v. Scharffenberger, we held that a\n second-in-time order authorizing the assignment of certain\n contracts that was \u201cinextricably intertwined with\u201d a prior\n authorization for the sale of assets under \u00a7 363(b) fell within\n the ambit of \u00a7 363(m) and, therefore, a challenge to the contract\n assignment was statutorily moot. 248 F.3d at 126. And in In\n re Energy Future Holdings, we held that a confirmation order\n that \u201cauthorized and directed\u201d the consummation of a\n previously approved asset sale (styled as a \u201cmerger\u201d and\n conditioned upon the eventual confirmation of a reorganization\n plan) qualified as an authorization of a sale for purposes of\n \u00a7 363(m).9 949 F.3d at 819\u201320; accord In re Fieldwood\n\n\n F.3d 806, 818 (3d Cir. 2020) (rejecting argument \u201cthat there is\n a due process exception to \u00a7 363(m)\u201d).\n 9\n The concurrence attempts to distinguish Cinicola and In re\n Energy Future Holdings as cases involving \u201ca separate\n Bankruptcy Court order . . . [that] preliminarily approved a\n \u00a7 363 sale, and the confirmation order had the effect\u201d of\n making the sale final. Concurring Op. 6. True, those cases\n involved separate orders, but we explicitly rejected the\n suggestion that this fact was relevant to the \u00a7 363(m) analysis.\n Instead, we stated in Cinicola that successive orders \u201cwere\n inextricably intertwined,\u201d meaning the second-in-time order\n did not \u201crepresent[] an independent act\u201d and an appeal from it\n affected the validity of the \u00a7 363(b) sale contained in the first\n order. Cinicola v. Scharffenberger, 248 F.3d 110, 126 (3d Cir.\n\n\n\n\n 42\n\fCase: 23-1664 Document: 269 Page: 43 Date Filed: 05/13/2025\n\n\n\n\n Energy LLC, 93 F.4th 817, 825 (5th Cir. 2024) (applying\n \u00a7 363(m) to sale authorized by confirmation order); In re Made\n in Detroit, Inc., 414 F.3d 576, 582\u201383 (6th Cir. 2005) (same).\n Here, the Confirmation Order, which authorized the sale of\n BSA\u2019s insurance policies, equally serves as an \u201cauthorization\n . . . of a sale\u201d under \u00a7 363(m).10\n\n Second, the Lujan Claimants argue that the Settling\n Insurers are not good faith purchasers because they purchased\n BSA\u2019s policies despite abuse claimants asserting rights in\n those policies and with the knowledge that the Lujan Claimants\n intended to challenge the Plan on appeal. But this argument\n ignores both the text of \u00a7 363(m) and the Bankruptcy Court\u2019s\n factual findings. Section 363(m) extends protection to\n purchasers \u201cwhether or not such entity knew of the pendency\n of [an] appeal\u201d challenging the sale authorization. In other\n words, \u00a7 363(m) contemplates that sale authorizations under \u00a7\n 363(b) may be subject to dispute and nonetheless insulates\n\n\n 2001). And in In re Energy Future Holdings, we emphatically\n \u201creject[ed] Appellants\u2019 argument that they are not appealing\n the \u2018authorization . . . of a sale\u2019 for purposes of \u00a7 363(m)\u201d\n simply because the bankruptcy court there entered two orders\n instead of one. 949 F.3d at 820.\n 10\n At argument, the D&V Claimants suggested that the\n Insurance Policy Buyback is not a true \u00a7 363(b) sale because\n the Settling Insurers are not a \u201cthird-party,\u201d but rather insiders\n who stood to gain from the sale by receiving releases under the\n Plan. Oral Arg. Tr. 16:10\u201311. But this contention cannot be\n squared with the text of \u00a7 363(m), which \u201ccontains no\n exception for sales to creditors, or other parties to the\n bankruptcy proceedings.\u201d Krebs Chrysler-Plymouth, Inc. v.\n Valley Motors, Inc., 141 F.3d 490, 500 (3d Cir. 1998).\n\n\n\n\n 43\n\fCase: 23-1664 Document: 269 Page: 44 Date Filed: 05/13/2025\n\n\n\n\n those authorizations from reversal or modification on appeal.\n And that result aligns perfectly with the policy goal of \u00a7\n 363(m): to extinguish \u201cthe risk of litigation [that] would chill\n prospective bidders or push them to \u2018demand a steep\n discount.\u2019\u201d In re ICL Holding Co., 802 F.3d at 554 (quoting\n In re River West Plaza-Chi., LLC, 664 F.3d 668, 671 (7th Cir.\n 2011)).\n\n In this case, the Bankruptcy Court unequivocally\n determined that \u201c[t]he Settling Insurance Companies are each\n good faith purchasers for value within the meaning of section\n 363(m) of the Bankruptcy Code.\u201d In re Boy Scouts, 2022 WL\n 20541782, at *8. And, for the reasons above, we agree with\n that determination.11\n\n Third, Appellants contend that they do not seek to upset\n the Insurance Policy Buyback, but rather only take issue with\n the nonconsensual third-party releases contained in the Plan.\n But where, as here, the releases form a portion of the\n consideration for the Insurance Policy Buyback, that is a\n distinction without a difference. Under the Plan, the Settling\n Insurers paid over $1.6 billion in exchange for the return of\n their insurance policies from BSA, with liability cabined by the\n third-party releases. So without the releases, the Settling\n Insurers would receive less than they bargained for in exchange\n for their cash contribution to the Settlement Trust, which\n \u201cwould materially increase . . . the purchase price\u201d and, thus,\n\n\n 11\n Thus, this case differs from those cited by the concurrence\n where the court did not make a good-faith determination for\n purposes of \u00a7 363(m). See Miami Ctr. Ltd. P\u2019ship v. Bank of\n N.Y., 838 F.2d 1547, 1550\u201351 (11th Cir. 1988).\n\n\n\n\n 44\n\fCase: 23-1664 Document: 269 Page: 45 Date Filed: 05/13/2025\n\n\n\n\n \u201cwould plainly affect the validity of the sale.\u201d In re Energy\n Future Holdings, 949 F.3d at 821.\n\n Perhaps recognizing the import of the relief they seek\u2014\n relief that would send BSA and over 82,000 abuse claimants\n back to square one and would almost certainly unleash years\n of litigation in the wake of the vacated Plan\u2014the Lujan and\n D&V Claimants suggest that more limited remedies are\n available that \u201cdo[] not touch the insurance sale or dismantle\n the plan.\u201d D&V Claimants Opp. Mot. to Dismiss 32. They\n offer two by way of \u201cexample.\u201d Id. But the Bankruptcy Code\n permits neither.\n\n The proposal that \u201cthe third parties benefiting from the\n releases could pay more money,\u201d id., is the quintessential\n example of relief that \u201cwould materially increase . . . the\n purchase price.\u201d In re Energy Future Holdings, 949 F.3d at\n 821. And permitting the Lujan and D&V Claimants to \u201copt out\n of the nonconsensual releases,\u201d D&V Claimants Opp. Mot. to\n Dismiss 32, effects the same result: the Settling Insurers would\n receive less in exchange for their cash contribution than they\n bargained for under the terms of the Insurance Policy Buyback.\n BSA and the Settling Insurers struck a deal for a global\n resolution, and blue-penciling a post-confirmation opt-out\n structure\u2014even for a relatively small number of claimants\u2014\n would fundamentally undermine that bargain. Allowing some\n claimants, but not others, to circumvent the releases and pursue\n claims against previously released parties would also violate\n the Bankruptcy Code\u2019s requirement that a plan \u201cprovide the\n same treatment for each claim or interest of a particular class\u201d\n absent consent from a claimholder to less favorable treatment.\n 11 U.S.C. \u00a7 1123(a)(4). At bottom, the Lujan and D&V\n Claimants have not proposed relief that the Code permits.\n\n\n\n\n 45\n\fCase: 23-1664 Document: 269 Page: 46 Date Filed: 05/13/2025\n\n\n\n\n At the same time the Claimants offer these two\n \u201cexamples\u201d of limited relief, they seek to shift that onus to the\n Appellees, asserting \u201c[i]t is not Appellants\u2019 burden to propose\n all available relief.\u201d D&V Claimants Opp. Mot. to Dismiss 32.\n But it is. As the challengers to an unstayed \u00a7 363(b) sale\n \u201cseeking to avert \u00a7 363(m)\u2019s bar,\u201d Appellants bear the burden\n of \u201cdemonstrat[ing] that the relief affects only \u2018collateral issues\n not implicating a central or integral element of a sale.\u2019\u201d In re\n Energy Future Holdings, 949 F.3d at 821 (quoting In re\n Pursuit Cap. Mgmt., 874 F.3d at 139). Because they fail to\n clear that bar, we cannot grant effective relief.\n\n Fourth, in a brief passage near the end of their\n opposition to the Settling Insurers\u2019 motion to dismiss, the\n Lujan Claimants contend that even if the releases of some of\n their claims were integral to the Insurance Policy Buyback,\n their other claims against \u201cLimited Protected Parties,\u201d\n particularly Chartered Organizations like the Roman Catholic\n Entities (who were not insured under BSA\u2019s pre-1975\n insurance policies), do not implicate the sale and thus can be\n pursued on appeal. But this final gesture at more limited relief\n also falls short for both pre- and post-1976 abuse claims. That\n is because the Plan provides releases for Limited Protected\n Parties for abuse claims after 1975 and for pre-1976 claims\n against Limited Protected Parties covered by policies provided\n by a Settling Insurer. And for pre-1976 claims against Limited\n Protected Parties that were not then insured with the Settling\n Insurers, the Plan and Confirmation Order neither release those\n claims nor enjoin their prosecution. See In re Boy Scouts, 2022\n WL 20541782, at *28.\n\n Additionally, throughout their briefs, the Lujan\n Claimants and D&V Claimants argue that embracing\n\n\n\n\n 46\n\fCase: 23-1664 Document: 269 Page: 47 Date Filed: 05/13/2025\n\n\n\n\n Appellees\u2019 statutory mootness argument here would\n effectively \u201cimmuniz[e] the substantive terms of a plan from\n appellate review\u201d anytime a plan involves a \u00a7 363(b) sale.\n D&V Claimants Opp. Mot. to Dismiss 20. But our holding\n does no such thing, and we take this opportunity to emphasize\n the narrowness of our decision in two respects: the limited\n scope of \u00a7 363(m) and the boundaries of so-called \u201csub rosa\u201d\n plans that fall beyond it.\n\n As for \u00a7 363(m) itself, the statute prohibits the reversal\n or modification of \u00a7 363(b) sales; it does not moot appellate\n review of, and reversal or modification to, entire\n reorganization plans. Our decision does not read \u00a7 363(m) to\n immunize from appellate review all facets of a plan whenever\n a \u00a7 363(b) sale is involved. Put differently, a challenge to a\n \u00a7 363(b) sale that is \u201ccollateral\u201d to or would not otherwise\n \u201caffect the validity of the sale\u201d falls outside the ambit of\n \u00a7 363(m), In re Energy Future Holdings, 949 F.3d at 821, and\n given the breadth of issues a reorganization plan may resolve\n that do not necessarily implicate the terms of a \u00a7 363(b) sale,\n see 11 U.S.C. \u00a7 1123(a)\u2013(b), the vast majority of challenges,\n no doubt, will fall into this category.12\n\n 12\n We need not speculate as to what aspects of hypothetical\n plans may or may not be immunized from reversal or\n modification on appeal. No doubt, those who practice in\n bankruptcy court \u201care creative,\u201d Oral Arg. Tr. 78:22, so any\n attempt to predict what transactions and plan provisions\n bankruptcy practitioners might engineer next would surely be\n a gross underestimation. Today, it is enough to conclude that\n in the context of this Plan, the nonconsensual third-party\n releases challenged by the Lujan and D&V Claimants go to the\n\n\n\n\n 47\n\fCase: 23-1664 Document: 269 Page: 48 Date Filed: 05/13/2025\n\n\n\n\n Nor does our application of \u00a7 363(m) to this \u00a7 363(b)\n sale countenance the use of \u00a7 363(b) during the course of\n bankruptcy proceedings to effectuate a sub rosa plan by\n \u201cdictat[ing] the terms of a plan.\u201d 3 Collier on Bankruptcy\n \u00b6 363.02[3] (16th ed. 2024). Our Court has not had occasion\n to opine on or define the boundaries of a sub rosa plan, but\n some of our sister circuits have done so. In In re Braniff\n Airways, Inc., the Fifth Circuit reversed a \u00a7 363(b) sale\n authorization that the bankruptcy court approved before a plan\n had been proposed or a disclosure statement approved, and that\n included, as part of the sale agreement, terms that required the\n future plan to allocate certain assets to certain parties, required\n creditors to vote portions of their deficiency claims in favor of\n a future plan, and \u201cprovided for the release of claims by all\n parties against [the debtor], its secured creditors and its officers\n and directors.\u201d 700 F.2d 935, 940 (5th Cir. 1983). The court\n concluded that the putative \u00a7 363(b) sale was \u201cin fact a\n reorganization\u201d and held that a party \u201cshould not be able to\n short circuit the requirements of Chapter 11 for confirmation\n of a reorganization plan by establishing the terms of the\n plan sub rosa in connection with a sale of assets.\u201d Id. Instead,\n when a debtor \u201cattempts to specify the terms whereby a\n reorganization plan is to be adopted,\u201d it \u201cmust scale the hurdles\n erected in Chapter 11.\u201d Id. The Second Circuit reached a\n similar conclusion in In re Lionel Corp., 722 F.2d 1063 (2d\n Cir. 1983). There, the court rejected a pre-plan \u00a7 363(b) sale\n of the debtor\u2019s most important asset that effectively\n \u201cswallow[ed] up Chapter 11\u2019s safeguards.\u201d Id. at 1069; cf.\n Czyzewski v. Jevic Holding Corp., 580 U.S. 451, 468 (2017)\n (holding that the Bankruptcy Code does not permit structured\n\n\n heart of the Bankruptcy Court\u2019s \u00a7 363(b) authorization, so\n \u00a7 363(m) prevents us from disrupting them on appeal.\n\n\n\n\n 48\n\fCase: 23-1664 Document: 269 Page: 49 Date Filed: 05/13/2025\n\n\n\n\n dismissals, which deviate from the absolute priority rule and\n \u201ccircumvent the Code\u2019s procedural safeguards\u201d).\n\n The bankruptcy and district courts of this Circuit have\n also acknowledged and applied the doctrine in examining sales\n under \u00a7 363(b), authorizations for debtor-in-possession\n financing under \u00a7 364(d), and settlements under Bankruptcy\n Rule 9019 to ensure they do not impermissibly dictate the\n terms of eventual reorganization plans or bypass the Code\u2019s\n procedural safeguards. See, e.g., In re Shubh Hotels\n Pittsburgh, LLC, 439 B.R. 637, 644\u201345 (Bankr. W.D. Pa.\n 2010); In re Summit Global Logistics, Inc., No. 08-11566,\n 2008 WL 819934, at *13\u201314 (Bankr. D.N.J. Mar. 26, 2008); In\n re Capmark Fin. Grp. Inc., 438 B.R. 471, 513\u201314 (Bankr. D.\n Del. 2010).\n\n We endorse this practice and join the Fifth and Second\n Circuits in applying the doctrine where warranted. No doubt,\n differentiating a permissible use of \u00a7 363(b) from an invalid\n one often requires consideration of the substance of proposed\n transactions. But judges already must conduct similar inquiries\n in a variety of other contexts,13 and we are confident that\n bankruptcy and district court judges\u2014and ultimately this\n\n 13\n See, e.g., In re Hertz Corp., 120 F.4th 1181, 1196 (3d Cir.\n 2024) (considering whether make-whole premiums are \u201cthe\n economic equivalent of interest\u201d for purposes of claim\n allowance under 11 U.S.C. \u00a7 502(b)(2)); In re Pillowtex, Inc.,\n 349 F.3d 711, 719 (3d Cir. 2003) (\u201c[C]ourts are to consider the\n economic reality of the transaction in order to determine, based\n on the particular facts of the case, whether the transaction is\n more fairly characterized as a lease or a secured financing\n arrangement.\u201d).\n\n\n\n\n 49\n\fCase: 23-1664 Document: 269 Page: 50 Date Filed: 05/13/2025\n\n\n\n\n Court14\u2014are eminently capable of policing the bounds of\n permissible \u00a7 363(b) sales and seeing cleverly disguised\n transactions for what they are. Debtors and powerful creditors\n do not qualify as good faith purchasers where they seek to\n \u201cmaximize [their] leverage,\u201d In re Hertz Corp., 120 F.4th\n 1181, 1205 (3d Cir. 2024), by dictating the terms of Chapter\n 11 plans up front without \u201cscal[ing] the hurdles erected\u201d by the\n Bankruptcy Code, In re Braniff Airways, 700 F.2d at 940.\n Indeed, the good-faith determination, critically, \u201cprevents a\n debtor-in-possession or trustee from effectively abrogating the\n creditor protections of Chapter 11.\u201d In re Abbotts Dairies of\n Pa., Inc., 788 F.2d 143, 150 n.5 (3d Cir. 1986). Nor are we\n convinced that an intentional attempt to transact by \u201cmeans\n forbidden by law\u201d constitutes good faith by a purchaser.15 Id.\n at 150 (quoting 11 U.S.C. \u00a7 1129(a)(3)).\n\n 14\n When reviewing challenges to \u00a7 363(b) authorizations, \u201cwe\n are first required to ask whether the purchaser at the sale\n \u2018purchased . . . [the] property in good faith.\u2019\u201d In re Pursuit\n Cap. Mgmt., 874 F.3d at 135 (alteration and omission in\n original) (quoting In re Abbotts Dairies of Pa., Inc., 788 F.2d\n 143, 147 (3d Cir. 1986)). We review a bankruptcy court\u2019s\n determination of a purchaser\u2019s good faith under a mixed\n standard of review, exercising plenary review of the legal\n standard applied, but reviewing findings of fact for clear error.\n Id. Therefore, where an appellant can demonstrate that a\n bankruptcy court erroneously concluded that the record facts\n are sufficient to establish good faith, or those factual findings\n are clearly erroneous, \u00a7 363(m) poses no barrier to appellate\n review of the merits of a \u00a7 363(b) authorization.\n 15\n Although the good-faith requirement of \u00a7 363(m) \u201cmirrors\u201d\n that in \u00a7 1129, In re Abbotts Dairies, 788 F.2d at 150, there are\n\n\n\n\n 50\n\fCase: 23-1664 Document: 269 Page: 51 Date Filed: 05/13/2025\n\n\n\n\n This case raises none of those concerns.16 Here, the\n Insurance Policy Buyback was included in the Plan and subject\n to all of Chapter 11\u2019s procedural protections afforded to\n creditors: The Insurance Policy Buyback was included in the\n\n\n important distinctions. The \u00a7 1129 good-faith inquiry does not\n look to the subjective intent of the debtor. See In re\n Combustion Eng\u2019g, Inc., 391 F.3d 190, 247 (3d Cir. 2004); cf.\n In re SGL Carbon Corp., 200 F.3d 154, 165 (3d Cir.\n 1999). But the good-faith inquiry under 363(m) looks for\n \u201cdefects which would in equity affect the validity of any\n private transaction,\u201d which may include consideration of\n intent. In re Abbotts Dairies, 788 F.2d at 148 (quoting In re\n Cada Invs., 664 F.2d 1158, 1162 (9th Cir. 1981)); see also In\n re Gucci, 126 F.3d 380, 390\u201391 (2d Cir. 1997).\n 16\n Courts have crafted various standards to determine what\n constitutes a sub rosa plan. See, e.g., In re Iridium Operating\n LLC, 478 F.3d 452, 466 (2d Cir. 2007); In re Cajun Elec.\n Power Co-op., Inc., 119 F.3d 349, 354\u201355 (5th Cir. 1997); see\n also In re Latam Airlines Grp. S.A., 620 B.R. 722, 813 (Bankr.\n S.D.N.Y. 2020); In re Capmark Fin. Grp. Inc., 438 B.R. 471,\n 513 (Bankr. D. Del. 2010); In re Tower Auto. Inc., 241 F.R.D.\n 162, 168\u201369 (S.D.N.Y. 2006). We have no occasion here to\n endorse any of these standards or articulate one of our own.\n Today, it is enough to recognize the sub rosa doctrine as an\n inherent limitation to authorizations under \u00a7 363(b). At the\n same time, however, our holding should not be taken to cast\n doubt on the use of \u00a7 363(b) to conduct sales of all or\n substantially all of a debtor\u2019s assets\u2014often accomplished\n through auctions using bidding procedures and stalking-horse\n bidders approved by the bankruptcy court\u2014where doing so\n does not effectively dictate the terms of an eventual\n reorganization plan.\n\n\n\n\n 51\n\fCase: 23-1664 Document: 269 Page: 52 Date Filed: 05/13/2025\n\n\n\n\n Debtors\u2019 solicitation and supplemental disclosure statements\n and subject to objection at the confirmation hearing. All\n creditors entitled to vote on the Plan\u2014including the creditors\n in Classes 8 and 9, comprising direct and indirect abuse\n claimants\u2014had adequate notice that the Plan, if confirmed,\n would authorize the Insurance Policy Buyback. BSA\u2019s\n creditors chose to vote in favor of the Plan anyway, including\n the class of creditors to which the Lujan and D&V Claimants\n belong.17 After thirty-nine parties raised objections to the Plan,\n the Bankruptcy Court held a twenty-two-day-long\n confirmation hearing\u2014devoting sixteen days to receiving\n evidence, consisting of testimony from twenty-six witnesses\n and over 1,000 exhibits, and six days to oral argument\u2014before\n issuing a 269-page confirmation opinion, diligently stepping\n through \u00a7 1129\u2019s confirmation requirements and approving\n much, but not all, of the Debtors\u2019 Plan. The Bankruptcy Court\n then held two more hearings before issuing supplemental\n findings of fact and conclusions of law and the Confirmation\n Order confirming the Plan.\n\n This abundance of process and conformity with the\n Code distinguishes this case from those where a debtor\u2019s use\n\n 17\n The plan the Debtors originally solicited won support from\n every class of creditors entitled to vote on it, including Classes\n 8 and 9, which approved the plan with 73.57% and 69.57% of\n creditors\u2019 votes, respectively. Following the initial solicitation,\n BSA amended the Plan\u2014primarily in the form of additional\n insurance settlements\u2014and offered affected creditors, i.e.,\n direct and indirect abuse claimants, the opportunity to change\n their votes. The revised Plan won even greater support, with\n 85.72% and 82.41% of ballots from Classes 8 and 9,\n respectively, voting in favor of the Plan.\n\n\n\n\n 52\n\fCase: 23-1664 Document: 269 Page: 53 Date Filed: 05/13/2025\n\n\n\n\n of \u00a7 363(b) constitutes a sub rosa plan.18 A debtor improperly\n invokes \u00a7 363(b) where it attempts to evade the Code\u2019s creditor\n\n 18\n Remarkably, the concurrence asserts that including a\n \u00a7 363(b) sale \u201cas part of a globally-negotiated plan\u201d \u201cdeprives\n the sale of any real scrutiny.\u201d Concurring Op. 8. In reality, the\n opposite is true. To approve a sale under \u00a7 363(b), courts\n require only that the debtor exact its sound business judgment\n in good faith. See, e.g., In re Blitz U.S.A. Inc., 475 B.R. 209,\n 215 (Bankr. D. Del. 2012). To confirm a consensual\n reorganization plan, on the other hand, the debtor must carry\n its burden of satisfying \u00a7 1129(a)\u2019s sixteen statutory\n requirements by a preponderance of evidence. See, e.g., In re\n Armstrong World Indus., Inc., 348 B.R. 111, 120 (D. Del.\n 2006); cf. Grogan v. Garner, 498 U.S. 279, 286 (1991). And\n those requirements increase when a debtor seeks to \u201ccram\n down\u201d a plan over the objection of a nonconsenting impaired\n class. See 11 U.S.C. \u00a7 1129(b). The concurrence nonetheless\n warns that \u201c[s]o long as Chapter 11\u2019s procedural requirements\n are met, substantively controversial, or even unlawful, plan\n provisions (like non-consensual third-party releases) can evade\n appellate review.\u201d Concurring Op. 7. But such a distortion of\n the plan-confirmation process depends on dismissing the\n Code\u2019s confirmation requirements as mere formalities. Far\n from a set of simple \u201cprocedural requirements,\u201d we have\n described \u00a7 1129\u2019s confirmation criteria as \u201ccritical,\u201d John\n Hancock Mut. Life Ins. Co. v. Route 37 Bus. Park Assocs., 987\n F.2d 154, 158 (3d Cir. 1993), and \u201can unambiguous check on\n a debtor\u2019s power\u201d over the contents of a plan, In re Fed.-Mogul\n Glob. Inc., 684 F.3d 355, 371 n.23 (3d Cir. 2012). And we\n have no doubt that our colleagues on the bankruptcy courts\n exercise great care in evaluating plans\u2019 conformity to the\n\n\n\n\n 53\n\fCase: 23-1664 Document: 269 Page: 54 Date Filed: 05/13/2025\n\n\n\n\n protections, effectively \u201cshort circuit[ing] the requirements of\n Chapter 11 for confirmation of a reorganization plan.\u201d In re\n Braniff Airways, 700 F.2d at 940. Here, rather than attempting\n to skirt those protections, the Debtors faced them head-on and\n subjected the Insurance Policy Buyback to the Code\u2019s stringent\n confirmation requirements.\n\n * * *\n\n In sum, the Settling Insurers qualify as good-faith\n purchasers, and the purported more-limited relief proposed by\n the Lujan and D&V Claimants would strike at the heart of the\n Insurance Policy Buyback. Because \u00a7 363(m) bars us from\n granting such relief, we will dismiss their appeals on that\n basis.19 But as the Certain Insurers\u2019 and Allianz Insurers\u2019\n\n\n Code\u2019s requirements and holding debtors to their burden of\n proof. Cf. Bullard v. Blue Hills Bank, 575 U.S. 496, 507 (2015)\n (\u201c[T]he [imperfect] appellate process . . . is made tolerable in\n part by our confidence that bankruptcy courts, like trial courts\n in ordinary litigation, rule correctly most of the time.\u201d). Thus,\n contrary to the concurrence\u2019s suggestion, a sale in a Chapter 11\n plan both draws greater scrutiny and subjects the debtor to a\n more exacting standard to gain approval.\n 19\n By resting on \u00a7 363(m) to dismiss the Lujan and D&V\n Claimants\u2019 appeals, our decision does not portend an\n abdication of \u201cappellate court[s\u2019] Article [III] powers to\n effectively supervise bankruptcy court decisions,\u201d nor does it\n insulate \u00a7 363(b) sales, \u201cno matter how unlawful,\u201d from\n judicial scrutiny. Oral Arg. Tr. 17:4, 7\u20138. As its procedural\n history demonstrates, this is an unusual case. At the time the\n Bankruptcy and District Courts reviewed the legality of the\n\n\n\n\n 54\n\fCase: 23-1664 Document: 269 Page: 55 Date Filed: 05/13/2025\n\n\n\n\n claims are collateral to the Insurance Policy Buyback,\n \u00a7 363(m) does not prevent us from considering their appeals.\n\n C. Equitable Mootness\n\n Because we conclude that the appeals of the Certain\n Insurers and Allianz Insurers are not statutorily moot, we reach\n Appellees\u2019 alternative argument for dismissal that the doctrine\n of equitable mootness precludes relief. In light of the limited\n relief those Appellants seek, the success of their appeals does\n not threaten to fatally scramble the Plan. Thus, equitable\n mootness does not prevent us from reaching the merits of their\n claims.\n\n As we explained when we first endorsed this \u201cjudge-\n made abstention doctrine,\u201d In re Semcrude, L.P., 728 F.3d 314,\n 317 (3d Cir. 2013), by a slim margin in In re Continental\n Airlines, 91 F.3d 553 (3d Cir. 1996) (en banc), equitable\n mootness permits a federal court to dismiss and decline to\n consider the merits of a bankruptcy appeal following the\n consummation of a plan \u201cwhen, even though effective relief\n could conceivably be fashioned, implementation of that relief\n would be inequitable,\u201d id. at 559 (cleaned up). The doctrine is\n invoked when \u201crequested relief is almost certain to produce a\n \u2018perverse\u2019 outcome\u2014significant \u2018injury to third parties\u2019 and/or\n\n\n Plan, nonconsensual third-party releases were permissible in\n this Circuit. Only during the pendency of these appeals did the\n Supreme Court decide Purdue and abrogate our precedent on\n that issue. So were the Plan proposed today, we harbor little\n doubt that the Bankruptcy Court would neither authorize the\n Insurance Policy Buyback nor confirm the Plan with its\n impermissible releases.\n\n\n\n\n 55\n\fCase: 23-1664 Document: 269 Page: 56 Date Filed: 05/13/2025\n\n\n\n\n \u2018chaos in the bankruptcy court\u2019 from a plan in tatters.\u201d In re\n One2One Commc\u2019ns, LLC, 805 F.3d 428, 434 (3d Cir. 2015)\n (quoting In re Phila. Newspapers, LLC, 690 F.3d 161, 168 (3d\n Cir. 2012)). Thus, as put by the doctrine\u2019s proponents,\n equitable mootness serves as \u201can application of the age-old\n principle that in formulating equitable relief a court must\n consider the effects of the relief on innocent third parties.\u201d In\n re Trib. Media Co., 799 F.3d 272, 287 (3d Cir. 2015) (Ambro,\n J., concurring) (quoting In re Envirodyne Indus., Inc., 29 F.3d\n 301, 304 (7th Cir.1994)). In the normal course, \u201cthere is a\n \u2018virtually unflagging obligation\u2019 of federal courts to exercise\n the jurisdiction conferred on them.\u201d In re Semcrude, 728 F.3d\n at 320 (quoting Colo. River Water Conservation Dist. v. United\n States, 424 U.S. 800, 817 (1976)). So only in these limited\n circumstances has our Circuit adopted equitable mootness as a\n \u201crare exception\u201d where we \u201cdismiss[] an appeal over which we\n have jurisdiction.\u201d Id. at 321.\n\n The doctrine is not without its critics. See, e.g., In re\n One2One Commc\u2019ns, 805 F.3d at 438\u201354 (3d Cir. 2015)\n (Krause, J., concurring); In re City of Detroit, 838 F.3d 792,\n 805\u2013814 (6th Cir. 2016) (Moore, J., dissenting). And this case\n highlights a potentially troubling aspect of adherence to the\n doctrine. As discussed above, Congress took great care to\n define the circumstances where appellate remedies are\n unavailable, see 11 U.S.C. \u00a7\u00a7 363(m), 364(e), and the Supreme\n Court has repeatedly admonished that the inclusion of\n language in one section of a statute, but omission of it in\n another, generally \u201cconvey[s] a difference in meaning,\u201d\n counseling against the importation of the Code\u2019s limits on\n appellate remedies to sections in which they do not appear,\n Bittner v. United States, 598 U.S. 85, 94 (2023). Yet others\n have defended the doctrine\u2019s validity, see In re Trib. Media\n\n\n\n\n 56\n\fCase: 23-1664 Document: 269 Page: 57 Date Filed: 05/13/2025\n\n\n\n\n Co., 799 F.3d 272, 284\u2013290 (3d Cir. 2015) (Ambro, J.,\n concurring), and the Supreme Court has yet to consider the\n question\u2014and not for lack of opportunity.20 Thus, equitable\n mootness remains the law of our Circuit.21\n\n We have repeatedly admonished, however, that the\n doctrine is \u201climited in scope\u201d and must be \u201ccautiously\n applied.\u201d In re Cont\u2019l Airlines, 91. F.3d at 559; see also In re\n Phila. Newspapers, LLC, 690 F.3d at 170; In re Zenith Elecs.\n Corp., 329 F.3d 338, 343 (3d Cir. 2003); Nordhoff Invs. Inc. v.\n Zenith Elecs. Corp., 258 F.3d 180, 185 (3d Cir. 2001); In re\n\n 20\n See, e.g., Petition for Writ of Certiorari, U.S. Bank Nat\u2019l\n Ass\u2019n v. Windstream Holdings, Inc. (No. 22-926), cert. denied\n 144 S. Ct. 71 (2023); Petition for Writ of Certiorari, KK-PB\n Fin., LLC v. 160 Royal Palm, LLC (No. 21-1197), cert. denied\n 142 S. Ct. 2778 (2022); Petition for Writ of Certiorari,\n Hargreaves v. Nuverra Envtl. Sols., Inc. (No. 21-17), cert.\n denied 142 S. Ct. 337 (2021); Petition for Writ of Certiorari,\n Aurelius Cap. Mgmt., L.P. v. Trib. Media Co. (No. 15-891),\n cert. denied 577 U.S. 1230 (2016).\n 21\n At oral argument, the Lujan Claimants urged us to overrule\n our prior cases adopting equitable mootness. But absent en\n banc review, we cannot revisit our equitable mootness\n precedent. See 3d Cir. I.O.P. 9.1. The Lujan Claimants\n alternatively argue that the Supreme Court\u2019s recent decision in\n MOAC Mall Holdings LLC v. Transform Holdco LLC, 598\n U.S. 288 (2023), makes adherence to our equitable mootness\n precedent untenable. But that case merely held that \u00a7 363(m)\n does not deprive courts of subject matter jurisdiction, see id. at\n 297, and it did not address the validity of equitable mootness.\n We are thus bound to apply our equitable mootness precedent\n here.\n\n\n\n\n 57\n\fCase: 23-1664 Document: 269 Page: 58 Date Filed: 05/13/2025\n\n\n\n\n PWS Holding Corp., 228 F.3d 224, 236 (3d Cir. 2000); In re\n Cont\u2019l Airlines, 203 F.3d 203, 209 (3d Cir. 2000). And,\n importantly, equitable mootness is only available in \u201ccomplex\n bankruptc[ies]\u201d \u201cwhere the reorganization involves intricate\n transactions.\u201d In re One2One Commc\u2019ns, 805 F.3d at 435\u201336\n (first quoting In re Phila. Newspapers, 690 F.3d at 169; and\n then quoting In re Cont\u2019l Airlines, 91 F.3d at 560\u201361). In those\n \u201cvery few cases,\u201d In re Trib. Media, 799 F.3d at 289 (Ambro,\n J., concurring), where the doctrine applies, courts deploy it\n \u201cwith a scalpel rather than an axe,\u201d id. at 278 (quoting In re\n Blast Energy Servs., Inc., 593 F.3d 418, 425 (5th Cir. 2010)).\n\n Our criteria for invoking the doctrine have shifted over\n 22\n time, but as we encounter it today, the inquiry has two prongs.\n First, we ask \u201cwhether a confirmed plan has been substantially\n consummated.\u201d In re Semcrude, 728 F.3d at 321. Second, if\n it has, we consider \u201cwhether granting the relief requested in the\n appeal will (a) fatally scramble the plan and/or (b) significantly\n\n 22\n In In re Continental Airlines, we announced five factors for\n courts to consider \u201cin determining whether it would be\n equitable or prudential to reach the merits of a bankruptcy\n appeal,\u201d including: \u201c(1) whether the reorganization plan has\n been substantially consummated, (2) whether a stay has been\n obtained, (3) whether the relief requested would affect the\n rights of parties not before the court, (4) whether the relief\n requested would affect the success of the plan, and (5) the\n public policy of affording finality to bankruptcy judgments.\u201d\n 91 F.3d 553, 560 (3d Cir. 1996) (en banc). While we described\n the first factor as \u201cthe foremost consideration,\u201d id., we declined\n to \u201cspecify[] whether those [other] factors are entitled to equal\n weight or whether any is necessary or sufficient,\u201d In re Trib.\n Media Co., 799 F.3d 272, 278 (3d Cir. 2015).\n\n\n\n\n 58\n\fCase: 23-1664 Document: 269 Page: 59 Date Filed: 05/13/2025\n\n\n\n\n harm third parties who have justifiably relied on plan\n confirmation.\u201d Id. The party seeking dismissal on equitable\n mootness grounds bears the heavy burden of proving its\n applicability \u201cbased on an evidentiary record, . . . not\n speculation.\u201d Id. Bare assertions of inequity and \u201c\u2018Chicken\n Little\u2019 statements\u201d do not suffice. Id. at 324.\n\n With these considerations in mind, we apply this two-\n pronged test to the evidentiary record before us.\n\n 1. Substantial Consummation\n\n Appellees urge us to conclude, at this first prong, that\n the Plan has progressed to the point that it should be considered\n substantially consummated. We determine whether the\n threshold for \u201csubstantial consummation\u201d has been met by\n reference to the three criteria set forth in the Bankruptcy\n Code\u2019s definition of the term. See, e.g., In re Semcrude, 728\n F.3d at 321. Under that definition, \u201csubstantial\n consummation\u201d means:\n\n (A) transfer of all or substantially all of the\n property proposed by the plan to be transferred;\n\n (B) assumption by the debtor or by the successor\n to the debtor under the plan of the business or of\n the management of all or substantially all of the\n property dealt with by the plan; and\n\n (C) commencement of distribution under the\n plan.\n\n 11 U.S.C. \u00a7 1101(2).\n\n\n\n\n 59\n\fCase: 23-1664 Document: 269 Page: 60 Date Filed: 05/13/2025\n\n\n\n\n Considering these three criteria\u2014transfer, assumption,\n and commencement of distribution\u2014we agree that BSA has\n carried its burden at this prong to show substantial\n consummation. We address each in turn.\n\n a. Transfer\n\n The Bankruptcy Codes defines \u201ctransfer\u201d in the\n \u201cbroadest possible terms,\u201d In re Fruehauf Trailer Corp., 444\n F.3d 203, 211\u201312 (3d Cir. 2006), including \u201ceach mode, direct\n or indirect, absolute or conditional, voluntary or involuntary,\n of disposing of or parting with\u2014(i) property; or (ii) an interest\n in property,\u201d 11 U.S.C. \u00a7 101(54)(D). Here, the Settlement\n Trust\u2014funding for which constitutes the vast majority of\n property dealt with under the Plan\u2014is funded by\n approximately $2.48 billion in noncontingent assets, as well as\n an estimated several billion dollars in insurance rights. So the\n question we consider is whether \u201call or substantially all\u201d of that\n property has been \u201cdispos[ed] of or part[ed] with.\u201d 11 U.S.C.\n \u00a7 1101(2)(A).\n\n No doubt, there has been movement of all of\n substantially all of that property. Since the Effective Date,\n BSA has contributed to the Settlement Trust the BSA\n Settlement Trust Note in the principal amount of $80 million;\n $42.8 million of proceeds of a loan by the National Boy Scout\n Foundation; assignments of insurance rights; the right, title,\n and interest in and to artwork valued at approximately $59\n million; and oil and gas interests valued at approximately $7.6\n million. The Settling Insurers have transferred all their\n contributions under the Plan, paying nearly $200 million\n directly to the Settlement Trust and placing approximately $1.4\n billion into escrow. Local Councils have transferred to the\n\n\n\n\n 60\n\fCase: 23-1664 Document: 269 Page: 61 Date Filed: 05/13/2025\n\n\n\n\n Settlement Trust $439 million of their required $500 million; a\n promissory note worth up to $121 million; and insurance\n rights. They also have undertaken efforts to sell 96 real\n properties across the country, over a third of which have been\n successful. And the United Methodist Entities have contributed\n $2 million of their required $30 million, and they report that\n they have collected the remaining $28 million.\n\n But does that movement qualify as \u201cdisposing of or\n parting with\u201d the property? Some Appellants say not.23 They\n point out, correctly, that the Settling Insurers have merely\n deposited $1.4661 billion\u2014approximately 90% of their total\n contribution to the Settlement Trust\u2014in escrow and not in the\n hands of the Settlement Trust. And on that basis, they argue\n that \u201cconditionally transferring funds to escrow does not\n complete the transaction\u201d and holding the funds in escrow, as\n opposed to diverting them directly to the Settlement Trust,\n \u201cdefeats the notion that there has been a \u2018completed\u2019 transfer.\u201d\n D&V Opp. Mot. to Dismiss 19\u201320.\n\n The problem with this argument is that neither\n \u00a7 101(54) nor \u00a7 1101(2)(A) provide that a \u201ctransfer\u201d must be\n \u201ccompleted\u201d or that funds need to reach their \u201cultimate\n destination.\u201d Oral Arg. Tr. 19:12. To the contrary,\n \u00a7 101(54)(D) defines \u201ctransfer\u201d to include \u201cindirect,\u201d\n \u201cinvoluntary,\u201d and \u201cconditional\u201d means of parting with\n property or interests in property, belying the notion that a\n\n 23\n While we dispose of the Lujan and D&V Claimants\u2019 appeals\n on statutory mootness grounds, we consider the arguments they\n raise with respect to equitable mootness because whether the\n Plan has been substantially consummated equally affects the\n Certain Insurers\u2019 and Allianz Insurers\u2019 appeals.\n\n\n\n\n 61\n\fCase: 23-1664 Document: 269 Page: 62 Date Filed: 05/13/2025\n\n\n\n\n transaction must arrive at its \u201cultimate destination\u201d or be\n \u201ccompleted\u201d to constitute a \u201ctransfer.\u201d\n\n Having dispatched this argument, we conclude that the\n Settling Insurers\u2019 placement of funds into escrow qualifies as\n a \u201ctransfer.\u201d At its most basic, escrow is a mechanism by\n which \u201cproperty delivered by a promisor to a third party [the\n escrow agent] [is] held by the third party for a given amount of\n time or until the occurrence of a condition, at which time the\n third party is to hand over the document or property to the\n promisee.\u201d Escrow, Black\u2019s Law Dictionary (12th ed. 2024).\n Thus, once property is placed in escrow, an equitable interest\n in that property is transferred from promisor to the\n promisee. 28 Am. Jur. 2d Escrow \u00a7 16 (2025). The escrow\n agent acts as both an agent and fiduciary of the parties and \u201cis\n under a duty not to deliver the escrow to anyone except upon\n strict compliance with the conditions imposed by escrow\n agreement.\u201d 30A C.J.S. Escrows \u00a7 19 (2024). So when a party\n places property in escrow, it relinquishes control of that\n property to the extent provided for in the escrow agreement.\n\n Here, by placing a portion of their Settlement Trust\n contribution in escrow, the Settling Insurers conditionally\n parted with their property to be distributed upon satisfaction of\n the conditions precedent to their funding obligations under the\n Plan\u2014i.e., among other things, when the Confirmation Order\n becomes a \u201cFinal Order.\u201d Such a \u201cconditional\u201d transaction\n satisfies the Code\u2019s definition of \u201ctransfer.\u201d And with the\n Settling Insurers having transferred their share, substantially\n all of the property dealt with under the Plan has been\n transferred.\n\n\n\n\n 62\n\fCase: 23-1664 Document: 269 Page: 63 Date Filed: 05/13/2025\n\n\n\n\n b. Assumption\n\n As to the second criterion for \u201csubstantial\n consummation\u201d, \u00a7 1101(2)(B) requires the \u201cassumption by the\n debtor or by the successor to the debtor under the plan of the\n business or of the management of all or substantially all of the\n property dealt with by the plan.\u201d This provision is doubly\n disjunctive, setting out two sub-conditions, each of which may\n be satisfied two ways. First there must be \u201cassumption by\u201d\n either (1) the debtor, or (2) the successor to the debtor. Second,\n the debtor or its successor must have assumed (1) the business,\n or (2) management of all or substantially all of the property\n dealt with by the plan. Therefore, either the debtor or its\n successor need only assume either \u201cthe business\u201d or\n \u201cmanagement of all or substantially all of the property dealt\n with by the plan.\u201d\n\n BSA has satisfied that condition. No party disputes that\n \u201cBSA has been operating as a recognized charitable non-profit\n . . . since emergence from bankruptcy in April 2023\u201d and \u201chas\n fully resumed its operations, including receiving charitable\n donations, implementing the robust supplemental youth\n protection measures outlined in the Plan, implementing new\n bylaws and rules and regulations, and electing new board\n members.\u201d BSA Suppl. Br. 7, 13. Thus, BSA has assumed\n control of the scouting program, satisfying \u00a7 1101(2)(B).\n\n c. Distribution\n\n BSA has also satisfied the third criterion for substantial\n consummation: \u201ccommencement of distribution under the\n plan.\u201d 11 U.S.C. \u00a7 1101(2)(C). As the leading bankruptcy\n treatise notes\u2014and we agree\u2014\u201c[t]he plain language of\n\n\n\n\n 63\n\fCase: 23-1664 Document: 269 Page: 64 Date Filed: 05/13/2025\n\n\n\n\n paragraph (C) does not require commencement of distributions\n to all or substantially all classes of creditors. It simply requires\n that distributions have begun.\u201d 7 Collier on Bankruptcy\n \u00b6 1101.02[3][a] (16th ed. 2024).\n\n In this case, all agree that the Settlement Trust has\n begun distributing settlement payments to abuse claimants. As\n of April 22, 2025, 5,552 abuse claimants have elected an\n Expedited Distribution under the Trust Distribution\n Procedures, resulting in over $18.3 million in distributions\n made under that election alone. Additionally, as of that same\n date, 12,807 claimants have received distributions under the\n Claims Matrix election in the aggregate amount of\n approximately $107.4 million. So distributions under the Plan\n have commenced, satisfying \u00a7 1101(2)(C).\n\n * * *\n\n As the Debtors have demonstrated that the Plan has\n been substantially consummated, we proceed to consider the\n second prong of the equitable-mootness inquiry.\n\n 2. Scrambling the Plan and Justified Reliance\n\n At this step, we assess \u201cwhether granting the relief\n requested in the appeal will (a) fatally scramble the plan and/or\n (b) significantly harm third parties who have justifiably relied\n on plan confirmation.\u201d In re Semcrude, 728 F.3d at 321. On\n the record before us, BSA and the Settling Insurers have not\n demonstrated that the relief the Certain Insurers and Allianz\n Insurers seek imperils the Plan\u2019s success. Unlike the Lujan and\n D&V Claimants, the Certain Insurers and Allianz Insurers do\n not seek invalidation of the releases; instead, they ask us to\n\n\n\n\n 64\n\fCase: 23-1664 Document: 269 Page: 65 Date Filed: 05/13/2025\n\n\n\n\n grant them each narrow, cabined relief. The Certain Insurers\n ask for minor modifications to three provisions of the Plan to\n ensure that they retain their rights and defenses under their\n assigned insurance policies. The Allianz Insurers seek only\n one modification\u2014that the judgment reduction clause in the\n Confirmation Order be amended to allow for recovery of\n excess claims they incur in subsequent coverage litigation. We\n can hardly say that these minor changes\u2014none of which\n disrupts the funding to the Settlement Trust or the bargain\n struck between BSA and the Settling Insurers, or requires\n clawing back distributions already made to abuse claimants\u2014\n meets the high thresholding of \u201cknock[ing] the props out from\n under\u201d the Plan. In re Trib. Media, 799 F.3d at 281 (quoting\n In re Chateaugay Corp., 10 F.3d 944, 953 (2d Cir. 1993)).\n\n Accordingly, we decline to dismiss these appeals as\n equitably moot and proceed to consider the merits of the\n Certain Insurers\u2019 and Allianz Insurers\u2019 claims.24\n\n 24\n To be clear, our omission of this analysis for the claims of\n the Lujan and D&V Claimants should not be read, by negative\n implication or otherwise, to suggest that those claims are\n equitably moot. Under our precedent, equitable mootness\n requires a finding of \u201cjustifiable reliance,\u201d meaning \u201creliance\n on the finality of confirmation.\u201d In re Trib. Media, 799 F.3d at\n 280 (emphasis added). Here, our concurring colleague\n believes that requirement is satisfied. See Concurring Op. 1 &\n n.1. Others, such as the Law Professor Amici, urge that it is\n not because the Settling Insurers placed nearly $1.5 billion of\n their total contribution to the Settlement Trust into escrow,\n thereby limiting their exposure to an adverse judgment and\n retaining an interest in the escrowed funds in case the\n\n\n\n\n 65\n\fCase: 23-1664 Document: 269 Page: 66 Date Filed: 05/13/2025\n\n\n\n\n D. The Remaining Appeals\n\n As we noted at the outset, the Certain Insurers and\n Allianz Insurers each advance arguments that the Plan\n impermissibly infringes on their rights under their insurance\n policies. Below, we address each of those arguments in turn\n and conclude the Certain Insurers\u2019 arguments fail because the\n Plan and Confirmation Order already preserve all of the rights\n and defenses required. But the Confirmation Order\u2019s judgment\n reduction clause impermissibly releases contribution and\n indemnification claims the Allianz Insurers otherwise would\n be able to assert, and we will reverse with respect to those\n claims.\n\n 1. The Certain Insurers\u2019 Appeal\n\n The Certain Insurers levy objections to various\n provisions of the Plan and Confirmation Order that, they argue,\n impermissibly impair their rights and defenses under their\n insurance policies. Specifically, they ask us to excise the\n language in the Trust Distribution Procedures that states the\n Certain Insurers\u2019 rights and the Debtors\u2019 obligations are\n \u201csubject to the Plan and Confirmation Order\u201d and preserved\n \u201cto the extent such rights and obligations are otherwise\n available under applicable law.\u201d App. 1017. They also urge\n\n\n Confirmation Order is reversed. According to Amici, this\n \u201ccontingency means that the core funding for the Plan has\n barely begun and . . . [t]he Settling Insurers can demand all of\n the money back.\u201d Law Professor Amici Suppl. Br. 22. For our\n part, having concluded the Lujan and D&V Claimants\u2019\n appeals are statutorily moot, we need not resolve whether they\n are equitably moot.\n\n\n\n\n 66\n\fCase: 23-1664 Document: 269 Page: 67 Date Filed: 05/13/2025\n\n\n\n\n us to blue-pencil the Plan for two purposes: (1) to restore what\n they call the \u201cPurpose\u201d provision that would require the\n Settlement Trustee to balance the interests of the Certain\n Insurers with those of BSA when administering the Settlement\n Trust; and (2) to require the Settlement Trustee to \u201cconsider\n any further limitations on Abuse Claimants\u2019 recovery in the\n tort system.\u201d Id. at 1029. Finally, in the alternative, they\n contend that the Plan was not proposed in good faith. See 11\n U.S.C. \u00a7 1129(a)(3). We disagree on all fronts.\n\n a. Preservation of Rights and\n Defenses\n\n Non-bankruptcy law generally defines parties\u2019 property\n rights. See Butner v. United States, 440 U.S. 48, 55 (1979).\n Thus, while the estate is comprised of \u201call legal or equitable\n interests of the debtor in property\u201d \u201cwherever located,\u201d 11\n U.S.C. \u00a7 541(a)(1), it \u201ccannot possess anything more than the\n debtor itself did outside bankruptcy,\u201d Mission Prod. Holdings,\n Inc. v. Tempnology, LLC, 587 U.S. 370, 381 (2019). Insurance\n policies are property of the estate, and bankruptcy law\u2014save\n for exceptions not relevant here\u2014does not alter rights under\n those contracts. See NLRB v. Bildisco & Bildisco, 465 U.S.\n 513, 531\u201332 (1984); Sharon Steel Corp. v. Nat\u2019l Fuel Gas\n Distrib. Corp., 872 F.2d 36, 40 (3d Cir. 1989). So, under\n \u00a7 363(b), a debtor may not sell property of the estate, such as\n insurance policies, with greater or fewer rights or obligations\n than it possessed outside of bankruptcy, and a plan cannot be\n confirmed when it incorporates provisions that impermissibly\n impair counterparts\u2019 rights. See In re Combustion Eng\u2019g, 391\n F.3d at 218.\n\n\n\n\n 67\n\fCase: 23-1664 Document: 269 Page: 68 Date Filed: 05/13/2025\n\n\n\n\n The Plan and Confirmation Order, here, do neither and\n leave the Certain Insurers\u2019 contractual rights and defenses\n intact. For starters, the Confirmation Order provides that\n \u201cnothing in the Plan shall modify, amend, or supplement, or be\n interpreted as modifying, amending, or supplementing, the\n terms of any Insurance Policy issued by a Non-Settling\n Insurance Company or rights or obligations under such\n Insurance Policy to the extent such rights and obligations are\n otherwise available under applicable law.\u201d In re Boy Scouts,\n 2022 WL 20541782, at *33. And the Plan further confirms that\n the Certain Insurers retain their rights and defenses under their\n policies: It clarifies that \u201cthe Settlement Trust has received the\n assignment and transfer of . . . all other rights or obligations\n under or with respect to the Insurance Policies (but not the\n policies themselves) in accordance with the Bankruptcy\n Code.\u201d App. 1017. The Plan goes on to state nothing in the\n Trust Distribution Procedures shall:\n\n modify, amend, or supplement, or be interpreted\n as modifying, amending, or supplementing, the\n terms of any Insurance Policy or rights and\n obligations under any Insurance Policy assigned\n to the Settlement Trust to the extent such rights\n and obligations are otherwise available under\n applicable law and subject to the Plan and\n Confirmation Order. The rights and obligations,\n if any, of any Non-Settling Insurance Company\n relating to these TPD[s], or any provision hereof,\n shall be determined pursuant to the terms and\n provisions of the Insurance Policies and\n applicable law.\n\n\n\n\n 68\n\fCase: 23-1664 Document: 269 Page: 69 Date Filed: 05/13/2025\n\n\n\n\n Id. (emphasis added). Finally, in Article X, entitled \u201cRights of\n Settlement Trust Against Non-Settling Insurance Companies,\u201d\n the Plan again admonishes that the assignments to the\n Settlement Trust are subject to the \u201crights and obligations\n under the Insurance Policies.\u201d Id. at 1033.\n\n Nonetheless, the Certain Insurers contend these\n provisions are inadequate. As evidence, they point to the\n Settlement Trustee\u2019s initiation of insurance coverage litigation\n against the Certain Insurers. There, they fault the Settlement\n Trustee for seeking \u201ca declaration that the Certain Insurers\n have breached the insurance policies and are obligated to\n provide full coverage for the Abuse Claims\u201d and complain that\n the Trustee \u201cmakes no mention of the Certain Insurers\u2019 rights\n or defenses under the policies or the Trustee\u2019s corresponding\n obligations, which the courts below said were preserved.\u201d\n Certain Insurers Opening Br. 43.\n\n First, it should come as no surprise that the Settlement\n Trustee\u2014who owes a fiduciary duty to abuse claimants\u2014\n would seek to maximize the value of the Settlement Trust by\n advancing legal arguments that the Certain Insurers bear\n liability for abuse claims. Second, and relatedly, the position\n concerning the Certain Insurers\u2019 obligations taken by the\n Settlement Trustee in coverage litigation is just that: a litigating\n position. Contrary to the Certain Insurers\u2019 contention, the\n Settlement Trustee\u2019s litigating positions are not evidence of the\n meaning of the Plan or Confirmation Order, nor does the\n Settlement Trustee authoritatively interpret those documents\n and the provisions contained in them that preserve the Certain\n Insurers\u2019 rights and defenses.\n\n\n\n\n 69\n\fCase: 23-1664 Document: 269 Page: 70 Date Filed: 05/13/2025\n\n\n\n\n At oral argument, the Certain Insurers insisted we\n should not \u201cfoist upon the coverage court\u201d the burden of\n parsing \u201c600 pages [of Plan documents] and 300 pages of\n decisional law\u201d to determine the extent to which the Certain\n Insurers\u2019 rights and defenses are preserved. Oral Arg. Tr.\n 41:18\u201319. It would be better, they maintain, for the Plan to\n incant the magic words they propose in addition to the Plan\u2019s\n and Confirmation Order\u2019s existing language. Having grappled\n with these appeals ourselves, we appreciate the complexity of\n the Plan and the transactions it sets in motion. But we also do\n not doubt the competency and discerningness of our judicial\n colleagues tasked with resolving the intricate insurance\n coverage litigation that will come with administration of the\n Settlement Trust. They, no less than we, can interpret the Plan\n in light of the background principles of bankruptcy law\n discussed above.\n\n For these reasons, we decline to rewrite the Plan and\n fasten suspenders to this already well-secured belt.\n\n b. Good Faith\n\n The Certain Insurers also assert that the Debtors failed\n to propose the Plan in good faith as required under 11 U.S.C.\n \u00a7 1129(a)(3). But this contention, in reality, is just the flip side\n of their rights-preservation argument. And for that reason, it\n meets the same fate.\n\n Section 1129(a)(3) of the Bankruptcy Code requires that\n \u201c[t]he plan has been proposed in good faith and not by any\n means forbidden by law.\u201d We have explained that \u201c[i]n\n analyzing whether a plan has been proposed in good faith under\n \u00a7 1129(a)(3), \u2018the important point of inquiry is the plan itself\n\n\n\n\n 70\n\fCase: 23-1664 Document: 269 Page: 71 Date Filed: 05/13/2025\n\n\n\n\n and whether such a plan will fairly achieve a result consistent\n with the objectives and purposes of the Bankruptcy Code.\u2019\u201d In\n re Am. Cap. Equip., LLC, 688 F.3d 145, 156 (3d Cir. 2012)\n (quoting In re Combustion Eng\u2019g, 391 F.3d at 247). \u201c[T]wo\n \u2018recognized\u2019 policies, or objectives\u201d we have previously\n identified \u201care \u2018preserving going concerns and maximizing\n property available to satisfy creditors.\u2019\u201d25 Id. (quoting Bank of\n Am. Nat\u2019l Trust & Sav. Ass\u2019n v. 203 N. LaSalle St. P\u2019ship, 526\n U.S. 434, 453 (1999)).\n\n Importantly, the Certain Insurers do not challenge the\n Bankruptcy Court\u2019s factual findings supporting its good-faith\n determination. Instead, they \u201cchallenge only the Bankruptcy\n Court\u2019s \u2018culminating determination\u2019 that the totality of the\n circumstances and the language of the Plan support a finding\n of good faith.\u201d Certain Insurers Reply Br. 39. And in doing\n so, they reveal the real thrust of their argument. At bottom,\n\n 25\n The Certain Insurers contend that our decision in In re LTL\n Management, LLC, 64 F.4th 84 (3d Cir. 2023), governs the\n good-faith analysis. But that case concerned whether a\n bankruptcy petition was filed in good faith, not whether a plan\n was proposed in good faith. See id. at 93. And as we have\n held, \u201c[t]he question of whether a Chapter 11 bankruptcy\n petition is filed in good faith is a judicial doctrine, distinct from\n the statutory good faith requirement for confirmation pursuant\n to \u00a7 1129(a)(3).\u201d In re Am. Cap. Equip., LLC, 688 F.3d 145,\n 157 (3d Cir. 2012). So while both inquiries concern the good\n faith of the debtor, the good-faith proposal of a plan implicates\n unique considerations about the treatment of creditors and the\n prospect of effectuating the Code\u2019s purposes. Accordingly, we\n decline to graft this \u201cjudicial doctrine\u201d into \u00a7 1129(a)\u2019s\n confirmation requirements.\n\n\n\n\n 71\n\fCase: 23-1664 Document: 269 Page: 72 Date Filed: 05/13/2025\n\n\n\n\n they repackage their rights-preservation argument into a good-\n faith argument, averring that by not including the Certain\n Insurers\u2019 desired language in the Plan, the Debtors did not\n propose the Plan in good faith. The remedy they seek lays this\n plain: Rather than asserting the Plan is unconfirmable because\n BSA did not propose it in good faith, the Certain Insurers\n recycle the same relief they requested previously\u2014\u201c[r]estoring\n the \u2018Purpose\u2019 provision\u201d in the Plan and \u201csubstitut[ing] the\n word \u2018may\u2019 with the word \u2018shall\u2019\u201d in the disputed Trust\n Distribution Procedures provision. Id. at 39, 45. But failure to\n include the Certain Insurers\u2019 desired language does not convert\n the Plan into a bad-faith proposal, especially when the Plan\n language is otherwise consistent with the Code and\n background principles of bankruptcy law.\n\n Because the Certain Insurers provide no basis to\n conclude otherwise, we agree with the Bankruptcy and District\n Courts that the Debtors proposed the Plan in good faith.\n\n 2. The Allianz Insurers\u2019 Appeal\n\n Finally, we consider the Allianz Insurers\u2019 argument that\n the Plan and Confirmation Order non-consensually release\n their claims and vitiate their ability to recover certain defense\n costs. They rely on the Supreme Court\u2019s recent decision in\n Purdue, to which we now turn.\n\n In Purdue, the Supreme Court held that the Bankruptcy\n Code \u201cdoes not authorize a release and injunction that, as part\n of a plan of reorganization under Chapter 11, effectively seeks\n to discharge claims against a nondebtor without the consent of\n affected claimants.\u201d Purdue, 603 U.S. at 227. There, in\n examining \u00a7 1123(b)(6)\u2014the putative statutory authorization\n\n\n\n\n 72\n\fCase: 23-1664 Document: 269 Page: 73 Date Filed: 05/13/2025\n\n\n\n\n for nonconsensual third-party releases\u2014the Court concluded\n section (b)(6) is limited by the preceding \u201cfive specific sorts of\n provisions, all of which concern the debtor\u2014its rights and\n responsibilities, and its relationship with its creditors.\u201d Id. at\n 218 (emphasis in original). Thus, it explained, section (b)(6)\n \u201ccannot be fairly read to endow a bankruptcy court with the\n \u2018radically different\u2019 power to discharge the debts of a\n nondebtor without the consent of affected nondebtor\n claimants.\u201d Id. (quoting Epic Sys. Corp. v. Lewis, 584 U.S.\n 497, 513 (2018)). The Supreme Court reserved the question,\n however, of whether its interpretation of \u00a7 1123(b)(6) extends\n to plans that include \u201cconsensual third-party releases\u201d or plans\n that \u201cprovide[] for the full satisfaction of claims against a third-\n party nondebtor.\u201d Id. at 226 (emphasis in original).\n\n The Allianz Insurers contend that Purdue makes the\n Confirmation Order\u2019s judgment reduction clause intolerable\n because it, coupled with the Plan, impermissibly releases and\n enjoins contribution and indemnity claims they could\n otherwise assert against the Settling Insurers. We agree.\n\n To fully understand the Allianz Insurers\u2019 objection,\n some context proves helpful. When two insurance companies\n provide overlapping coverage\u2014such as the Allianz Insurers\u2019\n and the Settling Insurers here\u2014the insurer who ends up paying\n more than its fair share of a claim may seek contribution from\n the other insurer to appropriately allocate their shares of\n liability. See, e.g., McDermott, Inc. v. AmClyde, 511 U.S. 202,\n 215 (1994). The Plan upsets this arrangement by enjoining\n claims against the Settling Insurers and channeling them to the\n Settlement Trust subject to the judgment reduction clause.\n That clause limits a non-settling insurer to recovery against the\n Settlement Trust in the form of a reduced judgment, i.e., after\n\n\n\n\n 73\n\fCase: 23-1664 Document: 269 Page: 74 Date Filed: 05/13/2025\n\n\n\n\n the Settlement Trust obtains a judgment against a non-settling\n insurer, that non-settling insurer can obtain its own judgment\n that a Settling Insurer is liable for some (or all) of the\n Settlement Trust\u2019s judgment. The non-settling insurer can then\n offset that portion of liability attributable to the Settling Insurer\n against the Settlement Trust\u2019s judgment, thereby reducing the\n non-settling insurer\u2019s liability to the Settlement Trust.26\n\n Usually, this arrangement will pose no problem because\n the Settlement Trust will pay claimants under the Plan and, if\n necessary, initiate a coverage action against the appropriate\n non-settling insurer. And if the non-settling insurer obtains a\n judgment against a Settling Insurer, its liability to the\n Settlement Trust offsets accordingly. But a non-settling\n insurer will not be fully compensated for defense costs if (1)\n abuse claimants pursue the Tort System election, (2) a Settling\n\n 26\n The Future Claimants Representative provides a helpful\n example of this mechanism:\n\n For example, if the Trust obtains a judgment\n from a Non-Settling Insurer for $1 million, and\n the Non-Settling Insurer obtains a ruling that a\n Settling Insurer was responsible [for] $250,000\n of that liability, to prevent any potential\n prejudice to the Non-Settling Insurer, the Plan\n requires the Trust to reduce its judgment against\n the Non-Settling Insurer by the amount of the\n Settling Insurer\u2019s share of the liability. The result\n is that the Non-Settling Insurer only has to pay\n $750,000.\n\n Future Claimants Representative Answering Br. 44\u201345.\n\n\n\n\n 74\n\fCase: 23-1664 Document: 269 Page: 75 Date Filed: 05/13/2025\n\n\n\n\n Insurer is responsible for defending the claim, but (3) a non-\n settling insurer elects to defend the claim instead, and (4)\n obtains a judgment in coverage litigation that it is not liable for\n the claim. In such a scenario, there would be no judgment held\n by the Settlement Trust that the non-settling insurer could\n reduce, thereby denying it any recovery for those \u201cexcess\n claims\u201d it would otherwise be entitled to recover absent the\n releases and injunctions in the Plan.\n\n The Allianz Insurers argue that this result is\n impermissible under Purdue because the Plan effectively\n discharges claims they would have against the Settling\n Insurers. And to correct this flaw, they propose amending the\n judgment reduction clause to provide that \u201cif [a] Non-Settling\n Insurance Company is not subject to any such claim, cause of\n action, or judgment held by the Settlement Trust . . . then after\n such determination in the Insurance Action, the Settlement\n Trust shall pay the amount to the Non-Settling Insurance\n Company.\u201d Allianz Insurers Opening Br. Ex. A.\n\n Appellees recognize that Purdue\u2019s \u201cfull satisfaction\u201d\n language applies here and invokes \u201cthe bedrock common-law\n principle that a plaintiff is entitled to only one satisfaction for\n each injury.\u201d BSA Suppl. Br. 21. Often dubbed the \u201cone-\n satisfaction rule,\u201d courts apply this principle to \u201cbar[] a\n subsequent suit . . . where the prior proceedings can reasonably\n be construed to have resulted in full satisfaction of the\n plaintiff\u2019s claim.\u201d United States v. Occidental Chem. Corp.,\n 200 F.3d 143, 149\u201350 (3d Cir. 1999) (quoting Greenleaf v.\n Garlock, Inc., 174 F.3d 352, 357 (3d Cir.1999)); see also\n Restatement (Second) of Judgments \u00a7 49 cmt. a (Am. L. Inst.\n 1982) (\u201cDouble recovery is foreclosed by the rule that only one\n satisfaction may be obtained for a loss.\u201d). But \u201c[u]nless the\n\n\n\n\n 75\n\fCase: 23-1664 Document: 269 Page: 76 Date Filed: 05/13/2025\n\n\n\n\n judgment . . . provides for plaintiff to recover . . . all\n recoverable damages, no satisfaction of claim can\n occur.\u201d Restatement (Third) of Torts: Apportionment Liab.\n \u00a7 25 cmt. b (Am. L. Inst. 2000). And as evidence of its\n application, Appellees point us to the District Court\u2019s finding\n that \u201cthe [Trust Distribution Procedures] streamline and reduce\n defense costs by resolving claims consensually through an out-\n of-court process. Thus, the likelihood that an Insurer is\n saddled with significant costs of defending Abuse Claims in\n the tort system is small,\u201d thereby \u201crendering the protection\n provided at least \u2018adequate.\u2019\u201d In re Boy Scouts, 650 B.R. at\n 172\u201373.\n\n We agree with the Allianz Insurers that Purdue makes\n the Confirmation Order\u2019s current judgment reduction\n mechanism inadequate. Here, the District Court did not find\n that non-settling insurers would be fully compensated for their\n extinguished claims.27 It merely found that non-settling\n\n 27\n The District Court relied upon In re Plant Insulation Co.,\n 469 B.R. 843 (Bankr. N.D. Cal. 2012), to conclude that, where\n a bankruptcy court bars non-settling parties from asserting\n contribution claims against settling parties, the non-settling\n parties are entitled to \u201csome protection\u201d but \u201cneed not be\n compensated in full.\u201d In re Boy Scouts of Am. and Del. BSA,\n LLC, 650 B.R. 87, 172 (D. Del. 2023). However, Plant\n Insulation was an asbestos bankruptcy, and the bar order was\n imposed pursuant to \u00a7 524(g). In Purdue, the Court noted that\n \u00a7 524(g)\u2019s authorization of \u201cinjunctions . . . barring any action\n directed against a third party\u201d was \u201ca notable exception to the\n code\u2019s general rules\u201d and bolstered the Court\u2019s conclusion that\n \u00a7 1123(b)(6) did not likewise allow bankruptcy courts to bar\n\n\n\n\n 76\n\fCase: 23-1664 Document: 269 Page: 77 Date Filed: 05/13/2025\n\n\n\n\n insurers would be \u201cadequately protected . . . because the\n number of claims [they] must defend is reduced, reducing their\n defense costs overall.\u201d In re Boy Scouts, 650 B.R. at\n 172. Accordingly, the District Court\u2019s determination did not\n amount to a finding that non-settling insurers would \u201cbe\n compensated in full\u201d and, thus, did not fully satisfy the claims\n at issue. Id. (quoting In re Plant Insulation Co., 469 B.R. 842,\n 876 (Bankr. N.D. Cal. 2012)). We therefore conclude that\n Purdue controls, and the judgment reduction provision is\n unlawful insofar as it operates to extinguish the Allianz\n Insurers\u2019 claims without their consent.\n\n Without factual findings about the extent of the Allianz\n Insurers\u2019 excess claim liability\u2014including, given the various\n layers of contingency, whether it is real versus speculative28\u2014\n the record does not support the conclusion that the judgment\n reduction clause is an adequate alternative to the Allianz\n\n\n actions against a nondebtor without claimants\u2019 consent. 603\n U.S. at 222 (cleaned up). Of course, we do not fault the District\n Court\u2019s reliance on Plant Insulation when it did not have the\n benefit of the Supreme Court\u2019s subsequent decision in Purdue.\n But while its reasoning may have been compelling before\n Purdue, it cannot survive the Court\u2019s subsequent decision.\n 28\n The Allianz Insurers acknowledge that the full magnitude of\n excess claims is currently uncertain and will not be\n ascertainable \u201cuntil a future coverage determination,\u201d and they\n are unaware of a claimant choosing the Tort System election.\n Oral Arg. Tr. 45:16\u201317, 46:1\u20134. They do assert, though, that\n they have exercised their contractual right \u201cto associate in,\u201d id.\n at 47:3, to defend various proceedings under the Independent\n Review Option and are \u201cincurring defense costs\u201d as a result,\n id. at 45:24.\n\n\n\n\n 77\n\fCase: 23-1664 Document: 269 Page: 78 Date Filed: 05/13/2025\n\n\n\n\n Insurers retaining the right to full recovery on their excess\n claims.29 Thus, we will reverse the District Court\u2019s judgment\n as to the Allianz Insurers claims and modify the judgment\n reduction clause to impose a Settlement Trust backstop as set\n out in Exhibit A of the Allianz Insurers\u2019 Opening Brief. See In\n re Combustion Eng\u2019g, 391 F.3d at 218; Gerber v. MTC Elec.\n Techs. Co., Ltd., 329 F.3d 297, 307 (2d Cir. 2003) (Sotomayor,\n J.). The Bankruptcy Court shall enter an appropriate form of\n order on remand.30\n\n 29\n As we noted above, the Supreme Court in Purdue\n admonished that it was not deciding whether nonconsensual\n third-party releases are permissible in plans that (1) fully\n satisfy third-party claims, or (2) are \u201ceffective and . . .\n substantially consummated.\u201d Purdue, 603 U.S. at 226. We\n need not decide when, in light of Purdue, nonconsensual third-\n party releases remain permissible in either scenario because\n this case presents neither. For the reasons given above, there\n are inadequate factual findings for us to conclude that this is a\n full-satisfaction plan, at least with respect to the Allianz\n Insurers\u2019 claims. And to the extent that the Court\u2019s substantial-\n consummation language refers to equitable mootness, as\n explained above, supra Section III.C.2, that doctrine does not\n apply to the Allianz Insurers\u2019 appeal.\n 30\n The impact of this holding is not far-reaching. Courts\n generally permit provisions like the Plan\u2019s judgment reduction\n clause where the judgment is the equivalent of a contribution\n claim. See Eichenholtz v. Brennan, 52 F.3d 478, 487 (3d Cir.\n 1995) (citing TBG, Inc. v. Bendis, 36 F.3d 916 (10th Cir.\n 1994)). Thus, Purdue does not threaten the typical usage of\n judgment reduction in reorganization plans, as it expressly\n does not address plans that fully compensate third parties for\n the released claims. See Purdue, 603 U.S. at 226.\n\n\n\n\n 78\n\fCase: 23-1664 Document: 269 Page: 79 Date Filed: 05/13/2025\n\n\n\n\n IV. Conclusion\n\n As the Bankruptcy Court poignantly observed, \u201cno\n compensation will ever be enough\u201d for the abuse claimants\n have suffered. In re Boy Scouts, 642 B.R. at 518. The Plan\n nonetheless permits survivors to pursue their claims through\n the Trust Distribution Procedures and recover for at least some\n fraction of the suffering they have endured. That human reality\n must not be lost among the legal intricacies of these appeals.\n\n Our decision today depends on the unique\n characteristics of this Plan, this \u00a7 363(b) sale, and the relief\n these Appellants seek. The Bankruptcy Code prevents us from\n disrupting the nonconsensual third-party releases in BSA\u2019s\n Plan at this late stage. If proposed today, the Plan would be\n unconfirmable in the wake of Purdue and the Lujan and D&V\n Claimants could not have their claims released without their\n consent. And that temporal happenstance, we recognize, is a\n bitter pill to swallow, \u201cbut bankruptcy inevitably creates harsh\n results for some players.\u201d In re Weinstein Co. Holdings LLC,\n 997 F.3d 497, 511 (3d Cir. 2021).\n\n Accordingly, we will dismiss the Lujan Claimants\u2019 and\n D&V Claimants\u2019 appeals as statutorily moot under \u00a7 363(m),\n and affirm in part, reverse in part, and remand for further\n proceedings consistent with this opinion.\n\n\n\n\n 79\n\fCase: 23-1664 Document: 269 Page: 80 Date Filed: 05/13/2025\n\n\n\n\n In re: Boy Scouts of America and Delaware BSA LLC\n No. 23-1664 et al.\n\n RENDELL, Circuit Judge, concurring:\n The majority\u2019s characterization of the instant appeal of\n the Lujan and D&V Claimants as an appeal from a \u00a7 363 sale\n order is fundamentally flawed, for reasons I detail below. We\n need not resort to this characterization\u2014instead, we should\n dismiss the Lujan and D&V Claimants\u2019 appeals as equitably\n moot. Equitable mootness is firmly rooted in our precedent,\n and, as counsel for BSA urged at oral argument, if ever there\n were a case crying out for application of the doctrine, this is it.1\n Our Court and every Circuit Court with jurisdiction to hear\n bankruptcy appeals has adopted equitable mootness.2 But\n\n 1\n I agree with the majority that the Plan has been substantially\n consummated. Maj. Op. 59\u201364. And striking the releases\u2014as\n the Lujan and D&V Claimants urge\u2014would \u201cknock the props\n out from under the authorization for every transaction that has\n taken place,\u201d thereby \u201cscrambling\u201d the plan and \u201cupsetting\n third parties\u2019 reliance on it.\u201d In re Trib. Media Co., 799 F.3d\n 271, 281 (3d Cir. 2015) (quoting In re Chateaugay Corp., 10\n F.3d 944, 953 (2d Cir. 1993)). Thus, equitable mootness is a\n straightforward way to resolve the Lujan and D&V\n Claimants\u2019 appeals.\n 2\n See In re Trib. Media Co., 799 F.3d 272, 277\u201378 & n.3 (3d\n Cir. 2015); In re Cont\u2019 Airlines, 91 F.3d 553, 559 (3d Cir.\n 1996) (en banc); In re Healthco Int\u2019l, Inc., 136 F.3d 45, 48\n\n\n\n\n 1\n\fCase: 23-1664 Document: 269 Page: 81 Date Filed: 05/13/2025\n\n\n\n\n rather than hewing to this well-worn path, the majority\n \u201cstretch[es] a statute\u201d to offer a parallel route by which to avoid\n review of otherwise-justiciable appeals. In re One2One\n Commc\u2019ns, LLC, 805 F.3d 428, 444 (3d Cir. 2015) (Krause, J.,\n concurring). We should reject this stretch of \u00a7 363 and dispense\n with the Lujan and D&V Claimants\u2019 appeals as equitably\n moot.3\n The first fundamental flaw in the majority\u2019s resort to\n \u00a7 363(m) lies in the statute\u2019s clear indication that it does not\n apply to sales in reorganization plans as well as the common-\n sense observation that the non-consensual third-party releases\n were not accomplished by way of the purported \u00a7 363\n authorization,4 but by way of plan confirmation. So this is an\n\n (1st Cir. 1998); In re Charter Commc\u2019ns, Inc., 691 F.3d 476,\n 481 (2d Cir. 2012); Behrmann v. Nat\u2019l Heritage Found., 663\n F.3d 704, 713\u201314 (4th Cir. 2011); In re Scopac, 624 F.3d 274,\n 281\u201382 (5th Cir. 2010); In re Am. HomePatient, Inc., 420 F.3d\n 559, 563\u201365 (6th Cir. 2005); In re UNR Indus., Inc., 20 F.3d\n 766, 769 (7th Cir. 1994); In re VeroBlue Farms USA, Inc., 6\n F.4th 880, 890\u201391 (8th Cir. 2021); In re Thorpe Insulation\n Co., 677 F.3d 869, 879\u201383 (9th Cir. 2012); In re Paige, 584\n F.3d 1327, 1337\u201338 (10th Cir. 2009); In re Lett, 632 F.3d\n 1216, 1225\u201326 (11th Cir. 2011); In re AOV Indus., Inc., 792\n F.2d 1140, 1147\u201348 (D.C. Cir. 1986).\n 3\n I agree with the majority as to the disposition of the Certain\n Insurers\u2019 and Allianz Insurers\u2019 appeals.\n 4\n In particular, the Local Councils and Chartered\n Organizations were not parties to the sale, so the release of\n claims against them could not have been accomplished via the\n sale.\n\n\n\n\n 2\n\fCase: 23-1664 Document: 269 Page: 82 Date Filed: 05/13/2025\n\n\n\n\n appeal from the confirmation order, not the sale. Moreover, the\n majority\u2019s opinion endorses an end run around Chapter 11\u2019s\n requirements, including the Supreme Court\u2019s holding in\n Harrington v. Purdue Pharma L.P., that the Bankruptcy Code\n does not permit non-consensual third-party releases in a\n chapter 11 plan. 603 U.S. 204, 227 (2024).5 If that is not\n enough, as I discuss below, some of the Settling Insurers\n constructed the \u201csale\u201d of their policies such that they will not\n occur until the Confirmation Order is affirmed on appeal,\n meaning that the majority\u2019s approach will not finally resolve\n this case.\n While I agree with the majority that this is not a case in\n which a pre-confirmation sale made up a \u201csub rosa\u201d plan, I see\n it as just as problematic, for nearly identical reasons. As the\n majority acknowledges, the sub rosa doctrine recognizes that\n \u201c[t]he court may not . . . in the guise of authorizing a transaction\n out of the ordinary course of business [under \u00a7 363] in a\n chapter 11 case, authorize a transaction that is so extensive as\n to be tantamount to a plan.\u201d 3 Collier on Bankruptcy \u00b6 363.02\n (16th ed. 2025); compare In re Boy Scouts of Am. & Delaware\n BSA, LLC, 642 B.R. 504, 562 (Bankr. D. Del. 2022) (\u201cWithout\n these settlements, there is no Plan.\u201d). Accordingly, the sub rosa\n cases are concerned with \u00a7 363 being used to skirt Chapter 11\u2019s\n requirements and effectively insulate plans from review. See In\n re Braniff Airways, Inc., 700 F.2d 935, 940 (5th Cir. 1983); In\n re Lionel, 722 F.2d at 1069. By using a \u00a7 363 sale to establish\n the terms of a plan sub rosa, a debtor can avoid Chapter 11\u2019s\n\n 5\n Recall that in Purdue the Court made clear that its holding\n did not apply to \u201cplans that have already become effective\n and been substantially consummated,\u201d that is, to bankruptcy\n appeals that are equitably moot. 603 U.S. at 226.\n\n\n\n\n 3\n\fCase: 23-1664 Document: 269 Page: 83 Date Filed: 05/13/2025\n\n\n\n\n requirements and ensure that \u201cappellate review would\n effectively be precluded.\u201d In re Lionel, 722 F.2d at 1069.\n Likewise, where, as here, a sufficiently important facet of the\n plan makes up \u201cconsideration\u201d for a portion of the debtors\u2019\n property, a \u00a7 363 sale allows debtors to avoid complying with\n Chapter 11 (here, 11 U.S.C. \u00a7 1126(b)(6)) and insulates the\n plan from appellate review. Employing \u00a7 363(m) to remove\n this category of confirmed plans from judicial review is too\n sweeping and radical. We needn\u2019t and shouldn\u2019t go there, for a\n number of reasons.\n First, \u00a7 363 itself distinguishes between sales under\n \u00a7 363(b) and (c) and sales under a plan. Subsection \u00a7 363(l)\n applies to the \u201cuse sale, or lease of property\u201d that occurs \u201cunder\n subsection (b) or (c) of [\u00a7 363] or a plan under chapter 11 . . .\n of this title.\u201d 11 U.S.C. \u00a7 363(l) (emphasis added). By contrast,\n \u00a7 363(m) applies only to a sale or lease authorized \u201cunder\n subsection (b) or (c) of [\u00a7 363].\u201d 11 U.S.C. \u00a7 363(m). Similarly,\n \u00a7 363(o) applies to \u201ca sale under [\u00a7 363],\u201d and has been\n interpreted (albeit, in decisions that do not bind this Court) to\n apply to \u00a7 363 sales only, not plan sales. In re Ditech Holding\n Corp., 606 B.R. 544, 595 (Bankr. S.D.N.Y. 2019). Tellingly,\n the drafters of subsection (o) originally considered language\n that would have made the provision applicable to a \u201csale by a\n trustee or transfer under a plan of reorganization.\u201d 147 Cong.\n Rec. 2018 at *2031\u201332 (March 8, 2001) (emphasis added). In\n the end, however, Congress adopted narrower language, such\n that the provision applies to only a \u201csale under this section,\u201d 11\n U.S.C. \u00a7 363(o); 147 Cong. Rec. 2184 at *2191 (March 13,\n 2001), and not a \u201ctransfer under a plan of reorganization,\u201d 147\n Cong. Rec. 2018 at *2031\u201332 (March 8, 2001). Similarly, the\n drafters of \u00a7 363(m) could have considered (and adopted)\n language that brought plan sales within its ambit. Instead,\n \u00a7 363(m) narrowly applies to \u00a7 363(b) and (c) sales, not plan\n\n\n\n\n 4\n\fCase: 23-1664 Document: 269 Page: 84 Date Filed: 05/13/2025\n\n\n\n\n sales. As the majority notes, \u201cthe inclusion of language in one\n section of a statute, but omission of it in another, generally\n \u2018convey[s] a difference in meaning[.]\u2019\u201d Maj. Op. 56 (alteration\n in original) (quoting Bittner v. United States, 598 U.S. 85, 94\n (2023)).\n Perhaps for these reasons, several courts have suggested\n that sales accomplished under plans do not fall within\n \u00a7 363(m)\u2019s ambit. See Miami Ctr. Ltd. P\u2019ship v. Bank of New\n York, 838 F.2d 1547, 1553 (11th Cir. 1988) (holding that\n \u00a7 363(m) does not apply to sale under liquidation plan), and In\n re Texas Extrusion Corp., 844 F.2d 1142, 1165 (5th Cir. 1988)\n (expressing doubt as to whether plan sales may invoke the\n \u201cshield\u201d of \u00a7 363(m) given the \u201cdefinite implication that\n [\u00a7 363(b), (c), and (m)] concern the trustee\u2019s authority during\n the administration of the estate and not at the final disposition\n of the property of the estate pursuant to a plan of\n reorganization\u201d).6\n The majority urges that we have already resolved this\n question, as In re Energy Future Holdings, 949 F.3d 806 (3d\n\n 6\n See also In re Bardos, No. CC-13-1316, 2014 WL 3703923,\n at *9 (B.A.P. 9th Cir. July 25, 2014) (concluding that\n \u00a7 363(m) did not bar appeal involving plan sale, as plan sales\n are authorized under 11 U.S.C. \u00a7 1123(a)(5)(B), not \u00a7 363); In\n re Smurfit-Stone Container Corp., No. 09-10235, 2010 WL\n 2403793, at *10 (Bankr. D. Del. June 11, 2010) (suggesting\n that \u00a7 363 does not apply to plan sales). But see In re\n Fieldwood Energy LLC, 93 F.4th 817, 825 (5th Cir. 2024)\n (applying \u00a7 363(m) to a sale authorized by a confirmation\n order); In re Made in Detroit, Inc., 414 F.3d 576, 582\u201383 (6th\n Cir. 2005) (same).\n\n\n\n\n 5\n\fCase: 23-1664 Document: 269 Page: 85 Date Filed: 05/13/2025\n\n\n\n\n Cir. 2020) and Cinicola v. Scharffenberger, 248 F.3d 110 (3d\n Cir. 2001) confirmed that \u00a7 363(m) may apply to sales\n authorized by a reorganization plan, rather than a separate sale\n order. Not so. In those cases, a separate Bankruptcy Court\n order\u2014not a reorganization plan itself\u2014preliminarily\n approved a \u00a7 363 sale, and the confirmation order \u201cauthorized\n and directed\u201d it. Energy Future Holdings, 949 F.3d at 819\u201320;\n Cinicola, 248 F.3d at 122. While Energy Future Holdings does\n stand for the proposition that a sale order that is later authorized\n in a plan confirmation order does not lose or forfeit the\n protection of \u00a7 363(m), 949 F.3d at 819\u201320, that does nothing\n to displace the specific terms of the statute, which indicate that\n \u00a7 363(m) does not apply to sales that occur as part of a plan of\n reorganization. Energy Future Holdings does not govern this\n case, where the plan (not a separate order) purported to\n \u201cconstitute a motion by the Debtors for the Bankruptcy Court\n to approve the proposed compromises and settlements and\n assignment and/or sale of the applicable Insurance Policies . . .\n pursuant to sections 363, 503(b), 507(a)(2), 1123 and 1141 of\n the Bankruptcy Code, as applicable,\u201d and the Confirmation\n Order, in turn, approved the policy buybacks \u201cpursuant to\n sections 363, 1123, and/or 1141 of the Bankruptcy Code\u201d and\n stated that the Settling Insurers would be entitled to \u00a7 363(m)\u2019s\n protections. App. 949, 799, 804\u201305. This arrangement was\n almost certainly crafted in an attempt to insulate the Plan and\n Confirmation Order from appellate review\u2014otherwise, the\n buybacks of the insurance policies would have been confirmed,\n as is typical, by \u00a7 1123(a)(5)(D), which allows a plan to sell\n \u201call or any part of the property of the estate, either subject to or\n free of any lien.\u201d 11 U.S.C. \u00a7 1123(a)(5)(D).\n This distinction between this case and Energy Future\n Holdings may, at first blush, appear needlessly formalistic. But\n there are important differences: First, where a \u00a7 363 sale\n\n\n\n\n 6\n\fCase: 23-1664 Document: 269 Page: 86 Date Filed: 05/13/2025\n\n\n\n\n appears in a separate order, rather than the plan itself, the sub\n rosa doctrine gives courts leeway to reverse a \u00a7 363(b)\n authorization that effectively dictates the terms of a plan.\n Indeed, in Energy Future Holdings, this Court could have\n reversed the \u00a7 363(b) sale had the parties put substantial plan-\n like terms into the Merger Order.7 But parties can skirt the sub\n rosa doctrine by including a \u00a7 363 sale in the plan itself. So\n long as Chapter 11\u2019s procedural requirements are met,\n substantively controversial, or even unlawful, plan provisions\n (like non-consensual third-party releases) can evade appellate\n review.8 Next, \u00a7 363 contemplates courting of third-party\n\n\n 7\n Of course, the Merger Order\u2019s terms were targeted to\n allowing a third party to purchase the debtor\u2019s valuable asset\n (a liability-free subsidiary) without taking on all of the\n debtor\u2019s asbestos liability\u2014not at all a sub rosa plan and\n much more limited than the sweeping releases at issue here.\n See Energy Future Holdings, 949 F.3d at 813.\n 8\n The majority\u2019s prediction that \u201can intentional attempt to\n transact by \u2018means forbidden by law\u2019\u201d would not constitute\n good faith under \u00a7 363(b) or (m) does not stymie these\n concerns. Maj. Op. 50 (quoting In re Abbotts Dairies of Pa.,\n Inc., 788 F.2d 143, 150 (3d Cir. 1986)). I do not read \u00a7 363\u2019s\n good-faith requirement to bar the sort of mischief today\u2019s\n holding risks creating. Our Court has interpreted \u00a7\u00a7 363(b)\n and (m)\u2019s good-faith requirements to ensure that the\n purchaser has \u201cpaid \u2018value\u2019 for the assets of a bankrupt,\u201d and\n has not engaged in \u201cfraud[ or] collusion\u201d with the \u201cother\n bidders or the trustee\u201d or \u201cattempt[ed] to take grossly unfair\n advantage of other bidders.\u201d Id. at 149, 147 (quoting In re\n Rock Indus. Mach. Corp., 572 F.2d 1195, 1198 (7th Cir.\n 1978). This interpretation accords with \u00a7 363(m)\u2019s general\n\n\n\n\n 7\n\fCase: 23-1664 Document: 269 Page: 87 Date Filed: 05/13/2025\n\n\n\n\n investors, a robust bidding process, and a sale approval\n process. Realistically, when inserted as part of a globally-\n negotiated plan that is being confirmed, the vetting that would\n normally occur as part of a sale bidding and approval process\n and court order prior to plan confirmation will not occur. Using\n \u00a7 363(m) to avoid an appeal deprives the sale of any real\n scrutiny.\n Separately, and even more critically, the Lujan and\n D&V Claimants\u2019 appeal does not challenge the sale of the\n insurance policies, it challenges a separate facet of the\n Confirmation Order\u2014its approval of non-consensual third-\n\n\n goal of maximizing the value of the estate. See Cinicola, 248\n F.3d at 122.\n I am doubtful that this requirement would strip\n \u00a7 363(m)\u2019s protections from a purchaser who paid full value\n for the debtor\u2019s assets and also received non-consensual third-\n party releases. Can it really be said that a party who obtained\n a benefit the Supreme Court deemed unlawful, but who\n otherwise committed no fraud or collusion \u201cin preparation for\n and during the sale itself,\u201d has shown a \u201clack of integrity\u201d\n \u201cduring the course of the sale proceedings,\u201d In re Gucci, 126\n F.3d 380, 390 (2d Cir. 1997), particularly in light of the fact\n that \u00a7 363(m) applies even where the purchaser \u201cknew of the\n pendency of [an] appeal\u201d? 11 U.S.C. \u00a7 363(m). Indeed, even\n after Purdue, courts have approved \u00a7 363 sales that include\n non-consensual third-party releases. In re Hopeman Bros.,\n Inc., 667 B.R. 101, 108 (Bankr. E.D. Va. 2025); In re Roman\n Cath. Diocese of Rockville Ctr., 665 B.R. 71, 80, 89 (Bankr.\n S.D.N.Y. 2024); Wright v. Bird Global, Case No. 24-CV-\n 23086, slip op. at 4\u20135 (S.D. Fla. Aug. 21, 2024).\n\n\n\n\n 8\n\fCase: 23-1664 Document: 269 Page: 88 Date Filed: 05/13/2025\n\n\n\n\n party releases. The majority says that this is \u201ca distinction\n without a difference,\u201d because \u201cwithout the releases, the\n Settling Insurers would receive less than they bargained for in\n exchange for their cash contribution to the Settlement Trust.\u201d\n Maj. Op. 44. But the Local Councils and Chartered\n Organizations who transferred their policies to the Debtor\n before the sale have also been given releases pursuant to the\n plan. Taken to its logical conclusion, the majority\u2019s reasoning\n would allow \u00a7 363(m) to swallow Chapter 11\u2019s requirements,\n including those clarified in Purdue. More often than not, when\n a confirmation order authorizes a sale of assets in addition to\n various plan provisions, the purchasing party\u2019s cash\n contribution has been negotiated in tandem with other plan\n provisions. So as long as a court authorizes an intra-plan sale\n under \u00a7 363, the other plan provisions are shielded from\n review, as they may have conceivably affected the purchase\n price.9\n Congress could not have intended for \u00a7 363(m) to\n sweep so broadly. As the majority acknowledges, the concept\n underlying \u00a7 363(m) is that sales to third parties should be\n\n 9\n This highlights another difference between Energy Future\n Holdings and this case: if a \u00a7 363 sale can appear in the plan\n itself, parties can later argue that any plan provision formed\n consideration for the sale and, under the majority\u2019s reasoning,\n must therefore be shielded from appellate review. That\n argument would be hard to refute given that money is\n fungible and virtually any term can be traded for any other\n term. Leaving Energy Future Holdings where it lies stymies\n this additional opportunity for mischief, and forces debtors\n and third-party purchasers to be transparent about what the\n consideration for the asset sales truly is.\n\n\n\n\n 9\n\fCase: 23-1664 Document: 269 Page: 89 Date Filed: 05/13/2025\n\n\n\n\n immune from appeal to maximize the incentive for purchasers\n to buy the assets in an otherwise unstable environment, from a\n business as well as legal standpoint: \u201cto promote the policy of\n the finality of bankruptcy court orders, and to prevent harmful\n effects on the bidding process resulting from the bidders\u2019\n knowledge that the highest bid may not end up being the final\n sale price.\u201d Krebs Chrysler-Plymouth, Inc. v. Valley Motors,\n Inc., 141 F.3d 490, 500 (3d Cir. 1998); cf. In re Lionel Corp.,\n 722 F.2d 1063, 1067 (2d Cir. 1983) (explaining that \u00a7 363\u2019s\n predecessor statutes aimed to govern leases or sales of goods\n with potentially deteriorating value \u201cduring the time lag\n between the filing of a petition for reorganization and the date\n when the plan was approved\u201d). To those ends, \u00a7 363(m)\n \u201cmerely\u201d offers \u201ca targeted protection of [the purchaser\u2019s]\n newly acquired property interest\u201d by leaving the sale intact\n even when an appeal of its authorization is successful. MOAC\n Mall Holdings LLC v. Transform Holdco LLC, 598 U.S. 288,\n 299\u2013300 (2023). Thus, the strong shield of \u00a7 363(m) is meant\n to \u201cattract[] investors and help[] effectuate debtor\n rehabilitation.\u201d Cinicola, 248 F.3d at 122.\n What happened here goes far beyond what \u00a7 363\n contemplates. Rather than merely protecting the purchaser\u2019s\n \u201cnewly acquired property interest,\u201d MOAC Mall, 598 U.S. at\n 300, the majority shields from review the non-consensual\n third-party releases that the Supreme Court invalidated in\n Purdue.10 This sets a dangerous transactional precedent, one\n\n 10\n To be sure, at the time the buybacks took place, the\n Supreme Court had not yet granted certiorari or announced its\n decision in Purdue. Compare App. 11773 (Settlement\n Agreement executed February 14, 2022) with Harrington v.\n Purdue Pharma L.P., 144 S. Ct. 44 (2023) (granting petition\n for writ of certiorari August 10, 2023), and Harrington v.\n\n\n\n\n 10\n\fCase: 23-1664 Document: 269 Page: 90 Date Filed: 05/13/2025\n\n\n\n\n that will result in Article III courts not having the capacity to\n review Confirmation Orders if the parties agree to call key\n intra-plan transactions \u201csales.\u201d Indeed, today\u2019s decision\n relegates the Supreme Court\u2019s holding in Purdue to a mere\n plan-drafting guide\u2014perhaps the Sackler family should have\n purchased the estate\u2019s fraudulent conveyance claims in\n addition to the nonconsensual third-party releases and called it\n a \u00a7 363 sale. See Hopeman Bros., 667 B.R. at 108.\n We need not fear, the majority says, because the \u201cvast\n majority of challenges, no doubt\u201d will escape \u00a7 363(m)\u2019s bar,\n as \u00a7 363(m) only applies to appeals that affect the validity of a\n sale, \u201ca narrow and well-defined category of cases.\u201d Maj. Op.\n 47, 36. I cannot see how that could be so under the majority\u2019s\n own reasoning. An appeal escapes \u00a7 363(m)\u2019s bar only if it is\n \u201cso divorced from the overall transaction that the challenged\n provision would have affected none of the considerations on\n which the purchaser relied,\u201d id. at 36 (quoting In re Pursuit\n Cap. Mgmt., LLC, 874 F.3d 124, 139 (3d Cir. 2017)), which we\n have said will occur \u201conly in . . . rare circumstances.\u201d In re\n Pursuit Cap., 874 F.3d at 139.11 In fact, any suggestion that the\n\n Purdue Pharma L. P., 603 U.S. 204 (2024) (invalidating\n nonconsensual third-party releases June 27, 2024). But as\n counsel for Settling Insurers acknowledged at oral argument,\n all parties knew that non-consensual third-party releases were\n controversial. Accordingly, the Debtors crafted the Plan such\n that the Effective Date\u2014including the insurance policy\n buybacks\u2014would not occur until after the District Court\n affirmed the Confirmation Order.\n 11\n The picture the majority paints also proves illusory when\n one takes a holistic view of our precedent: when faced with\n the contention that a bankruptcy appeal is moot under\n\n\n\n\n 11\n\fCase: 23-1664 Document: 269 Page: 91 Date Filed: 05/13/2025\n\n\n\n\n majority\u2019s ruling is \u201cnarrow,\u201d Maj. Op. 36, is belied by this\n very case. The majority is willing to extend \u00a7 363(m)\u2019s\n protection to Local Councils and Chartered Organizations,\n who were not parties to any \u00a7 363 sale. This view flies in the\n face of In re ICL Holding Co., where we said \u201cwhile \u00a7 363(m)\n aims to make sales of estate property final and inject\n predictability into the sale process, we don\u2019t think it does so at\n all costs and certainly not for non-purchasers.\u201d 802 F.3d at 554\n (emphasis added).\n Finally, some of the Settling Insurers\u2019 agreements\n included provisions that their sales will not be completed\n unless and until there is a successful appeal. As such, the Lujan\n and D&V Claimants\u2019 appeals are not statutorily moot as\n applied to those sales. As the majority acknowledges, the Plan\n provides: \u201cNotwithstanding anything to the contrary and for\n the avoidance of doubt, the Abuse Insurance Policies . . . shall\n be sold by the Debtors to the applicable Settling Insurance\n Companies . . . on the Effective Date on the terms and as\n provided in the applicable Insurance Settlement Agreement.\u201d\n Maj. Op. 39\u201340 (emphasis added) (quoting App. 975). While\n the Century and Chubb and Clarendon Insurers\u2019 settlement\n\n \u00a7 363(m), this Court has dismissed the appeal in all but four\n instances. See In re Abbotts Dairies of Pa., Inc., 788 F.2d 143,\n 151 (3d Cir. 1986) (remanding for district court to determine\n whether sale was made in good faith); Cinicola, 248 F.3d at\n 128 (remanding for district court to determine whether relief\n would affect validity of \u00a7 363 sales); In re ICL Holding Co.,\n 802 F.3d 547, 554 (3d Cir. 2015) (concluding that \u00a7 363(m)\n did not bar review); Energy Future Holdings, 949 F.3d at 821\n (concluding that \u00a7 363(m) barred review of appellants\u2019 first\n argument, but not its second).\n\n\n\n\n 12\n\fCase: 23-1664 Document: 269 Page: 92 Date Filed: 05/13/2025\n\n\n\n\n agreements provide that the sale of their policies shall occur on\n the Plan\u2019s Effective Date, the Hartford and Zurich Settling\n Insurers\u2019 settlement agreements expressly condition the\n Debtors\u2019 sale of their insurance policies on the Confirmation\n Order becoming a \u201cFinal Order.\u201d12 App. 11231, 11760. The\n agreements refer, in turn, to the Confirmation Order\u2019s\n definition of Final Order, which means \u201can order or judgment\n of the Bankruptcy Court . . . that has not been reversed,\n vacated, stayed, modified, or amended, and as to which,\u201d if\n appealed, \u201csuch order . . . shall have been affirmed by the\n highest court to which such order was appealed . . . and the\n time to take any further appeal, petition for certiorari . . . shall\n have expired.\u201d App. 885. This has not occurred.\n No matter, the majority says, because \u201c\u00a7 363(m) speaks\n in terms of unstayed authorizations under \u00a7 363(b)\u2014it does\n not include an inchoate requirement that a \u00a7 363(b) sale be\n consummated or otherwise effectuated.\u201d Maj. Op. 40. The text\n of \u00a7 363(m) reads:\n The reversal or modification on appeal of an\n authorization under subsection (b) or (c) of this\n section of a sale or lease of property does not\n affect the validity of a sale or lease under such\n authorization to an entity that purchased or\n leased such property in good faith, whether or\n not such entity knew of the pendency of the\n\n 12\n The majority\u2019s urging that the sales occurred on the\n Effective Date based on the Plan and counsels\u2019 statements at\n oral argument ignores this express condition and the language\n cited above: \u201cas provided in the applicable Insurance\n Settlement Agreement.\u201d App. 975.\n\n\n\n\n 13\n\fCase: 23-1664 Document: 269 Page: 93 Date Filed: 05/13/2025\n\n\n\n\n appeal, unless such authorization and such sale\n or lease were stayed pending appeal.\n 11 U.S.C. \u00a7 363(m) (emphasis added).\n The majority is right that \u00a7 363(m) comes into play\n when there is an appeal of a \u00a7 363(b) or (c) authorization. But\n it bars review of such appeals only to the extent that the appeal\n would \u201caffect the validity of a sale or lease under such\n authorization. . . unless such authorization and such sale or\n lease were stayed pending appeal.\u201d Id. If \u00a7 363(m) focused\n only on sale authorizations, why separately mention the sale?\n Why not say simply that an appeal of an authorization \u201cdoes\n not affect the validity of . . . such authorization . . . unless such\n authorization . . . were stayed pending appeal?\u201d Id. Section\n 363(m) clearly contemplates not only an authorized sale, but a\n sale that has occurred.13 An appeal cannot affect the validity of\n\n\n 13\n The majority reads this clear textual implication out of the\n statute when it suggests that \u00a7 363(m)\u2019s requirements can be\n met without a consummated sale, so long as the sale has been\n authorized. Our \u00a7 363(m) caselaw presumes that the sale has\n occurred, not just that it has been authorized and may or may\n not occur in the future, depending on the success of an appeal\n (a very different situation than an installment sale or a\n contract providing for ongoing performance). See, e.g., In re\n Rickel Home Centers, Inc., 209 F.3d 291, 304 (3d Cir. 2000)\n (\u201cThe strength of these policies [of \u00a7 363(m)] is reflected in\n numerous other decisions of the courts of appeals rejecting as\n moot an appeal from an order authorizing a sale of estate\n property under section 363 when the transaction has been\n completed.\u201d (emphasis added)); Pittsburgh Food & Beverage,\n Inc. v. Ranallo, 112 F.3d 645, 651 (3d Cir. 1997) (explaining\n\n\n\n\n 14\n\fCase: 23-1664 Document: 269 Page: 94 Date Filed: 05/13/2025\n\n\n\n\n a sale that has not happened. Cf. In re CADA Invs., Inc., 664\n F.2d 1158, 1160 (9th Cir. 1981) (\u201cBecause [the purchaser]\u2019s\n interest is expressly conditioned on the outcome of this appeal,\n a reversal or modification of the appealed order by this court\n would not \u2018affect\u2019 the sale to [the purchaser] in the manner\n prohibited by [the predecessor to \u00a7 363].\u201d). Because the sale of\n the Hartford and Zurich policies have not occurred, resorting\n to statutory mootness does not finally resolve this case. We can\n avoid these complications if we rely instead on equitable\n mootness.\n Equitable mootness is a discretionary principle that the\n circuit courts have unanimously adopted. As it arises out of\n courts\u2019 discretion to fashion equitable relief, it is to be narrowly\n applied, or not applied, as the Article III reviewing court deems\n appropriate. See Maj. Op. 56 (citing In re Trib. Media, 799 F.3d\n at 287 (Ambro, J., concurring)). Even where it is applied, the\n reviewing court has discretion to address the merits of the\n appeal if it wishes. See In re Trib. Media, 799 F.3d at 290 n.2\n (Ambro, J., concurring) (citing In re Metromedia Fiber\n Network, Inc., 416 F.3d 136, 144 (2d Cir. 2005)); In re\n One2One, 805 F.3d at 449\u201350 (Krause, J., concurring). By\n contrast, statutory mootness operates essentially as an \u201con-off\u201d\n switch: if a party challenges a plan provision that affects the\n validity of a \u00a7 363 sale\u2014however the parties have chosen to\n conceive of it\u2014courts are stripped of any ability to review that\n provision.\n For these reasons, I see not only error, but mischief, in\n the majority\u2019s approach. Accordingly, I concur in the result, but\n\n\n that, under \u00a7 363(m), \u201cwhere sale order not stayed and sale\n consummated, appeal is moot\u201d (emphasis added)).\n\n\n\n\n 15\n\fCase: 23-1664 Document: 269 Page: 95 Date Filed: 05/13/2025\n\n\n\n\n believe that equitable mootness is the way we should reason\n through the dismissal of the Lujan and D&V Claimants\u2019\n appeals.\n\n\n\n\n 16\n\f","ocr_status":2,"date_upload":"2025-05-13T11:50:10.470906-07:00","document_number":"269","attachment_number":null,"pacer_doc_id":"003014988209","is_available":true,"is_free_on_pacer":null,"is_sealed":null,"document_type":1,"description":"","acms_document_guid":""}],"date_created":"2025-05-13T11:11:17.438645-07:00","date_modified":"2026-05-27T14:13:59.935524-07:00","date_filed":"2025-05-13","time_filed":null,"entry_number":269,"recap_sequence_number":"2025-05-13.001","pacer_sequence_number":5364637,"description":"PRECEDENTIAL OPINION. Coram: KRAUSE, SCIRICA and RENDELL, Circuit Judges. Judge: KRAUSE Authoring, Judge: RENDELL Concurring. [23-1664, 23-1665, 23-1666, 23-1667, 23-1668, 23-1669, 23-1670, 23-1671, 23-1672, 23-1673, 23-1674, 23-1675, 23-1676, 23-1677, 23-1678, 23-1780] (SB) [Entered: 05/13/2025 12:04 PM]","tags":[]},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/docket-entries/423916942/","id":423916942,"docket":"https://www.courtlistener.com/api/rest/v4/dockets/67166181/","recap_documents":[{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/437996744/","id":437996744,"tags":[],"absolute_url":"/docket/67166181/268/in-re-boy-scouts-of-america-and-delaware-bsa-llc/","date_created":"2025-04-30T07:04:21.371181-07:00","date_modified":"2026-05-27T14:13:59.912438-07:00","sha1":"","page_count":null,"file_size":null,"filepath_local":null,"filepath_ia":"","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":"","ocr_status":null,"date_upload":null,"document_number":"268","attachment_number":null,"pacer_doc_id":"003014975422","is_available":false,"is_free_on_pacer":null,"is_sealed":null,"document_type":1,"description":"","acms_document_guid":""}],"date_created":"2025-04-30T07:04:21.356859-07:00","date_modified":"2026-05-27T14:13:59.878060-07:00","date_filed":"2025-04-28","time_filed":null,"entry_number":268,"recap_sequence_number":"2025-04-28.001","pacer_sequence_number":5358588,"description":"ECF FILER: SUPPLEMENTAL Third Supplemental Declaration of Brian Whittman in Connection with the Court's Request for Briefing on the Effect of the Decision by the Supreme Court of the United States in Purdue Pharma LP, No. 23-124, on the Pending Appeals filed by Appellee Boy Scouts of America in 23-1664, 23-1665, 23-1666, 23-1667, 23-1668, 23-1669, 23-1670, 23-1671, 23-1672, 23-1673, 23-1674, 23-1675, 23-1676, 23-1677, 23-1678, 23-1780. Certificate of Service dated 04/28/2025. Service made by ECF. [23-1664, 23-1665, 23-1666, 23-1667, 23-1668, 23-1669, 23-1670, 23-1671, 23-1672, 23-1673, 23-1674, 23-1675, 23-1676, 23-1677, 23-1678, 23-1780] (SR) [Entered: 04/28/2025 06:00 PM]","tags":[]},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/docket-entries/423916941/","id":423916941,"docket":"https://www.courtlistener.com/api/rest/v4/dockets/67166181/","recap_documents":[{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/437996743/","id":437996743,"tags":[],"absolute_url":"/docket/67166181/267/in-re-boy-scouts-of-america-and-delaware-bsa-llc/","date_created":"2025-04-30T07:04:21.328725-07:00","date_modified":"2026-05-27T14:13:59.844797-07:00","sha1":"","page_count":null,"file_size":null,"filepath_local":null,"filepath_ia":"","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":"","ocr_status":null,"date_upload":null,"document_number":"267","attachment_number":null,"pacer_doc_id":"003014971681","is_available":false,"is_free_on_pacer":null,"is_sealed":null,"document_type":1,"description":"","acms_document_guid":""}],"date_created":"2025-04-30T07:04:21.306989-07:00","date_modified":"2026-05-27T14:13:59.791300-07:00","date_filed":"2025-04-24","time_filed":null,"entry_number":267,"recap_sequence_number":"2025-04-24.001","pacer_sequence_number":5356879,"description":"ECF FILER: Third Supplemental Declaration of The Honorable Barbara J. Houser (Ret.) in Connection with the Court's Request for Briefing on the Effect of the Decision by the Supreme Court of the United States in Purdue Pharma LP, No. 23-124, on the Pending Appeals filed by Appellees Boy Scouts of America and Delaware BSA LLC in 23-1664, 23-1665, 23-1666, 23-1667, 23-1668, 23-1669, 23-1670, 23-1671, 23-1672, 23-1673, 23-1674, 23-1675, 23-1676, 23-1677, 23-1678, 23-1780. Certificate of Service dated 04/24/2025. Service made by ECF. [23-1664, 23-1665, 23-1666, 23-1667, 23-1668, 23-1669, 23-1670, 23-1671, 23-1672, 23-1673, 23-1674, 23-1675, 23-1676, 23-1677, 23-1678, 23-1780] (SR) [Entered: 04/24/2025 10:07 AM]","tags":[]},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/docket-entries/416934047/","id":416934047,"docket":"https://www.courtlistener.com/api/rest/v4/dockets/67166181/","recap_documents":[{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/430680852/","id":430680852,"tags":[],"absolute_url":"/docket/67166181/266/in-re-boy-scouts-of-america-and-delaware-bsa-llc/","date_created":"2025-02-19T09:57:30.631354-08:00","date_modified":"2026-05-27T14:13:59.753862-07:00","sha1":"","page_count":null,"file_size":null,"filepath_local":null,"filepath_ia":"","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":"","ocr_status":null,"date_upload":null,"document_number":"266","attachment_number":null,"pacer_doc_id":"003014903814","is_available":false,"is_free_on_pacer":null,"is_sealed":null,"document_type":1,"description":"","acms_document_guid":""}],"date_created":"2025-02-19T09:57:30.615513-08:00","date_modified":"2026-05-27T14:13:59.725505-07:00","date_filed":"2025-01-31","time_filed":null,"entry_number":266,"recap_sequence_number":"2025-01-31.001","pacer_sequence_number":5324722,"description":"ECF FILER: Second Supplemental Declaration of Brian Whittman in Connection with the Court's Request for Briefing on the Effect of the Decision by the Supreme Court of the United States in Purdue Pharma LP, No. 23-124, on the Pending Appeals filed by Appellees Boy Scouts of America and Delaware BSA LLC in 23-1664, 23-1665, 23-1666, 23-1667, 23-1668, 23-1669, 23-1670, 23-1671, 23-1672, 23-1673, 23-1674, 23-1675, 23-1676, 23-1677, 23-1678, 23-1780. Certificate of Service dated 01/31/2025. Service made by ECF. [23-1664, 23-1665, 23-1666, 23-1667, 23-1668, 23-1669, 23-1670, 23-1671, 23-1672, 23-1673, 23-1674, 23-1675, 23-1676, 23-1677, 23-1678, 23-1780] (SR) [Entered: 01/31/2025 03:00 PM]","tags":[]},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/docket-entries/416934046/","id":416934046,"docket":"https://www.courtlistener.com/api/rest/v4/dockets/67166181/","recap_documents":[{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/430680851/","id":430680851,"tags":[],"absolute_url":"/docket/67166181/265/in-re-boy-scouts-of-america-and-delaware-bsa-llc/","date_created":"2025-02-19T09:57:30.595607-08:00","date_modified":"2026-05-27T14:13:59.704495-07:00","sha1":"","page_count":null,"file_size":null,"filepath_local":null,"filepath_ia":"","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":"","ocr_status":null,"date_upload":null,"document_number":"265","attachment_number":null,"pacer_doc_id":"003014903016","is_available":false,"is_free_on_pacer":null,"is_sealed":null,"document_type":1,"description":"","acms_document_guid":""}],"date_created":"2025-02-19T09:57:30.580743-08:00","date_modified":"2026-05-27T14:13:59.673449-07:00","date_filed":"2025-01-30","time_filed":null,"entry_number":265,"recap_sequence_number":"2025-01-30.002","pacer_sequence_number":5324347,"description":"ECF FILER: Response filed by Appellee Navigators Specialty Insurance Co in 23-1664, Appellees Hartford Accident & Indemnity Co, First State Insurance Co, Twin City Fire Insurance Co and Navigators Specialty Insurance Co in 23-1666 to Rule 28(j) letter. Certificate of Service dated 01/30/2025. Service made by ECF. This document will be SENT TO THE MERITS PANEL, if/when applicable. [23-1664, 23-1666] (PDA) [Entered: 01/30/2025 07:53 PM]","tags":[]},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/docket-entries/416934045/","id":416934045,"docket":"https://www.courtlistener.com/api/rest/v4/dockets/67166181/","recap_documents":[{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/430680850/","id":430680850,"tags":[],"absolute_url":"/docket/67166181/264/in-re-boy-scouts-of-america-and-delaware-bsa-llc/","date_created":"2025-02-19T09:57:30.536297-08:00","date_modified":"2026-05-27T14:13:59.646329-07:00","sha1":"","page_count":null,"file_size":null,"filepath_local":null,"filepath_ia":"","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":"","ocr_status":null,"date_upload":null,"document_number":"264","attachment_number":null,"pacer_doc_id":"003014902993","is_available":false,"is_free_on_pacer":null,"is_sealed":null,"document_type":1,"description":"","acms_document_guid":""}],"date_created":"2025-02-19T09:57:30.517368-08:00","date_modified":"2026-05-27T14:13:59.620964-07:00","date_filed":"2025-01-30","time_filed":null,"entry_number":264,"recap_sequence_number":"2025-01-30.001","pacer_sequence_number":5324336,"description":"ECF FILER: Response filed by Appellees Boy Scouts of America and Delaware BSA LLC in 23-1664, 23-1665, 23-1666, 23-1667, 23-1668, 23-1669, 23-1670, 23-1671, 23-1672, 23-1673, 23-1674, 23-1675, 23-1676, 23-1677, 23-1678, 23-1780, 25-1136 to Rule 28(j) letter. Certificate of Service dated 01/30/2025. [23-1664, 23-1665, 23-1666, 23-1667, 23-1668, 23-1669, 23-1670, 23-1671, 23-1672, 23-1673, 23-1674, 23-1675, 23-1676, 23-1677, 23-1678, 23-1780] (SR) [Entered: 01/30/2025 05:56 PM]","tags":[]},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/docket-entries/416934044/","id":416934044,"docket":"https://www.courtlistener.com/api/rest/v4/dockets/67166181/","recap_documents":[{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/430680849/","id":430680849,"tags":[],"absolute_url":"/docket/67166181/263/in-re-boy-scouts-of-america-and-delaware-bsa-llc/","date_created":"2025-02-19T09:57:30.495376-08:00","date_modified":"2026-05-27T14:13:59.580249-07:00","sha1":"","page_count":null,"file_size":null,"filepath_local":null,"filepath_ia":"","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":"","ocr_status":null,"date_upload":null,"document_number":"263","attachment_number":null,"pacer_doc_id":"003014900614","is_available":false,"is_free_on_pacer":null,"is_sealed":null,"document_type":1,"description":"","acms_document_guid":""}],"date_created":"2025-02-19T09:57:30.476437-08:00","date_modified":"2026-05-27T14:13:59.556991-07:00","date_filed":"2025-01-29","time_filed":null,"entry_number":263,"recap_sequence_number":"2025-01-29.001","pacer_sequence_number":5323173,"description":"ECF FILER: Letter dated 01/29/2025, filed pursuant to Rule 28(j) from counsel for Appellant Lujan Claimants in 23-1664. Service made by ECF. This document will be SENT TO THE MERITS PANEL, if/when applicable. [23-1664, 23-1665, 23-1666, 23-1667, 23-1668, 23-1669, 23-1670, 23-1671, 23-1672, 23-1673, 23-1674, 23-1675, 23-1676, 23-1677, 23-1678, 23-1780] (DSL) [Entered: 01/29/2025 03:50 AM]","tags":[]},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/docket-entries/416934043/","id":416934043,"docket":"https://www.courtlistener.com/api/rest/v4/dockets/67166181/","recap_documents":[{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/430680848/","id":430680848,"tags":[],"absolute_url":"/docket/67166181/262/in-re-boy-scouts-of-america-and-delaware-bsa-llc/","date_created":"2025-02-19T09:57:30.456097-08:00","date_modified":"2026-05-27T14:13:59.530002-07:00","sha1":"","page_count":null,"file_size":null,"filepath_local":null,"filepath_ia":"","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":"","ocr_status":null,"date_upload":null,"document_number":"262","attachment_number":null,"pacer_doc_id":"003014898906","is_available":false,"is_free_on_pacer":null,"is_sealed":null,"document_type":1,"description":"","acms_document_guid":""}],"date_created":"2025-02-19T09:57:30.440260-08:00","date_modified":"2026-05-27T14:13:59.505449-07:00","date_filed":"2025-01-27","time_filed":null,"entry_number":262,"recap_sequence_number":"2025-01-27.001","pacer_sequence_number":5322404,"description":"ECF FILER: Second Supplemental Declaration of The Honorable Barbara J. Houser (Ret.) in Connection with the Court's Request for Briefing on the Effect of the Decision by the Supreme Court of the United States in Purdue Pharma LP, No. 23-124, on the Pending Appeals filed by Appellees Boy Scouts of America and Delaware BSA LLC in 23-1664, 23-1665, 23-1666, 23-1667, 23-1668, 23-1669, 23-1670, 23-1671, 23-1672, 23-1673, 23-1674, 23-1675, 23-1676, 23-1677, 23-1678, 23-1780. Certificate of Service dated 01/27/2025. Service made by ECF. [23-1664, 23-1665, 23-1666, 23-1667, 23-1668, 23-1669, 23-1670, 23-1671, 23-1672, 23-1673, 23-1674, 23-1675, 23-1676, 23-1677, 23-1678, 23-1780] (SR) [Entered: 01/27/2025 02:55 PM]","tags":[]},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/docket-entries/416934042/","id":416934042,"docket":"https://www.courtlistener.com/api/rest/v4/dockets/67166181/","recap_documents":[{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/430680847/","id":430680847,"tags":[],"absolute_url":"/docket/67166181/261/in-re-boy-scouts-of-america-and-delaware-bsa-llc/","date_created":"2025-02-19T09:57:30.424911-08:00","date_modified":"2026-05-27T14:13:59.473131-07:00","sha1":"","page_count":null,"file_size":null,"filepath_local":null,"filepath_ia":"","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":"","ocr_status":null,"date_upload":null,"document_number":"261","attachment_number":null,"pacer_doc_id":"003014888535","is_available":false,"is_free_on_pacer":null,"is_sealed":null,"document_type":1,"description":"","acms_document_guid":""}],"date_created":"2025-02-19T09:57:30.410192-08:00","date_modified":"2026-05-27T14:13:59.453214-07:00","date_filed":"2025-01-13","time_filed":null,"entry_number":261,"recap_sequence_number":"2025-01-13.002","pacer_sequence_number":5317497,"description":"ECF FILER: Response filed by Appellee Navigators Specialty Insurance Co in 23-1664, Appellees First State Insurance Co, Hartford Accident & Indemnity Co, Navigators Specialty Insurance Co and Twin City Fire Insurance Co in 23-1666 to Rule 28(j) letter. Certificate of Service dated 01/13/2025. Service made by ECF. This document will be SENT TO THE MERITS PANEL, if/when applicable. [23-1664, 23-1666] (PDA) [Entered: 01/13/2025 06:28 PM]","tags":[]},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/docket-entries/416934041/","id":416934041,"docket":"https://www.courtlistener.com/api/rest/v4/dockets/67166181/","recap_documents":[{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/430680846/","id":430680846,"tags":[],"absolute_url":"/docket/67166181/260/in-re-boy-scouts-of-america-and-delaware-bsa-llc/","date_created":"2025-02-19T09:57:30.380792-08:00","date_modified":"2026-05-27T14:13:59.400059-07:00","sha1":"","page_count":null,"file_size":null,"filepath_local":null,"filepath_ia":"","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":"","ocr_status":null,"date_upload":null,"document_number":"260","attachment_number":null,"pacer_doc_id":"003014888426","is_available":false,"is_free_on_pacer":null,"is_sealed":null,"document_type":1,"description":"","acms_document_guid":""}],"date_created":"2025-02-19T09:57:30.361783-08:00","date_modified":"2026-05-27T14:13:59.360797-07:00","date_filed":"2025-01-13","time_filed":null,"entry_number":260,"recap_sequence_number":"2025-01-13.001","pacer_sequence_number":5317440,"description":"ECF FILER: Response filed by Appellees Boy Scouts of America and Delaware BSA LLC in 23-1664, 23-1665, 23-1666, 23-1667, 23-1668, 23-1669, 23-1670, 23-1671, 23-1672, 23-1673, 23-1674, 23-1675, 23-1676, 23-1677, 23-1678, 23-1780 to Rule 28(j) letter. Certificate of Service dated 01/13/2025. Service made by ECF. This document will be SENT TO THE MERITS PANEL, if/when applicable. [23-1664, 23-1665, 23-1666, 23-1667, 23-1668, 23-1669, 23-1670, 23-1671, 23-1672, 23-1673, 23-1674, 23-1675, 23-1676, 23-1677, 23-1678, 23-1780] (SR) [Entered: 01/13/2025 04:26 PM]","tags":[]},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/docket-entries/410291447/","id":410291447,"docket":"https://www.courtlistener.com/api/rest/v4/dockets/67166181/","recap_documents":[{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/422971991/","id":422971991,"tags":[],"absolute_url":"/docket/67166181/259/in-re-boy-scouts-of-america-and-delaware-bsa-llc/","date_created":"2024-12-06T08:21:13.321626-08:00","date_modified":"2026-05-27T14:13:59.270662-07:00","sha1":"99f5a451ede872a7790c5deea6374263078235b3","page_count":172,"file_size":736056,"filepath_local":"recap/gov.uscourts.ca3.119811/gov.uscourts.ca3.119811.259.0.pdf","filepath_ia":"https://archive.org/download/gov.uscourts.ca3.119811/gov.uscourts.ca3.119811.259.0.pdf","ia_upload_failure_count":null,"thumbnail":"recap-thumbnails/gov.uscourts.ca3.119811/422971991.thumb.1068.png","thumbnail_status":1,"plain_text":" Page 1\n\n1\n\n2 UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT\n\n3 - - - - - - - - - - - - - - - - - - - - -x\n\n4\n\n5 In the Matter of:\n\n6 BOY SCOUTS OF AMERICA\n\n7 Debtor.\n\n8\n\n9 - - - - - - - - - - - - - - - - - - - - -x\n\n10\n\n11 In the Matter of:\n\n12 DELAWARE BSA LLC\n\n13 Debtor.\n\n14\n\n15 - - - - - - - - - - - - - - - - - - - - -x Case Nos.\n\n16 23-1664, 23-1665, 23-1666, 23-1667, 23-1668, 23-1669, 23-1670,\n\n17 23-1671, 23-1672, 23-1673, 23-1674, 23-1675, 23-1676, 23-1677,\n\n18 23-1678, 23-1780\n\n19\n\n20\n\n21\n\n22\n\n23\n\n24\n\n25\n\n Veritext Legal Solutions\n 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830\n\f Page 2\n\n1\n2\n3 United States Court of Appeals\n4 for the Third Circuit\n5 601 Market Street\n6 Philadelphia, Pennsylvania\n7\n8 November 6, 2024\n9 10:00 AM\n10\n11\n12 B E F O R E:\n13 HON. KRAUSE, SCIRICA, and RENDELL\n14 CIRCUIT JUDGES\n15\n16\n17\n18\n19\n20\n21\n22\n23\n24\n25\n\n Veritext Legal Solutions\n 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830\n\f Page 3\n\n1\n2\n3 Transcribed by: Jennifer Ritchie and Valerie Baxter\n4 eScribers LLC\n5 7227 North 16th Street, Suite #207\n6 Phoenix, AZ 85020\n7 (800) 257-0885\n8 operations@escribers.net\n9\n10\n11\n12\n13\n14\n15\n16\n17\n18\n19\n20\n21\n22\n23\n24\n25\n\n Veritext Legal Solutions\n 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830\n\f Page 4\n\n1\n2\n3 A P P E A R A N C E S:\n4 Dumas & Vaughn\n5 Attorneys for Appellants\n6 3835 NW Hancock Street\n7 Suite GLB\n8 Portland, OR 97212\n9\n10 BY: GILION C. DUMAS, ESQ.\n11\n12\n13 Lujan & Wolff LLP\n14 Attorneys for Appellants\n15 238 Archbishop Flores Street\n16 Suite 300, DNA Building\n17 Hagatna, GU 96910\n18\n19 BY: DELIA S. LUJAN WOLFF, ESQ.\n20\n21\n22 Willkie Farr & Gallagher LLP\n23 Attorneys for Appellants\n24 787 Seventh Avenue\n25 New York, NY 10019\n\n Veritext Legal Solutions\n 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830\n\f Page 5\n\n1\n2\n3 BY: JOSEPH T. BAIO, ESQ.\n4\n5\n6 Parker Hudson Rainer & Dobbs\n7 Attorneys for Appellants\n8 303 Peachtree Street NE\n9 Suite 3600\n10 Atlanta, GA 30308\n11\n12 BY: HARRIS B. WINSBERG, ESQ.\n13\n14\n15 Perkins Coie\n16 Attorneys for Appellee\n17 2525 E. Camelback Road\n18 Suite 500\n19 Phoenix, AZ 85016\n20\n21 BY: MICHAEL R. HUSTON, ESQ.\n22\n23\n24 Morris Nichols Arsht & Tunnell\n25 Attorneys for Appellee\n\n Veritext Legal Solutions\n 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830\n\f Page 6\n\n1\n2 1201 N. Market Street\n3 16th Floor\n4 Wilmington, DE 19899\n5\n6 BY: SOPHIE ROGERS CHURCHILL, ESQ.\n7\n8\n9 WilmerHale\n10 Attorneys for Appellee\n11 7 World Trade Center\n12 250 Greenwich Street\n13 New York, NY 10007\n14\n15 BY: Phillip D. ANKER, ESQ.\n16\n17\n18 O'Melveny\n19 Attorneys for Appellee\n20 1625 Eye Street NW\n21 Washington, DC 20006\n22\n23 BY: JONATHAN D. HACKER, ESQ.\n24\n25\n\n Veritext Legal Solutions\n 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830\n\f Page 7\n\n1\n2 Gilbert LLP\n3 Attorneys for Appellee\n4 700 Pennsylvania Avenue SE\n5 Suite 400\n6 Washington, DC 20003\n7\n8 BY: KAMI QUINN, ESQ.\n9\n10\n11 Hurley McKenna & Mertz, P.C.\n12 Attorneys for Appellee\n13 20 S Clark Street\n14 Suite 2250\n15 Chicago, IL 60603\n16\n17 BY: EVAN M. SMOLA, ESQ.\n18\n19\n20 White & Case LLP\n21 Attorneys for Appellee\n22 1221 Avenue of the Americas\n23 New York, NY 10020\n24\n25 BY: GLENN M. KURTZ, ESQ.\n\n Veritext Legal Solutions\n 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830\n\f Page 8\n\n1\n\n2\n\n3 P R O C E E D I N G S\n\n4 JUDGE KRAUSE: Good morning. We will now proceed with\n\n5 our second case In Re: Boy Scouts of America and Delaware BSA.\n\n6 And we will begin, I believe, with Dumas.\n\n7 MS. DUMAS: Thank you. May it please the Court, my\n\n8 name is Gilion Dumas, and I am here for the appellants, Dumas\n\n9 and Vaughn Claimants. And I'd like to reserve two minutes for\n\n10 rebuttal.\n\n11 JUDGE KRAUSE: Granted.\n\n12 MS. DUMAS: Okay. The most important point I want to\n\n13 make today is that Purdue makes nonconsensual third-party\n\n14 releases, per se impermissible. Now, nonetheless, appellees\n\n15 argue that the appeal should be dismissed as statutorily or\n\n16 equitably moot. But neither of those theories applies in this\n\n17 case, and more important, under Supreme Court and this Court's\n\n18 decisions, an appeal is not moot unless effective relief is\n\n19 impossible. And appellees have not shown that relief is\n\n20 actually impossible. And on the other hand, we have suggested\n\n21 possible relief for this tiny number of abuse claimant\n\n22 appellants.\n\n23 JUDGE KRAUSE: Counsel, let me ask you, with those two\n\n24 different doctrines --\n\n25 MS. DUMAS: Yes.\n\n Veritext Legal Solutions\n 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830\n\f Page 9\n\n1 JUDGE KRAUSE: -- Neither of which really goes to\n\n2 federal court jurisdiction in the technical sense.\n\n3 MS. DUMAS: Yes.\n\n4 JUDGE KRAUSE: Nonetheless, where we have a statutory\n\n5 mootness provision and an equitable one, is there a proper\n\n6 order for us to even conduct that analysis?\n\n7 MS. DUMAS: Well, I think that the Court's analysis\n\n8 has to first decide if there are jurisdictional or\n\n9 Constitutional problems with the plan, which I believe there\n\n10 are. And then after that, if either of those two flaws exist\n\n11 in the plan, then it \u2013- mootness becomes irrelevant. Because\n\n12 you can't -- those things trump mootness.\n\n13 JUDGE KRAUSE: It sounded like you wanted to focus on\n\n14 equitable and statutory mootness. We can step back to Article\n\n15 3 jurisdiction if you'd like.\n\n16 MS. DUMAS: Absolutely. I don't know which order the\n\n17 Court needs to hear them. You just need to decide them in that\n\n18 order. But I am happy to talk about that. The Constitutional\n\n19 issues are pretty straightforward. It is that these claims\n\n20 that nondebtor abuse claimants have against nondebtor third\n\n21 parties -- and when I talk about them, I primarily mean the\n\n22 local councils of the Boy Scouts and the chartered\n\n23 organizations that sponsored troops. Those are the third\n\n24 parties we're focusing on. Well, our claims -- abuse\n\n25 claimants' claims against those third parties are property\n\n Veritext Legal Solutions\n 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830\n\f Page 10\n\n1 rights, their choses in action -- I'm not sure about the plural\n\n2 of that one. But -- and therefore, they cannot be extinguished\n\n3 without the consent of these abuse claimants, and they, of\n\n4 course, did not consent to their being taken away. Well, you\n\n5 can't extinguish somebody's cause of action without violating\n\n6 procedural due process. There's a tort system alternative in\n\n7 the plan, but that doesn't nearly step in to satisfy the due\n\n8 process requirements because --\n\n9 JUDGE KRAUSE: Yeah, that's \u2013-\n\n10 MS. DUMAS: Yeah.\n\n11 JUDGE KRAUSE: -- I think that that's a merits\n\n12 argument. I thought you were also making the argument that the\n\n13 bankruptcy court didn't have related-to jurisdiction here.\n\n14 MS. DUMAS: I have that, and I can skip to that, too.\n\n15 Yes, I believe that the bankruptcy court did not have related-\n\n16 to jurisdiction, certainly didn't have arising-in or arising -\n\n17 under jurisdiction. But even for related-to jurisdiction, the\n\n18 bases that the court used to find that jurisdiction simply\n\n19 don't support it under this circuit's law, specifically the\n\n20 Pacor test for indemnity and this Court's opinions in both\n\n21 Continental and Combustion, talking about how shared insurance,\n\n22 by itself, is not enough to permanently enjoin the third-party\n\n23 claims. But I can go through the four bases that the court\n\n24 used.\n\n25 JUDGE KRAUSE: Here we have the debtors -- they are\n\n Veritext Legal Solutions\n 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830\n\f Page 11\n\n1 sharing insurance coverage with the nondebtors, against whom\n\n2 you wish to bring claims. And we have a fairly low bar in\n\n3 terms of conceivable effect. So how do you get around that?\n\n4 MS. DUMAS: Conceivable -- I agree. This is a tougher\n\n5 argument for us, but it is still important. That they shared\n\n6 insurance, factually does not apply to all the claims here. So\n\n7 even if it was enough to give a basis for jurisdiction for some\n\n8 of the claims, the shared insurance only came into existence\n\n9 starting in about 1976. So the plan makes a distinction\n\n10 between post-'76 claims and pre-'76 claims. If shared\n\n11 insurance is the basis, that doesn't apply to either local\n\n12 councils or chartered organizations prior to '76. However, the\n\n13 court used -- still exercised jurisdiction over all claims\n\n14 against local councils but excluded claims against chartered\n\n15 organizations that arose prior to '76.\n\n16 That was the correct decision, because the court found\n\n17 that there was no shared insurance prior to '76, so there was\n\n18 no jurisdiction over those pre-'76 claims against chartered\n\n19 organizations. But then the court clawed back that exception\n\n20 by saying that the court was exercising jurisdiction over pre-\n\n21 1976 claims against chartered organizations, as long as the\n\n22 policies they bought themselves, not shared with BSA but their\n\n23 own policies, were issued by a settling insurance company.\n\n24 Well, there is no jurisdiction over claims that don't involve\n\n25 shared insurance, and the settling insurers desire for a global\n\n Veritext Legal Solutions\n 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830\n\f Page 12\n\n1 resolution does not create that jurisdiction because it doesn't\n\n2 create a shared asset.\n\n3 JUDGE KRAUSE: Even so, wouldn't the upshot just be\n\n4 that the district court needed to make findings of fact and\n\n5 conclusions of law?\n\n6 MS. DUMAS: Yes, but it did on that point. And those\n\n7 conclusions of law, that there was a shared asset that gave the\n\n8 court jurisdiction, at least for those pre-'76 claims against\n\n9 chartered organizations, that is simply wrong. And of course,\n\n10 jurisdiction is decided de novo, so. But so that shared\n\n11 insurance isn't enough, certainly for those claims not covered\n\n12 by shared insurance, which I believe is also claims against the\n\n13 local council prior to '76. Definitely local -- definitely\n\n14 chartered organizations before '76. But I think it's more\n\n15 important to focus on this Court's rulings in Combustion and\n\n16 Continental that said that that shared insurance, it might be\n\n17 enough to enjoin the claims while the Court is getting its arms\n\n18 around what the bankruptcy estate is, but not enough to\n\n19 permanently enjoin the claims.\n\n20 And that makes absolute sense, because these chartered\n\n21 organizations and local councils, prior to '76 when they didn't\n\n22 have shared insurance, they had all their own assets, including\n\n23 their own insurance, and those assets and insurance still\n\n24 exist. So it might be possible for the court to have exercised\n\n25 jurisdiction over those shared policies, sufficient to\n\n Veritext Legal Solutions\n 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830\n\f Page 13\n\n1 extinguish those policies and any claims that local councils or\n\n2 chartered organizations could bring against the Debtor based on\n\n3 those. I think the court had jurisdiction over those, but the\n\n4 court didn't have jurisdiction over the third-party claims that\n\n5 were not covered by the shared insurance.\n\n6 And I think those claims should have been allowed to\n\n7 go forward. And by exercising the jurisdiction over those\n\n8 claims not covered by shared insurance, the court made the\n\n9 wrong legal conclusion.\n\n10 JUDGE SCIRICA: Has there been substantial compliance?\n\n11 MS. DUMAS: No, I believe that -- no. As for\n\n12 equitable mootness, you mean? The substantial consummation?\n\n13 JUDGE SCIRICA: Which is the better way to look at\n\n14 this, the equitable mootness doctrine or the statutory\n\n15 mootness?\n\n16 MS. DUMAS: Either way, I believe that neither of\n\n17 those theories applies here. There has not been substantial\n\n18 consummation of the plan, because even though it went\n\n19 effective, that three-part statutory test that the court uses\n\n20 to decide if there is substantial consummation -- the elements\n\n21 of that have not been met. Because the first step is, have\n\n22 all, or substantially all, of the assets been transferred? And\n\n23 so far, only forty percent of the assets have been transferred.\n\n24 That's obviously not substantial; that isn't even the majority.\n\n25 JUDGE SCIRICA: Where does the escrow fit in?\n\n Veritext Legal Solutions\n 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830\n\f Page 14\n\n1 MS. DUMAS: And then the escrow. There's -- the\n\n2 11th -- 10th circuit case that the Appellees cited for that was\n\n3 factually different than here, because in that case, money had\n\n4 been put into escrow, but title had transferred to the Trustee.\n\n5 Title to this escrow money has not transferred yet, because\n\n6 it's subject to being returned to the settling insurers if the\n\n7 case is modified on appeal -- or reversed -- modified or\n\n8 reversed on appeal. So therefore, that money that is in escrow\n\n9 is not under the management control of the Trustee, the\n\n10 successor. So those are the first two steps of substantial\n\n11 compliance that have not been met. Even not meeting one of\n\n12 those is enough to find no substantial consummation, but two of\n\n13 them is certainly a death knell. And then the third one,\n\n14 JUDGE RENDELL: Would you agree that, by definition,\n\n15 transfer, under the Code, includes every mode direct, indirect,\n\n16 absolute, or conditional, and that this transfer into escrow\n\n17 was a conditional transfer, which satisfies the definition of\n\n18 transfer.\n\n19 MS. DUMAS: Well, there's a lot of assets that simply\n\n20 have not been transferred. The money from the settling\n\n21 insurers is the bulk of it.\n\n22 JUDGE KRAUSE: But I'm talking about the definition of\n\n23 transfer. You would agree, would you not, that the -- what's\n\n24 in escrow has been transferred by -- under the Code.\n\n25 MS. DUMAS: I believe that because it's conditioned to\n\n Veritext Legal Solutions\n 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830\n\f Page 15\n\n1 return, that it hasn't actually been transferred even under the\n\n2 Code's definition because that money isn't -- the estate has no\n\n3 control over that money in escrow. And it is going to go back\n\n4 to the settling insurers. I think that by making it\n\n5 conditional on the outcome of the appeal, the appellees have\n\n6 waived any arguments about statutory or equitable mootness,\n\n7 because they're going to get the money back. The terms of the\n\n8 plan are consistent with finding no substantial consummation,\n\n9 because the money is not just going to be sitting there waiting\n\n10 for the outcome, but is going to go back to the settling\n\n11 insurers if the plan is modified.\n\n12 JUDGE KRAUSE: I want to make sure we're using the\n\n13 same, consistent terminology, because we've talked about\n\n14 equitable mootness as including substantial consummation, the\n\n15 unscrambling, and the reliance interests. But it sounds like\n\n16 when you're talking about substantial consummation, you're\n\n17 talking about that in terms equivalent to the application of\n\n18 equitable mootness itself. I mean --\n\n19 MS. DUMAS: Because I don't believe the substantial\n\n20 consummation concept applies to statutory mootness. The\n\n21 statutory mootness, I think, is also not a good theory here.\n\n22 Neither one of them are a good theory for the fundamental\n\n23 reason that no case is moot if effective relief is possible,\n\n24 and effective relief is possible here. So I don't even think\n\n25 we get to the, sort of, substance of the mootness arguments.\n\n Veritext Legal Solutions\n 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830\n\f Page 16\n\n1 Or at least they are secondary to the fact that the cases still\n\n2 shouldn't be dismissed, because relief is possible. But for\n\n3 the statutory mootness, I believe Section 363(m) does not apply\n\n4 anyway, because the sale is not complete.\n\n5 The sale is contingent to be reversed. So again, the\n\n6 terms of that sale contract are consistent with the appellate\n\n7 process. And then, of course, the sale was not a 363 sale,\n\n8 because it was part of the confirmation process. It was not\n\n9 done under Section 363. There was no notice. There was no\n\n10 separate sales order. It was all -- and it wasn't to a third-\n\n11 party. The sale was done only in the confirmation process and\n\n12 included -- incorporated into the confirmation order and the\n\n13 plan itself.\n\n14 JUDGE KRAUSE: But we've already held, in cases like\n\n15 Energy Future Holdings, that being part of the plan itself\n\n16 doesn't take a sales order outside the context of 363, right?\n\n17 MS. DUMAS: That is the holding of Energy Futures.\n\n18 But Energy Futures is factually different because that sale was\n\n19 complete. There was a separate 363 sales hearing and order,\n\n20 that was later incorporated into the plan, but it was still a\n\n21 separate 363 sale. This one --\n\n22 JUDGE KRAUSE: Here, the confirmation order itself --\n\n23 the bankruptcy court says that it's -- the settling insurers\n\n24 are good faith purchasers for value under a 363(m). It seems\n\n25 to have thought it was authorizing the sale pursuant to 363(b),\n\n Veritext Legal Solutions\n 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830\n\f Page 17\n\n1 right?\n\n2 MS. DUMAS: It did, but Section 363 is not that broad.\n\n3 It can't be completely engrafted into plan confirmations and\n\n4 used to protect any plan, no matter how unlawful, no matter how\n\n5 much it contradicts something. It can't be used that broadly\n\n6 to insulate any bankruptcy plan from appellate relief just\n\n7 because it includes a sale. That would abrogate the appellate\n\n8 court's Article 3 powers to effectively supervise bankruptcy\n\n9 court decisions.\n\n10 JUDGE KRAUSE: Why do we have to talk here about its\n\n11 effect on the plan? Aren't we focusing -- can't we just focus\n\n12 on the particular sale that's being challenged? That is, the\n\n13 buybacks, where the application on the merits of Purdue would\n\n14 mean that the consideration in that transaction was voided,\n\n15 which would necessarily affect the validity of the sale. Why\n\n16 isn't this much more narrow, talking about the sale itself\n\n17 rather than opining about broad consequences? Here, it happens\n\n18 to be that that sale is the centerpiece of the plan, but why\n\n19 would this be generalized to its effect on all plans?\n\n20 MS. DUMAS: Taken to its logical conclusion, that\n\n21 would be the outcome. But even here, again, we're not\n\n22 appealing the sale. We're appealing the plan. The sale is\n\n23 part of it. There's a big argument. Is it the nonconsensual\n\n24 third-party releases that are the cornerstone of the plan?\n\n25 Well, or -- I mean, the sale itself is not the cornerstone of\n\n Veritext Legal Solutions\n 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830\n\f Page 18\n\n1 the plan. It provides a great deal of funding for the plan,\n\n2 but the key to the plan are these nonconsensual releases that\n\n3 Purdue said are per se impermissible. And I don't think you\n\n4 can look to an incompleted, contingent sale, to then leapfrog\n\n5 to the point of saying those incomplete, contingent sales can\n\n6 somehow protect clearly unlawful, nonconsensual third-party\n\n7 releases. My red light is on. Anything? Okay.\n\n8 JUDGE KRAUSE: Thank you.\n\n9 MS. LUJAN WOLFF: May it please the Court. I'm Delia\n\n10 Lujan Wolff. I'd like to reserve five minutes of rebuttal\n\n11 time. I represent the Lujan Claimants, who are seventy-five\n\n12 individuals who brought pre-petition lawsuits against the Boy\n\n13 Scouts of America, the Aloha Council, and other nondebtors,\n\n14 including Doe insurers. And under Purdue, this plan is clearly\n\n15 unlawful. Nobody can bargain away my clients' claims without\n\n16 their consent. Not even other survivors more interested in\n\n17 achieving their own sense of finality at the expense of my\n\n18 clients and other survivors. This case is not equitably or\n\n19 statutorily moot. Purdue fully applies to the plan. And\n\n20 just -- if I could just start with equitable mootness. That\n\n21 doctrine does not apply. Clearly, as stated earlier, most of\n\n22 the property has not been transferred. It's in escrow with --\n\n23 it hasn't been transferred to the trust. It's in escrow for a\n\n24 purpose: to allow for the return if the plan is reversed on\n\n25 appeal or modified in some way.\n\n Veritext Legal Solutions\n 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830\n\f Page 19\n\n1 JUDGE KRAUSE: Well, a number of our cases seem to\n\n2 look at that first step as, essentially, the definition of\n\n3 substantial consummation within the statute. And I mean,\n\n4 granted, there are then other steps that we need to look at and\n\n5 look at carefully, including third-party reliance and what that\n\n6 means here. But focusing just on that first step and what\n\n7 substantial consummation means, haven't all, or substantially\n\n8 all, of the assets been transferred under the definition of\n\n9 these terms in the Bankruptcy Code?\n\n10 MS. LUJAN WOLFF: No, because there's a difference\n\n11 between the 189 million dollars that was actually transferred\n\n12 to the settlement trust, the ultimate destination of the\n\n13 property, and the $1.4 billion that's been held in escrow. And\n\n14 that is not the ultimate destination. So there is a difference\n\n15 between --\n\n16 JUDGE KRAUSE: Where, in the statutory definition, is\n\n17 there anything about the ultimate destination? I mean, to the\n\n18 contrary, doesn't it refer to interest being transferred when\n\n19 it's still -- it's contingent, it's conditional, even partial?\n\n20 MS. LUJAN WOLFF: Well, I can't answer that now, Your\n\n21 Honor, but the -- we've cited case law in our briefs, which\n\n22 makes clear that even when it's in escrow, that is not a\n\n23 transfer for substantial consummation purposes, when looking at\n\n24 the equitable mootness doctrine. And it also --\n\n25 JUDGE RENDELL: Isn't the common sense meaning of\n\n Veritext Legal Solutions\n 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830\n\f Page 20\n\n1 transfer that you part with -- you are parting with the\n\n2 property. You are getting it away from you. You're\n\n3 transferring it. As Judge Krause said, it doesn't really say\n\n4 ultimate destination, they have parted with it. They no longer\n\n5 have it. You have transferred it. What is it that says\n\n6 ultimate destination is required?\n\n7 MS. LUJAN WOLFF: It doesn't explicitly say that, but\n\n8 there's a difference between what has been actually moved. And\n\n9 in this case, I mean, what's in escrow is -- to ignore the\n\n10 purpose of escrow -- the point of it is so that the Trustee\n\n11 doesn't get it. That's why it's in escrow, so that the Trustee\n\n12 doesn't get it. And so we don't have that. We don't have --\n\n13 we obviously don't have control -- that's the second\n\n14 requirement for substantial consummation by the Trustee of all\n\n15 these assets, including those escrowed funds.\n\n16 The equitable mootness doctrine conflicts with recent\n\n17 Supreme Court case law, MOAC Mall. We have the court there\n\n18 looking at 363(m), a statute which explicitly limits relief on\n\n19 appeal. The court said there that judicial power over the\n\n20 covered authorization still needs to proceed. It takes it as a\n\n21 given, even when you have an express statute limiting relief.\n\n22 In order to limit adjudicatory capacity of appellate courts,\n\n23 there has to be clear intent by Congress to make it a\n\n24 jurisdictional limitation, which 363(m) is not. With equitable\n\n25 mootness, there's no statutory basis, or other legal basis, at\n\n Veritext Legal Solutions\n 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830\n\f Page 21\n\n1 all to support limiting the court's adjudicatory capacity. It\n\n2 also limits --\n\n3 JUDGE RENDELL: But that is our precedent. Our\n\n4 precedent recognizes equitable mootness doctrine, does it not,\n\n5 in our Court?\n\n6 MS. LUJAN WOLFF: It recognizes it, but the Court has\n\n7 the power to change precedent if it conflicts with Supreme\n\n8 Court case law. And it does. It conflicts with MOAC Mall, as\n\n9 well as Purdue Pharma. In Purdue, the court stated that policy\n\n10 is for Congress to decide and not for the courts. The\n\n11 arguments -- the prudential considerations that were raised in\n\n12 Purdue mirror those that are raised by the appellees and amici\n\n13 here. And so in Purdue, those prudential considerations of\n\n14 fairness were rejected as not overriding the statutory scheme,\n\n15 that only a debtor gets a discharge.\n\n16 JUDGE KRAUSE: On the other hand, the Supreme Court\n\n17 has had the opportunity to take up equitable mootness. Maybe\n\n18 it will again, but as of now, it hasn't squarely addressed it.\n\n19 And we have our own circuit precedent on that doctrine,\n\n20 notwithstanding some criticism on occasion, but since we have\n\n21 to apply it absent en banc review, take us to the next piece of\n\n22 the analysis. That is, if we are looking at transfer and\n\n23 substantial consummation as satisfied, given the low bar that\n\n24 seems to be set by the terms of the statute, if we look to the\n\n25 statutory definition. What do we do when we get to third-party\n\n Veritext Legal Solutions\n 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830\n\f Page 22\n\n1 reliance and whose reliance is relevant for those purposes?\n\n2 MS. LUJAN WOLFF: The Third Circuit has made clear\n\n3 that it's primarily outside investors. When securities have\n\n4 been issued in the case -- and there has to be clear evidence.\n\n5 There has to be evidence, on the record, of outsider reliance\n\n6 and significant harm that would be suffered by these outsiders.\n\n7 And in this case, we only have self-serving speculation offered\n\n8 by the appellees. We have some survivor amici who've come\n\n9 forward, who are creditors. They are parties in interest, who\n\n10 had the opportunity to -- they participated in the process.\n\n11 They're not outsiders. The appellees have just -- they've\n\n12 said, we've done these transactions, but they've not come up\n\n13 with any declarations or affidavits from any outside investors,\n\n14 or anyone other than their financial consultant, who is not an\n\n15 outsider, to show that they relied on this plan and that they\n\n16 would be harmed if there was some modification or reversal.\n\n17 JUDGE KRAUSE: What precludes consideration of the\n\n18 extent of distribution that's already occurred? If we look at\n\n19 the number of claimants who have come forward for the expedited\n\n20 distribution procedures, or under the matrix, or those who have\n\n21 put in their questionnaires and their documentation, what role\n\n22 should their reliance play?\n\n23 MS. LUJAN WOLFF: So the Debtors had the burden to\n\n24 prove that funds that have been distributed cannot be\n\n25 disgorged, that things could not be retracted, but they've\n\n Veritext Legal Solutions\n 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830\n\f Page 23\n\n1 utterly failed to meet that burden. Even the survivors who\n\n2 have come forward have not stated that the funds that they\n\n3 received could not be returned. And so there's a complete lack\n\n4 of evidence that funds given cannot be disgorged. Nobody who's\n\n5 received has said that they cannot give back. And so it's\n\n6 total speculation on the part of the appellees. The Third\n\n7 Circuit has looked at disgorgement of what's been given, even\n\n8 to creditors, and found that that doesn't mean equitable\n\n9 mootness applies. I mean, it can be disgorged and --\n\n10 MS. RENDELL: Let's say, what would happen as a\n\n11 practical matter if this plan were overturned? There would be\n\n12 a liquidation, would there not? I mean, we now have a\n\n13 reorganized debtor, with the Boy Scouts of America functioning.\n\n14 We have new directors. We have institutions that are\n\n15 operating. What would happen, as a practical matter, if this\n\n16 plan were undone?\n\n17 MS. LUJAN WOLFF: So before I answer that, it's also\n\n18 possible that the whole plan does not have to be undone. But\n\n19 in the event that the Court decides to undo --\n\n20 JUDGE RENDELL: What -- Wait. What would that look\n\n21 like? What are you saying would happen? What happens here?\n\n22 MS. LUJAN WOLFF: If the plan is not completely\n\n23 undone? Well, that would be granting limited relief to the\n\n24 Lujan Claimants. That could be in the form of striking certain\n\n25 releases so that the Lujan claimants could proceed, for\n\n Veritext Legal Solutions\n 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830\n\f Page 24\n\n1 example, against --\n\n2 JUDGE RENDELL: You're asking for partial relief or\n\n3 are you asking for the plan to be undone? I'm confused. I\n\n4 thought you wanted the plan to be undone, the confirmation\n\n5 order to be reversed?\n\n6 MS. LUJAN WOLFF: We've asked for reversal, but we've\n\n7 also asked for modification of the plan. And we've identified\n\n8 JUDGE RENDELL: What would happen if it were reversed?\n\n9 Your theory is that it should be reversed because the releases\n\n10 are unconstitutional, et cetera. So if that happens, what does\n\n11 it look like?\n\n12 MS. LUJAN WOLFF: If the plan is reversed, then\n\n13 there's already precedent -- I mean, the default -- I guess the\n\n14 general rule is that when a judgment is reversed, you go back\n\n15 to the prejudgment status and --\n\n16 JUDGE KRAUSE: So all the money gets returned. And\n\n17 now the -- there will be suits left and right against the\n\n18 institutions, the local chapters, et cetera. I mean, is that\n\n19 really what's going to happen? I mean, it's going to implode,\n\n20 is it not?\n\n21 MS. LUJAN WOLFF: No, it's not going to implode.\n\n22 Because even the Boy Scouts had testimony that a BSA-only plan,\n\n23 where only the BSA, the Boy Scouts of America, gets a\n\n24 discharge, is feasible, that it's something that remains on the\n\n25 table. And so if this plan is reversed, then the Third Circuit\n\n Veritext Legal Solutions\n 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830\n\f Page 25\n\n1 has recognized that a so-called reorganized debtor can go\n\n2 back -- goes back into being a debtor in bankruptcy, if it's\n\n3 reversed, and they have to come up with, under Purdue, a BSA,\n\n4 Boy Scouts-only, discharge plan. And under Purdue, that's\n\n5 appropriate. And so yes, there may be lawsuits filed against\n\n6 nondebtors, but that's not something for bankruptcy courts to\n\n7 resolve.\n\n8 And so the Boy Scouts went forward with this plan,\n\n9 knowing since 2021 that these channeling injunctions barring\n\n10 nondebtor claims were highly doubtful. That's what Hartford,\n\n11 in a letter, sent to the Boy Scouts. That's what they said,\n\n12 that it's highly doubtful that these channeling injunctions\n\n13 will be granted, because the liability of the nondebtors\n\n14 appeared to be direct and not derivative of the Boy Scouts'\n\n15 liability. And so we have the Debtor, we have these appellees,\n\n16 everyone here participated in the process, knowing that there\n\n17 was a high chance, not even just looking at the circuit split,\n\n18 but that that these were direct claims and not derivative\n\n19 claims. And so they took a chance. And that's why we're here\n\n20 today. This case progressed against the backdrop of Purdue\n\n21 Pharma -- Judge McMahon in Purdue --\n\n22 JUDGE RENDELL: There was no -- but the cert petition\n\n23 wasn't even filed at the time that the plan was confirmed. And\n\n24 I don't know, I mean, I was a bankruptcy practitioner. Third-\n\n25 party releases are really, really helpful in bankruptcy cases.\n\n Veritext Legal Solutions\n 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830\n\f Page 26\n\n1 And sure, there's always been a question, but there's been a\n\n2 question about a lot of things. And Purdue really came down\n\n3 pretty hard. It's going to be interesting what it does in\n\n4 bankruptcy practice. But I don't think you can say that\n\n5 everybody knew it was writing on the wall here.\n\n6 MS. LUJAN WOLFF: Well, even not looking to the\n\n7 statutory authority, they knew from prior case law that when a\n\n8 survivor of abuse files a lawsuit against the Boy Scouts, or a\n\n9 local council, or a chartered organization, that oftentimes the\n\n10 Boy Scouts -- there'd be a different result for the Boy Scouts\n\n11 of America, the local councils, and the chartereds. The\n\n12 chartered organization could be found liable, but not the Boy\n\n13 Scouts of America. The local council could be found liable,\n\n14 but not the Boy Scouts of America, and vice versa. And so --\n\n15 JUDGE KRAUSE: Even so, why doesn't that just make\n\n16 this appropriate for 363(m), where what we're looking to is a\n\n17 narrow consideration of the particular sales, at issue here\n\n18 with the buybacks, in exchange for the third-party releases?\n\n19 And Congress has provided -- so we're not turning to a broad,\n\n20 equitable mootness doctrine or expanding the realm of third-\n\n21 party interests but just looking to the good faith of the\n\n22 purchaser. And we have a finding here, right, from the\n\n23 bankruptcy court, that the insurers were good faith purchasers.\n\n24 MS. LUJAN WOLFF: At the outset, it's important to\n\n25 note that the sales of the policies are only -- it's very\n\n Veritext Legal Solutions\n 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830\n\f Page 27\n\n1 limited. The sales of the policies are only of policies that\n\n2 were bought by the Boy Scouts of America, the BSA abuse\n\n3 insurance policies, and the policies that were bought by the\n\n4 local councils, not any policies that were bought -- separate\n\n5 policies that were bought by chartered organizations or Roman\n\n6 Catholic entities that are not chartered organizations.\n\n7 JUDGE KRAUSE: Aren't they assigned?\n\n8 MS. LUJAN WOLFF: I'm sorry?\n\n9 JUDGE KRAUSE: Weren't the others assigned?\n\n10 MS. LUJAN WOLFF: They were not actually assigned.\n\n11 There's no actual written assignment by anyone. The insurance\n\n12 settlements simply endowed settling insurers with injunctions,\n\n13 so that survivors couldn't sue a chartered organization if the\n\n14 settling insurer happened to have sold separate insurance\n\n15 policies to the chartered organization, and the Boy Scouts\n\n16 didn't share any interest or rights of coverage under that.\n\n17 And so --\n\n18 JUDGE KRAUSE: I understand your argument that you\n\n19 raised in your brief, because you assert, at page 30 of the\n\n20 supplemental brief, that the local councils and chartered\n\n21 organizations' insurance rights will be assigned to the trust\n\n22 in the future. But the plan seems to provide that that's part\n\n23 of the -- that the interests that are vested in the trust as of\n\n24 the effective date.\n\n25 MS. LUJAN WOLFF: So under the plan, if no one comes\n\n Veritext Legal Solutions\n 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830\n\f Page 28\n\n1 forward to object, then it's somehow an assignment or a\n\n2 transfer. Actually, I wouldn't concede that, because actually,\n\n3 it's an assignment, at most, of their interest in the policies\n\n4 and not actually an assignment of their separate policies, the\n\n5 chartered organizations' or the Roman Catholic entities'. I\n\n6 don't believe that those are being assigned. But settling\n\n7 insurers just gave themselves additional protections, including\n\n8 when the Roman Catholics dropped their objection during the\n\n9 confirmation hearing and then enjoyed the benefits of nobody\n\n10 getting to sue them if a settling insurer happened to have\n\n11 provided them with their separate insurance policy. They\n\n12 contributed nothing. The money that was paid on the insurance\n\n13 sales remained the same before the settlement and after.\n\n14 And so what we have here -- it's important to remember\n\n15 that these sales are only sales of Boy Scouts and local council\n\n16 policies. And yet, the insurance settlements go beyond that,\n\n17 and they take away survivors' claims, based on the settling\n\n18 insurers' provision of insurance to chartered organizations and\n\n19 Roman Catholic entities. Those are not being assigned.\n\n20 And so if 363(m) does apply, which I would like to\n\n21 argue that it does not. But even if we were to assume that it\n\n22 does apply, built into the insurance settlements, is that even\n\n23 if the confirmation plan is reversed, or the plan doesn't go to\n\n24 a final nonappealable order, they argued in their reply briefs,\n\n25 in support of their motion to dismiss, that if that's the case,\n\n Veritext Legal Solutions\n 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830\n\f Page 29\n\n1 then the sales remain valid, but they get back the $700 -- or\n\n2 in Century's case, they get back the $750 million. So they get\n\n3 -- the settling insurers if the plan doesn't go to a final,\n\n4 nonappealable order, they get back the escrowed funds, because\n\n5 they say that they get less protection now, and because they're\n\n6 getting the escrowed funds back and it's not going to the\n\n7 trust, they do not become Protected Parties under the plan.\n\n8 That means, under these insurance settlements, built\n\n9 into it already is that the settling insurers do not become\n\n10 Protected Parties. They are exposed to suit. They are\n\n11 survivors. Like, my clients would be able to directly sue\n\n12 them, because we have rights of direct action. Only if they\n\n13 are Protected Parties are they protected by the injunctions.\n\n14 JUDGE RENDELL: Does \u2013 go ahead.\n\n15 JUDGE SCIRICA: And you said that Section 363(m)\n\n16 doesn't apply. Could you explain that?\n\n17 MS. LUJAN WOLFF: Yes. So 363(m) does not apply,\n\n18 because this is a plan sale. The sales, the insurance\n\n19 settlements, were completely dependent on one order and that\n\n20 being a confirmation order. Unlike Energy Future Holdings,\n\n21 there was no separate pre-confirmation order that was tied to\n\n22 the plan. And so the Third Circuit, I believe it was ICL is\n\n23 one of the cases, but the Third Circuit has stated, on more\n\n24 than one occasion, that a 363(b) or (c) sale is a sale outside\n\n25 of a plan of reorganization. Section 363 itself\n\n Veritext Legal Solutions\n 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830\n\f Page 30\n\n1 distinguishes -- if we were to interpret Section 363, it\n\n2 distinguishes between a sale of property under Subsection (b)\n\n3 or (c), and a sale of property under a Chapter 11 plan. And\n\n4 Subsection (l) of Section 363, it specifically identifies these\n\n5 as different transactions.\n\n6 It says that a trustee can sell property under\n\n7 Subsection (b) or (c), or a plan under Chapter 11 can provide\n\n8 for the sale of property. And so the only way to interpret\n\n9 this, and not render the language superfluous or insignificant,\n\n10 is to interpret Section 363 as saying that these are two\n\n11 different transactions. A plan sale, which is under Section\n\n12 1123, is not a sale which is under Subsection (b) or (c). And\n\n13 that interpretation is supported by the Ditech Holding case,\n\n14 which is a Southern District of New York case. I believe that\n\n15 was 2019. And in that case, the court interpreted Subsection\n\n16 (o) of Section 363. And Subsection (o) -- what's important\n\n17 about that, is that, originally, when Congress was adding\n\n18 Subsection (o) to Section 363, the original language said that\n\n19 this section would apply to a transfer by a trustee or a\n\n20 transfer under a Chapter 11 plan. And Congress decided to\n\n21 remove reference to transfer under a plan, and then kept only\n\n22 that Subsection (o) applies to a sale under Subsection (b) or\n\n23 (c). And the Ditech court interpreted that to mean that a sale\n\n24 under Subsection (b) or (c) is not -- that Subsection (o) does\n\n25 not apply to a plan sale but only to Subsection (b) or (c)\n\n Veritext Legal Solutions\n 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830\n\f Page 31\n\n1 sales, which this is not. The sales here are not outside a\n\n2 plan. They are squarely within the plan and dependent on plan\n\n3 confirmation.\n\n4 JUDGE KRAUSE: In both Energy Future Holdings and\n\n5 Cinacola v. Scharffenberger a sale within a plan can also\n\n6 qualify under 363, right? And we've already crossed that\n\n7 bridge, haven't we?\n\n8 MS. LUJAN WOLFF: No, I don't think so. First of all,\n\n9 these statutory arguments have never been raised. I think I'm\n\n10 probably the first to raise it. I've never -- I haven't seen\n\n11 it. And so the court didn't analyze the language of Section\n\n12 363, in light of Subsection (l) or even of Subsection (o). And\n\n13 so I think from the statutory construction, it's clear that\n\n14 these are different transactions. If it's a plan, a sale under\n\n15 a plan -- and it doesn't even say Section 1123 in Subsection\n\n16 (l) or Subsection (o) in the original language of Subsection\n\n17 (o). It talks about plan transfers, plan sales. And these are\n\n18 different transactions, as Congress knew when to include\n\n19 transfers or sales under a plan. They knew when to include it.\n\n20 They knew when to exclude it. And with Subsection (m), they\n\n21 decided to not include sales or transfers under a Chapter 11\n\n22 plan. Subsection (m) only applies, therefore, to sales outside\n\n23 of a reorganization plan, Subsection (b) or (c).\n\n24 JUDGE KRAUSE: Thank you.\n\n25 Do you have other questions Judge Scirica?\n\n Veritext Legal Solutions\n 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830\n\f Page 32\n\n1 JUDGE SCIRICA: No.\n\n2 JUDGE KRAUSE: Judge Rendell?\n\n3 MS. LUJAN WOLFF: I'm sorry.\n\n4 JUDGE RENDELL: I'm all set.\n\n5 JUDGE KRAUSE: Okay.\n\n6 MS. LUJAN WOLFF: My time is up? Thank you.\n\n7 JUDGE KRAUSE: Yes. We'll hear from you in rebuttal.\n\n8 MR. BAIO: Thank you. May it please the Court, I'm\n\n9 Joseph Baio, arguing on behalf of the Certain Insurers. And\n\n10 Your Honor, with your permission, I will reserve two minutes\n\n11 for rebuttal.\n\n12 JUDGE KRAUSE: Granted.\n\n13 MR. BAIO: Also, I will divide this presentation into\n\n14 two parts: the equitable and statutory mootness as to our\n\n15 appeals first, and then the merits of our appeals second, if\n\n16 that works.\n\n17 JUDGE KRAUSE: That's fine. Go ahead.\n\n18 MR. BAIO: So on the equitable and statutory mootness,\n\n19 Your Honor, I begin by focusing on the unique aspect of the\n\n20 insurers' appeals in this case. We are not seeking to\n\n21 unscramble the plan. We are not seeking to unwind existing\n\n22 transactions that have already occurred. We are simply asking\n\n23 for specific relief that will address the fact that this plan\n\n24 does not preserve, and in fact decreases, our contractual\n\n25 rights and expands the Trustee's rights in violation of the\n\n Veritext Legal Solutions\n 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830\n\f Page 33\n\n1 law.\n\n2 JUDGE KRAUSE: Can we look so narrowly at -- for just\n\n3 the language you'd like to add, don't we need to look at the\n\n4 effect on the plan as a whole and whether that's going to be\n\n5 viewed as a modification of the plan? What consequence would\n\n6 that have, for example, for funds in escrow?\n\n7 MR. BAIO: Well, I think we have no impact on the\n\n8 funds in escrow, Your Honor. That is, if our relief is\n\n9 granted, that does not trigger the return of the money. In\n\n10 fact, the settling insurers did not say that our relief will\n\n11 adversely affect their right to proceed. They don't say that\n\n12 in their brief. And there's a very good reason, because we are\n\n13 not trying to, or seek, and there isn't a repercussion that\n\n14 from our relief, there would be an unwinding of that\n\n15 transaction. That's just not in the cards.\n\n16 Now Tribune teaches us that, really, you look at each\n\n17 party's appeal, and you make an evaluation of whether, in one\n\n18 case, it's equitably moot because they're seeking to scramble\n\n19 the plan. And they're interfering with third-party rights and\n\n20 other consequences. And at the same time, they look at another\n\n21 appellant, who is not seeking that relief, to evaluate whether\n\n22 equitable mootness is appropriate or not.\n\n23 JUDGE RENDELL: Mr. Baio?\n\n24 MR. BAIO: Yes, Your Honor.\n\n25 JUDGE RENDELL: It's my understanding that you want it\n\n Veritext Legal Solutions\n 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830\n\f Page 34\n\n1 to be crystal clear that the obligations under the insurance\n\n2 policies continue?\n\n3 MR. BAIO: Well, it's not, it's --\n\n4 JUDGE RENDELL: Doesn't the plan explicitly assign all\n\n5 rights and obligations under the insurance policies at Appendix\n\n6 1017 and 1033? Isn't the relief you want really already in the\n\n7 plan?\n\n8 MR. BAIO: Your Honor.\n\n9 JUDGE RENDELL: We need to understand -- maybe we need\n\n10 to understand better exactly what you want.\n\n11 MR. BAIO: Very good.\n\n12 JUDGE RENDELL: If your appeal is granted, what will\n\n13 happen?\n\n14 MR. BAIO: Yes. Okay, Your Honor. First of all, the\n\n15 plan, in the definition of the insurance assignment, which is\n\n16 plan -- paragraph 157 -- It only refers to the rights, claims,\n\n17 benefits, or causes of action of the debtors, and it does not\n\n18 talk about and does not include the word obligations that they\n\n19 would have. The point of that, and really the proof of the\n\n20 pudding, is in the lawsuit that has already begun by the\n\n21 Trustee. The Trustee cites, at paragraph 110 of her complaint,\n\n22 that this exact language: the rights, claims, benefits, causes\n\n23 of action have been assigned, and then, in a footnote, footnote\n\n24 2, lays out the exact language. Nowhere is there any\n\n25 recognition in that pleading that the insurers have rights and\n\n Veritext Legal Solutions\n 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830\n\f Page 35\n\n1 have defenses that are available to them. In fact, there is a\n\n2 later paragraph that affirmatively says that we don't have\n\n3 those rights.\n\n4 JUDGE KRAUSE: Well, isn't that because that's just\n\n5 the default background rules of bankruptcy law? Why does that\n\n6 need to be spelled out explicitly in the plan?\n\n7 MR. BAIO: Well, there are a couple of problems with\n\n8 the language I just read. First of all, it violates the cum\n\n9 onere principle, which is set forth in Third Circuit case law.\n\n10 That is, you may not transfer, from the debtor to the trustee,\n\n11 anything other than the rights and the obligations that must be\n\n12 transferred. What the trial court did, what the bankruptcy\n\n13 court did was say, well, I'm going to approve this transfer,\n\n14 which doesn't talk about obligations, but I can't say, as a\n\n15 matter of bankruptcy law, whether that's permissible. That's\n\n16 on pages 249 to 252 of the bankruptcy court decision. She\n\n17 says, that's not up to me. Well, but we say, of course it is.\n\n18 It is a bankruptcy provision that says that you may not\n\n19 transfer. That's the American Home case. You cannot transfer\n\n20 the rights without the obligations. That's what we asked the\n\n21 court to say. What the Court said was, I can't address that.\n\n22 I can't tell you what was actually assigned. I'm going to\n\n23 leave that to the coverage court. But that's not a coverage\n\n24 court issue.\n\n25 JUDGE RENDELL: I'm looking at Appendix 1017.\n\n Veritext Legal Solutions\n 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830\n\f Page 36\n\n1 MR. BAIO: Yes, Your Honor, let me get that if I can.\n\n2 JUDGE RENDELL: (c).\n\n3 MR. BAIO: 1017(c) Yes.\n\n4 JUDGE RENDELL: Yes. And also 1033.\n\n5 MR. BAIO: And 1033. Yes, Your Honor.\n\n6 JUDGE RENDELL: It says rights -- I'm down at about\n\n7 halfway down (c), rights and obligations, and under 1033,\n\n8 Article 10. Rights and obligations. Why is that not\n\n9 sufficient?\n\n10 MR. BAIO: Well, Your Honor, what (c) does -- it talks\n\n11 about the bankruptcy court has authorized the insurance\n\n12 assignment. Okay. Let's start with that. The insurance\n\n13 assignment is only about rights. When you look at that term in\n\n14 the plan, paragraph 157, it doesn't talk about obligations. It\n\n15 only talks about the rights of the --\n\n16 JUDGE RENDELL: Well --\n\n17 MR. BAIO: No, and I'll go on.\n\n18 JUDGE RENDELL: Yes. \"The rights and obligations, if\n\n19 any, of any nonsettling insurance companies, relating to these\n\n20 TDP, or any other, shall be determined pursuant to the terms\n\n21 and provisions of the insurance policies and the applicable\n\n22 law.\"\n\n23 MR. BAIO: Except it doesn't stop there, Your Honor.\n\n24 It then goes and says, \"and subject to the plan and\n\n25 confirmation order.\" So now all of the insurers --\n\n Veritext Legal Solutions\n 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830\n\f Page 37\n\n1 JUDGE RENDELL: Do we have anywhere, a proposed\n\n2 modification of the plan --\n\n3 MR. BAIO: Yes.\n\n4 JUDGE RENDELL: -- that you want to put in here at\n\n5 (c), or that you want to put in at Article 10?\n\n6 MR. BAIO: Yes.\n\n7 JUDGE RENDELL: Do we have a sentence or a statement,\n\n8 or something that you want to insert?\n\n9 MR. BAIO: Absolutely, Your Honor, let's take first\n\n10 the assignment of insurance rights.\n\n11 JUDGE RENDELL: Where do I find that?\n\n12 MR. BAIO: Let's -- oh, it's in our briefs. We talk\n\n13 about removing the language, \"subject to the plan and\n\n14 confirmation order.\" It's simply striking that, because our\n\n15 rights and obligations cannot be subject to the plan, which is\n\n16 designed to do something else, which empowers the trustee to\n\n17 pursue the insurance companies. But the trustee, unlike the\n\n18 policyholder, has a fiduciary duty to the claimants. It must\n\n19 decide what to give the claimants, and has a great deal of\n\n20 discretion in doing that. So \"subject to the plan and\n\n21 confirmation order\" means that the trustee can argue, as she\n\n22 has, that, well, I'm acting pursuant to the plan when I dole\n\n23 out money to claimants, and I have a fiduciary duty to them.\n\n24 So therefore, you insurance companies must pay,\n\n25 irrespective of your defenses, irrespective of the conditions,\n\n Veritext Legal Solutions\n 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830\n\f Page 38\n\n1 irrespective of whether the trustee has complied with its\n\n2 obligations, where it's in the policy to cooperate, and\n\n3 otherwise by making it subject to the plan and the confirmation\n\n4 order, it has already diminished our rights. Because now the\n\n5 coverage court is told by the federal court, take these 600\n\n6 pages of documents and evaluate the extent to which they\n\n7 diminish the insurers' rights. So all of the language that's\n\n8 in here, that empowers the trustee, that says that the trustee\n\n9 is being -- must be fair and equitable in dealing with the\n\n10 claimants, to whom they have a fiduciary duty, well, that\n\n11 should have no part whatsoever in the decision as to whether\n\n12 there is coverage. Those are two separate things. And if the\n\n13 coverage court has to start evaluating, what did the\n\n14 confirmation order do? Because I'm told, by the federal court,\n\n15 that all of the rights of the insurers are subject to the\n\n16 confirmation order and the plan. Now, that's a burden that can\n\n17 only redound to the insurers' detriment. There's nothing in\n\n18 here that actually gives the insurers rights. It's all about\n\n19 what the trustee can do. So we have a diminution, as a matter\n\n20 of fact, by that language, to then say that --\n\n21 JUDGE RENDELL: Excuse me, sir. It sounds like you\n\n22 have a dispute with the Trustee.\n\n23 MR. BAIO: No.\n\n24 JUDGE RENDELL: As to what this language means. She's\n\n25 taking a certain position as to that. You have a different\n\n Veritext Legal Solutions\n 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830\n\f Page 39\n\n1 position. Sounds like a dispute that you have, as to the\n\n2 meaning of the terms contained in the plan.\n\n3 MR. BAIO: Well, it's not a difference, Your Honor.\n\n4 We're asking this Court to read the plan. And this Court --\n\n5 the language, just like it did in Combustion Engineering, where\n\n6 the court looked at the language, and it talked about claims on\n\n7 one hand, and it talked about rights on the other hand, and\n\n8 said, claims are less than rights. Therefore, you are not\n\n9 preserving the insurers' entitlements and defenses. So we, the\n\n10 Third Circuit -- you, the Third Circuit, will tell the\n\n11 bankruptcy court, you must change that language. You must\n\n12 revert to the broader language that affirmatively protects and\n\n13 preserves, fully -- is what the Combustion Engineering court\n\n14 said, preserve, fully, the rights of the insurance company.\n\n15 This is the opposite of that. You know, we've given\n\n16 you lots of language, Your Honor, from other cases. And by the\n\n17 way, you asked about others -- I can talk about the other two\n\n18 specific changes that appear in many, many plans that clearly\n\n19 protect the insurers. For example, our plan says that the\n\n20 rights of the insurers are subject to the plan and the\n\n21 confirmation order. That means that our rights can be\n\n22 diminished by whatever is in the plan and confirmation order.\n\n23 The decisions that we cited, although they didn't address\n\n24 whether it's appropriate or not, but they include the opposite\n\n25 language, notwithstanding anything in the plan or confirmation\n\n Veritext Legal Solutions\n 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830\n\f Page 40\n\n1 order comma, the insurers' rights remain preserved. That's\n\n2 what they said. That's what they say in Global Industrial.\n\n3 That's what was said in Federal-Mogul. That's what was said in\n\n4 Combustion Engineering. And Combustion Engineering says that\n\n5 there is a duty to preserve, fully, the rights of the insurers.\n\n6 This has done exactly the opposite.\n\n7 JUDGE KRAUSE: That's just the state of the law. I\n\n8 mean, it's well-settled that bankruptcy law isn't altering the\n\n9 parties' contractual rights. It's not to the extent that it\n\n10 would do something different than outside of the bankruptcy\n\n11 plan for these purposes, right? I mean, you seem to be --\n\n12 Combustion Engineering, the Court was taking out language and\n\n13 that had significance. So our instruction to put language in\n\n14 was to make clear that we were going back to the default\n\n15 principle. But why do you need a change in language in the\n\n16 plan here to just have the default background principle of\n\n17 bankruptcy law?\n\n18 MR. BAIO: Well, there is no -- the background\n\n19 principle in Mission, the Supreme Court decision, is that\n\n20 neither the debtor's rights under a contract expand, that the\n\n21 rights of the other party decrease, that the estate suddenly\n\n22 sits in a better position than the insured or the policyholder\n\n23 was in, as a result of bankruptcy. That's the principle.\n\n24 There is no alteration other than what is expressly identified\n\n25 in the Code, not in the plan, in the Code. So when the\n\n Veritext Legal Solutions\n 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830\n\f Page 41\n\n1 district court said that that you're not harmed by this\n\n2 language -- you'll see that on page 74 of the district court's\n\n3 decision -- because under the Code, you -- there is an\n\n4 overcoming of the anti-assignment provisions, therefore -- and\n\n5 says that's an example of one of the diminutions. It's the\n\n6 only diminution, in fact.\n\n7 But it says then that -- and that's why we say that\n\n8 the plan rules in determining what your rights are. But that\n\n9 makes no sense. The reason that we -- that there is an\n\n10 override of the anti-assignment provision, is because of the\n\n11 Code, not because of the plan. If they're simply trying to\n\n12 preserve the right that we cannot stand in the way of\n\n13 assignment of proper policies, naming the estate as a covered\n\n14 party or as the counter party, then we don't adversely affect\n\n15 the insurer. But you don't need the plan for that. That's a\n\n16 matter of law. That's a matter of Federal-Mogul. That's a\n\n17 matter of statute.\n\n18 So why do we then foist upon the coverage court, 600\n\n19 pages and 300 pages of decisional law where the court said, oh\n\n20 no, their rights are all subject to the plan and the\n\n21 confirmation order. In addition, we have affirmative evidence\n\n22 that there is a statement that we are bound, in the coverage\n\n23 court, by whatever happened in the bankruptcy proceeding.\n\n24 Well, that really isn't true. And what we're asking for is\n\n25 very narrow in terms of the relief involving the additional two\n\n Veritext Legal Solutions\n 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830\n\f Page 42\n\n1 points that we want to add. One of them is that anything that\n\n2 happened in the bankruptcy court is not res judicata as to\n\n3 whether there is coverage, period. That's what that language\n\n4 says.\n\n5 Now, we know that the FCR says, oh, that's not true.\n\n6 You're bound by what happened. Res judicata, collateral\n\n7 estoppel apply in the coverage action. No, it does not. We\n\n8 did not litigate anything in coverage. And all of the plans\n\n9 that I've identified in our in our briefs -- they have a\n\n10 provision that specifically says -- and Global Industrial lays\n\n11 it out in purple -- that there is no res judicata on coverage\n\n12 as a result of what happened. We're not saying that res\n\n13 judicata, in its entirety, disappears.\n\n14 The other element that we're asking for is, because\n\n15 the Trustee has actually awarded something to a claimant\n\n16 pursuant to the plan, that itself does not adversely affect us\n\n17 in the coverage court.\n\n18 Those are the only two additional provisions that we\n\n19 are asking for, and they were specifically proposed by the\n\n20 Debtor in this proceeding before they had to get 75 percent of\n\n21 the votes, or more, of the claimants who added this language.\n\n22 Even the bankruptcy court recognized that this was done at the\n\n23 request of the coalition of claimants. So another thing I have\n\n24 to mention, Your Honor, is the Truck Insurance decision, which\n\n25 came down after our briefing by the Supreme Court of the United\n\n Veritext Legal Solutions\n 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830\n\f Page 43\n\n1 States. What that Court says, of course, is that you can't use\n\n2 insurance neutrality adversely. You can't make that a barrier\n\n3 to recovery.\n\n4 But what you must do -- and they tell the Fourth\n\n5 Circuit -- you must do the following. And this is language\n\n6 directly from this court's finding, even though it was an\n\n7 appeal from the Fourth Circuit. When a debtor is reaching in\n\n8 the pockets of another, that party has the right to be heard\n\n9 and the right to have justified grievances addressed. It's not\n\n10 just being heard in the wilderness. And what the Truck court\n\n11 did was many things, but it said that there are a myriad ways\n\n12 in which insurers at specific insurer case can have their\n\n13 rights adversely affected, and they identify a bunch of them.\n\n14 And what they did was -- and by the way, that's a good faith\n\n15 case under 1129. The Court remanded it to the Fourth Circuit\n\n16 to reevaluate what they decided, based on the decision that was\n\n17 written, which identifies the practical effect on insurers.\n\n18 The reality that the motivations of the parties changed\n\n19 dramatically as a result of a bankruptcy. Before the\n\n20 bankruptcy, the policyholder has only -- has no duty to the\n\n21 claimants and only litigates adversely. No fiduciary duty and\n\n22 wants to minimize exposures. Once you go into bankruptcy, now,\n\n23 in these mass tort cases, there is suddenly a duty that runs\n\n24 from the trustee to the claimants. The claimants, who are part\n\n25 of the group -- and this is just a reality -- they want to\n\n Veritext Legal Solutions\n 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830\n\f Page 44\n\n1 maximize whatever they can get from the insurance company. The\n\n2 Court recognizes the realities that is the Truck court in\n\n3 evaluating what goes on. And they specifically say, as a\n\n4 result, you really have to pay attention to what this is doing\n\n5 to the insurers, the myriad ways in which this can have an\n\n6 adverse effect and evaluate that, and make a determination\n\n7 consistent with what our opinion is telling you.\n\n8 So we're not -- and that's -- to get back to equitable\n\n9 and statutory mootness. Statutory mootness, we're not doing\n\n10 anything with that transaction. The settling insurers\n\n11 understand it, and that's that. In terms of equitable\n\n12 mootness, which is supposed to be rarely granted, is an extreme\n\n13 exception to a court, an appellate court, addressing the merits\n\n14 of an appeal. The focus -- a good part of the focus, is what\n\n15 impact does it have on third parties that relied? Well, we\n\n16 don't want -- we heard about real estate transactions, we heard\n\n17 about donations, we don't want to touch any of that.\n\n18 So what we want is that very limited focused relief.\n\n19 And Judge Rendell, if I haven't made it clear what the language\n\n20 is, it is in -- specifically in our reply brief. Okay. Laid\n\n21 out. So I don't want there to be any confusion about how\n\n22 narrow it is, and how the language that we proposed actually\n\n23 was proposed by BSA, originally.\n\n24 JUDGE KRAUSE: I think we understand the argument.\n\n25 MR. BAIO: Thank you, Your Honor.\n\n Veritext Legal Solutions\n 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830\n\f Page 45\n\n1 MR. WINSBERG: Good morning, Your Honors. May it\n\n2 please the Court. Harris Winsberg on behalf of the Allianz\n\n3 Insurers. Our appeal concerns the Allianz Insurers' claims,\n\n4 including claims that were pending as of the bankruptcy filing,\n\n5 in an Illinois coverage case against other insurance companies,\n\n6 that had settled in the bankruptcy case, and how these\n\n7 inter-insurer claims are dealt with under the plan, and in\n\n8 particular, the judgment reduction clause that's found in\n\n9 paragraph 51 of the confirmation order.\n\n10 JUDGE KRAUSE: Can you tell us, to this point, how\n\n11 much have the Allianz Insurers actually accrued in excess\n\n12 claims --\n\n13 MR. WINSBERG: Your Honor --\n\n14 JUDGE KRAUSE: -- under the reduction clause?\n\n15 MR. WINSBERG: Yeah. Your Honor, the excess claim\n\n16 would be generated -- we wouldn't know what that would be until\n\n17 a future coverage determination. As far as defense costs are\n\n18 concerned, we are incurring defense costs. The settlement\n\n19 trust filed a declaration, I think it's at docket 206, where\n\n20 settlement trust deemed acknowledged that there are independent\n\n21 review cases going on, and potentially responsible insurers are\n\n22 participating -- actively participating in that, and the\n\n23 Allianz Insurers are part of that. So we absolutely are\n\n24 incurring defense costs, underlying cases, in the independent\n\n25 review process right now.\n\n Veritext Legal Solutions\n 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830\n\f Page 46\n\n1 As far as I'm aware, Your Honor, there hasn't been an\n\n2 opt out, under the TDP, to go to the tort system, but that\n\n3 would be the other example we gave. We're not aware of one of\n\n4 those happening yet. But the IRO, we are incurring defense\n\n5 costs at this time, Your Honor.\n\n6 JUDGE KRAUSE: But as to the settlement trust, or\n\n7 settling insurers, to this point, there's nothing quantifiable\n\n8 in terms of them not covering the fair share of their costs?\n\n9 MR. WINSBERG: Your Honor, pre-bankruptcy in the\n\n10 Illinois case, there was an insurance settlement of one of the\n\n11 abuse claims that Allianz Global Risk funded. I believe it's\n\n12 called the Rahe settlement. I'm not sure that's technically in\n\n13 the record here, but you could take judicial notice of the\n\n14 proceeding in the Illinois coverage case. And there was a\n\n15 settled claim that we contributed, and then we brought a\n\n16 counterclaim, which is the subject of the Illinois case. And\n\n17 there's a competing case in Texas which Mr. Baio referred to.\n\n18 JUDGE KRAUSE: How do we know the magnitude of the\n\n19 impact of what you're requesting?\n\n20 MR. WINSBERG: Your Honor, we don't know specifically.\n\n21 We put evidence in the record below that 90 percent of the\n\n22 aggregate liability resided with the settling insurers. We\n\n23 also have evidence in the record below that Century and\n\n24 Hartford, which were the primary insurers, historically\n\n25 defended these claims pre-bankruptcy. Now, part of their\n\n Veritext Legal Solutions\n 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830\n\f Page 47\n\n1 settlements, like -- they're no longer there. So these claims,\n\n2 otherwise, would be undefended.\n\n3 So we have elected to associate in. We don't have the\n\n4 obligation to defend, but we have a right to associate in to\n\n5 the defense, and we have exercised that. But to Your Honor's\n\n6 question, it's unknown at this time. The Debtor has said that\n\n7 it's speculative, hypothetical, unlikely. The district court\n\n8 made a finding -- that the bankruptcy court did not make --\n\n9 made a finding that the likelihood of substantial defense costs\n\n10 was reduced, therefore rendering the protection adequate -- not\n\n11 full but adequate, under a framework which we believe has no\n\n12 application here.\n\n13 But to answer your question, Judge, we don't know the\n\n14 magnitude of it. The other thing I would point to, in the\n\n15 response to our -- in the support of the Debtor's motion to\n\n16 dismiss this case as equitably moot, they submitted a\n\n17 declaration of Mr. Whittman. and Mr. Whittman said in his\n\n18 declaration that the trust will have to reserve for these\n\n19 potential claims, and that was their harm. But what Mr.\n\n20 Whittman didn't say -- well, number one, Mr. Whittman doesn't\n\n21 work for the trust, he works for BSA, so we had an objection to\n\n22 that, that we put in our paper.\n\n23 But what he doesn't say is how reserving for these\n\n24 claims will fundamentally alter the economics of the trust. He\n\n25 doesn't say anything at all about it. He also doesn't say\n\n Veritext Legal Solutions\n 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830\n\f Page 48\n\n1 whether it's going to impact abuse claims at all. And the\n\n2 district court and bankruptcy courts have findings below that\n\n3 it's more likely than not that abuse claims will be paid in\n\n4 full. And all we're asking for is to have the right to assert\n\n5 a claim against the trust.\n\n6 Now, what we did say, at the bankruptcy court level,\n\n7 when we suggested the language, Your Honors, and we put that on\n\n8 Exhibit A to our opening brief, the language we want, which we\n\n9 had crafted from a decision called ASARCO. We shortened it,\n\n10 but that's where we got it from, for a trust backstop. What we\n\n11 did say, that if it turns out that the trust is only going to\n\n12 give out, say, fifty cents on the dollar, that we would get the\n\n13 same. This isn't a situation like Plant, where the insurers\n\n14 were asking for a hundred cents on the dollar, and the asbestos\n\n15 claimants were getting ten cents on the dollar.\n\n16 We're just looking for the - we're looking to have\n\n17 the right to access it. And we would note that -- I can --\n\n18 I'll stop, and we can talk about the merits, or I can -- I'm\n\n19 happy to answer your questions on that point.\n\n20 JUDGE KRAUSE: To the extent we have the determination\n\n21 that you refer to in the record, that because of the\n\n22 availability of alternative dispute resolution, et cetera, that\n\n23 it's not -- this is not going to be a meaningful problem, and\n\n24 that that does not appear to be based on any particular\n\n25 evidentiary findings, would the right step, for us, as a\n\n Veritext Legal Solutions\n 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830\n\f Page 49\n\n1 remedy, if we agreed that there was an issue here, be simply to\n\n2 remand?\n\n3 MR. WINSBERG: Your Honor, I think we -- when we filed\n\n4 the appeal, we filed to do the least amount of damage to this\n\n5 plan. We do not want to unwind the plan. This wouldn't impact\n\n6 any of the plan transactions that have been proposed. We did\n\n7 cite -- to Your Honor's question, we cited the Gerber decision,\n\n8 with Judge Sotomayor, before she went to the Supreme Court.\n\n9 She blue penciled the bar order saying, this judgment reduction\n\n10 is a bad -- it's a bad vehicle to pay these claims. It just\n\n11 doesn't work. And Gerber says that, and Bendis says that, and\n\n12 Greektown; all the circuit cases we say talk about those\n\n13 points.\n\n14 And to your question, we would submit, Your Honor,\n\n15 under the Gerber decision, you could fix it on appeal and not\n\n16 have to remand. If you wanted to remand, that's certainly the\n\n17 other way to handle it, but we think this could be cured with\n\n18 you. You have the power and the ability to just blue pencil\n\n19 it, and I would cite to you to Gerber as the authority for\n\n20 that.\n\n21 JUDGE KRAUSE: Yeah, the lower courts found that the\n\n22 plan would result in reduced coverage costs overall, and your\n\n23 proposed blue penciling of this clause really reduces costs\n\n24 even further; isn't this kind of an unfair windfall on your\n\n25 part?\n\n Veritext Legal Solutions\n 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830\n\f Page 50\n\n1 MR. WINSBERG: No, Your Honor, we don't believe it's a\n\n2 windfall. Number one, the district court -- unlike what the\n\n3 FCR said in their brief, the district court never said we got a\n\n4 windfall. The district court never said we were being paid in\n\n5 full. All the district court said -- oh my time is up. All\n\n6 the district court said was that, your defense costs are likely\n\n7 to be reduced, but there was nothing in the record for that.\n\n8 But even if that's true, then he went to say, well,\n\n9 the protection is adequate. But that doesn't work here, and\n\n10 it's not a windfall, because that was based on the decision on\n\n11 Plant, which I've already said is factually distinguishable.\n\n12 But Plant was strictly based on 524(g) and a specific statute\n\n13 that said you could extinguish these claims because the\n\n14 injunction did not require compensation for these extinguished\n\n15 rights. That statute, under 524(g) does not apply here.\n\n16 And under Purdue -- Purdue's made very clear that\n\n17 whatever the merits of 524(g) are, they're cabined to 524(g).\n\n18 So in this case, which is not an asbestos case, we would submit\n\n19 that it's not a windfall. In fact, we're getting the relief\n\n20 we're entitled to under the law. Even the Bendis court talked\n\n21 about -- even if you believe these claims aren't likely, you\n\n22 shouldn't bar them.\n\n23 They go on to say that you should preserve them, you\n\n24 should modify the bar order to do so, and that's all we're\n\n25 effectively doing here. So we don't believe there's a\n\n Veritext Legal Solutions\n 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830\n\f Page 51\n\n1 windfall. There's nothing in the record to support that, and\n\n2 all we're looking to do is to -- we didn't challenge the\n\n3 injunction as to the settling insurers. We're not attacking\n\n4 their settlement. We just want to have a backstop. And I\n\n5 think that Gerber, Bendis, and Greektown teach us that a\n\n6 backstop is the appropriate way to handle in this case.\n\n7 And of course, Purdue says these claims cannot be\n\n8 released without our consent. So this is the proposed fix we\n\n9 have, for where we are in this appeal, to preserve our rights,\n\n10 and do it in a way that does the least amount of violence to\n\n11 the Boy Scouts.\n\n12 JUDGE KRAUSE: Okay.\n\n13 MR. WINSBERG: Thank you for your time, Your Honor.\n\n14 Thank you.\n\n15 MR. HUSTON: May it please the Court. I'm Michael\n\n16 Huston on behalf of the reorganized Boy Scouts of America and\n\n17 the plan supporters. I'd like to begin by just laying out how\n\n18 appellees are going to present to the Court this morning. I'll\n\n19 be addressing why this Court's equitable mootness doctrine and\n\n20 Section 363(m) of the Bankruptcy Code preclude appellants'\n\n21 requested relief. Mr. Anker and Mr. Hacker will discuss\n\n22 Section 363(m) from the standpoint of the insurers who bought\n\n23 back their policies.\n\n24 Mr. Kurtz will explain why, if the Court were to reach\n\n25 the merits, it should conclude that Purdue does not disturb\n\n Veritext Legal Solutions\n 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830\n\f Page 52\n\n1 this full satisfaction plan, and why the insurers' arguments\n\n2 seeking to alter the terms of the plan now are meritless. Ms.\n\n3 Quinn will address any remaining insurance-related issues, and\n\n4 Mr. Smola will conclude this morning by describing the\n\n5 extraordinary reliance interests of thousands of survivors who\n\n6 have participated in an agonizing claims process, based on the\n\n7 promise of this plan's confirmation.\n\n8 JUDGE KRAUSE: I suspect we'd appreciate everyone\n\n9 reminding us of their particular topic when you come up to\n\n10 address the Court.\n\n11 MR. HUSTON: I'm sure they will, Your Honor. As\n\n12 mentioned, I'm going to be addressing equitable mootness and\n\n13 statutory mootness. This Court's equitable mootness\n\n14 jurisprudence first looks to the specific relief that's being\n\n15 proposed by the appellants, whether it can be entered without\n\n16 fatally scrambling the plan and disturbing third-party reliance\n\n17 interests. For the claimant appellants, I think you've heard\n\n18 already this morning that they're asking you to do one of two\n\n19 things.\n\n20 They either want you to throw out the plan entirely\n\n21 and force BSA to start back at the beginning, which is contrary\n\n22 to this Court's precedent in all of its equitable mootness\n\n23 cases, and clearly contrary to Section 363(m), most notably\n\n24 under Energy Futures, or else the appellants want you to just,\n\n25 sort of, give them a carve-out. They want you to give them\n\n Veritext Legal Solutions\n 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830\n\f Page 53\n\n1 more money or special rights to proceed that are better and\n\n2 more favorable than every other similarly situated survivor\n\n3 claimant. That relief is obviously foreclosed by the Code's\n\n4 equal treatment principle.\n\n5 JUDGE KRAUSE: Let's go back to throwing out the plan.\n\n6 If the plan was not within the Bankruptcy Court's power to\n\n7 approve, and it doesn't meet our criteria for equitable\n\n8 mootness, then it can be thrown out, right?\n\n9 MR. HUSTON: Well --\n\n10 THE COURT: You're saying it's contrary -- this would\n\n11 be contrary to our precedent, but that's making a lot of\n\n12 assumptions about whether those criteria are satisfied.\n\n13 MR. HUSTON: My point, Your Honor, is that I think the\n\n14 criteria are satisfied, because the core inquiry that equitable\n\n15 mootness looks to is, is there a means of relief that can be\n\n16 provided at this late stage, eighteen months after Boy Scouts\n\n17 emerged from bankruptcy and have been in operation, with all of\n\n18 the thousands of transactions that have occurred under this\n\n19 plan? Is there relief that can be equitably entered at this\n\n20 stage? And I think our core point is that this Court's cases\n\n21 teach that the answer is no.\n\n22 JUDGE KRAUSE: Where do we have a situation where\n\n23 there's ninety-one percent of the funding that is sitting in\n\n24 escrow? It hasn't been distributed, it doesn't have to be\n\n25 clawed back, so it's a small portion that would be -- need to\n\n Veritext Legal Solutions\n 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830\n\f Page 54\n\n1 be clawed back if that were even necessary. And it's not even\n\n2 in the hands of the Trustee, it's sitting in escrow. So what\n\n3 analog can we look to in case law for that?\n\n4 MR. HUSTON: Sure, Your Honor. So on the specific\n\n5 point of the escrow, I think this Court dealt with that in the\n\n6 Osram Sylvania case. And it said that the fact that funds are\n\n7 transferred pursuant to the plan, and placed in escrow, is no\n\n8 barrier to a finding of equitable mootness, because title has\n\n9 transferred. Now, the Court's precedents say that you need --\n\n10 the substantial consummation statutory standard in 1101 is not\n\n11 exactly equivalent to what this Court looks to for equitable\n\n12 mootness, but obviously it's a useful starting point.\n\n13 The first prong of the statutory test is, have the\n\n14 assets substantially -- all of the assets been transferred?\n\n15 The assets of the Debtor are the insurance policies. We have\n\n16 sold them. There's no dispute among any of the parties that\n\n17 those assets have been transferred. You can see this in the\n\n18 plan at Appendix 975. The plan is quite clear that the\n\n19 policies, the assets of the Debtor, have been transferred.\n\n20 Now, the consideration for that, some of it has gone to the\n\n21 trust, some of it is in escrow. But again, I think Osram dealt\n\n22 with a situation very much like that where you had a partial\n\n23 payment.\n\n24 The other thing to note, I think, is the second -- or\n\n25 actually, it's the third prong of the statutory substantial\n\n Veritext Legal Solutions\n 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830\n\f Page 55\n\n1 consummation standard, looks to whether distributions have\n\n2 commenced. So I think the Code itself recognizes that\n\n3 distributions do not need to be complete in order for a plan to\n\n4 be substantially consummated.\n\n5 JUDGE KRAUSE: Does it matter what the percentage is?\n\n6 I mean, here it's less than ten percent, at least of the\n\n7 numbers that we have for mid-October, that has been\n\n8 distributed.\n\n9 MR. HUSTON: I don't think it -- it doesn't matter --\n\n10 it's not a question of volume by relation, Your Honor. I\n\n11 think it's a question of how many transactions have occurred.\n\n12 You're talking about 10,000 survivors who have received a total\n\n13 of forty million dollars, at this point, 10,000 transactions.\n\n14 That, by the way, is just with respect to survivors. There's\n\n15 also hundreds, thousands of other transactions that have been\n\n16 completed, pursuant to the plan, that I think affect this\n\n17 Court's equitable mootness jurisprudence.\n\n18 Most notably, the lenders to BSA have refinanced 260\n\n19 million dollars in debt. BSA is performing on that policy.\n\n20 That type of new loans that have gone to the reorganized entity\n\n21 by a third-party, the lenders, is exactly the kind of factors\n\n22 that this Court looked to, to apply equitable mootness in\n\n23 Millennium and in Tribune.\n\n24 JUDGE KRAUSE: I mean, I understand your interest in\n\n25 not unwinding the plan. But if we were to find it unpalatable\n\n Veritext Legal Solutions\n 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830\n\f Page 56\n\n1 to take equitable mootness to new heights by saying, in this\n\n2 situation, where we've got the funds that are just being held\n\n3 in limbo, and would be reverting back if we were not to affirm,\n\n4 and the small percentage that has actually been distributed,\n\n5 relative to the size of the trust that's intended here -- does\n\n6 statutory mootness provide you with the same remedy?\n\n7 MR. HUSTON: It --\n\n8 JUDGE RENDELL: In a way that would be much narrower.\n\n9 MR. HUSTON: Statutory mootness certainly precludes\n\n10 the appellants' requested remedy. So the answer is yes, the\n\n11 Court can dismiss the appeals. It can reject the relief\n\n12 requested by the appellants, on the basis of statutory\n\n13 mootness. I do want to just take a point -- a moment, if I\n\n14 might, to, sort of, respectfully disagree with the suggestion\n\n15 that this would be taking equitable mootness to new heights.\n\n16 I've read every equitable mootness decision that this\n\n17 Court has issued since Continental. I think this is the single\n\n18 strongest case for equitable mootness that has ever been\n\n19 presented to the Court, because we are so far out of\n\n20 bankruptcy, the time alone, eighteen months, the thousands of\n\n21 transactions, it's not just about the money that's sitting in\n\n22 escrow. Thousands of donors have given money, more than $86\n\n23 million since confirmation. They've relied on the idea of\n\n24 their contributions being used for the reorganized scouting\n\n25 program.\n\n Veritext Legal Solutions\n 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830\n\f Page 57\n\n1 You have local councils that have contributed more\n\n2 than a hundred real properties, dozens of which have already\n\n3 been sold. There's no way to -- those are sales to people who\n\n4 are entirely absent -- entirely strangers to the plan. There\n\n5 is no way for those camp properties to come back.\n\n6 JUDGE RENDELL: Can I ask you a question? I asked one\n\n7 of your colleagues, what would it look like? Paint a picture.\n\n8 I mean, we talk about returning funds, or something like that.\n\n9 But paint a picture for me of what would happen if we reversed\n\n10 the confirmation order?\n\n11 MR. HUSTON: Judge Rendell --\n\n12 JUDGE RENDELL: What's the practical effect of --\n\n13 we're talking about unscrambling the eggs or whatever; is that\n\n14 what we would try to be doing? Paint me a picture.\n\n15 MR. HUSTON: Judge Rendell, this is not an attempt to\n\n16 evade your question. I sincerely don't know. There's no\n\n17 precedent for attempting to unwind a plan of this magnitude, of\n\n18 this complexity, a case that the lower courts called\n\n19 extraordinary by any measure. I don't know how we could do it.\n\n20 I don't know what instructions this Court could provide to a\n\n21 bankruptcy court, to a district court, to sort through that.\n\n22 The idea that it's as simple as taking funds out of\n\n23 escrow is just, with respect, not correct. You have thousands\n\n24 of transactions from people who have no relationship with the\n\n25 plan. Again, the camp properties cannot be unsold. The\n\n Veritext Legal Solutions\n 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830\n\f Page 58\n\n1 donations that were received cannot be just given back. By the\n\n2 way, just with respect to the money that's in escrow, what\n\n3 you'd be doing with that specifically, because the plan is\n\n4 clear that the insurance policies have been sold, what you'd be\n\n5 launching is an enormous dispute about what happens to the\n\n6 value of the funds that are in escrow.\n\n7 JUDGE KRAUSE: There's the same consequence if we were\n\n8 to look at this as a matter of statutory mootness.\n\n9 MR. HUSTON: Yes, there is.\n\n10 JUDGE KRAUSE: And so between the two, is there a\n\n11 reason that we shouldn't go with -- if we think that the\n\n12 criteria are satisfied, we assume, with both, that we shouldn't\n\n13 look first to congress' bounding of the Court's jurisdiction\n\n14 before a court-made doctrine about when we opt not to reach the\n\n15 merits of a claim.\n\n16 MR. HUSTON: I certainly understand the question, Your\n\n17 Honor. I emphatically agree with you that Section 363(m)\n\n18 precludes this relief, and I'm happy to talk about that in\n\n19 detail. I do want to -- I think there is one good reason why\n\n20 you actually -- it would be important for the Court to rule on\n\n21 equitable mootness. Indeed, actually, I think what the Court\n\n22 should say is that both Section 363(m) and the equitable\n\n23 doctrine of equitable mootness preclude the appellants'\n\n24 requested relief.\n\n25 And the reason why I think you should do that in this\n\n Veritext Legal Solutions\n 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830\n\f Page 59\n\n1 case is the human element. That's what's so unique. I think\n\n2 that's what makes this case so extraordinarily compelling. As\n\n3 a matter of equitable mootness, you have thousands of survivors\n\n4 who, as I mentioned at the outset, have relied on the promise\n\n5 of this plan, and they have subjected themselves to an\n\n6 agonizing claims process, an eighty-one-page questionnaire.\n\n7 They've sat for depositions that lasted hours.\n\n8 In some cases, they had to tell family members, for\n\n9 the first times in their lives, about their abuse, the most\n\n10 awful event that they've experienced in their lives, in order\n\n11 to get verification of their participation in scouting. That\n\n12 retraumatization --\n\n13 JUDGE RENDELL: Let me ask you --\n\n14 MR. HUSTON: -- cannot go unnoticed.\n\n15 JUDGE RENDELL: Let me ask a question about the\n\n16 statutory mootness piece. That has to do with the -- I mean,\n\n17 assuming that we would not find that 363 was more restrictive,\n\n18 and it would apply to a sale within this plan, but then that\n\n19 that is only that little sale aspect. 363 would bar that piece\n\n20 of the plan. The plan is not -- the whole plan is not a sale,\n\n21 there's a lot of pieces; how does statutory mootness not get\n\n22 you -- it's very messy. How do you say, oh, okay, this is an\n\n23 appeal from the sale.\n\n24 But the plan is much more than the sale, so I don't\n\n25 know how you could craft an opinion that would say 363 means,\n\n Veritext Legal Solutions\n 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830\n\f Page 60\n\n1 we can't touch anything under this confirmation order. Because\n\n2 the only piece that we couldn't touch would be the sale piece.\n\n3 So how does statutory mootness help you?\n\n4 MR. HUSTON: Certainly, Judge Rendell. I think the\n\n5 answer is that you look at the relief that the claimant\n\n6 appellants are here asking the Court to issue. Our point is\n\n7 Section 363(m) is dispositive of that, because all of the\n\n8 relief that they are seeking would require invalidating the\n\n9 sale of the insurance policies. That's what they want to do.\n\n10 They either want the releases that are integral to the\n\n11 sale to be entirely eliminated, or they want you to, sort of,\n\n12 carve them out from the releases so that they can continue to\n\n13 pursue the insurers, notwithstanding the fact that the insurers\n\n14 sold back their policies free and clear of all claim. So\n\n15 you're absolutely right that the plan is much broader than just\n\n16 the sale. But as it comes to the Court, what the appellants\n\n17 are here trying to do is invalidate the sale.\n\n18 We know that's true because that was -- the case is\n\n19 almost on all fours with Energy Futures. Now, my friends have\n\n20 been here at the podium saying, well, it matters that the sale\n\n21 did not -- the sale occurred in the context of a plan, not\n\n22 separately. Energy Futures dealt with that. It's also waived,\n\n23 by the way. There was no argument presented to the district\n\n24 court.\n\n25 When the plan documents that went in said, this is\n\n Veritext Legal Solutions\n 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830\n\f Page 61\n\n1 going to be a sale pursuant to Section 363(m), and then just\n\n2 for good measure, Article 5, S(4) says, \"The plan shall\n\n3 constitute a motion to approve the sale under Section 363,\"\n\n4 there was no objection raised by the claimants that this was an\n\n5 improper use of Section 363. Even if you thought it was -- not\n\n6 notwithstanding Energy Futures, which I really think is\n\n7 controlling on this point, but even if -- setting that case\n\n8 aside, you were prepared to say Section 363 only applies\n\n9 outside the context of a plan, well, we made a motion to treat\n\n10 this as a sale under Section 363. We know that the Bankruptcy\n\n11 Court granted that motion.\n\n12 JUDGE RENDELL: Well, of course you want to do that,\n\n13 so as to insulate it from review, but this isn't your classic\n\n14 363 -- the classic situation that 363 addressed. 363 is\n\n15 intended to allow debtors to sell property at their highest\n\n16 value, without the purchasers fearing litigation that would\n\n17 cause them to want to give a lesser cost. This is an insurance\n\n18 buyback. This is not a sale to -- this is not Boeing deciding\n\n19 to sell its assets to Lockheed Martin. This is, kind of inside\n\n20 the lodge, calling it a sale when it really isn't.\n\n21 MR. HUSTON: So Your Honor, I respectfully disagree,\n\n22 again, because the plan says that this is a sale pursuant to\n\n23 Section 363(m). And what was literally sold were the insurance\n\n24 policies. The Debtor obviously had title to those policies.\n\n25 We sold them back for consideration. We did so to maximize the\n\n Veritext Legal Solutions\n 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830\n\f Page 62\n\n1 value of the estate's property.\n\n2 And in order to maximize that value, the plan\n\n3 documents really couldn't be more clear that these policies\n\n4 were sold free and clear of any claims. That's what enabled\n\n5 the plan to extract that value from the policies for the\n\n6 benefit of the survivor claimants. So I think -- again, Energy\n\n7 Future says -- I really just couldn't say it better than they\n\n8 do, allowing these new claims by the appellants, what they want\n\n9 you to do in this appeal, the relief that they are here asking\n\n10 for, is to recognize a right for them to increase the insurers'\n\n11 purchase price by exposing them to new liability that they did\n\n12 not bargain for. They bargained for a complete and total\n\n13 release. The appellants want you to hold that they have\n\n14 something less.\n\n15 JUDGE RENDELL: So in Purdue, they should have -- the\n\n16 Sacklers should have purchased back the fraudulent conveyance\n\n17 claims that the trustee would have had in return for releases,\n\n18 and called it a 363 sale?\n\n19 MR. HUSTON: Well, I don't think Section --\n\n20 JUDGE RENDELL: There's a lot of mischief in this.\n\n21 MR. HUSTON: Respectfully, I don't think so at all,\n\n22 Your Honor. I think that this is standard bankruptcy practice.\n\n23 You're selling back the value of your asset in order to\n\n24 maximize it for the benefit of claimants. The other thing to\n\n25 note about Purdue, of course, is that the Purdue plan was\n\n Veritext Legal Solutions\n 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830\n\f Page 63\n\n1 stayed by the Supreme Court before it ever took effect. And of\n\n2 course, that's the key condition that congress wrote into\n\n3 Section 363(m).\n\n4 So insofar as Your Honor is concerned about mischief,\n\n5 I think Purdue provides an example of a situation where that\n\n6 would be avoided because of the stay. Very different than\n\n7 here, of course, exactly the opposite. The appellants\n\n8 repeatedly requested a stay from this Court, from the district\n\n9 court, from the Supreme Court of the United States. They did\n\n10 so before Purdue. They did so after Purdue. They asked\n\n11 repeatedly. They said, we need you to grant a stay, because if\n\n12 you don't, the case is going to become even more equitably\n\n13 moot. And every court to consider that request, rejected it.\n\n14 JUDGE KRAUSE: Even if \u2013\n\n15 Go ahead.\n\n16 JUDGE RENDELL: Which principle would you prefer if we\n\n17 were to have both options here? And if we reach one, we don't\n\n18 need to reach the other. Which one do you seek as the more\n\n19 applicable appropriate, from your standpoint?\n\n20 MR. HUSTON: Well --\n\n21 JUDGE RENDELL: And you've litigated these cases.\n\n22 MR. HUSTON: Well, Judge Rendell, I think the truthful\n\n23 answer is that we firmly think both apply. I would very much\n\n24 like the Court's opinion to say that both doctrines -- both the\n\n25 statute and the doctrine foreclose the request that\n\n Veritext Legal Solutions\n 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830\n\f Page 64\n\n1 appellants -- but taking Your Honor's question, if I had to\n\n2 choose, I appreciate the point that Section 363(m) is in the\n\n3 text of the Code, and I can see how that makes it sort of\n\n4 easier because -- and it's less discretionary. Congress has\n\n5 written the specific instructions. It provides us everything\n\n6 that we need.\n\n7 The combination of the text of the Code in 363(m) and\n\n8 Energy Futures is really sufficient, I think, to reject the\n\n9 appellants' request to change the terms of that insurance\n\n10 policy sale, in a way that would materially affect its purchase\n\n11 price.\n\n12 JUDGE RENDELL: What about the textual argument that\n\n13 your colleague notes about sections (b) and (c), sections (l)\n\n14 and (o) of 363?\n\n15 MR. HUSTON: Sure, Your Honor. So again, I think that\n\n16 the plan deals with this by recognizing that this is a sale\n\n17 pursuant to Section 363(m) that's built into how it was\n\n18 presented to the Court. It's also -- again, we submitted it.\n\n19 The plan contains a term that says, if necessary, we are making\n\n20 a motion for to sell this property under Section 363(m). And\n\n21 that motion was granted by the -- by implication of the\n\n22 confirmation. So I think that the conditions to Section 363(m)\n\n23 have been -- have been satisfied here for the same reason why\n\n24 they were satisfied in Energy Futures.\n\n25 May I take just a moment and talk about the certain\n\n Veritext Legal Solutions\n 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830\n\f Page 65\n\n1 insurers appeal? We've been talking mostly about the -- about\n\n2 the appellant's claims and why they're foreclosed. When it\n\n3 comes to the certain insurers --\n\n4 And I think, Judge Krause, to return to an earlier\n\n5 question that you asked, this is another reason why equitable\n\n6 mootness is particularly relevant here because that's the\n\n7 doctrine that forecloses those insurance claims. You heard Mr.\n\n8 Baio say this morning that the certain insurers are here trying\n\n9 to gain an advantage in ongoing coverage litigation. They\n\n10 wouldn't be here investing so much if they didn't think that\n\n11 what they're asking for is material to that.\n\n12 I think the Court should be very wary about changing\n\n13 the terms of what was bargained for in intense bargaining in\n\n14 the district court or, excuse me, in the bankruptcy court\n\n15 confirmed -- affirmed by the district court so long, so many\n\n16 months after the fact, with implications for another ongoing\n\n17 lawsuit. The trustee has to be cognizant of the value of the\n\n18 assets of the trust. So I think that, you know, they want you\n\n19 to believe that it's just so simple as blue penciling a few\n\n20 lines in the plan.\n\n21 I think this Court has repeatedly said this is a -- in\n\n22 a closely integrated transaction, as the district court found,\n\n23 we're not going to, after the fact, wade -- disturb it in a way\n\n24 that raises difficult questions about what is the value of one\n\n25 of the Trust's most important assets, more than $4 billion in\n\n Veritext Legal Solutions\n 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830\n\f Page 66\n\n1 insurance rights.\n\n2 JUDGE KRAUSE: Questions?\n\n3 JUDGE RENDELL: Do you -- would you say that they're\n\n4 adequately protected by the language of the plan? They're\n\n5 saying their rights are going to be constrained because there's\n\n6 reference to confirmation? What would be wrong with using the\n\n7 language they proposed from other cases? It says,\n\n8 notwithstanding the plan, all of our rights and obligations are\n\n9 preserved.\n\n10 MR. HUSTON: So Your Honor, I think, you know, my --\n\n11 some of my colleagues will be better positioned to discuss with\n\n12 you why that argument is incorrect, you know, on the law. I\n\n13 think what I would say from the standpoint of mootness is that\n\n14 this is the plan that went to the survivors to vote on and who\n\n15 overwhelmingly approved it, and it was presented to the\n\n16 survivor community as a global resolution.\n\n17 What they're seeking to do now, they clearly believe\n\n18 that this is a material change that they're asking you to make.\n\n19 And so I think it is contrary to the -- to the equitable\n\n20 principles that underly equitable mootness to say, eighteen\n\n21 months after confirmation, with ongoing coverage litigation\n\n22 happening in a different court, we are going to change the\n\n23 terms of the deal. And again, my colleagues, I think, can\n\n24 speak to why that's inappropriate as a matter of bankruptcy\n\n25 law.\n\n Veritext Legal Solutions\n 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830\n\f Page 67\n\n1 JUDGE RENDELL: And they leveled this objection to --\n\n2 at time of plan confirmation, I assume?\n\n3 MR. HUSTON: I'm sorry. Who did, Your Honor?\n\n4 JUDGE RENDELL: The certain insurers.\n\n5 MR. HUSTON: So again, I think I'm going to leave\n\n6 that, if I might, to my colleagues who are better positioned to\n\n7 speak to that issue more directly. Again, I think the key\n\n8 point is they want you to think that it's simple, that, you\n\n9 know, they are seeking to change the terms of the bargain in a\n\n10 way that they certainly believe is material. Thank you.\n\n11 JUDGE RENDELL: Thank you.\n\n12 MR. ANKER: May it please the Court, Philip Anker for\n\n13 the Hartford Insurers. I was about to say, good morning, but I\n\n14 think good afternoon would be the rather more accurate way to\n\n15 put it.\n\n16 Judge Krause, I want to start where you were. I think\n\n17 it is appropriate to begin this analysis, and I think you can\n\n18 finish the analysis, with statutory mootness. I think the fact\n\n19 that this case is being argued against the backdrop of Purdue\n\n20 underscores the appropriateness of that. After all, Purdue is\n\n21 a plain meaning decision. Justice Gorsuch, writing for the\n\n22 majority, said, I may agree as a policy matter. I don't think\n\n23 he quite put it that way.\n\n24 He said, I may agree or disagree as a policy matter\n\n25 with the arguments made in Justice Kavanaugh's dissent, but\n\n Veritext Legal Solutions\n 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830\n\f Page 68\n\n1 those are policy considerations for Congress. My job, our job\n\n2 as the Supreme Court, and respectfully, your job as a panel, is\n\n3 to take the statute as it is. Here, you have a statute that is\n\n4 clear in creating mootness. And I acknowledge mootness here is\n\n5 not jurisdictional. It goes to whether the relief can be\n\n6 granted. And the answer to the question is no effective relief\n\n7 can be granted.\n\n8 JUDGE KRAUSE: You should -- 363(m), even if it would\n\n9 otherwise apply, is it really appropriate for a situation where\n\n10 the lack of authorization by the bankruptcy court goes to\n\n11 something as fundamental as its lack of power, lack of\n\n12 authority at all, to rely on these nonconsensual --\n\n13 MR. ANKER: In --\n\n14 JUDGE KRAUSE: -- third-party releases?\n\n15 MR. ANKER: In a word, yes. If statutes of -- of\n\n16 mootness -- statutes creating mootness, if statutes of\n\n17 limitation are going to have any meaning, they have to have\n\n18 application. The only place where they do work is if the\n\n19 merits argument is otherwise substantial.\n\n20 And Judge Krause, I would point you to your own\n\n21 decision as the author in the Energy Futures holding case. The\n\n22 principal argument made there was denial of due process. If\n\n23 anything is more fundamental than denial of due process, I'm at\n\n24 a loss to know what it is. You said, the panel said, there is\n\n25 no exception to 363(m) for due process. So too here, there is\n\n Veritext Legal Solutions\n 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830\n\f Page 69\n\n1 no exception.\n\n2 JUDGE KRAUSE: But isn't that a distinction between\n\n3 the merits of a claim and the authority of the bankruptcy court\n\n4 itself? I mean, what if we were -- what if we were looking at\n\n5 Northern Pipeline? What if the question were whether 363(m)\n\n6 would come into play and preclude review where the bankruptcy\n\n7 system itself had been --\n\n8 MR. ANKER: So I think --\n\n9 JUDGE KRAUSE: -- (indiscernible)?\n\n10 MR. ANKER: -- there's a distinction, Judge Krause,\n\n11 between whether there's a lack of jurisdiction, which goes to\n\n12 the Court's power to decide a question. And I plainly say\n\n13 there was jurisdiction here, both related to and core, if you\n\n14 want me to go into it, versus whether the statute gives\n\n15 authority for the plan to provide that. That is a merits\n\n16 question that goes to statutory authorization, not to\n\n17 jurisdiction. And so yes, if there's a lack of jurisdiction, I\n\n18 think you may want to pause. But there was jurisdiction here\n\n19 under Title 28, Section 1334 of the U.S. Code. That's the\n\n20 distinction.\n\n21 Let me try to address quickly the two arguments I've\n\n22 heard on why 363(m) does not apply by its terms. One is this\n\n23 notion that the sale was done pursuant to a plan. First, I want\n\n24 to underscore the point that Mr. Huston made. The plan said,\n\n25 and I quote, that the sale, quote, constitutes a motion by the\n\n Veritext Legal Solutions\n 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830\n\f Page 70\n\n1 debtors for the bankruptcy court to approve the proposed\n\n2 compromise and settlement and assignment and or sale of the\n\n3 applicable insurance policies pursuant to Section 363. The\n\n4 order said the same thing.\n\n5 So you have here express authority in the plan, and\n\n6 absolutely it was waived. There was no argument made below to\n\n7 Judge Silverstein, this can't be happening. And think about\n\n8 how, if I can use the term, silly, that would be. You're\n\n9 really going to say we need to have two separate documents, a\n\n10 plan and a motion, and they each can be contingent on each\n\n11 other. We have to kill more trees. We have to file more\n\n12 paper. Why? It's simply putting it in one piece of paper. So\n\n13 on the merits, the argument fails, and it's waived.\n\n14 The second argument I've heard is that, well, money\n\n15 was put in escrow. That is right. But the focus is on the\n\n16 wrong question. The question is, when were the policies sold?\n\n17 And again, the plan couldn't have been clearer and the\n\n18 confirmation order. The plan said, notwithstanding anything to\n\n19 the contrary and for the avoidance of doubt, the abuse\n\n20 insurance policies shall be sold by the debtors to the\n\n21 applicable insurance companies, free and clear of all liens,\n\n22 claims, encumbrances, interests or other rights, on the\n\n23 effective date. And so too did the confirmation order.\n\n24 So that ought -- there the plan was crystal clear.\n\n25 These policies have been sold. And I see my light is on. But\n\n Veritext Legal Solutions\n 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830\n\f Page 71\n\n1 if I can have a moment --\n\n2 JUDGE KRAUSE: Okay. Can you address, too, going back\n\n3 to one of my earlier questions, this status of the assignments?\n\n4 MR. ANKER: The status -- I'm sorry, Your Honor?\n\n5 JUDGE KRAUSE: Of the assignments.\n\n6 MR. ANKER: The assignments all occurred on the\n\n7 effective date as well. The plan is quite clear in saying that\n\n8 the participating charitable organizations assigned their\n\n9 rights on the effective date to the trust vis-a-vis the -- vis-\n\n10 a-vis the settling insurers, so that those claims could be\n\n11 settled. That occurred as well on the effective date.\n\n12 So Judge Rendell, let me get to your question, which\n\n13 is a couple of questions, if I have a minute. One of which is\n\n14 what are the consequences? And is really this a sale or are we\n\n15 allowing the tail -- the tail to wag the dog? Respectfully, we\n\n16 are not. I would acknowledge there could be a plan in which\n\n17 the sale is a little footnote of a total plan. Here it was the\n\n18 guts of the plan. It was the core of the plan. $2,300,000,000\n\n19 in funding, $1,600,000,000 is coming out of the sale of the\n\n20 policies.\n\n21 But don't take my word on it. Take what Judge\n\n22 Silverstein found. She found that without the sales, quote,\n\n23 there is no plan, end quote. She went on to find, quote,\n\n24 without the scouting-related releases in favor of the settling\n\n25 insurers, the nondebtor-related entities, local councils,\n\n Veritext Legal Solutions\n 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830\n\f Page 72\n\n1 chartered organizations and their representatives, the settling\n\n2 insurers and local councils would not make their monetary\n\n3 contributions to the settlement trust and thus, quote, the\n\n4 scouting-related releases and channeling injunctions are the\n\n5 cornerstone of the plan.\n\n6 Those are findings of fact, findings of fact that not\n\n7 only are not clearly erroneous, but are supported by every\n\n8 shred of evidence. The Dumas claimants and the Lujan claimants\n\n9 called exactly zero witnesses at trial, zero witnesses. Every\n\n10 witness so testified.\n\n11 JUDGE RENDELL: But I just see a problem with removing\n\n12 a plan of this magnitude, which does so much. Sure, the sale\n\n13 is -- it's a but for. But it's a plan that's been confirmed\n\n14 and a huge one -- an absolutely huge one with huge impact. A\n\n15 lot of people being affected by it. It's removing it entirely\n\n16 from this Court's capacity to look at it -- to look at it. And\n\n17 what if it were fundamentally unfair? What if, as a part of\n\n18 the sale, things, you know -- there are provisions here saying,\n\n19 you know, insurance companies have no rights, et cetera, et\n\n20 cetera.\n\n21 The fact that it is a sale, I think, pales in\n\n22 significance to the fact that this is a confirmed plan. And at\n\n23 least under the doctrine of equitable mootness, we have the\n\n24 ability to say we're going to find it equitably moot or, on the\n\n25 other hand, we're going to look at it and see there are some\n\n Veritext Legal Solutions\n 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830\n\f Page 73\n\n1 glaring problems with this. And we're going to find it's not\n\n2 equitably moot. I mean, it's in our discretion whether to\n\n3 apply equitable mootness. We don't even have to apply it. And\n\n4 we can have the ability, if this plan were fundamentally\n\n5 unfair.\n\n6 And I can't blame the bankruptcy court for saying\n\n7 it -- it's 363(m). If I were a bankruptcy court, I wouldn't\n\n8 want a do over either. But I just think taking the plan out of\n\n9 the capacity of an Article III court, something this big and\n\n10 say, oops, not -- you know, Congress intended that we don't\n\n11 touch it. And I think Congress intended when there is a sale\n\n12 of assets, that is a strict -- strictly a sale of assets, we\n\n13 don't touch it.\n\n14 But when it's a plan, I can't imagine that Congress\n\n15 would say, if there's a -- if there's a sale that's as part of\n\n16 a plan, we can't review the confirmation order, which is what\n\n17 we have. We have a confirmation order that is on appeal. And\n\n18 the fact that there's a sale that is a but for, I have real\n\n19 problems with saying, Congress intended that no Article III\n\n20 court can look at a plan that contains a sale. I just have --\n\n21 MR. ANKER: I --\n\n22 JUDGE RENDELL: I just have a -- have a real problem\n\n23 with --\n\n24 MR. ANKER: Let me --\n\n25 JUDGE RENDELL: -- that as a -- as a jurisdictional\n\n Veritext Legal Solutions\n 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830\n\f Page 74\n\n1 piece --\n\n2 MR. ANKER: I --\n\n3 JUDGE RENDELL: -- and as a matter of law and what we\n\n4 do. Article --\n\n5 MR. ANKER: What --\n\n6 JUDGE RENDELL: -- III courts are supposed to review.\n\n7 MR. ANKER: Sure. Let me try to respond and try to\n\n8 persuade you. First, an Article III court did review. This --\n\n9 JUDGE RENDELL: Well --\n\n10 MR. ANKER: -- the plan did not go effective. It was\n\n11 written so it could not go effective until the district court\n\n12 issued its order. Judge Andrews in the district court,\n\n13 obviously an Article III court.\n\n14 Second, 363(m) doesn't apply if there is a stay.\n\n15 There was an opportunity, and indeed the claimants here sought\n\n16 a stay. And so this panel --\n\n17 JUDGE RENDELL: One of the reasons there wasn't a stay\n\n18 is because this is such a big -- it's just such a big deal.\n\n19 Nobody is going to --\n\n20 MR. ANKER: It also it --\n\n21 JUDGE RENDELL: (Indiscernible).\n\n22 MR. ANKER: Judge Rendell, there's a different reason\n\n23 which goes to something you pointed out earlier, timing. When\n\n24 the -- when the question of the stay came before the motions\n\n25 panel that considered it, the Supreme Court had not decided\n\n Veritext Legal Solutions\n 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830\n\f Page 75\n\n1 Purdue. And the law of this circuit was that third-party\n\n2 releases were perfectly lawful. I would suggest to you, the\n\n3 case here, if you find statutory mootness, is a case that will\n\n4 not repeat itself. It will not repeat itself on these facts\n\n5 because now we're in a post-Purdue land.\n\n6 You are going to hear from other appellee counsel that\n\n7 the plan, Mr. Kurtz in particular, would not and does not -- is\n\n8 not inconsistent with Purdue because this was a payment in full\n\n9 plan. But let's put that aside. If there was not a payment in\n\n10 full here, this is a different outcome tomorrow. But timing\n\n11 does matter. And so first there was an opportunity, and there\n\n12 was an absolute review by a district court, an Article III\n\n13 court.\n\n14 Second, there was an opportunity for a stay. Third,\n\n15 look at the decision again of this Court in the Energy Futures\n\n16 case. That is a case that applied statutory mootness to a\n\n17 confirmation of a plan order, a confirmation order that denied\n\n18 latent asbestos claimants the ability to assert their claims\n\n19 because those claims hadn't arose. So this Court's precedent\n\n20 goes there.\n\n21 Finally, Judge Rendell, I would urge this Court to\n\n22 look at what it has said in answer to the question, because I\n\n23 think this goes to the question, can effective relief be\n\n24 granted that separates out the sale from the rest of the plan.\n\n25 First, the answer to your question in one word, what would\n\n Veritext Legal Solutions\n 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830\n\f Page 76\n\n1 happen if the -- if the Court were to uphold the sales, but\n\n2 otherwise reverse the plan, is I'll give you a one-word answer\n\n3 to that, chaos. Utter complete chaos.\n\n4 Our position, as written in the terms of the -- of the\n\n5 our underlying agreements, is that we then get back every penny\n\n6 in escrow, but the policies have been sold. The debtor and the\n\n7 claimants are going to have to take a different position from\n\n8 that. So what you're going to have is chaos and years of\n\n9 litigation. And one of the things 363(m) is designed to do, as\n\n10 this Court has repeatedly said, is to create finality. It's\n\n11 designed to do the opposite of create chaos.\n\n12 This Court has said that the question -- when you ask\n\n13 the question, can I grant the relief, even though you have an\n\n14 unstayed sale order, is whether the relief being sought is\n\n15 quote, so divorced, so divorced, that comes out of the Energy\n\n16 Futures case and Pursuit Capital, from the sale, whether it\n\n17 involves, quote, only collateral issues, not implicating a\n\n18 central or integral element of a sale, comes out of the same\n\n19 two cases. I think Judge Krause, in both cases, you, in your\n\n20 opinion, were quoting the panel's prior decision in Pursuit.\n\n21 Here, no credible argument can be made that the third-party\n\n22 releases were divorced or were collateral. They were the guts\n\n23 of the sale.\n\n24 My client, Mr. Hacker's client, is going to follow me,\n\n25 and the other settling insurers paid a $1,600,000,000. That is\n\n Veritext Legal Solutions\n 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830\n\f Page 77\n\n1 a lot of money even in an inflationary period we live in today.\n\n2 And that kind of money gets paid when you get complete peace\n\n3 and not under other conditions. So it was integral to the\n\n4 plan. And if you try to separate the two, we're going to be in\n\n5 years of litigation.\n\n6 And Judge Rendell, I hope we don't get to what you are\n\n7 suggesting, which is a liquidation of Boy Scouts. But we may.\n\n8 That litigation may be litigation in which I'm opposite a\n\n9 Chapter 7 trustee, years from now, fighting over whether we get\n\n10 that money back. That can't be the right outcome. It's not\n\n11 consistent with 363(m) and its policy in favor of finality.\n\n12 JUDGE SCIRICA: I believe --\n\n13 JUDGE RENDELL: What about --\n\n14 Excuse me. Go ahead.\n\n15 JUDGE SCIRICA: I believe one of your colleagues said\n\n16 a few moments ago that both 363(m) and equitable mootness\n\n17 should be applied here. If I misheard him --\n\n18 MR. ANKER: Your Honor, I agree that both can be a bar\n\n19 here given that equitable mootness is obviously the law of this\n\n20 circuit. Whether someday the Supreme Court will examine the\n\n21 question of whether it is an appropriate doctrine or not is\n\n22 something that may happen, but it is the law of this circuit.\n\n23 And I think that the very same sales that give rise to the\n\n24 statutory mootness argument also give rise to equitable\n\n25 mootness.\n\n Veritext Legal Solutions\n 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830\n\f Page 78\n\n1 I was simply -- I am focusing on statutory mootness,\n\n2 in part, because we decided to divide up time and attention.\n\n3 And in part because I do think, given the statutory basis, I\n\n4 think it's an easier place to ground a decision here, a safer\n\n5 place, a simpler place, and one again, that is more faithful to\n\n6 Purdue itself, which, as I began, is a plain meaning, read the\n\n7 words of the statute case, at its core.\n\n8 JUDGE RENDELL: Can I ask -- can I ask you about the\n\n9 gamesmanship that I mentioned, that hereafter they will frame\n\n10 purchases of releases, if you will. They will frame the use of\n\n11 releases as part of a sale, selling fraudulent conveyance\n\n12 claims, something in return for releases and escape scrutiny on\n\n13 appeal under 363(m). Is that -- am I being too -- is that out\n\n14 of the realm of possibility?\n\n15 MR. ANKER: When I'm asked a question, is something\n\n16 out of the realm of possibility, it's hard for me to answer the\n\n17 question, no --\n\n18 JUDGE RENDELL: I --\n\n19 MR. ANKER: -- yes, it is completely --\n\n20 JUDGE RENDELL: -- bankruptcy practitioner. And I\n\n21 know --\n\n22 MR. ANKER: We are creative. We are creative, those\n\n23 of us who practice in bankruptcy court, and I do often. I\n\n24 think you're giving, respectfully Judge Rendell, too little\n\n25 credit to the bankruptcy court and to the district court when\n\n Veritext Legal Solutions\n 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830\n\f Page 79\n\n1 it reviews the decision. Here, because there were third-party\n\n2 releases, no one was comfortable with having this plan go\n\n3 effective before an Article III court got to look at it.\n\n4 Will there ever be an attempt to try to use 363 to\n\n5 insulate an issue? Maybe, but there -- but I do practice and I\n\n6 do have a lot of confidence. Judge Silverstein wrote a 200-\n\n7 page decision, 180-page decision. The amount of time and\n\n8 energy and diligence she spent, this is not a rubber stamp, was\n\n9 extraordinary. The amount of time and energy Judge Andrews\n\n10 spent was extraordinary. I argued in front of him, and I saw\n\n11 his opinion.\n\n12 And then this went up, within it, with a motion for a\n\n13 stay. And I can only presume that the motions panel of this\n\n14 Court also exhibited diligence and took its responsibilities\n\n15 seriously. So Judge Rendell, anything is possible. But do I\n\n16 think we are going to have a series of unlawful plans over and\n\n17 over again? No, I do not think that's the future.\n\n18 JUDGE RENDELL: Thank you.\n\n19 MR. ANKER: Thank you.\n\n20 MR. HACKER: Good afternoon, Your Honor. Your Honor,\n\n21 it's John Hacker for Century, another settling insurer, and its\n\n22 affiliates. I think that the Supreme Court's decision in\n\n23 Purdue, and Judge Krause's opinion in Energy Future, together\n\n24 establish what is an irrefutable case for affirmance under 363.\n\n25 Now, Purdue, we know, doesn't itself address 363(m). But it\n\n Veritext Legal Solutions\n 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830\n\f Page 80\n\n1 matters because, as you've already heard from my colleagues\n\n2 today, of its rigorous, rigorous emphasis on applying the\n\n3 code's plain text as written.\n\n4 And according to Energy Future, 363's plain text means\n\n5 what it says. When an estate asset has been sold to a good\n\n6 faith purchaser, straight out of the text, and sustaining an\n\n7 objection to the plan would affect the validity of that sale,\n\n8 the objection must be rejected. It's not necessarily a\n\n9 jurisdictional kind of mootness. It's simply a ruling that the\n\n10 objection cannot be sustained because the statute, by its plain\n\n11 terms, prohibits the Court from providing that kind of relief.\n\n12 That rule compels affirmance here.\n\n13 As the bankruptcy court explicitly found, based on\n\n14 undisputed evidence, this wasn't just an observation. If you\n\n15 look at the Court's decision, the insurers' payments were made\n\n16 in exchange for two essential integrated components of\n\n17 consideration. They get their policies back.\n\n18 That's the asset that is transferred, Judge Rendell.\n\n19 There's absolutely property asset transfer. And they get the\n\n20 releases of all scouting-related abuse claims. If the Court\n\n21 were to invalidate the releases, the insurers indisputably\n\n22 would not get what they paid for. The plain text of 363 could\n\n23 not be more directly applicable.\n\n24 Let me just address two points in the time that I\n\n25 have. One, I think, Mr. Anker addressed with you, Judge\n\n Veritext Legal Solutions\n 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830\n\f Page 81\n\n1 Rendell, your concern that that's really not what Congress\n\n2 meant by a sale. And Mr. Anker, I think, had some answers to\n\n3 that. I just want to underscore the relevance of Purdue on\n\n4 this. What Purdue tells us, if nothing else, is that we don't\n\n5 read the code and try to think about what Congress might have\n\n6 meant, or also could have said, or other caveats that might\n\n7 have written in, or exceptions that could have been grafted\n\n8 onto the plain text.\n\n9 You read the text and you apply it. And 363(m) says,\n\n10 when there's a sale, which there was here, to a good faith\n\n11 purchaser, which there was here, as was found by the bankruptcy\n\n12 court, then this Court can't do anything to affect the validity\n\n13 of that sale. The sale, clearly, it fits within the plain text\n\n14 of the statutes. It's an asset transferred for an\n\n15 extraordinary amount of value to a good faith purchaser.\n\n16 And as Mr. Anker emphasized, the code obviously has\n\n17 many protections for the kind of mischief one might worry\n\n18 about. And I would just underscore the point that, at the end\n\n19 of the day, Congress, we know from Purdue, is the source of\n\n20 identifying and channeling and providing for those kinds of\n\n21 protections that did so here, if there need to be more. If it\n\n22 turns out there are problems in the future, which I think is\n\n23 clearly there won't be for the reasons Mr. Anker says, that's a\n\n24 problem for Congress to address. That's what Purdue tells us.\n\n25 The other point I want to make is in response to the\n\n Veritext Legal Solutions\n 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830\n\f Page 82\n\n1 claimants' argument, a couple of sort of related arguments.\n\n2 First of all, that the sales are only conditional, they didn't\n\n3 even happen. It's just simply not correct. The sales have\n\n4 occurred. Mr. Anker read you the phrase, they have closed.\n\n5 There's nothing left to happen.\n\n6 What's in escrow is not the policies. They cite a\n\n7 case from the Eighth Circuit. I think it's the Olson case\n\n8 where it says, property that's in escrow isn't really finally\n\n9 transferred. It's not about the -- with respect to the 363\n\n10 argument, the escrow might be relevant to the equitable\n\n11 mootness issue. But as to 363, what matters is the policies\n\n12 have been, to quote BSA, irrevocably transferred. They've been\n\n13 transferred.\n\n14 The escrow is only about a post-sale, post-closing\n\n15 provision for how the money will ultimately be distributed,\n\n16 just like the Krebs case from this Court, where the payment had\n\n17 only been ten percent up front and there was going to be a\n\n18 payment down the road. But what mattered is the asset had been\n\n19 transferred. Exactly the same -- is true exactly the same as\n\n20 in your opinion, Judge Rendell, in the Osram Sylvania case.\n\n21 The other issue I heard the claimants raise is that\n\n22 because of the related point, because of the escrow, and I\n\n23 think Judge Scirica asked about the sort of the status of the\n\n24 escrow or why that matters, the releases can be invalidated\n\n25 without affecting the sale of the policies, because the\n\n Veritext Legal Solutions\n 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830\n\f Page 83\n\n1 policies will be gone, but the money will come back. And so\n\n2 the sale is complete because the policies are still\n\n3 transferred. That's a blinkered view of what the transaction\n\n4 was.\n\n5 I think Mr. Anker read you the key finding, and\n\n6 there's actually a bunch of them sprinkled throughout the\n\n7 bankruptcy court's decision about the multi -- the multiple\n\n8 components of the sale. The consideration for the sale of the\n\n9 policies wasn't just the money. The money was paid for the\n\n10 transfer of the policies and the releases. You cannot untangle\n\n11 those. If you invalidate the releases, you unambiguously\n\n12 change the core, the integral elements of the sale, just as in\n\n13 Energy Future, just as in Pursuit Capital, just as in decisions\n\n14 by circuit courts around the country.\n\n15 Because 363(m) on the merits disables the Court from\n\n16 providing that relief, it can't provide that relief. And\n\n17 because that's the only relief they're seeking, to your point,\n\n18 Judge Rendell, about, the Court needs to be able to review a\n\n19 large plan. That's, of course, true. And if an appellant in a\n\n20 given case has objections that are aside from, different from,\n\n21 and don't affect the validity of the sale, they can raise those\n\n22 objections. Somebody might complain about the trust\n\n23 distribution procedure.\n\n24 Somebody might complain about the due process -- the\n\n25 process as in Energy Futures. This Court didn't say it was\n\n Veritext Legal Solutions\n 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830\n\f Page 84\n\n1 unchallengeable in Energy Future. The Court said you couldn't\n\n2 challenge the validity of the sale. But there was something\n\n3 else that the Court -- relief the Court could provide because\n\n4 it wouldn't affect the sale. That's simply not true here with\n\n5 respect to the request by the claimants, the dissenting\n\n6 claimants, to invalidate the releases.\n\n7 It's not relief the Court can provide. And so the\n\n8 objection has to be rejected. And because that's all they\n\n9 argue for, the plan has to be confirmed. No further questions,\n\n10 thank you.\n\n11 THE COURT: Thank you.\n\n12 MR. KURTZ: Good afternoon, Your Honors. Glenn Kurtz,\n\n13 on behalf of the Boy Scouts of America. What I'm going to try\n\n14 to do in my time is, first, briefly address the insurers'\n\n15 arguments about the assignments of the obligations, correct one\n\n16 jurisdictional fact that was mentioned today, and then spend\n\n17 most of my time addressing why the Purdue decision does not\n\n18 apply to the BSA plan because it provides for payment in full.\n\n19 Judge Rendell correctly identified portions of the\n\n20 record where the insurers' obligations were preserved and\n\n21 assigned. And I will add an additional one, Judge Rendell,\n\n22 which is paragraph 48 of the confirmation order. That is at\n\n23 page 842 of the record. And it provides, \"Nothing in the plan\n\n24 shall modify, amend, supplement, or be interpreted as\n\n25 modifying, amending, or supplementing the terms of any\n\n Veritext Legal Solutions\n 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830\n\f Page 85\n\n1 insurance policy or rights or obligations under such insurance\n\n2 policies.\" And I will note that Counsel spoke to modifications\n\n3 relating to the confirmation -- I'm sorry, relating to the\n\n4 plan. That's not included in paragraph 48 of the confirmation\n\n5 order. There's no qualification that it's subject to the plan.\n\n6 I will also point out that the confirmation order,\n\n7 including in paragraphs 32 and 33, which is at 827 and 828 of\n\n8 the record, explicitly preserves the insurers' coverage\n\n9 defenses. And both lower courts found that the documents\n\n10 explicitly preserved the insurers' coverage defenses.\n\n11 Now, I want to address the argument that the\n\n12 settlement trustee has taken a different position in coverage\n\n13 litigation. I should start by noting that's not in the record,\n\n14 that's outside the record. But -- nor could allegations or\n\n15 assertions made by an advocate in a case override the governing\n\n16 documents here and the determinations and the findings of the\n\n17 two lower courts. But I also need to point out that the\n\n18 allegation -- the arguments that have been made and the\n\n19 allegations that have been made have been mischaracterized\n\n20 badly by the insurers.\n\n21 So if you do go outside the record, what you will\n\n22 learn was that, contrary to the insurers' argument that\n\n23 settlement -- that the settlement trustee argued that the\n\n24 coverage defenses were considered and rejected by the Court.\n\n25 If you look at what they cite to, what the Trustee argued was\n\n Veritext Legal Solutions\n 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830\n\f Page 86\n\n1 exactly the opposite. What the Trustee argued was that the\n\n2 lower courts, quote, rejected the insurers' argument that the\n\n3 plan unlawfully impaired their rights under the insurance\n\n4 policies and then confirmed the plan over the insurers'\n\n5 objections.\n\n6 And that is exactly our point here, that there has not\n\n7 been an impairment of the plan. There has been a preservation\n\n8 of those obligations. And in fact, also inconsistently in that\n\n9 same case, what the insurers say is that there is protective\n\n10 language that was entered by the Court that's included in the\n\n11 TDP. And that, quote, preserves insurers' rights, which,\n\n12 again, is our position here and the exact opposite of the\n\n13 position they're taking before this Court.\n\n14 The other allegation that comes out of the coverage\n\n15 litigation is that, quote, that the Trustee argued that the\n\n16 insurers, quote, must provide coverage for the abuse claims\n\n17 without regard to the underlying obligations and defenses, the\n\n18 insurance policies. That, too, is included nowhere in the\n\n19 coverage complaint. If you look at the cited language, what it\n\n20 says is there is an actual controversy for purposes of a\n\n21 declaratory judgment because the Trustee believes that the\n\n22 insurers have to provide coverage, and the insurers disagree\n\n23 with that, which is a dispute that goes back long before the\n\n24 bankruptcy case.\n\n25 As to the changes that have been proposed, the only\n\n Veritext Legal Solutions\n 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830\n\f Page 87\n\n1 effect of the language that's included in the TDP about\n\n2 subjecting the obligations to the confirmation order, are that\n\n3 the confirmation order provides for an assignment which is not\n\n4 permitted under the insurance policies, but is permitted as a\n\n5 matter of bankruptcy law. That's why that's there.\n\n6 In terms of res judicata, the insurers argued that the\n\n7 Court made some sort of coverage ruling. I don't know you\n\n8 could find anything that could be further from the truth. The\n\n9 Court repeatedly not only preserved the insurers' defenses, the\n\n10 coverage defenses, but argued that they were not justiciable\n\n11 and they would be decided if there is a dispute in the future\n\n12 by a coverage court in the future.\n\n13 And then finally, the idea that there will be no\n\n14 impact to the insurers, no adverse impact, I don't know what\n\n15 that means. It's too vague for inclusion. But what was really\n\n16 suggested was that the Court impose a provision that the awards\n\n17 and the decision by the settlement trustee would be\n\n18 inadmissible in hypothetical future litigation. Any\n\n19 evidentiary rulings that need to be made in future hypothetical\n\n20 litigation should be made by a future coverage court, if there\n\n21 ever is such a case.\n\n22 It's not justiciable at this point, and frankly, I\n\n23 don't think it's a correct ruling anyway. I don't know how a\n\n24 decision by a Trustee, which would presumably be the basis for\n\n25 seeking indemnification, wouldn't be admissible. It wouldn't\n\n Veritext Legal Solutions\n 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830\n\f Page 88\n\n1 be binding, but it would certainly seem to me to be admissible.\n\n2 That's for another day.\n\n3 On the jurisdictional fact, Counsel argued, I think,\n\n4 in response to the notion that there is shared insurance, which\n\n5 would be sufficient to support the exercise of jurisdiction,\n\n6 that there is not shared insurance pre-1976. I want to correct\n\n7 that in three ways. One, there is contractual indemnity\n\n8 obligations by BSA. So they have that affinity of interest.\n\n9 Two, there is -- in pre-1976 policies, there is\n\n10 coverage for contractual obligations. So there is shared\n\n11 insurance for that reason as well. And then third, and Your\n\n12 Honor had asked about this, Judge Krause, was they've also\n\n13 assigned policies, the pre-1976 policies which then become of\n\n14 course, property of the estate. The response was no, that\n\n15 didn't happen. It did happen. The Settlement Trust Assets,\n\n16 which is defined at 909 of the record, includes the pre-1976\n\n17 policies by the local councils and the chartered organizations.\n\n18 And those were transferred as of the effective date. And that\n\n19 is at page 931 of the record.\n\n20 Now, with that, I do want to turn to the primary\n\n21 purpose for me here today, which is to address that Purdue does\n\n22 not apply to the BSA plan, not only because it's been\n\n23 substantially consummated, but also because it provides for\n\n24 payment in full. And I start, of course, by pointing out that\n\n25 BSA submitted an amicus brief, in the Purdue appeal, explicitly\n\n Veritext Legal Solutions\n 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830\n\f Page 89\n\n1 arguing that any nonconsensual third-party releases limitation\n\n2 that might be imposed by that Court should not apply if a plan\n\n3 provides for payment in full. And the Court's reaction to that\n\n4 was to carve out from its decision, among other things, plans\n\n5 that provide for payment in full.\n\n6 JUDGE KRAUSE: But it leaves for another --\n\n7 JUDGE RENDELL: What is the total --\n\n8 JUDGE KRAUSE: Go ahead, Judge Rendell.\n\n9 JUDGE RENDELL: Sorry. What is the total amount of\n\n10 claims that will be involved in this case?\n\n11 MR. KURTZ: So Your Honor, the proof of claims that\n\n12 were filed at the time of the bankruptcy was approximately\n\n13 82,500. However, the claims that have been pursued timely,\n\n14 including with respect to extensions, is approximately 60,000.\n\n15 JUDGE RENDELL: No, I mean, the total dollar amount\n\n16 that's going to be distributed under this plan.\n\n17 MR. KURTZ: The dollar amount is -- so the -- is going\n\n18 to be the $2.64 billion, the $200 million contingent funding,\n\n19 and between $4.2 and $4.4 billion of value associated with the\n\n20 unsettled insurance policies.\n\n21 JUDGE RENDELL: How do we know the total amount of\n\n22 claims? We don't have a final -- I don't mean claims, total\n\n23 amount of money that's going to be distributed to claimants in\n\n24 this case. We do not know that, do we?\n\n25 MR. KURTZ: Your Honor, we can't possibly know. And\n\n Veritext Legal Solutions\n 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830\n\f Page 90\n\n1 in no case, this case included, can one know with absolute\n\n2 certainty. And that's not required under the Bankruptcy Code\n\n3 or otherwise, precisely what everyone will get. However, there\n\n4 was --\n\n5 JUDGE RENDELL: But you -- for you to say it's a full\n\n6 satisfaction plan, you need to know that there is the money\n\n7 available to pay all of -- all of the claims that will be\n\n8 filed. And we can't tell that here, can we?\n\n9 MR. KURTZ: No, I think you can, Your Honor. I'll\n\n10 just -- before I point to the evidence, I would note that it\n\n11 is, of course, routine in bankruptcy cases to have ongoing\n\n12 obligations without a guarantee they'll be paid. But based on\n\n13 estimations, based on the evidence by a court, that they're\n\n14 adequate for purposes of full payment, including the\n\n15 reinstatement of debt. That doesn't mean that all that debt\n\n16 will be paid over the ten years. It might be reinstated, but\n\n17 it's -- but the estimation is binding and adequate.\n\n18 Here, we had a very robust record on payment in full.\n\n19 We had experts, three different experts testified. I will note\n\n20 they were the only experts on the subject. They were not only\n\n21 solid evidence, they're the only evidence. We had the\n\n22 testimony of Dr. Bates, a leading economist who has been\n\n23 certified in other cases. He's valued claims thousands of\n\n24 times. He valued these claims off of the databases available.\n\n25 He pulled together trust distribution procedures designed to\n\n Veritext Legal Solutions\n 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830\n\f Page 91\n\n1 replicate historical resolutions within the tort system.\n\n2 He applied a frequency-severity approach, which is a\n\n3 recognized approach in the scientific community, and no one\n\n4 disputed that. And he was able to determine, based on claim\n\n5 characteristics, including the nature of the abuse, the\n\n6 frequency of the abuse, the profile of the abuser, potentially\n\n7 applicable statute of limitations, age of the survivor, and a\n\n8 host of other matters, that the overall range was going to be\n\n9 between $2.4 and $3.6 billion.\n\n10 And Ms. Gutzler, who is an expert in mapping insurance\n\n11 values to claims, was able to conclude -- again certified as an\n\n12 expert, extremely experienced, has done this thousands of times\n\n13 -- was able to conclude that the value of the unsettled\n\n14 insurance was between $4.2 and $4.4 billion, resulting in trust\n\n15 assets that provide almost twice the amount at the high end of\n\n16 the expected range. None of this was disputed. The Court --\n\n17 Dr. Bates, for example, was on the stand for eight hours. The\n\n18 Court found that he was credible, he was thorough, he was\n\n19 methodical and made the same findings with respect to Ms.\n\n20 Gutzler as well.\n\n21 I will also point out, Your Honor, that the same\n\n22 circumstances have come up in the first case, and the only\n\n23 case, I think, that has addressed the Purdue full payment plan\n\n24 issue since it was issued, which is the Bird Global case in the\n\n25 Southern District of Florida. The Court in that case likewise\n\n Veritext Legal Solutions\n 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830\n\f Page 92\n\n1 reviewed expert testimony valuing claims, valuing trust assets,\n\n2 and projecting that there would be sufficient assets to satisfy\n\n3 claims in full, and found that, under Purdue, that was\n\n4 permissible over the objections of nonconsenting claimants.\n\n5 The --\n\n6 JUDGE KRAUSE: Why should it be permissible when we\n\n7 look at the reasoning of the Court? I mean, the Court, of\n\n8 course, it did carve it out. But if we're looking to its\n\n9 rationale, why should it matter whether there's full payment or\n\n10 not, if there was no authority on the part of the bankruptcy\n\n11 court to do this?\n\n12 MR. KURTZ: So Your Honor, I think there was\n\n13 authority. Let me start with the authority and then move to\n\n14 the one satisfaction rule. But let me start with the authority\n\n15 because you are correct that the Purdue court spoke in terms of\n\n16 a lack of statutory authority. That's because in Purdue, the\n\n17 debtor had cited 1123(b)(6). And the Court concluded that the\n\n18 assets at issue that were being addressed, which was the\n\n19 Sackler contribution, didn't fall with any of the statutory\n\n20 provisions because it was nondebtor property and it was being\n\n21 contributed in exchange for a release from a nondebtor.\n\n22 And what the Court said on page 2082 is that the\n\n23 statute, \"permits the plan to address claims and property\n\n24 belonging to the debtor or the estate.\" In this case, we are\n\n25 addressing property that belongs to the debtor, the estate.\n\n Veritext Legal Solutions\n 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830\n\f Page 93\n\n1 It's their insurance assets, and there is statutory authority\n\n2 in a number of places. And I start with 1123(a)(5)(D), which\n\n3 authorizes the debtor to sell any of its property, which\n\n4 includes insurance assets.\n\n5 I also look to 363(b) and (f), which authorizes a\n\n6 debtor to sell its property free and clear of liens. I look at\n\n7 1123(b)(3)(A), which authorizes a debtor to settle its\n\n8 interests in any property. And I look to Section 1123(a)(5),\n\n9 which specifies that, \"notwithstanding any otherwise applicable\n\n10 nonbankruptcy law\" -- so we're talking about a senior provision\n\n11 here -- \"a plan shall provide adequate means for the plan's\n\n12 implementation.\"\n\n13 And in order for the BSA to exercise its statutory\n\n14 authority to monetize its assets, to sell its insurance, to\n\n15 settle its interests, which were disputed by the insurer, we\n\n16 generate a $1.6 billion of value on disputed insurance, by\n\n17 definition, the BSA had to provide releases because you needed\n\n18 the participation of the other insurers, people who also had an\n\n19 interest in those policies. And the record is, and it can't be\n\n20 disputed, because this is uniform practice, that none of those\n\n21 co-insurers would agree to waive their rights to the insurance\n\n22 policy covering them if the claims that were being so covered\n\n23 by the policy were not released against them as well.\n\n24 It is important to note here that the primary assets\n\n25 for this estate are the insurance assets. And if you don't\n\n Veritext Legal Solutions\n 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830\n\f Page 94\n\n1 have the right to exercise your statutory authority, to sell\n\n2 your assets, to monetize your insurance, through all the\n\n3 attendant rights you would need, including the ability to get\n\n4 the participation of other joint owners, in effect, then you\n\n5 can't exercise that. You can't reorganize. The debtor has an\n\n6 obligation to maximize the value of its estate to provide\n\n7 compensation to creditors. The only way to do it in\n\n8 circumstances like this, where your primary asset is insurance,\n\n9 is to get the participation of the other insurers.\n\n10 Now, I'm sure you will hear that the statutory\n\n11 authority that I'm citing -- and by the way, also cited and\n\n12 relied on in the Bird Global case -- doesn't explicitly speak\n\n13 to releases. But I will also say that as far as I can tell,\n\n14 and I've looked hard, there's not a single provision in the\n\n15 Bankruptcy Code that authorizes, or specifically speaks to,\n\n16 releases, consensual or nonconsensual. And I think everybody\n\n17 would be compelled to agree that consensual releases cannot\n\n18 possibly be an issue, notwithstanding the fact of some specific\n\n19 provision set forth in a Bankruptcy Code, because there is no\n\n20 bankruptcy that doesn't have disputes that need to be settled.\n\n21 And that settlement does have to include releases. And by the\n\n22 way, I should probably also add, as one of the authorities, and\n\n23 it was in Bird Global. It's 9019 -- rule 9019 as well.\n\n24 Your Honor, the other authority-related issue here is\n\n25 the one satisfaction rule. And it, at bare minimum, really\n\n Veritext Legal Solutions\n 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830\n\f Page 95\n\n1 sheds a lot of light on the equities here, because the one\n\n2 satisfaction rule provides, that so long as a defendant\n\n3 provides full satisfaction to a claimant for a single\n\n4 indivisible injury, that the claimant loses, by operation of\n\n5 law, the ability to sue other defendants that could have\n\n6 liability. Those claims are released, and they're barred.\n\n7 They are barred from pursuing those claims. This is a\n\n8 settlement-in-full plan. So that is another authority. There\n\n9 was no common law authority that was raised in Purdue. And\n\n10 this one really means, it's sort of at a bare minimum, no harm,\n\n11 no foul. You're looking at compromising the ability of a\n\n12 debtor to reorganize.\n\n13 And we're talking about a 120-year-old,\n\n14 congressionally chartered not-for-profit that is built into the\n\n15 fabric of this country, dedicated to the training of youth for\n\n16 the betterment of society. And you're talking about 60,000\n\n17 plus survivors that have been waiting, sometimes, according to\n\n18 the record, fifty years for compensation, that are literally\n\n19 dying as we're getting through this case. And to compromise\n\n20 this plan -- because the claims will be paid expeditiously -- a\n\n21 lot more expeditiously than in the tort system -- but haven't\n\n22 been paid yet, I submit doesn't make any sense.\n\n23 JUDGE KRAUSE: Thank you. Other questions? Judge\n\n24 Rendell?\n\n25 JUDGE RENDELL: No.\n\n Veritext Legal Solutions\n 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830\n\f Page 96\n\n1 MR. KURTZ: Thank you very much, Your Honors.\n\n2 JUDGE KRAUSE: Thank you.\n\n3 MS. QUINN: Good afternoon. May it please the Court,\n\n4 Kami Quinn here on behalf of the plan supporters, specifically\n\n5 insurance coverage counsel to the FCR. And my role here is to\n\n6 address some of the insurance merits issues.\n\n7 In particular, I'm going to, very briefly, so as not\n\n8 to repeat any of the things that Mr. Kurtz just raised, talk a\n\n9 little bit about the insurers' carve-out request and then go to\n\n10 the judgment reduction provision.\n\n11 Okay. On the carve-out. And this, I think, going\n\n12 back to something that you raised with respect to this argument\n\n13 before, there are certain background principles of law here\n\n14 that none of us disagree with, which is that the insurers'\n\n15 contract rights can't be expanded or contracted with\n\n16 bankruptcy. And indeed, as Mr. Kurtz read, that's express in\n\n17 the documents. That's laid out.\n\n18 But what the insurers are asking for, although they\n\n19 characterize it as something small, is something more than just\n\n20 a preservation of their rights. The actual language that\n\n21 they're asking for you to put in says that they are exempt from\n\n22 collateral and estoppel res judicata in any respect, not just\n\n23 with respect to some certain finding. They also -- the\n\n24 language suggests that the facts of awards by the trust could\n\n25 not be used in evidence in a coverage action.\n\n Veritext Legal Solutions\n 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830\n\f Page 97\n\n1 None of this is just a preservation of contract\n\n2 rights. What they're asking for is not just to preserve their\n\n3 rights, but they're asking to preserve pre-petition\n\n4 circumstances, and they're just not entitled to that.\n\n5 In contrast, all we're saying is that the coverage\n\n6 court can apply the unchanged defenses of the policies to the\n\n7 actual facts and circumstances, which are that there is a\n\n8 confirmed plan and that the insurers litigated certain things\n\n9 in that plan -- in connection with that plan and not others,\n\n10 and that the confirmation order applies to them as it would\n\n11 apply to anyone else. And I think that that's a fairly\n\n12 uncontroversial position, and that adding the language of the\n\n13 insurers, that the insurers request, would be giving them far\n\n14 more than just a preservation of their contract rights.\n\n15 JUDGE KRAUSE: So is there -- if you agree that\n\n16 there's not impairment, and that it's really these background\n\n17 principles that are coming into play, I gather there wouldn't\n\n18 be an objection, then, even if the plan were not amended, to\n\n19 this Court clarifying what those principles are?\n\n20 MS. QUINN: Sure. I mean, we would agree. I mean, I\n\n21 think the district court did. I think the district court's\n\n22 decision said a number of things about the fact that defenses\n\n23 are not impaired. I think that language is already in the TDP.\n\n24 What we're saying would be problematic would be saying\n\n25 that somehow things like orders of the court don't apply to\n\n Veritext Legal Solutions\n 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830\n\f Page 98\n\n1 them, that res judicata doesn't apply to them, that they are\n\n2 somehow entitled to pre-petition circumstances rather than just\n\n3 pre-petition contracts. Their contracts apply, but they apply\n\n4 to a world in which the bankruptcy case occurred. And the\n\n5 judge made certain rulings. And the coverage court can apply\n\n6 those rulings in context with the contracts that the insurers\n\n7 wrote.\n\n8 And I'm already getting close to the end of my time,\n\n9 but I'm going to go to judgment reduction pretty quickly, and\n\n10 I'm happy to answer any questions you all have on that as well.\n\n11 On the judgment reduction point, the Allianz insurers\n\n12 asked the court to rewrite the judgment reduction provisions,\n\n13 which were part of the integrated whole of the deal that was\n\n14 struck here, that ultimately got overwhelming support of the\n\n15 creditors. One of the things that was -- one of the pieces of\n\n16 the deal here, and one of the reasons why this is important, is\n\n17 the creditors were voting on a trust that paid survivors, not\n\n18 one where insurers would be able to come back and invade the\n\n19 corpus of that trust. Doing so would have a real material\n\n20 effect on the trust. It would increase litigation. It would\n\n21 require the trust to consider that in her coverage litigation\n\n22 sphere. And it would create a situation which would make\n\n23 difficult, as a district court found, that she might have to\n\n24 project those claims -- take into account those claims in\n\n25 paying insurers. And I know --\n\n Veritext Legal Solutions\n 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830\n\f Page 99\n\n1 JUDGE RENDELL: But doesn't -- this violates Purdue,\n\n2 though. You're saying they don't have a claim, which they\n\n3 rightly have, discharging a potential claim of theirs. So how\n\n4 could they? Because I mean, it's Purdue, is it not?\n\n5 MS. QUINN: Well, I think what the district court --\n\n6 the analysis that the district court did was basically a 363\n\n7 sale adequate protection analysis. And I don't know that 3 --\n\n8 I don't know that Purdue eliminates that. I mean, while it\n\n9 didn't actually say that, we're talking about this settle --\n\n10 it's a claim against the settling insurers, that is, the\n\n11 contribution claim here. And that's the asset that's sold. So\n\n12 essentially, insurers are asking for protection for their\n\n13 contribution interest in that settled coverage. And the\n\n14 district court found that they were adequately protected for\n\n15 that interest.\n\n16 JUDGE RENDELL: Well, but doesn't it say they can't go\n\n17 against the trust for this amount that they're owed?\n\n18 MS. QUINN: It does. But the court found that they're\n\n19 adequately protected because they get paid in other ways, which\n\n20 is the reduction of overall defense costs through the court,\n\n21 through the trust's procedures, which massively reduces their\n\n22 overall defense costs.\n\n23 JUDGE KRAUSE: What's that finding based on? I mean,\n\n24 there's no --\n\n25 MS. QUINN: You're right.\n\n Veritext Legal Solutions\n 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830\n\f Page 100\n\n1 JUDGE KRAUSE: -- evidentiary hearing on that point.\n\n2 MS. QUINN: You're right. And the reason for that is\n\n3 because the Allianz insurers didn't raise this objection at all\n\n4 in any of its briefing at the bankruptcy court level. They\n\n5 proposed language that did this, but never actually requested\n\n6 this relief until oral argument on the form of the confirmation\n\n7 order.\n\n8 And ultimately, what the bankruptcy court did is she\n\n9 took two proposed orders under advisement and chose one. She\n\n10 did not make findings on this. And that's true. But the\n\n11 reason for that was Allianz's failure to raise it in twenty-\n\n12 nine days of trial or any of the confirmation briefing.\n\n13 JUDGE KRAUSE: But they proposed language.\n\n14 MS. QUINN: They did, but they never tried to justify\n\n15 it. And so the court simply did not -- they --\n\n16 JUDGE RENDELL: It was language that the BSA had\n\n17 proposed originally.\n\n18 MS. QUINN: No, this language is different. The\n\n19 judgment reduction language is not language that the BSA\n\n20 originally proposed. This is language that was exclusively\n\n21 proposed by the insurers in an exhibit to -- an objection to\n\n22 the form of the confirmation order.\n\n23 JUDGE KRAUSE: So if we think that there is a Purdue\n\n24 problem here --\n\n25 MS. QUINN: Um-hum.\n\n Veritext Legal Solutions\n 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830\n\f Page 101\n\n1 JUDGE KRAUSE: -- but it's not apparent that it's, in\n\n2 reality, anything but speculative, wouldn't the right course be\n\n3 to remand for fact finding on that point?\n\n4 MS. QUINN: I mean, it may be. It may be. I think\n\n5 the fact that the trust procedures will massively reduce\n\n6 defense costs -- I think there is ample record support for\n\n7 that, including a variety of the purposes that the bankruptcy\n\n8 court found. I think she said a number of things in the intent\n\n9 of the process being an efficient method of payment for\n\n10 survivors. There's a variety of facts about the purpose of the\n\n11 trust being to streamline processes and the like. So I think\n\n12 that this Court could take a look at the fact findings she did\n\n13 make, although they were not made in connection with this\n\n14 argument, and find ample support for the fact that the trust\n\n15 procedures will significantly reduce overall defense costs.\n\n16 JUDGE KRAUSE: Okay.\n\n17 MS. QUINN: Thank you.\n\n18 JUDGE KRAUSE: Thank you.\n\n19 MR. SMOLA: Good afternoon. May it please the Court,\n\n20 Evan Smola on behalf of some amici survivors, and I'm here to\n\n21 give the Court some perspective from the vast majority, indeed,\n\n22 the overwhelming majority of survivors that support this plan.\n\n23 Survivors have relied upon the order of the bankruptcy\n\n24 court, the affirmance of the district court, and the ongoing\n\n25 administration by our Trustee.\n\n Veritext Legal Solutions\n 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830\n\f Page 102\n\n1 Judge Krause, earlier, you were concerned with\n\n2 bringing equitable mootness to new heights. And I want to\n\n3 touch upon exactly why this is an extraordinary case that does\n\n4 not do that.\n\n5 After the effective date, and during the eighteen-\n\n6 month implementation of the plan, the processes outlined within\n\n7 the plan inflicted real human costs upon survivors. Those are\n\n8 sunk costs. They cannot be unwound. They cannot be refunded\n\n9 or remedied.\n\n10 To start, survivors answered an eighty-one-page\n\n11 questionnaire. It asked that survivors focus on their abuse,\n\n12 think about it, relive it. It asked questions like, were you\n\n13 penetrated? And if so, how many times, when, and where?\n\n14 The plan asks that survivors demonstrate that they\n\n15 actually participated in scouting through extrinsic evidence.\n\n16 Survivors scoured basements and attics and garages to find\n\n17 their old scouting memorabilia to prove they had a claim. When\n\n18 they couldn't do that, the Trustee asked that they prove it\n\n19 through a third-party affidavit, a friend, or a family member.\n\n20 This required survivors to disclose their abuse, a secret\n\n21 hidden for years, to friends or family in order to explain why\n\n22 they needed such an affidavit.\n\n23 Survivors with health problems over the last eighteen\n\n24 months have hired probate attorneys to ensure that their claims\n\n25 could be advanced by their family and that their family could\n\n Veritext Legal Solutions\n 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830\n\f Page 103\n\n1 recover. Once again, this required they disclose their abuse\n\n2 to their family.\n\n3 Sadly, our firm represents about five percent of the\n\n4 total population of survivors. We have had 250 of those\n\n5 individuals pass away in the last four years. Many of them\n\n6 specifically instructed us not to tell their families about\n\n7 their claim. So when they died, their claim died, too.\n\n8 Independent review claimants. It's akin to a binding\n\n9 arbitration. Those claimants have subjected themselves to six-\n\n10 hour depositions and eight-hour arbitration hearings. They've\n\n11 relived their abuse, heard attorneys talk about their abuse and\n\n12 dissect their abuse.\n\n13 And finally, thousands, indeed, more than 10,000\n\n14 claimants, have finally reached something approximating the end\n\n15 of this ordeal. They've finally received acknowledgment. You\n\n16 were abused in scouting, and we believe you. While the Court\n\n17 may be concerned that not a huge, vast amount of money has gone\n\n18 out the door, relevant to what is owed, this closure, this\n\n19 acknowledgment that this happened and that our Trustee believes\n\n20 them, is an enormous step towards closure for childhood sexual\n\n21 abuse victims. Those claimants signed a release. They signed\n\n22 away their rights in reliance upon the plan and in exchange for\n\n23 continuing their claim within the trust.\n\n24 The hard and painful work of childhood sexual abuse\n\n25 survivors is done. The deadline to complete that work passed\n\n Veritext Legal Solutions\n 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830\n\f Page 104\n\n1 in July. 57,000 survivors tore away that scar tissue and faced\n\n2 their abuse head on, because that's what the confirmation order\n\n3 required of them. They did so at a terribly steep personal\n\n4 cost, costs for which there are no remedies. A survivor cannot\n\n5 untell a family member that he hid sexual abuse from them for\n\n6 years. A survivor cannot undo the nightmares experienced in\n\n7 the days after going through this questionnaire. A survivor\n\n8 cannot mend the relationship with a family member who no longer\n\n9 speaks to him after disclosing his abuse. And a survivor\n\n10 cannot unwind the damage done to a marriage when disclosing to\n\n11 a spouse a secret hidden for decades.\n\n12 The costs paid by tens of thousands of survivors in\n\n13 reliance on this plan warrants affirmation and dismissal of\n\n14 these appeals. A remand or an unwinding of the plan would\n\n15 devastate the survivor community, 0.02 percent of objectors\n\n16 notwithstanding. It would deprive hundreds, if not thousands,\n\n17 of survivors from obtaining justice, as they will die waiting.\n\n18 Judge Rendell, you've asked a number of attorneys, as\n\n19 a practical matter, what would happen if this plan is unwound.\n\n20 In the survivor community, it would be devastation. I urge\n\n21 this Court to allow the plan to go forward in its entireties.\n\n22 And if the equities rest with anyone, in this case, it is with\n\n23 the survivors that have done everything our justice system has\n\n24 asked of them. Those survivors now see an end in sight, and it\n\n25 is an end they desperately need.\n\n Veritext Legal Solutions\n 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830\n\f Page 105\n\n1 Unless you all have any questions, thank you for your\n\n2 time.\n\n3 JUDGE KRAUSE: We thank you, counsel, for your\n\n4 application to appear as amici today and to offer this\n\n5 important perspective.\n\n6 The Court is certainly aware, and all counsel, as we\n\n7 talk about these interesting legal issues, that behind them are\n\n8 real people. And the horrific experiences that are what\n\n9 brought all of us, at the end of the day, to court here to\n\n10 discuss these issues are well within the consideration of the\n\n11 Court, as well as the need for a timely resolution by this\n\n12 Court.\n\n13 MR. SMOLA: Thank you, Judge.\n\n14 JUDGE KRAUSE: Thank you.\n\n15 Thank you. We'll hear from you in rebuttal.\n\n16 MS. DUMAS: Thank you.\n\n17 Your Honor, I am Gilion Dumas, back. I'd like to\n\n18 address Judge Rendell's concerns about what relief might be\n\n19 possible, and also the full satisfaction issue. So I will go\n\n20 quickly unless you interrupt me.\n\n21 We have asked for lesser relief. And as this Court\n\n22 has made clear, it's the Court's obligation to consider lesser\n\n23 relief. This is a small number of claimants. They're also\n\n24 human beings. They're also sexual abuse survivors. And\n\n25 they're not asking for special treatment. They're asking for\n\n Veritext Legal Solutions\n 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830\n\f Page 106\n\n1 the treatment pretty much laid down by the Supreme Court in\n\n2 Purdue, and as claimants who preserved their appeals --\n\n3 preserved their objections below, and have now filed appeals to\n\n4 argue their objections.\n\n5 But they are also entitled to relief, not special\n\n6 relief, but we have suggested several types of relief that\n\n7 could apply, including an opt out just for them from the third-\n\n8 party releases. That does not affect the sale of the insurance\n\n9 policies, because the releases are separate from the insurance\n\n10 policies. They're part of the plan. They're the keystone --\n\n11 the releases are the cornerstone of the plan, not the sale.\n\n12 And we could get a -- a release that simply allowed us\n\n13 to pursue the claims against the local councils and chartered\n\n14 organizations without that one asset of the shared insurance\n\n15 rights in BSA's property, because these other entities have\n\n16 their own assets. That's only one form of relief that we asked\n\n17 for. We suggested several others.\n\n18 JUDGE KRAUSE: But to the extent that's part of the\n\n19 consideration, and --\n\n20 MS. DUMAS: Sorry.\n\n21 JUDGE KRAUSE: You could anticipate being interrupted.\n\n22 But to the extent that's part of the consideration that is\n\n23 being paid, and the opt outs take that out of the picture, that\n\n24 would seem to increase the costs to the settling insurers. Why\n\n25 doesn't that go straight to the validity of the plan?\n\n Veritext Legal Solutions\n 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830\n\f Page 107\n\n1 MS. DUMAS: I guess I'm not being clear.\n\n2 JUDGE KRAUSE: It wouldn't be the sale. Sorry.\n\n3 MS. DUMAS: It wouldn't affect the consideration that\n\n4 the settling insurers paid if the settling insurers are still\n\n5 not on the hook under those policies that were sold. As long\n\n6 as the policies remain sold -- which we argue the sale is not\n\n7 complete until the money gets transferred -- but we're saying\n\n8 we can continue with -- I mean, the releases, as for the claims\n\n9 just against the third parties, not against the insurance\n\n10 companies. Those were not consideration for the sale. Yes, the\n\n11 insurance company wanted a release from their obligations under\n\n12 those policies, but that does not mean that our claims on the\n\n13 merits went away against those third-party local councils and\n\n14 chartered organizations.\n\n15 And so even if -- I mean, the claims of the chartered\n\n16 organizations and the local councils for coverage under BSA's\n\n17 policies -- those were potential claims against the Debtor for\n\n18 the Debtor's assets, the coverage under those policies. But\n\n19 the claims by third-party sex abuse victims against the local\n\n20 councils and the chartered organizations -- those are not vis-\n\n21 a-vis those two parties. That does not affect that\n\n22 consideration that the settling insurers wanted.\n\n23 Again, we could go forward with the claims against the\n\n24 released parties without touching that shared insurance policy.\n\n25 That's just possible relief, though.\n\n Veritext Legal Solutions\n 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830\n\f Page 108\n\n1 This issue is in front of the Court for the first\n\n2 time. No lower court considered mootness, either statutory or\n\n3 equitable, so as the Supreme Court said in MOAC Mall, the\n\n4 appellate court doesn't decide what relief is possible as a\n\n5 matter of first impression. It would have to be -- this Court\n\n6 need only decide that some kind of relief is possible, given\n\n7 the wide scope of equitable relief. And then it would be up to\n\n8 the bankruptcy court to decide what particular relief would\n\n9 work. That makes this case, unlike the cases in Nordhoff or\n\n10 Energy Future, where the appellants were tied into one very\n\n11 specific type of relief -- we're open to any types of things\n\n12 that might come up.\n\n13 It was up to the appellees to say that absolutely no\n\n14 possible relief was available, and all they said was, well, you\n\n15 can't reverse the plan, and you can't strike the releases. But\n\n16 an opt out just for us, extra money from the local councils --\n\n17 that's not special treatment within the class, because the\n\n18 local councils aren't bankrupt. They're non-parties. They're\n\n19 non-bankrupt debtors. So the limitations on treating members\n\n20 of a class differently don't apply.\n\n21 If you give me one chance to address the full\n\n22 satisfaction issue --\n\n23 JUDGE KRAUSE: Briefly.\n\n24 MS. DUMAS: -- the bankruptcy court only made findings\n\n25 as to the likelihood of full payment of settlement value.\n\n Veritext Legal Solutions\n 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830\n\f Page 109\n\n1 Settlement value is not full satisfaction. Full satisfaction\n\n2 is a term of art in bankruptcy that applies to claimants who\n\n3 are in classes whose claims are unimpaired. The abuse\n\n4 claimants were in an impaired class. Their rights for their\n\n5 claims were impaired. That's why they're entitled to vote.\n\n6 And the treatment in the plan does not provide for full\n\n7 satisfaction to abuse claimants, unlike the specific, express\n\n8 treatment for unimpaired classes under the plan, who are\n\n9 promised satisfaction in full by complete payment of their\n\n10 claims.\n\n11 JUDGE KRAUSE: What do we make of the bankruptcy\n\n12 court's finding that there would be full satisfaction and our\n\n13 review for clear error?\n\n14 MS. DUMAS: No. The bankruptcy court did not make any\n\n15 findings about satisfaction in full or full satisfaction. At\n\n16 most, the bankruptcy court found that the plan was likely, for\n\n17 purposes of confirmation, to pay full settlement value.\n\n18 But settlement value is not the full value of the\n\n19 claims because the claims have never been adjudicated. So no\n\n20 one knows the actual full amount it would take to satisfy the\n\n21 claims. They haven't been measured.\n\n22 There are no findings that this plan provides for full\n\n23 satisfaction of the claims, and there's nothing in the plan\n\n24 about providing full satisfaction to abuse claimants.\n\n25 Absolutely nothing. At best, it's only full payment of\n\n Veritext Legal Solutions\n 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830\n\f Page 110\n\n1 settlement value, and we know that that won't apply here\n\n2 because the settlement Trustee, herself, has said that the\n\n3 claimants are almost certainly not going to be paid full\n\n4 settlement value.\n\n5 Again, that's not full satisfaction. And the one\n\n6 satisfaction doctrine doesn't even come into play unless\n\n7 there's full satisfaction, which there isn't here. And there\n\n8 were no findings about one satisfaction below. That only\n\n9 applies if states only have joint and several liability. The\n\n10 court never considered that. And my clients are from, like,\n\n11 Oregon and California -- states that have several-only\n\n12 liability.\n\n13 So the one satisfaction rule doesn't even apply. But\n\n14 it certainly doesn't apply where there's been no full\n\n15 satisfaction. Okay.\n\n16 JUDGE KRAUSE: Thank you.\n\n17 MS. DUMAS: Thank you.\n\n18 MS. LUJAN WOLFF: Hello. Delia Lujan Wolff, again,\n\n19 for Lujan claimants. I would just like to hit on some points\n\n20 and then end with effective relief. I'll be quick and answer\n\n21 any questions.\n\n22 JUDGE RENDELL: Ms. Wolff. Ms. Wolff, can I ask you a\n\n23 question? You were talking about 363(l) and its impact on\n\n24 whether this is a sale under (b) and (c) or a sale under a\n\n25 plan. And I'm assuming you're referencing -- under (l), the\n\n Veritext Legal Solutions\n 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830\n\f Page 111\n\n1 trustee can use, sell or lease property under (b) or (c) of\n\n2 this section, or a plan under 11 may provide for the use, sale,\n\n3 or lease. You draw the distinction that, when we come to\n\n4 363(m), it has to be a sale under (b) or (c), not a sale under\n\n5 a plan. Is that your argument?\n\n6 MS. LUJAN WOLFF: That's exactly correct because\n\n7 Section 363, as expressed in subsection (l), clarifies that\n\n8 these are two different transactions. And then in the\n\n9 legislative history of subsection (o), Congress, again, did\n\n10 that when it decided to take out subsection (o) applying to\n\n11 plan sales, and just make it a sale under a subsection under\n\n12 363. And so, yes.\n\n13 JUDGE RENDELL: Is that in your briefing? Is that in\n\n14 your briefing?\n\n15 MS. LUJAN WOLFF: It is in our opposition to the\n\n16 motion -- to the settling insurers' motion to dismiss.\n\n17 Regarding 363(m), we've also made the argument that,\n\n18 if it applies to bar direct actions, then it's reverse\n\n19 preempted under the McCarran-Ferguson Act by Guam's Direct\n\n20 Action Statute, which is a statute -- we explained how that\n\n21 applies. It's a statute -- every court that's looked at --\n\n22 except for the lower courts, every court that's looked at a\n\n23 direct-action statute has held that it is a statute that -- a\n\n24 state law that applies, as defined under the McCarran-Ferguson\n\n25 Act. And so it reverse preempts 363.\n\n Veritext Legal Solutions\n 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830\n\f Page 112\n\n1 363 doesn't even allow an injunction of nondebtor\n\n2 claims anyway. But if it's construed as such, then it would be\n\n3 reverse preempted.\n\n4 Regarding full satisfaction, there's no full\n\n5 satisfaction. The court made it clear that its estimate of the\n\n6 aggregate value was only for purposes of confirmation,\n\n7 specifically to meet the Master Mortgage factors, which are now\n\n8 invalid under Purdue. Those tests don't exist anymore.\n\n9 And the court also made it clear that its estimate of\n\n10 the aggregate value of claims did not establish the actual\n\n11 value of any single claim or the actual aggregate value of\n\n12 Direct Abuse Claims. And so there has been no finding by the\n\n13 court of actual value of the claims, or that they've actually\n\n14 been fully paid or satisfied. The one satisfaction rule cannot\n\n15 apply. And it also doesn't apply when there's direct\n\n16 liability, as there is by the nondebtors. There is --\n\n17 JUDGE RENDELL: Are you saying the court stated,\n\n18 specifically, that it wasn't establishing actual value?\n\n19 MS. LUJAN WOLFF: Yes. And that was specifically\n\n20 stated in the confirmation order. And we quoted that in our\n\n21 brief regarding the effect of Purdue.\n\n22 Also, there was mention that the Boy Scouts had\n\n23 contractual indemnification liability. That is not true. They\n\n24 disclosed in their disclosure statement, that the court\n\n25 approved and sent out to everybody -- they did disclose that\n\n Veritext Legal Solutions\n 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830\n\f Page 113\n\n1 they denied indemnification liability, but that if there was\n\n2 any, that the chartered organizations would be paid by the\n\n3 trust.\n\n4 They also made a claim against the Archdiocese of\n\n5 Aga\u00f1a, which is a chartered organization. They made a claim\n\n6 for contribution and indemnification for the settlements that\n\n7 they did in Guam for scouting abuse.\n\n8 And we also explained that the annual unit charter\n\n9 agreement, the BSA board resolution -- those are not contracts\n\n10 for indemnification. And even if they are, they have\n\n11 conditions that they fail to -- that the court made no findings\n\n12 that those conditions were met. And so there is no contractual\n\n13 indemnification liability.\n\n14 Effective relief. The plan, specifically the\n\n15 confirmation order, specifically says that the settling\n\n16 insurers could enter into a settlement with the Archbishop of\n\n17 Aga\u00f1a, its estate -- the Archbishop of Aga\u00f1a is a bankrupt\n\n18 chartered organization who my clients have claims against --\n\n19 most of them. And the plan specifically says, in the\n\n20 confirmation order, that the settling insurers can reach a\n\n21 settlement with the archdiocese, with the estate, or with the\n\n22 creditors, which include Lujan claimants. And so, built into\n\n23 the plan and the confirmation order, is relief that can be\n\n24 granted, regardless of the sales. So that's relief that can be\n\n25 granted.\n\n Veritext Legal Solutions\n 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830\n\f Page 114\n\n1 There's also built into -- again, built into the\n\n2 agreement, as cited by the settling insurers in their reply,\n\n3 they said that they can't untangle the money that they paid for\n\n4 two things, the policies and the releases, their complete\n\n5 peace. That is not true. What they have just said in their\n\n6 reply is that if the plan is reversed or modified, or changed\n\n7 in some way, and the confirmation order isn't non-appealable,\n\n8 then they keep the policies, but they get back the escrowed\n\n9 money because they don't have protection anymore as Protected\n\n10 Parties.\n\n11 And so built into these agreements, the settlements,\n\n12 is that yes, you can have a valid sale. Okay. 363(m) is only\n\n13 protecting that -- the validity of the sale. You can have a\n\n14 valid sale of the policies, or you can have a valid sale of\n\n15 property. But you can still -- what they're saying is you --\n\n16 they're going to get their money back, because people can sue\n\n17 them. Because they're no longer Protected Parties. And so the\n\n18 insurance settlements untangle the policies from the money that\n\n19 they paid into escrow and the releases themselves.\n\n20 JUDGE KRAUSE: I'll give you a minute to wind up.\n\n21 MS. LUJAN WOLFF: Yes. And I just wanted to also add\n\n22 that the contractual liability -- that is something that's\n\n23 usually required, the automatic liability, in order for the\n\n24 shared insurance to lead to a finding of subject matter\n\n25 jurisdiction. We don't have that here, so the shared insurance\n\n Veritext Legal Solutions\n 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830\n\f Page 115\n\n1 is not enough.\n\n2 We also argue that the proceeds, Your Honors, are not\n\n3 part of the insurance -- I'm sorry, part of the estate. Other\n\n4 things that are not a part of the estate -- they can't make\n\n5 local council policies a part of the estate, because they were\n\n6 not obtained using a pre-petition estate property. And so the\n\n7 local council policies cannot be sold under 363 and enjoy the\n\n8 benefits of 363(m) because they never became estate property.\n\n9 JUDGE KRAUSE: Okay. Thank you. We appreciate those\n\n10 points from your brief as well.\n\n11 MR. BAIO: I will be brief. We're not seeking an\n\n12 advantage, Your Honor. We're asking that this Court give us\n\n13 language that preserves what this Court said in Combustion\n\n14 Engineering, that we have contractual rights, which will be\n\n15 decided based on the policies and not on anything else -- state\n\n16 law, of course.\n\n17 The problem is compounded by what both the district\n\n18 court and the bankruptcy court said, which is, I will not tell\n\n19 the coverage court how to interpret this brick of information.\n\n20 So it now is up to the coverage court. And that is improper.\n\n21 The policies have not been transferred. It's\n\n22 interesting that the settling insurers transferred their\n\n23 policies. But the plan specifically says it's transferring\n\n24 rights -- but not the policies themselves -- in parentheses,\n\n25 but not the policies. That flies in the face of the common\n\n Veritext Legal Solutions\n 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830\n\f Page 116\n\n1 reuse principle and a bedrock principle that the assignee or\n\n2 the transferee stands in the shoes of the party that\n\n3 transferred. That's what we're asking to be preserved. And so\n\n4 far as the language, we want the same language.\n\n5 And I want to be very clear, where I don't believe\n\n6 it's adding a new advantage to the insurers. On page 2 of our\n\n7 reply brief, we have two provisions. Nothing in the TDPs shall\n\n8 affect, impair, or prejudice the rights and defenses of the\n\n9 non-settling insurance companies in any manner, period. That's\n\n10 the language that we're asking for. It is comparable to the\n\n11 language that is in all the plans that we brought to the\n\n12 attention of the court, including those from the Third Circuit.\n\n13 The other is this. A decision by the settlement trust\n\n14 to pay or not to pay any submitted abuse claim shall not be\n\n15 used in, be admissible as evidence in binding, or have any res\n\n16 judicata, collateral estoppel, or other preclusive effect in\n\n17 any lawsuit or other proceeding against another entity, other\n\n18 than the settlement trust.\n\n19 All that we are asking is that whatever happened in\n\n20 the bankruptcy court -- and this, again, is in the other plans\n\n21 that we've identified -- is not res judicata or binding and not\n\n22 anything. The decision to pay a particular amount -- in other\n\n23 words, the trustee cannot say -- should not be allowed to say,\n\n24 because I followed what's in the plan, that's what you owe me.\n\n25 That's what we do not want. That's what we're trying to get at\n\n Veritext Legal Solutions\n 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830\n\f Page 117\n\n1 with that language.\n\n2 And Your Honors, we are very sensitive to the timing\n\n3 issue. And we understand what that means to the claimants.\n\n4 That's why we proposed the specific language that BSA had\n\n5 proposed. And we think that it's appropriate to add it because\n\n6 if you just send it back, or you just say that, oh, our rights\n\n7 are preserved, we still have the problem of the plan. And if\n\n8 we simply go back without express language, there may be\n\n9 litigation over what it has to be. We are giving you this\n\n10 language because we think that it will streamline anything that\n\n11 happens thereafter.\n\n12 And by the way, nothing in the Bankruptcy Code permits\n\n13 an assignment of rights without obligations. They simply don't\n\n14 have that right. And the jurisprudence of this circuit makes\n\n15 it clear, I think, with respect to what the Trustee is doing --\n\n16 and we did hear one comment that lawyers are very creative.\n\n17 But by making 600 pages of documents and provisions, that are\n\n18 designed not to impair or have any effect on insurers, somehow\n\n19 imposed on the insurer, invites creativity that really has no\n\n20 place in the coverage court.\n\n21 I ask that you look at paragraphs 110 and footnote 2\n\n22 and paragraphs 131 of the Trustee's complaint. And we ask you\n\n23 to take judicial notice of that. We think that it is trying to\n\n24 play and parlay the plan into an advantage for the Trustee. We\n\n25 are seeking to have the bedrock principle that our rights in\n\n Veritext Legal Solutions\n 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830\n\f Page 118\n\n1 the insurance policies, our defenses, and the Trustees' rights\n\n2 are unchanged by virtue of the bankruptcy law, except with\n\n3 respect to the anti-assignment provision, where it is\n\n4 applicable. That's it. And that's what our changes made\n\n5 clear.\n\n6 There was a reference -- and I'll spend fifteen\n\n7 seconds if I can -- there's a reference to -- the fact that\n\n8 this is a closely integrated transaction, and that somehow, if\n\n9 we get what we're asking for, somehow the whole thing blows up.\n\n10 It's just to say so. It's not really demonstrated by anything\n\n11 if these changes were made. But we ask you to look at and take\n\n12 notice of the fact that when the vote occurred on this plan,\n\n13 there were a bunch of provisions, including some anti-insurer\n\n14 provisions that were knocked out by the bankruptcy court. And\n\n15 we don't have a problem with what she knocked out. We do have\n\n16 a problem with what was retained.\n\n17 After that, there was no revote. There was no, oh my\n\n18 goodness, we didn't get what we were asking for, so everything\n\n19 goes away. We think that that demonstrates that the relief\n\n20 that we're seeking is, in many ways, harmless to the overall\n\n21 effect of the plan.\n\n22 Finally, just one last thing. In our good faith\n\n23 section -- which, by the way, Truck is a good faith case -- we\n\n24 seek two changes that are very specific, and I invite the Court\n\n25 to review the back end of our papers to see what our position\n\n Veritext Legal Solutions\n 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830\n\f Page 119\n\n1 is on that language.\n\n2 With that, unless you have anything for me, Your\n\n3 Honors, I will sit down.\n\n4 JUDGE KRAUSE: Okay.\n\n5 MR. BAIO: Thank you.\n\n6 JUDGE KRAUSE: Thank you very much.\n\n7 MR. WINSBERG: Yes, it is afternoon. Good afternoon,\n\n8 Your Honors. Harris Winsberg, on behalf of the Allianz\n\n9 insurers.\n\n10 Just real briefly, the FCR raised that we hadn't\n\n11 raised our objections until the very end. And that's just not\n\n12 accurate.\n\n13 When the plan was solicited out, there was no judgment\n\n14 reduction clause. We actually objected on that basis, that we\n\n15 had these claims that are being enjoined. And we objected.\n\n16 They filed another plan. We objected. We got to the\n\n17 confirmation hearing. There's a transcript. I argued that.\n\n18 We objected again and asked for it. So we repeatedly asked,\n\n19 throughout the process, for relief from these injunctions. And\n\n20 I would submit to the Court, you could look at pages 17 through\n\n21 20 of our opening brief. We outline those record cites.\n\n22 There's no need to -- I can cite them. No reason to waste the\n\n23 Court's time with that.\n\n24 The other point, with respect to that, was there was a\n\n25 concept this plan is integrated as a whole, kind of the Chicken\n\n Veritext Legal Solutions\n 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830\n\f Page 120\n\n1 Little argument this Court has brought about over the years and\n\n2 been not a basis for mootness. And here the clause -- the\n\n3 judgment reduction clause you're being asked to say is okay by\n\n4 the appellees -- it wasn't solicited out for vote. It came\n\n5 after the fact. So it's impossible for the claimants who voted\n\n6 to have relied on what they're now claiming you should rely\n\n7 upon.\n\n8 The other point I would make is, there was a comment\n\n9 about, well, only abuse claims are in the trust. But that's\n\n10 not true either. There are indirect abuse claims, claims that\n\n11 are contribution, and other rights that are also channeled to\n\n12 the trust. So the idea that only abuse claims are in the trust\n\n13 is just not accurate.\n\n14 There was a comment about adequate protection. Well,\n\n15 if we were looking at adequate protection, in its truest sense,\n\n16 under 363, that would be, our claims would attach to the\n\n17 proceeds that are in the trust. That gets to the same place\n\n18 that we would be with the trust backstop. So whether we get\n\n19 looked at from adequate protection in a classic sense under\n\n20 363, or whether the trust backstop, which we have proposed, it\n\n21 gets us to the same place.\n\n22 Your Honor had a question about that, well, maybe I\n\n23 need a remand because there could be -- on a finding on the\n\n24 reduction of defense costs. We would submit that that whole\n\n25 framework of a net benefit is inapplicable to this case. Under\n\n Veritext Legal Solutions\n 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830\n\f Page 121\n\n1 Purdue, we're entitled to be paid.\n\n2 To the extent that there is a net benefit, that\n\n3 analysis relied on Plant. And the Plant decision -- and even\n\n4 the Ninth Circuit, in Plant, specifically says, we are relying\n\n5 on a specific statute under 524(g) to say we can do this. And\n\n6 then when the Ninth Circuit went on to distinguish that from\n\n7 Dow Corning and other cases that talk about nondebtor releases,\n\n8 where you needed to have a mechanism to pay the claims in full,\n\n9 and said, those don't apply here.\n\n10 So for all those reasons, we respectfully submit that\n\n11 the Court should adopt the language we've attached to our\n\n12 opening papers, our remand with instructions.\n\n13 And thank you for the Court's patience and time. It's\n\n14 been tremendous. Thank you.\n\n15 JUDGE KRAUSE: Well, we thank all counsel. The extent\n\n16 of work that's gone into the really superb briefing that we've\n\n17 gotten from the parties and from amici in this case is very\n\n18 helpful to the Court in working through this very important\n\n19 case. We'd ask that a brief [sic] be prepared, and the parties\n\n20 can divide up costs -- I'm sorry, that a transcript be\n\n21 prepared, and the parties can divide up the costs. And we'll\n\n22 take the case under advisement. Thank you.\n\n23 (Whereupon these proceedings were concluded at 3:00PM.)\n\n24\n\n25\n\n Veritext Legal Solutions\n 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830\n\f Page 122\n\n1\n2\n3 C E R T I F I C A T I O N\n4\n5 We, Jennifer Ritchie and Valerie Baxter, certify that the\n6 foregoing transcript is a true and accurate record of the\n7 proceedings.\n8\n9\n10\n /s/signature\n11 ________________________________________\n12 Jennifer Ritchie (CDLT-335)\n13 TTA-Certified Digital Legal Transcriber\n14\n15\n16\n /s/signature\n17 ________________________________________\n18 Valerie Baxter\n19 Date: November 14, 2024\n20\n21\n22\n23\n24\n25 Date: November 14, 2024\n\n Veritext Legal Solutions\n 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830\n\f[& - 3:00pm] Page 1\n\n & 1201 6:2 23-1664 1:16 335 122:12\n& 4:4,13,22 5:6 1221 7:22 23-1665 1:16 3600 5:9\n 5:24 7:11,20 131 117:22 23-1666 1:16 363 16:3,7,9,16\n 1334 69:19 23-1667 1:16 16:19,21,24,25\n 0\n 14 122:19,25 23-1668 1:16 17:2 20:18,24\n0.02 104:15 157 34:16 23-1669 1:16 26:16 28:20\n 1 36:14 23-1670 1:16 29:15,17,24,25\n1,600,000,000 1625 6:20 23-1671 1:17 30:1,4,10,16,18\n 71:19 76:25 16th 3:5 6:3 23-1672 1:17 31:6,12 51:20\n1.4 19:13 17 119:20 23-1673 1:17 51:22 52:23\n1.6 93:16 180 79:7 23-1674 1:17 58:17,22 59:17\n10 36:8 37:5 189 19:11 23-1675 1:17 59:19,25 60:7\n10,000 55:12,13 1976 11:9,21 23-1676 1:17 61:1,3,5,8,10\n 103:13 88:6,9,13,16 23-1677 1:17 61:14,14,14,23\n10007 6:13 19899 6:4 23-1678 1:18 62:18 63:3\n10019 4:25 2 23-1780 1:18 64:2,7,14,17,20\n10020 7:23 238 4:15 64:22 68:8,25\n 2 34:24 116:6\n1017 34:6 249 35:16 69:5,22 70:3\n 117:21\n 35:25 36:3 250 6:12 103:4 73:7 74:14\n 2,300,000,000\n1033 34:6 36:4 252 35:16 76:9 77:11,16\n 71:18\n 36:5,7 2525 5:17 78:13 79:4,24\n 2.4 91:9\n10:00 2:9 257-0885 3:7 79:25 80:22\n 2.64 89:18\n10th 14:2 260 55:18 81:9 82:9,11\n 20 7:13 119:21\n11 30:3,7,20 28 69:19 83:15 93:5\n 200 79:6 89:18\n 31:21 111:2 3 99:6 110:23\n 20003 7:6\n110 34:21 111:4,7,12,17\n 20006 6:21 3 9:15 17:8\n 117:21 111:25 112:1\n 2019 30:15 93:7 99:7\n1101 54:10 114:12 115:7,8\n 2021 25:9 3.6 91:9\n1123 30:12 120:16,20\n 2024 2:8 30 27:19\n 31:15 92:17 363's 80:4\n 122:19,25 300 4:16 41:19\n 93:2,7,8 3835 4:6\n 206 45:19 303 5:8\n1129 43:15 3:00pm 121:23\n 207 3:5 30308 5:10\n11th 14:2 2082 92:22 32 85:7\n120 95:13 2250 7:14 33 85:7\n\n Veritext Legal Solutions\n 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830\n\f[4 - address] Page 2\n\n 4 8 72:14 80:19 acting 37:22\n 4 61:2 65:25 800 3:7 108:13 109:25 action 10:1,5\n 4.2 89:19 91:14 82,500 89:13 abuse 8:21 9:20 29:12 34:17,23\n 4.4 89:19 91:14 827 85:7 9:24 10:3 26:8 42:7 96:25\n 400 7:5 828 85:7 27:2 46:11 111:20,23\n 48 84:22 85:4 842 84:23 48:1,3 59:9 actions 111:18\n 85016 5:19 70:19 80:20 actively 45:22\n 5\n 85020 3:6 86:16 91:5,6 actual 27:11\n 5 61:2 93:2,8 102:11,20 86:20 96:20\n 86 56:22\n 500 5:18 103:1,11,11,12 97:7 109:20\n 51 45:9 9\n 103:21,24 112:10,11,13\n 524 50:12,15,17 90 46:21 104:2,5,9 112:18\n 50:17 121:5 9019 94:23,23 105:24 107:19 actually 8:20\n 57,000 104:1 909 88:16 109:3,7,24 15:1 19:11\n 6 931 88:19 112:12 113:7 20:8 27:10\n 96910 4:17 116:14 120:9 28:2,2,4 35:22\n 6 2:8 92:17\n 97212 4:8 120:10,12 38:18 42:15\n 60,000 89:14\n 975 54:18 abused 103:16 44:22 45:11\n 95:16\n 600 38:5 41:18 a abuser 91:6 54:25 56:4\n 117:17 ability 49:18 access 48:17 58:20,21 83:6\n 601 2:5 72:24 73:4 account 98:24 99:9 100:5\n 60603 7:15 75:18 94:3 accrued 45:11 102:15 112:13\n 7 95:5,11 accurate 67:14 119:14\n able 29:11 119:12 120:13 add 33:3 42:1\n 7 6:11 77:9 122:6 84:21 94:22\n 83:18 91:4,11\n 700 7:4 29:1 achieving 114:21 117:5\n 91:13 98:18\n 7227 3:5 18:17 added 42:21\n abrogate 17:7\n 74 41:2 acknowledge adding 30:17\n absent 21:21\n 75 42:20 68:4 71:16 97:12 116:6\n 57:4\n 750 29:2 acknowledged addition 41:21\n absolute 12:20\n 76 11:10,10,12 45:20 additional 28:7\n 14:16 75:12\n 11:15,17,18 acknowledg... 41:25 42:18\n 90:1\n 12:8,13,14,21 103:15,19 84:21\n absolutely 9:16\n 787 4:24 act 111:19,25 address 32:23\n 37:9 45:23\n 60:15 70:6 35:21 39:23\n\n Veritext Legal Solutions\n 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830\n\f[address - amicus] Page 3\n\n 52:3,10 69:21 advantage 65:9 affirmatively allianz 45:2,3\n 71:2 79:25 115:12 116:6 35:2 39:12 45:11,23 46:11\n 80:24 81:24 117:24 affirmed 65:15 98:11 100:3\n 84:14 85:11 adverse 44:6 afternoon 119:8\n 88:21 92:23 87:14 67:14 79:20 allianz's 100:11\n 96:6 105:18 adversely 84:12 96:3 allow 18:24\n 108:21 33:11 41:14 101:19 119:7,7 61:15 104:21\n addressed 42:16 43:2,13 aga\u00f1a 113:5,17 112:1\n 21:18 43:9 43:21 113:17 allowed 13:6\n 61:14 80:25 advisement age 91:7 106:12 116:23\n 91:23 92:18 100:9 121:22 aggregate allowing 62:8\n addressing advocate 85:15 46:22 112:6,10 71:15\n 44:13 51:19 affect 17:15 112:11 aloha 18:13\n 52:12 84:17 33:11 41:14 ago 77:16 alter 47:24 52:2\n 92:25 42:16 55:16 agonizing 52:6 alteration\n adequate 47:10 64:10 80:7 59:6 40:24\n 47:11 50:9 81:12 83:21 agree 11:4 altering 40:8\n 90:14,17 93:11 84:4 106:8 14:14,23 58:17 alternative\n 99:7 120:14,15 107:3,21 116:8 67:22,24 77:18 10:6 48:22\n 120:19 affected 43:13 93:21 94:17 amend 84:24\n adequately 72:15 97:15,20 amended 97:18\n 66:4 99:14,19 affecting 82:25 agreed 49:1 amending\n adjudicated affidavit agreement 84:25\n 109:19 102:19,22 113:9 114:2 america 1:6 8:5\n adjudicatory affidavits 22:13 agreements 18:13 23:13\n 20:22 21:1 affiliates 79:22 76:5 114:11 24:23 26:11,13\n administration affinity 88:8 ahead 29:14 26:14 27:2\n 101:25 affirm 56:3 32:17 63:15 51:16 84:13\n admissible affirmance 77:14 89:8 american 35:19\n 87:25 88:1 79:24 80:12 akin 103:8 americas 7:22\n 116:15 101:24 allegation amici 21:12\n adopt 121:11 affirmation 85:18 86:14 22:8 101:20\n advanced 104:13 allegations 105:4 121:17\n 102:25 affirmative 85:14,19 amicus 88:25\n 41:21\n\n Veritext Legal Solutions\n 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830\n\f[amount - appropriate] Page 4\n\n amount 49:4 answered appellant's applies 8:16\n 51:10 79:7,9 102:10 65:2 13:17 15:20\n 81:15 89:9,15 answers 81:2 appellants 4:5 18:19 23:9\n 89:17,21,23 anti 41:4,10 4:14,23 5:7 8:8 30:22 31:22\n 91:15 99:17 118:3,13 8:22 51:20 61:8 97:10\n 103:17 109:20 anticipate 52:15,17,24 109:2 110:9\n 116:22 106:21 56:10,12 58:23 111:18,21,24\n ample 101:6,14 anymore 112:8 60:6,16 62:8 apply 11:6,11\n analog 54:3 114:9 62:13 63:7 16:3 18:21\n analysis 9:6,7 anyway 16:4 64:1,9 108:10 21:21 28:20,22\n 21:22 67:17,18 87:23 112:2 appellate 16:6 29:16,17 30:19\n 99:6,7 121:3 apparent 101:1 17:6,7 20:22 30:25 42:7\n analyze 31:11 appeal 8:15,18 44:13 108:4 50:15 55:22\n andrews 74:12 14:7,8 15:5 appellee 5:16 59:18 63:23\n 79:9 18:25 20:19 5:25 6:10,19 68:9 69:22\n anker 6:15 33:17 34:12 7:3,12,21 75:6 73:3,3 74:14\n 51:21 67:12,12 43:7 44:14 appellees 8:14 81:9 84:18\n 68:13,15 69:8 45:3 49:4,15 8:19 14:2 15:5 88:22 89:2\n 69:10 71:4,6 51:9 59:23 21:12 22:8,11 97:6,11,25\n 73:21,24 74:2 62:9 65:1 23:6 25:15 98:1,3,3,5\n 74:5,7,10,20,22 73:17 78:13 51:18 108:13 106:7 108:20\n 77:18 78:15,19 88:25 120:4 110:1,13,14\n 78:22 79:19 appealable appendix 34:5 112:15,15\n 80:25 81:2,16 114:7 35:25 54:18 121:9\n 81:23 82:4 appealing applicable applying 80:2\n 83:5 17:22,22 36:21 63:19 111:10\n annual 113:8 appeals 1:2 2:3 70:3,21 80:23 appreciate 52:8\n answer 19:20 32:15,15,20 91:7 93:9 64:2 115:9\n 23:17 47:13 56:11 104:14 118:4 approach 91:2\n 48:19 53:21 106:2,3 application 91:3\n 56:10 60:5 appear 39:18 15:17 17:13 appropriate\n 63:23 68:6 48:24 105:4 47:12 68:18 25:5 26:16\n 75:22,25 76:2 appeared 25:14 105:4 33:22 39:24\n 78:16 98:10 appellant 33:21 applied 75:16 51:6 63:19\n 110:20 83:19 77:17 91:2 67:17 68:9\n\n Veritext Legal Solutions\n 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830\n\f[appropriate - attached] Page 5\n\n 77:21 117:5 77:24 82:1,10 104:18,24 91:15 92:1,2\n appropriaten... 85:11,22 86:2 105:21 106:16 92:18 93:1,4\n 67:20 96:12 100:6 119:18,18 93:14,24,25\n approve 35:13 101:14 111:5 120:3 94:2 106:16\n 53:7 61:3 70:1 111:17 120:1 asking 24:2,3 107:18\n approved arguments 32:22 39:4 assign 34:4\n 66:15 112:25 15:6,25 21:11 41:24 42:14,19 assigned 27:7,9\n approximately 31:9 52:1 48:4,14 52:18 27:10,21 28:6\n 89:12,14 67:25 69:21 60:6 62:9 28:19 34:23\n approximating 82:1 84:15 65:11 66:18 35:22 71:8\n 103:14 85:18 96:18,21 97:2 84:21 88:13\n arbitration arising 10:16 97:3 99:12 assignee 116:1\n 103:9,10 10:16 105:25,25 assignment\n archbishop arms 12:17 115:12 116:3 27:11 28:1,3,4\n 4:15 113:16,17 arose 11:15 116:10,19 34:15 36:12,13\n archdiocese 75:19 118:9,18 37:10 41:4,10\n 113:4,21 arsht 5:24 asks 102:14 41:13 70:2\n argue 8:15 art 109:2 aspect 32:19 87:3 117:13\n 28:21 37:21 article 9:14 59:19 118:3\n 84:9 106:4 17:8 36:8 37:5 assert 27:19 assignments\n 107:6 115:2 61:2 73:9,19 48:4 75:18 71:3,5,6 84:15\n argued 28:24 74:4,8,13 assertions associate 47:3,4\n 67:19 79:10 75:12 79:3 85:15 associated\n 85:23,25 86:1 asarco 48:9 asset 12:2,7 89:19\n 86:15 87:6,10 asbestos 48:14 62:23 80:5,18 assume 28:21\n 88:3 119:17 50:18 75:18 80:19 81:14 58:12 67:2\n arguing 32:9 aside 61:8 75:9 82:18 94:8 assuming 59:17\n 89:1 83:20 99:11 106:14 110:25\n argument asked 24:6,7 assets 12:22,23 assumptions\n 10:12,12 11:5 35:20 39:17 13:22,23 14:19 53:12\n 17:23 27:18 57:6 63:10 19:8 20:15 atlanta 5:10\n 44:24 60:23 65:5 78:15 54:14,14,15,17 attach 120:16\n 64:12 66:12 82:23 88:12 54:19 61:19 attached\n 68:19,22 70:6 98:12 102:11 65:18,25 73:12 121:11\n 70:13,14 76:21 102:12,18 73:12 88:15\n\n Veritext Legal Solutions\n 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830\n\f[attacking - bar] Page 6\n\n attacking 51:3 automatic 60:14 61:25 16:23 17:6,8\n attempt 57:15 114:23 62:16,23 71:2 19:9 25:2,6,24\n 79:4 availability 76:5 77:10 25:25 26:4,23\n attempting 48:22 80:17 83:1 35:5,12,15,16\n 57:17 available 35:1 86:23 96:12 35:18 36:11\n attendant 94:3 90:7,24 108:14 98:18 105:17 39:11 40:8,10\n attention 44:4 avenue 4:24 7:4 114:8,16 117:6 40:17,23 41:23\n 78:2 116:12 7:22 117:8 118:25 42:2,22 43:19\n attics 102:16 avoidance backdrop 43:20,22 45:4\n attorneys 4:5 70:19 25:20 67:19 45:6 46:9,25\n 4:14,23 5:7,16 avoided 63:6 background 47:8 48:2,6\n 5:25 6:10,19 awarded 42:15 35:5 40:16,18 51:20 53:6,17\n 7:3,12,21 awards 87:16 96:13 97:16 56:20 57:21\n 102:24 103:11 96:24 backstop 48:10 61:10 62:22\n 104:18 aware 46:1,3 51:4,6 120:18 65:14 66:24\n author 68:21 105:6 120:20 68:10 69:3,6\n authorities awful 59:10 bad 49:10,10 70:1 73:6,7\n 94:22 az 3:6 5:19 badly 85:20 78:20,23,25\n authority 26:7 b baio 5:3 32:8,9 80:13 81:11\n 49:19 68:12 32:13,18 33:7 83:7 86:24\n b 2:12 5:12\n 69:3,15 70:5 33:23,24 34:3 87:5 89:12\n 16:25 29:24\n 92:10,13,13,14 34:8,11,14 90:2,11 92:10\n 30:2,7,12,22,24\n 92:16 93:1,14 35:7 36:1,3,5 94:15,19,20\n 30:25 31:23\n 94:1,11,24 36:10,17,23 96:16 98:4\n 64:13 92:17\n 95:8,9 37:3,6,9,12 100:4,8 101:7\n 93:5,7 110:24\n authorization 38:23 39:3 101:23 108:8\n 111:1,4\n 20:20 68:10 40:18 44:25 108:24 109:2\n back 9:14\n 69:16 46:17 65:8 109:11,14,16\n 11:19 15:3,7\n authorized 115:11 119:5 115:18 116:20\n 15:10 23:5\n 36:11 banc 21:21 117:12 118:2\n 24:14 25:2,2\n authorizes 93:3 bankrupt 118:14\n 29:1,2,4,6\n 93:5,7 94:15 108:18,19 bar 11:2 21:23\n 40:14 44:8\n authorizing 113:17 49:9 50:22,24\n 51:23 52:21\n 16:25 bankruptcy 59:19 77:18\n 53:5,25 54:1\n 10:13,15 12:18 111:18\n 56:3 57:5 58:1\n Veritext Legal Solutions\n 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830\n\f[bare - bsa] Page 7\n\n bare 94:25 begun 34:20 beyond 28:16 brick 115:19\n 95:10 behalf 32:9 big 17:23 73:9 bridge 31:7\n bargain 18:15 45:2 51:16 74:18,18 brief 27:19,20\n 62:12 67:9 84:13 96:4 billion 19:13 33:12 44:20\n bargained 101:20 119:8 65:25 89:18,19 48:8 50:3\n 62:12 65:13 beings 105:24 91:9,14 93:16 88:25 112:21\n bargaining believe 8:6 9:9 binding 88:1 115:10,11\n 65:13 10:15 12:12 90:17 103:8 116:7 119:21\n barred 95:6,7 13:11,16 14:25 116:15,21 121:19\n barrier 43:2 15:19 16:3 bird 91:24 briefing 42:25\n 54:8 28:6 29:22 94:12,23 100:4,12\n barring 25:9 30:14 46:11 bit 96:9 111:13,14\n based 13:2 47:11 50:1,21 blame 73:6 121:16\n 28:17 43:16 50:25 65:19 blinkered 83:3 briefly 84:14\n 48:24 50:10,12 66:17 67:10 blows 118:9 96:7 108:23\n 52:6 80:13 77:12,15 blue 49:9,18,23 119:10\n 90:12,13 91:4 103:16 116:5 65:19 briefs 19:21\n 99:23 115:15 believes 86:21 board 113:9 28:24 37:12\n basements 103:19 boeing 61:18 42:9\n 102:16 belonging bought 11:22 bring 11:2 13:2\n bases 10:18,23 92:24 27:2,3,4,5 bringing 102:2\n basically 99:6 belongs 92:25 51:22 broad 17:2,17\n basis 11:7,11 bendis 49:11 bound 41:22 26:19\n 20:25,25 56:12 50:20 51:5 42:6 broader 39:12\n 78:3 87:24 benefit 62:6,24 bounding 60:15\n 119:14 120:2 120:25 121:2 58:13 broadly 17:5\n bates 90:22 benefits 28:9 boy 1:6 8:5 brought 18:12\n 91:17 34:17,22 115:8 9:22 18:12 46:15 105:9\n baxter 3:3 best 109:25 23:13 24:22,23 116:11 120:1\n 122:5,18 better 13:13 25:4,8,11,14 bsa 1:12 8:5\n bedrock 116:1 34:10 40:22 26:8,10,10,12 11:22 24:22,23\n 117:25 53:1 62:7 26:14 27:2,15 25:3 27:2\n began 78:6 66:11 67:6 28:15 51:11,16 44:23 47:21\n beginning betterment 53:16 77:7 52:21 55:18,19\n 52:21 95:16 84:13 112:22 82:12 84:18\n\n Veritext Legal Solutions\n 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830\n\f[bsa - changes] Page 8\n\n 88:8,22,25 calling 61:20 85:15 86:9,24 century 46:23\n 93:13,17 camelback 5:17 87:21 89:10,24 79:21\n 100:16,19 camp 57:5,25 90:1,1 91:22 century's 29:2\n 113:9 117:4 capacity 20:22 91:23,24,25 cert 25:22\n bsa's 106:15 21:1 72:16 92:24 94:12 certain 23:24\n 107:16 73:9 95:19 98:4 32:9 38:25\n building 4:16 capital 76:16 102:3 104:22 64:25 65:3,8\n built 28:22 83:13 108:9 118:23 67:4 96:13,23\n 29:8 64:17 cards 33:15 120:25 121:17 97:8 98:5\n 95:14 113:22 carefully 19:5 121:19,22 certainly 10:16\n 114:1,1,11 carve 52:25 cases 16:1,14 12:11 14:13\n bulk 14:21 60:12 89:4 19:1 25:25 49:16 56:9\n bunch 43:13 92:8 96:9,11 29:23 39:16 58:16 60:4\n 83:6 118:13 case 1:15 7:20 43:23 45:21,24 67:10 88:1\n burden 22:23 8:5,17 14:2,3,7 49:12 52:23 105:6 110:3,14\n 23:1 38:16 15:23 18:18 53:20 59:8 certainty 90:2\n buyback 61:18 19:21 20:9,17 63:21 66:7 certified 90:23\n buybacks 21:8 22:4,7 76:19,19 90:11 91:11 122:13\n 17:13 26:18 25:20 26:7 90:23 108:9 certify 122:5\n c 28:25 29:2 121:7 cetera 24:10,18\n 30:13,14,15 catholic 27:6 48:22 72:19,20\n c 4:3,10 8:3\n 32:20 33:18 28:5,19 challenge 51:2\n 29:24 30:3,7\n 35:9,19 43:12 catholics 28:8 84:2\n 30:12,23,24,25\n 43:15 45:5,6 cause 10:5 challenged\n 31:23 36:2,3,7\n 46:10,14,16,17 61:17 17:12\n 36:10 37:5\n 47:16 50:18,18 causes 34:17,22 chance 25:17\n 64:13 110:24\n 51:6 54:3,6 caveats 81:6 25:19 108:21\n 111:1,4 122:3\n 56:18 57:18 cdlt 122:12 change 21:7\n 122:3\n 59:1,2 60:18 center 6:11 39:11 40:15\n cabined 50:17\n 61:7 63:12 centerpiece 64:9 66:18,22\n california\n 67:19 68:21 17:18 67:9 83:12\n 110:11\n 75:3,3,16,16 central 76:18 changed 43:18\n called 25:1\n 76:16 78:7 cents 48:12,14 114:6\n 46:12 48:9\n 79:24 82:7,7 48:15 changes 39:18\n 57:18 62:18\n 82:16,20 83:20 86:25 118:4,11\n 72:9\n Veritext Legal Solutions\n 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830\n\f[changes - classes] Page 9\n\n 118:24 choose 64:2 99:3,10,11 25:19 28:17\n changing 65:12 chose 100:9 102:17 103:7,7 34:16,22 39:6\n channeled choses 10:1 103:23 112:11 39:8 45:3,4,7\n 120:11 churchill 6:6 113:4,5 116:14 45:12 46:11,25\n channeling cinacola 31:5 claimant 8:21 47:1,19,24\n 25:9,12 72:4 circuit 1:2 2:4 42:15 52:17 48:1,3 49:10\n 81:20 2:14 14:2 53:3 60:5 95:3 50:13,21 51:7\n chaos 76:3,3,8 21:19 22:2 95:4 52:6 59:6 62:4\n 76:11 23:7 24:25 claimants 8:9 62:8,17 65:2,7\n chapter 30:3,7 25:17 29:22,23 9:20,25 10:3 70:22 71:10\n 30:20 31:21 35:9 39:10,10 18:11 22:19 75:18,19 78:12\n 77:9 43:5,7,15 23:24,25 37:18 80:20 86:16\n chapters 24:18 49:12 75:1 37:19,23 38:10 89:10,11,13,22\n characteristics 77:20,22 82:7 42:21,23 43:21 89:22 90:7,23\n 91:5 83:14 116:12 43:24,24 48:15 90:24 91:11\n characterize 117:14 121:4,6 61:4 62:6,24 92:1,3,23\n 96:19 circuit's 10:19 72:8,8 74:15 93:22 95:6,7\n charitable 71:8 circumstances 75:18 76:7 95:20 98:24,24\n charter 113:8 91:22 94:8 82:1,21 84:5,6 102:24 106:13\n chartered 9:22 97:4,7 98:2 89:23 92:4 107:8,12,15,17\n 11:12,14,18,21 cite 49:7,19 103:8,9,14,21 107:19,23\n 12:9,14,20 82:6 85:25 105:23 106:2 109:3,5,10,19\n 13:2 26:9,12 119:22 109:2,4,7,24 109:19,21,23\n 27:5,6,13,15,20 cited 14:2 110:3,19 112:2,10,12,13\n 28:5,18 72:1 19:21 39:23 113:22 117:3 113:18 119:15\n 88:17 95:14 49:7 86:19 120:5 120:9,10,10,12\n 106:13 107:14 92:17 94:11 claiming 120:6 120:16 121:8\n 107:15,20 114:2 claims 9:19,24 clarifies 111:7\n 113:2,5,18 cites 34:21 9:25 10:23 clarifying\n chartereds 119:21 11:2,6,8,10,10 97:19\n 26:11 citing 94:11 11:13,14,18,21 clark 7:13\n chicago 7:15 claim 45:15 11:24 12:8,11 class 108:17,20\n chicken 119:25 46:15 48:5 12:12,17,19 109:4\n childhood 58:15 60:14 13:1,4,6,8 classes 109:3,8\n 103:20,24 69:3 91:4 99:2 18:15 25:10,18\n\n Veritext Legal Solutions\n 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830\n\f[classic - conceivable] Page 10\n\n classic 61:13,14 coalition 42:23 76:15,18 86:14 competing\n 120:19 code 14:15,24 comfortable 46:17\n clause 45:8,14 19:9 40:25,25 79:2 complain 83:22\n 49:23 119:14 41:3,11 51:20 coming 71:19 83:24\n 120:2,3 55:2 64:3,7 97:17 complaint\n clawed 11:19 69:19 81:5,16 comma 40:1 34:21 86:19\n 53:25 54:1 90:2 94:15,19 commenced 117:22\n clear 19:22 117:12 55:2 complete 16:4\n 20:23 22:2,4 code's 15:2 comment 16:19 23:3\n 31:13 34:1 53:3 80:3 117:16 120:8 55:3 62:12\n 40:14 44:19 cognizant 120:14 76:3 77:2 83:2\n 50:16 54:18 65:17 common 19:25 103:25 107:7\n 58:4 60:14 coie 5:15 95:9 115:25 109:9 114:4\n 62:3,4 68:4 collateral 42:6 community completed\n 70:21,24 71:7 76:17,22 96:22 66:16 91:3 55:16\n 93:6 105:22 116:16 104:15,20 completely\n 107:1 109:13 colleague 64:13 companies 17:3 23:22\n 112:5,9 116:5 colleagues 57:7 36:19 37:17,24 29:19 78:19\n 117:15 118:5 66:11,23 67:6 45:5 70:21 complexity\n clearer 70:17 77:15 80:1 72:19 107:10 57:18\n clearly 18:6,14 combination 116:9 compliance\n 18:21 39:18 64:7 company 11:23 13:10 14:11\n 52:23 66:17 combustion 39:14 44:1 complied 38:1\n 72:7 81:13,23 10:21 12:15 107:11 components\n client 76:24,24 39:5,13 40:4,4 comparable 80:16 83:8\n clients 18:15,18 40:12 115:13 116:10 compounded\n 29:11 110:10 come 22:8,12 compelled 115:17\n 113:18 22:19 23:2 94:17 compromise\n close 98:8 25:3 52:9 57:5 compelling 70:2 95:19\n closed 82:4 69:6 83:1 59:2 compromising\n closely 65:22 91:22 98:18 compels 80:12 95:11\n 118:8 108:12 110:6 compensation concede 28:2\n closing 82:14 111:3 50:14 94:7 conceivable\n closure 103:18 comes 27:25 95:18 11:3,4\n 103:20 60:16 65:3\n\n Veritext Legal Solutions\n 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830\n\f[concept - contract] Page 11\n\n concept 15:20 41:21 45:9 connection construction\n 119:25 52:7 56:23 97:9 101:13 31:13\n concern 81:1 57:10 60:1 consensual construed\n concerned 64:22 66:6,21 94:16,17 112:2\n 45:18 63:4 67:2 70:18,23 consent 10:3,4 consultant\n 102:1 103:17 73:16,17 75:17 18:16 51:8 22:14\n concerns 45:3 75:17 84:22 consequence consummated\n 105:18 85:3,4,6 87:2,3 33:5 58:7 55:4 88:23\n conclude 51:25 97:10 100:6,12 consequences consummation\n 52:4 91:11,13 100:22 104:2 17:17 33:20 13:12,18,20\n concluded 109:17 112:6 71:14 14:12 15:8,14\n 92:17 121:23 112:20 113:15 consider 63:13 15:16,20 19:3\n conclusion 13:9 113:20,23 98:21 105:22 19:7,23 20:14\n 17:20 114:7 119:17 consideration 21:23 54:10\n conclusions confirmations 17:14 22:17 55:1\n 12:5,7 17:3 26:17 54:20 contained 39:2\n condition 63:2 confirmed 61:25 80:17 contains 64:19\n conditional 25:23 65:15 83:8 105:10 73:20\n 14:16,17 15:5 72:13,22 84:9 106:19,22 context 16:16\n 19:19 82:2 86:4 97:8 107:3,10,22 60:21 61:9\n conditioned conflicts 20:16 considerations 98:6\n 14:25 21:7,8 21:11,13 68:1 continental\n conditions confused 24:3 considered 10:21 12:16\n 37:25 64:22 confusion 74:25 85:24 56:17\n 77:3 113:11,12 44:21 108:2 110:10 contingent 16:5\n conduct 9:6 congress 20:23 consistent 15:8 18:4,5 19:19\n confidence 21:10 26:19 15:13 16:6 70:10 89:18\n 79:6 30:17,20 31:18 44:7 77:11 continue 34:2\n confirmation 58:13 63:2 constitute 61:3 60:12 107:8\n 16:8,11,12,22 64:4 68:1 constitutes continuing\n 24:4 28:9,23 73:10,11,14,19 69:25 103:23\n 29:20,21 31:3 81:1,5,19,24 constitutional contract 16:6\n 36:25 37:14,21 111:9 9:9,18 40:20 96:15\n 38:3,14,16 congressiona... constrained 97:1,14\n 39:21,22,25 95:14 66:5\n\n Veritext Legal Solutions\n 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830\n\f[contracted - court] Page 12\n\n contracted 78:7 83:12 96:5 105:3,6 41:18,19,23\n 96:15 cornerstone 121:15 42:2,17,22,25\n contracts 98:3 17:24,25 72:5 counter 41:14 43:1,10,15\n 98:3,6 113:9 106:11 counterclaim 44:2,2,13,13\n contractual corning 121:7 46:16 45:2 47:7,8\n 32:24 40:9 corpus 98:19 country 83:14 48:2,6 49:8\n 88:7,10 112:23 correct 11:16 95:15 50:2,3,4,5,6,20\n 113:12 114:22 57:23 82:3 couple 35:7 51:15,18,24\n 115:14 84:15 87:23 71:13 82:1 52:10 53:10\n contradicts 88:6 92:15 course 10:4 54:5,11 55:22\n 17:5 111:6 12:9 16:7 56:11,17,19\n contrary 19:18 correctly 84:19 35:17 43:1 57:20,21,21\n 52:21,23 53:10 cost 61:17 51:7 61:12 58:14,20,21\n 53:11 66:19 104:4 62:25 63:2,7 60:6,16,24\n 70:19 85:22 costs 45:17,18 83:19 88:14,24 61:11 63:1,8,9\n contrast 97:5 45:24 46:5,8 90:11 92:8 63:9,13 64:18\n contributed 47:9 49:22,23 101:2 115:16 65:12,14,14,15\n 28:12 46:15 50:6 99:20,22 court 1:2 2:3 65:21,22 66:22\n 57:1 92:21 101:6,15 102:7 8:7,17 9:2,17 67:12 68:2,10\n contribution 102:8 104:4,12 10:13,15,18,23 69:3 70:1 73:6\n 92:19 99:11,13 106:24 120:24 11:13,16,19,20 73:7,9,20 74:8\n 113:6 120:11 121:20,21 12:4,8,17,24 74:11,12,13,25\n contributions council 12:13 13:3,4,8,19 75:12,13,15,21\n 56:24 72:3 18:13 26:9,13 16:23 17:9 76:1,10,12\n control 14:9 28:15 115:5,7 18:9 20:17,17 77:20 78:23,25\n 15:3 20:13 councils 9:22 20:19 21:5,6,8 78:25 79:3,14\n controlling 11:12,14 12:21 21:9,16 23:19 80:11,13,20\n 61:7 13:1 26:11 26:23 30:15,23 81:12,12 82:16\n controversy 27:4,20 57:1 31:11 32:8 83:15,18,25\n 86:20 71:25 72:2 35:12,13,16,21 84:1,3,3,7,11\n conveyance 88:17 106:13 35:21,23,24 85:24 86:10,13\n 62:16 78:11 107:13,16,20 36:11 38:5,5 87:7,9,12,16,20\n cooperate 38:2 108:16,18 38:13,14 39:4 89:2 90:13\n core 53:14,20 counsel 8:23 39:4,6,11,13 91:16,18,25\n 69:13 71:18 75:6 85:2 88:3 40:12,19 41:1 92:7,7,11,15,17\n\n Veritext Legal Solutions\n 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830\n\f[court - decide] Page 13\n\n 92:22 96:3 109:12 119:23 creative 78:22 dc 6:21 7:6\n 97:6,19,21,25 121:13 78:22 117:16 de 6:4 12:10\n 98:5,12,23 courts 20:22 creativity deadline\n 99:5,6,14,18,20 21:10 25:6 117:19 103:25\n 100:4,8,15 48:2 49:21 credible 76:21 deal 18:1 37:19\n 101:8,12,19,21 57:18 74:6 91:18 66:23 74:18\n 101:24,24 83:14 85:9,17 credit 78:25 98:13,16\n 103:16 104:21 86:2 111:22 creditors 22:9 dealing 38:9\n 105:6,9,11,12 coverage 11:1 23:8 94:7 deals 64:16\n 105:21 106:1 27:16 35:23,23 98:15,17 dealt 45:7 54:5\n 108:1,2,3,4,5,8 38:5,12,13 113:22 54:21 60:22\n 108:24 109:14 41:18,22 42:3 criteria 53:7,12 death 14:13\n 109:16 110:10 42:7,8,11,17 53:14 58:12 debt 55:19\n 111:21,22 45:5,17 46:14 criticism 21:20 90:15,15\n 112:5,9,13,17 49:22 65:9 crossed 31:6 debtor 1:7,13\n 112:24 113:11 66:21 85:8,10 crystal 34:1 13:2 21:15\n 115:12,13,18 85:12,24 86:14 70:24 23:13 25:1,2\n 115:18,19,20 86:16,19,22 cum 35:8 25:15 35:10\n 116:12,20 87:7,10,12,20 cured 49:17 42:20 43:7\n 117:20 118:14 88:10 96:5,25 d 47:6 54:15,19\n 118:24 119:20 97:5 98:5,21 61:24 76:6\n d 6:15,23 8:3\n 120:1 121:11 99:13 107:16 92:17,24,25\n 93:2\n 121:18 107:18 115:19 93:3,6,7 94:5\n damage 49:4\n court's 8:17 9:7 115:20 117:20 95:12 107:17\n 104:10\n 10:20 12:15 covered 12:11 debtor's 40:20\n databases\n 17:8 21:1 41:2 13:5,8 20:20 47:15 107:18\n 90:24\n 43:6 51:19 41:13 93:22 debtors 10:25\n date 27:24\n 52:13,22 53:6 covering 46:8 22:23 34:17\n 70:23 71:7,9\n 53:20 54:9 93:22 61:15 70:1,20\n 71:11 88:18\n 55:17 58:13 craft 59:25 108:19\n 102:5 122:19\n 63:24 69:12 crafted 48:9 decades 104:11\n 122:25\n 72:16 75:19 create 12:1,2 decide 9:8,17\n day 81:19 88:2\n 79:22 80:15 76:10,11 98:22 13:20 21:10\n 105:9\n 83:7 89:3 creating 68:4 37:19 69:12\n days 100:12\n 97:21 105:22 68:16 108:4,6,8\n 104:7\n Veritext Legal Solutions\n 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830\n\f[decided - diminution] Page 14\n\n decided 12:10 dedicated demonstrate determining\n 30:20 31:21 95:15 102:14 41:8\n 43:16 74:25 deemed 45:20 demonstrated detriment\n 78:2 87:11 default 24:13 118:10 38:17\n 111:10 115:15 35:5 40:14,16 demonstrates devastate\n decides 23:19 defend 47:4 118:19 104:15\n deciding 61:18 defendant 95:2 denial 68:22,23 devastation\n decision 11:16 defendants denied 75:17 104:20\n 35:16 38:11 95:5 113:1 die 104:17\n 40:19 41:3 defended 46:25 dependent died 103:7,7\n 42:24 43:16 defense 45:17 29:19 31:2 difference\n 48:9 49:7,15 45:18,24 46:4 depositions 19:10,14 20:8\n 50:10 56:16 47:5,9 50:6 59:7 103:10 39:3\n 67:21 68:21 99:20,22 101:6 deprive 104:16 different 8:24\n 75:15 76:20 101:15 120:24 derivative 14:3 16:18\n 78:4 79:1,7,7 defenses 35:1 25:14,18 26:10 30:5,11\n 79:22 80:15 37:25 39:9 describing 52:4 31:14,18 38:25\n 83:7 84:17 85:9,10,24 designed 37:16 40:10 63:6\n 87:17,24 89:4 86:17 87:9,10 76:9,11 90:25 66:22 74:22\n 97:22 116:13 97:6,22 116:8 117:18 75:10 76:7\n 116:22 121:3 118:1 desire 11:25 83:20 85:12\n decisional defined 88:16 desperately 90:19 100:18\n 41:19 111:24 104:25 111:8\n decisions 8:18 definitely 12:13 destination differently\n 17:9 39:23 12:13 19:12,14,17 108:20\n 83:13 definition 20:4,6 difficult 65:24\n declaration 14:14,17,22 detail 58:19 98:23\n 45:19 47:17,18 15:2 19:2,8,16 determination digital 122:13\n declarations 21:25 34:15 44:6 45:17 diligence 79:8\n 22:13 93:17 48:20 79:14\n declaratory delaware 1:12 determinations diminish 38:7\n 86:21 8:5 85:16 diminished\n decrease 40:21 delia 4:19 18:9 determine 91:4 38:4 39:22\n decreases 110:18 determined diminution\n 32:24 36:20 38:19 41:6\n\n Veritext Legal Solutions\n 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830\n\f[diminutions - dramatically] Page 15\n\n diminutions disgorged 82:15 89:16,23 65:7 72:23\n 41:5 22:25 23:4,9 distribution 77:21 110:6\n direct 14:15 disgorgement 22:18,20 83:23 doctrines 8:24\n 25:14,18 29:12 23:7 90:25 63:24\n 111:18,19,23 dismiss 28:25 distributions documentation\n 112:12,15 47:16 56:11 55:1,3 22:21\n directly 29:11 111:16 district 12:4 documents\n 43:6 67:7 dismissal 30:14 41:1,2 38:6 60:25\n 80:23 104:13 47:7 48:2 50:2 62:3 70:9 85:9\n directors 23:14 dismissed 8:15 50:3,4,5,6 85:16 96:17\n disables 83:15 16:2 57:21 60:23 117:17\n disagree 56:14 dispositive 60:7 63:8 65:14,15 doe 18:14\n 61:21 67:24 dispute 38:22 65:22 74:11,12 dog 71:15\n 86:22 96:14 39:1 48:22 75:12 78:25 doing 37:20\n disappears 54:16 58:5 91:25 97:21,21 44:4,9 50:25\n 42:13 86:23 87:11 98:23 99:5,6 57:14 58:3\n discharge disputed 91:4 99:14 101:24 98:19 117:15\n 21:15 24:24 91:16 93:15,16 115:17 dole 37:22\n 25:4 93:20 disturb 51:25 dollar 48:12,14\n discharging disputes 94:20 65:23 48:15 89:15,17\n 99:3 dissect 103:12 disturbing dollars 19:11\n disclose 102:20 dissent 67:25 52:16 55:13,19\n 103:1 112:25 dissenting 84:5 ditech 30:13,23 donations\n disclosed distinction 11:9 divide 32:13 44:17 58:1\n 112:24 69:2,10,20 78:2 121:20,21 donors 56:22\n disclosing 111:3 divorced 76:15 door 103:18\n 104:9,10 distinguish 76:15,22 doubt 70:19\n disclosure 121:6 dna 4:16 doubtful 25:10\n 112:24 distinguishable dobbs 5:6 25:12\n discretion 50:11 docket 45:19 dow 121:7\n 37:20 73:2 distinguishes doctrine 13:14 dozens 57:2\n discretionary 30:1,2 18:21 19:24 dr 90:22 91:17\n 64:4 distributed 20:16 21:4,19 dramatically\n discuss 51:21 22:24 53:24 26:20 51:19 43:19\n 66:11 105:10 55:8 56:4 58:14,23 63:25\n\n Veritext Legal Solutions\n 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830\n\f[draw - equitable] Page 16\n\n draw 111:3 43:17 44:6 elements 13:20 enjoined\n dropped 28:8 57:12 63:1 83:12 119:15\n due 10:6,7 87:1 94:4 eliminated enjoy 115:7\n 68:22,23,25 98:20 112:21 60:11 enjoyed 28:9\n 83:24 116:16 117:18 eliminates 99:8 enormous 58:5\n dumas 4:4,10 118:21 emerged 53:17 103:20\n 8:6,7,8,8,12,25 effective 8:18 emphasis 80:2 ensure 102:24\n 9:3,7,16 10:10 13:19 15:23,24 emphasized enter 113:16\n 10:14 11:4 27:24 68:6 81:16 entered 52:15\n 12:6 13:11,16 70:23 71:7,9 emphatically 53:19 86:10\n 14:1,19,25 71:11 74:10,11 58:17 entirely 52:20\n 15:19 16:17 75:23 79:3 empowers 57:4,4 60:11\n 17:2,20 72:8 88:18 102:5 37:16 38:8 72:15\n 105:16,17 110:20 113:14 en 21:21 entireties\n 106:20 107:1,3 effectively 17:8 enabled 62:4 104:21\n 108:24 109:14 50:25 encumbrances entirety 42:13\n 110:17 efficient 101:9 70:22 entities 27:6\n duty 37:18,23 eggs 57:13 endowed 27:12 28:5,19 71:25\n 38:10 40:5 eight 91:17 energy 16:15 106:15\n 43:20,21,23 103:10 16:17,18 29:20 entitled 50:20\n dying 95:19 eighteen 53:16 31:4 52:24 97:4 98:2\n e 56:20 66:20 60:19,22 61:6 106:5 109:5\n 102:5,23 62:6 64:8,24 121:1\n e 2:12,12 4:3,3\n eighth 82:7 68:21 75:15 entitlements\n 5:17 8:3,3\n eighty 59:6 76:15 79:8,9 39:9\n 122:3\n 102:10 79:23 80:4 entity 55:20\n earlier 18:21\n either 9:10 83:13,25 84:1 116:17\n 65:4 71:3\n 11:11 13:16 108:10 equal 53:4\n 74:23 102:1\n 52:20 60:10 engineering equitable 9:5\n easier 64:4 78:4\n 73:8 108:2 39:5,13 40:4,4 9:14 13:12,14\n economics\n 120:10 40:12 115:14 15:6,14,18\n 47:24\n elected 47:3 engrafted 17:3 18:20 19:24\n economist\n element 42:14 enjoin 10:22 20:16,24 21:4\n 90:22\n 59:1 76:18 12:17,19 21:17 23:8\n effect 11:3\n 26:20 32:14,18\n 17:11,19 33:4\n Veritext Legal Solutions\n 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830\n\f[equitable - expanding] Page 17\n\n 33:22 38:9 57:23 58:2,6 evade 57:16 except 36:23\n 44:8,11 51:19 70:15 76:6 evaluate 33:21 111:22 118:2\n 52:12,13,22 82:6,8,10,14,22 38:6 44:6 exception\n 53:7,14 54:8 82:24 114:19 evaluating 11:19 44:13\n 54:11 55:17,22 escrowed 20:15 38:13 44:3 68:25 69:1\n 56:1,15,16,18 29:4,6 114:8 evaluation exceptions 81:7\n 58:21,22,23 esq 4:10,19 5:3 33:17 excess 45:11,15\n 59:3 65:5 5:12,21 6:6,15 evan 7:17 exchange 26:18\n 66:19,20 72:23 6:23 7:8,17,25 101:20 80:16 92:21\n 73:3 77:16,19 essential 80:16 event 23:19 103:22\n 77:24 82:10 essentially 19:2 59:10 exclude 31:20\n 102:2 108:3,7 99:12 everybody 26:5 excluded 11:14\n equitably 8:16 establish 79:24 94:16 112:25 exclusively\n 18:18 33:18 112:10 evidence 22:4,5 100:20\n 47:16 53:19 establishing 23:4 41:21 excuse 38:21\n 63:12 72:24 112:18 46:21,23 72:8 65:14 77:14\n 73:2 estate 12:18 80:14 90:10,13 exempt 96:21\n equities 95:1 15:2 40:21 90:21,21 96:25 exercise 88:5\n 104:22 41:13 44:16 102:15 116:15 93:13 94:1,5\n equivalent 80:5 88:14 evidentiary exercised 11:13\n 15:17 54:11 92:24,25 93:25 48:25 87:19 12:24 47:5\n erroneous 72:7 94:6 113:17,21 100:1 exercising\n error 109:13 115:3,4,5,6,8 exact 34:22,24 11:20 13:7\n escape 78:12 estate's 62:1 86:12 exhibit 48:8\n escribers 3:4 estimate 112:5 exactly 34:10 100:21\n escribers.net 112:9 40:6 54:11 exhibited 79:14\n 3:8 estimation 55:21 63:7 exist 9:10 12:24\n escrow 13:25 90:17 72:9 82:19,19 112:8\n 14:1,4,5,8,16 estimations 86:1,6 102:3 existence 11:8\n 14:24 15:3 90:13 111:6 existing 32:21\n 18:22,23 19:13 estoppel 42:7 examine 77:20 expand 40:20\n 19:22 20:9,10 96:22 116:16 example 24:1 expanded\n 20:11 33:6,8 et 24:10,18 33:6 39:19 96:15\n 53:24 54:2,5,7 48:22 72:19,19 41:5 46:3 63:5 expanding\n 54:21 56:22 91:17 26:20\n\n Veritext Legal Solutions\n 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830\n\f[expands - final] Page 18\n\n expands 32:25 expressly 40:24 41:6 50:19 104:5,8\n expected 91:16 extensions 54:6 60:13 far 13:23 45:17\n expedited 89:14 65:16,23 67:18 46:1 56:19\n 22:19 extent 22:18 72:6,6,21,22 94:13 97:13\n expeditiously 38:6 40:9 73:18 84:16 116:4\n 95:20,21 48:20 106:18 86:8 88:3 farr 4:22\n expense 18:17 106:22 121:2 94:18 97:22 fatally 52:16\n experienced 121:15 101:3,5,12,14 favor 71:24\n 59:10 91:12 extinguish 10:5 118:7,12 120:5 77:11\n 104:6 13:1 50:13 factors 55:21 favorable 53:2\n experiences extinguished 112:7 fcr 42:5 50:3\n 105:8 10:2 50:14 facts 75:4 96:5 119:10\n expert 91:10,12 extra 108:16 96:24 97:7 fearing 61:16\n 92:1 extract 62:5 101:10 feasible 24:24\n experts 90:19 extraordinarily factually 11:6 federal 9:2 38:5\n 90:19,20 59:2 14:3 16:18 38:14 40:3\n explain 29:16 extraordinary 50:11 41:16\n 51:24 102:21 52:5 57:19 fail 113:11 ferguson\n explained 79:9,10 81:15 failed 23:1 111:19,24\n 111:20 113:8 102:3 fails 70:13 fiduciary 37:18\n explicitly 20:7 extreme 44:12 failure 100:11 37:23 38:10\n 20:18 34:4 extremely fair 38:9 46:8 43:21\n 35:6 80:13 91:12 fairly 11:2 fifteen 118:6\n 85:8,10 88:25 extrinsic 97:11 fifty 48:12\n 94:12 102:15 fairness 21:14 95:18\n exposed 29:10 eye 6:20 faith 16:24 fighting 77:9\n exposing 62:11 f 26:21,23 43:14 file 70:11\n exposures 80:6 81:10,15 filed 25:5,23\n f 2:12 93:5\n 43:22 118:22,23 45:19 49:3,4\n 122:3\n express 20:21 faithful 78:5 89:12 90:8\n fabric 95:15\n 70:5 96:16 fall 92:19 106:3 119:16\n face 115:25\n 109:7 117:8 families 103:6 files 26:8\n faced 104:1\n expressed family 59:8 filing 45:4\n fact 12:4 16:1\n 111:7 102:19,21,25 final 28:24 29:3\n 32:23,24 33:10\n 102:25 103:2 89:22\n 35:1 38:20\n Veritext Legal Solutions\n 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830\n\f[finality - fundamentally] Page 19\n\n finality 18:17 37:9 52:14 foreclosed 53:3 frankly 87:22\n 76:10 77:11 54:13 58:13 65:2 fraudulent\n finally 75:21 59:9 69:23 forecloses 65:7 62:16 78:11\n 82:8 87:13 74:8 75:11,25 foregoing free 60:14 62:4\n 103:13,14,15 82:2 84:14 122:6 70:21 93:6\n 118:22 91:22 108:1,5 form 23:24 frequency 91:2\n financial 22:14 fit 13:25 100:6,22 91:6\n find 10:18 fits 81:13 106:16 friend 102:19\n 14:12 37:11 five 18:10,11 forth 35:9 friends 60:19\n 55:25 59:17 103:3 94:19 102:21\n 71:23 72:24 fix 49:15 51:8 forty 13:23 front 79:10\n 73:1 75:3 87:8 flaws 9:10 55:13 82:17 108:1\n 101:14 102:16 flies 115:25 forward 13:7 full 47:11 48:4\n finding 15:8 floor 6:3 22:9,19 23:2 50:5 52:1 75:8\n 26:22 43:6 flores 4:15 25:8 28:1 75:10 84:18\n 47:8,9 54:8 florida 91:25 104:21 107:23 88:24 89:3,5\n 83:5 96:23 focus 9:13 foul 95:11 90:5,14,18\n 99:23 101:3 12:15 17:11 found 11:16 91:23 92:3,9\n 109:12 112:12 44:14,14 70:15 23:8 26:12,13 95:3,8 105:19\n 114:24 120:23 102:11 45:8 49:21 108:21,25\n findings 12:4 focused 44:18 65:22 71:22,22 109:1,1,6,9,12\n 48:2,25 72:6,6 focusing 9:24 80:13 81:11 109:15,15,17\n 85:16 91:19 17:11 19:6 85:9 91:18 109:18,20,22\n 100:10 101:12 32:19 78:1 92:3 98:23 109:24,25\n 108:24 109:15 foist 41:18 99:14,18 101:8 110:3,5,7,14\n 109:22 110:8 follow 76:24 109:16 112:4,4 121:8\n 113:11 followed four 10:23 fully 18:19\n fine 32:17 116:24 103:5 39:13,14 40:5\n finish 67:18 following 43:5 fours 60:19 112:14\n firm 103:3 footnote 34:23 fourth 43:4,7 functioning\n firmly 63:23 34:23 71:17 43:15 23:13\n first 9:8 13:21 117:21 frame 78:9,10 fundamental\n 14:10 19:2,6 force 52:21 framework 15:22 68:11,23\n 31:8,10 32:15 foreclose 63:25 47:11 120:25 fundamentally\n 34:14 35:8 47:24 72:17\n\n Veritext Legal Solutions\n 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830\n\f[fundamentally - grant] Page 20\n\n 73:4 garages 102:16 glaring 73:1 48:23 51:18\n funded 46:11 gather 97:17 glb 4:7 52:12 61:1\n funding 18:1 general 24:14 glenn 7:25 63:12 65:23\n 53:23 71:19 generalized 84:12 66:5,22 67:5\n 89:18 17:19 global 11:25 68:17 70:9\n funds 20:15 generate 93:16 40:2 42:10 71:2 72:24,25\n 22:24 23:2,4 generated 46:11 66:16 73:1 74:19\n 29:4,6 33:6,8 45:16 91:24 94:12,23 75:6 76:7,8,24\n 54:6 56:2 57:8 gerber 49:7,11 go 10:23 13:7 77:4 79:16\n 57:22 58:6 49:15,19 51:5 15:3,10 24:14 82:17 84:13\n further 49:24 getting 12:17 25:1 28:16,23 89:16,17,23\n 84:9 87:8 20:2 28:10 29:3,14 32:17 91:8 96:7,11\n future 16:15 29:6 48:15 36:17 43:22 98:9 104:7\n 27:22 29:20 50:19 95:19 46:2 50:23 110:3 114:16\n 31:4 45:17 98:8 53:5 58:11 good 8:4 15:21\n 62:7 79:17,23 gilbert 7:2 59:14 63:15 15:22 16:24\n 80:4 81:22 gilion 4:10 8:8 69:14 74:10,11 26:21,23 33:12\n 83:13 84:1 105:17 77:14 79:2 34:11 43:14\n 87:11,12,18,19 give 11:7 23:5 85:21 89:8 44:14 45:1\n 87:20 108:10 37:19 48:12 96:9 98:9 58:19 61:2\n futures 16:17 52:25,25 61:17 99:16 104:21 67:13,14 79:20\n 16:18 52:24 76:2 77:23,24 105:19 106:25 80:5 81:10,15\n 60:19,22 61:6 101:21 108:21 107:23 117:8 84:12 96:3\n 64:8,24 68:21 114:20 115:12 goes 9:1 25:2 101:19 118:22\n 75:15 76:16 given 20:21 36:24 44:3 118:23 119:7\n 83:25 21:23 23:4,7 68:5,10 69:11 goodness\n g 39:15 56:22 69:16 74:23 118:18\n 58:1 77:19 75:20,23 86:23 gorsuch 67:21\n g 8:3 50:12,15\n 78:3 83:20 118:19 gotten 121:17\n 50:17,17 121:5\n 108:6 going 15:3,7,9 governing\n ga 5:10\n gives 38:18 15:10 24:19,19 85:15\n gain 65:9\n 69:14 24:21 26:3 grafted 81:7\n gallagher 4:22\n giving 78:24 29:6 33:4 grant 63:11\n gamesmanship\n 97:13 117:9 35:13,22 40:14 76:13\n 78:9\n 45:21 48:1,11\n\n Veritext Legal Solutions\n 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830\n\f[granted - honor] Page 21\n\n granted 8:11 hand 8:20 harris 5:12 highly 25:10,12\n 19:4 25:13 21:16 39:7,7 45:2 119:8 hired 102:24\n 32:12 33:9 72:25 hartford 25:10 historical 91:1\n 34:12 44:12 handle 49:17 46:24 67:13 historically\n 61:11 64:21 51:6 head 104:2 46:24\n 68:6,7 75:24 hands 54:2 health 102:23 history 111:9\n 113:24,25 happen 23:10 hear 9:17 32:7 hit 110:19\n granting 23:23 23:15,21 24:8 75:6 94:10 hold 62:13\n great 18:1 24:19 34:13 105:15 117:16 holding 16:17\n 37:19 57:9 76:1 heard 43:8,10 30:13 68:21\n greektown 77:22 82:3,5 44:16,16 52:17 holdings 16:15\n 49:12 51:5 88:15,15 65:7 69:22 29:20 31:4\n greenwich 6:12 104:19 70:14 80:1 home 35:19\n grievances 43:9 happened 82:21 103:11 hon 2:13\n ground 78:4 27:14 28:10 hearing 16:19 honor 19:21\n group 43:25 41:23 42:2,6 28:9 100:1 32:10,19 33:8\n gu 4:17 42:12 103:19 119:17 33:24 34:8,14\n guam 113:7 116:19 hearings 36:1,5,10,23\n guam's 111:19 happening 46:4 103:10 37:9 39:3,16\n guarantee 66:22 70:7 heights 56:1,15 42:24 44:25\n 90:12 happens 17:17 102:2 45:13,15 46:1\n guess 24:13 23:21 24:10 held 16:14 46:5,9,20 49:3\n 107:1 58:5 117:11 19:13 56:2 49:14 50:1\n guts 71:18 happy 9:18 111:23 51:13 52:11\n 76:22 48:19 58:18 hello 110:18 53:13 54:4\n gutzler 91:10 98:10 help 60:3 55:10 58:17\n 91:20 hard 26:3 helpful 25:25 61:21 62:22\n h 78:16 94:14 121:18 63:4 64:15\n 103:24 hid 104:5 66:10 67:3\n hacker 6:23\n harm 22:6 hidden 102:21 71:4 77:18\n 51:21 79:20,21\n 47:19 95:10 104:11 79:20,20 88:12\n hacker's 76:24\n harmed 22:16 high 25:17 89:11,25 90:9\n hagatna 4:17\n 41:1 91:15 91:21 92:12\n halfway 36:7\n harmless highest 61:15 94:24 105:17\n hancock 4:6\n 118:20 115:12 120:22\n\n Veritext Legal Solutions\n 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830\n\f[honor's - incurring] Page 22\n\n honor's 47:5 hypothetical impermissible include 31:18\n 49:7 64:1 47:7 87:18,19 8:14 18:3 31:19,21 34:18\n honors 45:1 i implementati... 39:24 94:21\n 48:7 84:12 93:12 102:6 113:22\n icl 29:22\n 96:1 115:2 implicating included 16:12\n idea 56:23\n 117:2 119:3,8 76:17 85:4 86:10,18\n 57:22 87:13\n hook 107:5 implication 87:1 90:1\n 120:12\n hope 77:6 64:21 includes 14:15\n identified 24:7\n horrific 105:8 implications 17:7 88:16\n 40:24 42:9\n host 91:8 65:16 93:4\n 84:19 116:21\n hour 103:10,10 implode 24:19 including 12:22\n identifies 30:4\n hours 59:7 24:21 15:14 18:14\n 43:17\n 91:17 important 8:12 19:5 20:15\n identify 43:13\n hudson 5:6 8:17 11:5 28:7 45:4 85:7\n identifying\n huge 72:14,14 12:15 26:24 89:14 90:14\n 81:20\n 72:14 103:17 28:14 30:16 91:5 94:3\n ignore 20:9\n hum 100:25 58:20 65:25 101:7 106:7\n iii 73:9,19 74:6\n human 59:1 93:24 98:16 116:12 118:13\n 74:8,13 75:12\n 102:7 105:24 105:5 121:18 inclusion 87:15\n 79:3\n hundred 48:14 impose 87:16 incomplete\n il 7:15\n 57:2 imposed 89:2 18:5\n illinois 45:5\n hundreds 117:19 incompleted\n 46:10,14,16\n 55:15 104:16 impossible 8:19 18:4\n imagine 73:14\n hurley 7:11 8:20 120:5 inconsistent\n impact 33:7\n huston 5:21 impression 75:8\n 44:15 46:19\n 51:15,16 52:11 108:5 inconsistently\n 48:1 49:5\n 53:9,13 54:4 improper 61:5 86:8\n 72:14 87:14,14\n 55:9 56:7,9 115:20 incorporated\n 110:23\n 57:11,15 58:9 inadmissible 16:12,20\n impair 116:8\n 58:16 59:14 87:18 incorrect 66:12\n 117:18\n 60:4 61:21 inapplicable increase 62:10\n impaired 86:3\n 62:19,21 63:20 120:25 98:20 106:24\n 97:23 109:4,5\n 63:22 64:15 inappropriate incurring\n impairment\n 66:10 67:3,5 66:24 45:18,24 46:4\n 86:7 97:16\n 69:24\n\n Veritext Legal Solutions\n 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830\n\f[indemnification - interest] Page 23\n\n indemnificati... insignificant 88:4,6,11 76:25 80:15,21\n 87:25 112:23 30:9 89:20 91:10,14 84:14,20 85:8\n 113:1,6,10,13 insofar 63:4 93:1,4,14,16,21 85:10,20,22\n indemnity institutions 93:25 94:2,8 86:2,4,9,11,16\n 10:20 88:7 23:14 24:18 96:5,6 106:8,9 86:22,22 87:6\n independent instructed 106:14 107:9 87:9,14 93:18\n 45:20,24 103:8 103:6 107:11,24 93:21 94:9\n indirect 14:15 instruction 114:18,24,25 96:9,14,18\n 120:10 40:13 115:3 116:9 97:8,13,13\n indiscernible instructions 118:1 98:6,11,18,25\n 69:9 74:21 57:20 64:5 insured 40:22 99:10,12 100:3\n indisputably 121:12 insurer 27:14 100:21 106:24\n 80:21 insulate 17:6 28:10 41:15 107:4,4,22\n individuals 61:13 79:5 43:12 45:7 111:16 113:16\n 18:12 103:5 insurance 79:21 93:15 113:20 114:2\n indivisible 95:4 10:21 11:1,6,8 117:19 118:13 115:22 116:6\n industrial 40:2 11:11,17,23,25 insurers 11:25 117:18 119:9\n 42:10 12:11,12,16,22 14:6,21 15:4 integral 60:10\n inflationary 12:23,23 13:5 15:11 16:23 76:18 77:3\n 77:1 13:8 27:3,11 18:14 26:23 83:12\n inflicted 102:7 27:14,21 28:11 27:12 28:7,18 integrated\n information 28:12,16,18,22 29:3,9 32:9,20 65:22 80:16\n 115:19 29:8,18 34:1,5 33:10 34:25 98:13 118:8\n injunction 34:15 36:11,12 36:25 38:7,15 119:25\n 50:14 51:3 36:19,21 37:10 38:17,18 39:9 intended 56:5\n 112:1 37:17,24 39:14 39:19,20 40:1 61:15 73:10,11\n injunctions 42:24 43:2 40:5 43:12,17 73:19\n 25:9,12 27:12 44:1 45:5 44:5,10 45:3,3 intense 65:13\n 29:13 72:4 46:10 52:3 45:11,21,23 intent 20:23\n 119:19 54:15 58:4 46:7,22,24 101:8\n injury 95:4 60:9 61:17,23 48:13 51:3,22 inter 45:7\n inquiry 53:14 64:9 65:7 66:1 52:1 60:13,13 interest 19:18\n insert 37:8 70:3,20,21 62:10 65:1,3,8 22:9 27:16\n inside 61:19 72:19 85:1,1 67:4,13 71:10 28:3 55:24\n 86:3,18 87:4 71:25 72:2 88:8 93:19\n\n Veritext Legal Solutions\n 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830\n\f[interest - judges] Page 24\n\n 99:13,15 invite 118:24 jonathan 6:23 64:12 65:4\n interested invites 117:19 joseph 5:3 32:9 66:2,3 67:1,4\n 18:16 involve 11:24 judge 8:4,11,23 67:11,16 68:8\n interesting involved 89:10 9:1,4,13 10:9 68:14,20 69:2\n 26:3 105:7 involves 76:17 10:11,25 12:3 69:9,10 70:7\n 115:22 involving 41:25 13:10,13,25 71:2,5,12,21\n interests 15:15 iro 46:4 14:14,22 15:12 72:11 73:22,25\n 26:21 27:23 irrefutable 16:14,22 17:10 74:3,6,9,12,17\n 52:5,17 70:22 79:24 18:8 19:1,16 74:21,22 75:21\n 93:8,15 irrelevant 9:11 19:25 20:3 76:19 77:6,12\n interfering irrespective 21:3,16 22:17 77:13,15 78:8\n 33:19 37:25,25 38:1 23:20 24:2,8 78:18,20,24\n interpret 30:1 irrevocably 24:16 25:21,22 79:6,9,15,18,23\n 30:8,10 115:19 82:12 26:15 27:7,9 80:18,25 82:20\n interpretation issue 26:17 27:18 29:14,15 82:23 83:18\n 30:13 35:24 49:1 31:4,24,25 84:19,21 88:12\n interpreted 60:6 67:7 79:5 32:1,2,2,4,5,7 89:6,7,8,8,9,15\n 30:15,23 84:24 82:11,21 91:24 32:12,17 33:2 89:21 90:5\n interrupt 92:18 94:18,24 33:23,25 34:4 92:6 95:23,23\n 105:20 105:19 108:1 34:9,12 35:4 95:25 96:2\n interrupted 108:22 117:3 35:25 36:2,4,6 97:15 98:5\n 106:21 issued 11:23 36:16,18 37:1 99:1,16,23\n invade 98:18 22:4 56:17 37:4,7,11 100:1,13,16,23\n invalid 112:8 74:12 91:24 38:21,24 40:7 101:1,16,18\n invalidate issues 9:19 52:3 44:19,24 45:10 102:1 104:18\n 60:17 80:21 76:17 96:6 45:14 46:6,18 105:3,13,14,18\n 83:11 84:6 105:7,10 47:13 48:20 106:18,21\n invalidated j 49:8,21 51:12 107:2 108:23\n 82:24 52:8 53:5,22 109:11 110:16\n jennifer 3:3\n invalidating 55:5,24 56:8 110:22 111:13\n 122:5,12\n 60:8 57:6,11,12,15 112:17 114:20\n job 68:1,1,2\n investing 65:10 58:7,10 59:13 115:9 119:4,6\n john 79:21\n investors 22:3 59:15 60:4 121:15\n joint 94:4\n 22:13 61:12 62:15,20 judges 2:14\n 110:9\n 63:14,16,21,22\n\n Veritext Legal Solutions\n 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830\n\f[judgment - language] Page 25\n\n judgment justified 43:9 87:7,14,23 101:1,16,18\n 24:14 45:8 justify 100:14 89:21,24,25 102:1 105:3,14\n 49:9 86:21 k 90:1,6 98:25 106:18,21\n 96:10 98:9,11 99:7,8 110:1 107:2 108:23\n kami 7:8 96:4\n 98:12 100:19 knowing 25:9 109:11 110:16\n kavanaugh's\n 119:13 120:3 25:16 114:20 115:9\n 67:25\n judicata 42:2,6 knows 109:20 119:4,6 121:15\n keep 114:8\n 42:11,13 87:6 krause 2:13 8:4 krause's 79:23\n kept 30:21\n 96:22 98:1 8:11,23 9:1,4 krebs 82:16\n key 18:2 63:2\n 116:16,21 9:13 10:9,11 kurtz 7:25\n 67:7 83:5\n judicial 20:19 10:25 12:3 51:24 75:7\n keystone\n 46:13 117:23 14:22 15:12 84:12,12 89:11\n 106:10\n july 104:1 16:14,22 17:10 89:17,25 90:9\n kill 70:11\n jurisdiction 9:2 18:8 19:1,16 92:12 96:1,8\n kind 49:24\n 9:15 10:13,16 20:3 21:16 96:16\n 55:21 61:19\n 10:17,17,18 22:17 24:16 l\n 77:2 80:9,11\n 11:7,13,18,20 26:15 27:7,9\n 81:17 108:6 l 30:4 31:12,16\n 11:24 12:1,8 27:18 31:4,24\n 119:25 64:13 110:23\n 12:10,25 13:3 32:2,5,7,12,17\n kinds 81:20 110:25 111:7\n 13:4,7 58:13 33:2 35:4 40:7\n knell 14:13 lack 23:3 68:10\n 69:11,13,17,17 44:24 45:10,14\n knew 26:5,7 68:11,11 69:11\n 69:18 88:5 46:6,18 48:20\n 31:18,19,20 69:17 92:16\n 114:25 49:21 51:12\n knocked laid 44:20\n jurisdictional 52:8 53:5,22\n 118:14,15 96:17 106:1\n 9:8 20:24 68:5 55:5,24 58:7\n know 9:16 land 75:5\n 73:25 80:9 58:10 63:14\n 25:24 39:15 language 30:9\n 84:16 88:3 65:4 66:2\n 42:5 45:16 30:18 31:11,16\n jurisprudence 67:16 68:8,14\n 46:18,20 47:13 33:3 34:22,24\n 52:14 55:17 68:20 69:2,9\n 57:16,19,20 35:8 37:13\n 117:14 69:10 71:2,5\n 59:25 60:18 38:7,20,24\n justice 67:21,25 76:19 88:12\n 61:10 65:18 39:5,6,11,12,16\n 104:17,23 89:6,8 92:6\n 66:10,12 67:9 39:25 40:12,13\n justiciable 95:23 96:2\n 68:24 72:18,19 40:15 41:2\n 87:10,22 97:15 99:23\n 73:10 78:21 42:3,21 43:5\n 100:1,13,23\n 79:25 81:19 44:19,22 48:7\n Veritext Legal Solutions\n 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830\n\f[language - look] Page 26\n\n 48:8 66:4,7 lawyers 117:16 light 18:7 31:12 little 59:19\n 86:10,19 87:1 laying 51:17 70:25 95:1 71:17 78:24\n 96:20,24 97:12 lays 34:24 likelihood 47:9 96:9 120:1\n 97:23 100:5,13 42:10 108:25 live 77:1\n 100:16,18,19 lead 114:24 likely 48:3 50:6 lives 59:9,10\n 100:19,20 leading 90:22 50:21 109:16 llc 1:12 3:4\n 115:13 116:4,4 leapfrog 18:4 likewise 91:25 llp 4:13,22 7:2\n 116:10,11 learn 85:22 limbo 56:3 7:20\n 117:1,4,8,10 lease 111:1,3 limit 20:22 loans 55:20\n 119:1 121:11 leave 35:23 limitation local 9:22\n large 83:19 67:5 20:24 68:17 11:11,14 12:13\n lasted 59:7 leaves 89:6 89:1 12:13,21 13:1\n late 53:16 left 24:17 82:5 limitations 24:18 26:9,11\n latent 75:18 legal 13:9 91:7 108:19 26:13 27:4,20\n launching 58:5 20:25 105:7 limited 23:23 28:15 57:1\n law 10:19 12:5 122:13 27:1 44:18 71:25 72:2\n 12:7 19:21 legislative limiting 20:21 88:17 106:13\n 20:17 21:8 111:9 21:1 107:13,16,19\n 26:7 33:1 35:5 lenders 55:18 limits 20:18 108:16,18\n 35:9,15 36:22 55:21 21:2 115:5,7\n 40:7,8,17 lesser 61:17 lines 65:20 lockheed 61:19\n 41:16,19 50:20 105:21,22 liquidation lodge 61:20\n 54:3 66:12,25 letter 25:11 23:12 77:7 logical 17:20\n 74:3 75:1 level 48:6 100:4 literally 61:23 long 11:21\n 77:19,22 87:5 leveled 67:1 95:18 65:15 86:23\n 93:10 95:5,9 liability 25:13 litigate 42:8 95:2 107:5\n 96:13 111:24 25:15 46:22 litigated 63:21 longer 20:4\n 115:16 118:2 62:11 95:6 97:8 47:1 104:8\n lawful 75:2 110:9,12 litigates 43:21 114:17\n lawsuit 26:8 112:16,23 litigation 61:16 look 13:13 18:4\n 34:20 65:17 113:1,13 65:9 66:21 19:2,4,5 21:24\n 116:17 114:22,23 76:9 77:5,8,8 22:18 23:20\n lawsuits 18:12 liable 26:12,13 85:13 86:15 24:11 33:2,3\n 25:5 liens 70:21 93:6 87:18,20 98:20 33:16,20 36:13\n 98:21 117:9 54:3 57:7 58:8\n\n Veritext Legal Solutions\n 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830\n\f[look - matters] Page 27\n\n 58:13 60:5 lujan 4:13,19 70:6 76:21 mall 20:17 21:8\n 72:16,16,25 18:9,10,11 80:15 85:15,18 108:3\n 73:20 75:15,22 19:10,20 20:7 85:19 87:7,19 management\n 79:3 80:15 21:6 22:2,23 87:20 91:19 14:9\n 85:25 86:19 23:17,22,24,25 98:5 101:13 manner 116:9\n 92:7 93:5,6,8 24:6,12,21 105:22 108:24 mapping 91:10\n 101:12 117:21 26:6,24 27:8 111:17 112:5,9 market 2:5 6:2\n 118:11 119:20 27:10,25 29:17 113:4,5,11 marriage\n looked 23:7 31:8 32:3,6 118:4,11 104:10\n 39:6 55:22 72:8 110:18,18 magnitude martin 61:19\n 94:14 111:21 110:19 111:6 46:18 47:14 mass 43:23\n 111:22 120:19 111:15 112:19 57:17 72:12 massively\n looking 19:23 113:22 114:21 majority 13:24 99:21 101:5\n 20:18 21:22 m 67:22 101:21 master 112:7\n 25:17 26:6,16 101:22 material 65:11\n m 7:17,25 16:3\n 26:21 35:25 make 8:13 12:4 66:18 67:10\n 16:24 20:18,24\n 48:16,16 51:2 15:12 20:23 98:19\n 26:16 28:20\n 69:4 92:8 26:15 33:17 materially\n 29:15,17 31:20\n 95:11 120:15 40:14 43:2 64:10\n 31:22 51:20,22\n looks 52:14 44:6 47:8 matrix 22:20\n 52:23 58:17,22\n 53:15 54:11 66:18 72:2 matter 1:5,11\n 60:7 61:1,23\n 55:1 81:25 95:22 17:4,4 23:11\n 63:3 64:2,7,17\n loses 95:4 98:22 100:10 23:15 35:15\n 64:20,22 68:8\n loss 68:24 101:13 109:11 38:19 41:16,16\n 68:25 69:5,22\n lot 14:19 26:2 109:14 111:11 41:17 55:5,9\n 73:7 74:14\n 53:11 59:21 115:4 120:8 58:8 59:3\n 76:9 77:11,16\n 62:20 72:15 makes 8:13 66:24 67:22,24\n 78:13 79:25\n 77:1 79:6 95:1 11:9 12:20 74:3 75:11\n 81:9 83:15\n 95:21 19:22 41:9 87:5 92:9\n 111:4,17\n lots 39:16 59:2 64:3 104:19 108:5\n 114:12 115:8\n low 11:2 21:23 108:9 117:14 114:24\n made 13:8 22:2\n lower 49:21 making 10:12 mattered 82:18\n 44:19 47:8,9\n 57:18 85:9,17 15:4 38:3 matters 60:20\n 50:16 58:14\n 86:2 108:2 53:11 64:19 80:1 82:11,24\n 61:9 67:25\n 111:22 117:17 91:8\n 68:22 69:24\n Veritext Legal Solutions\n 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830\n\f[maximize - moot] Page 28\n\nmaximize 44:1 meant 81:2,6 method 101:9 114:6\n 61:25 62:2,24 measure 57:19 methodical modify 50:24\n 94:6 61:2 91:19 84:24\nmccarran measured michael 5:21 modifying\n 111:19,24 109:21 51:15 84:25\nmckenna 7:11 mechanism mid 55:7 mogul 40:3\nmcmahon 121:8 millennium 41:16\n 25:21 meet 23:1 53:7 55:23 moment 56:13\nmean 9:21 112:7 million 19:11 64:25 71:1\n 13:12 15:18 meeting 14:11 29:2 55:13,19 moments 77:16\n 17:14,25 19:3 member 102:19 56:23 89:18 monetary 72:2\n 19:17 20:9 104:5,8 minimize 43:22 monetize 93:14\n 23:8,9,12 members 59:8 minimum 94:2\n 24:13,18,19 108:19 94:25 95:10 money 14:3,5,8\n 25:24 30:23 memorabilia minute 71:13 14:20 15:2,3,7\n 40:8,11 55:6 102:17 114:20 15:9 24:16\n 55:24 57:8 mend 104:8 minutes 8:9 28:12 33:9\n 59:16 69:4 mention 42:24 18:10 32:10 37:23 53:1\n 73:2 89:15,22 112:22 mirror 21:12 56:21,22 58:2\n 90:15 92:7 mentioned mischaracteri... 70:14 77:1,2\n 97:20,20 99:4 52:12 59:4 85:19 77:10 82:15\n 99:8,23 101:4 78:9 84:16 mischief 62:20 83:1,9,9 89:23\n 107:8,12,15 meritless 52:2 63:4 81:17 90:6 103:17\nmeaning 19:25 merits 10:11 misheard 77:17 107:7 108:16\n 39:2 67:21 17:13 32:15 mission 40:19 114:3,9,16,18\n 68:17 78:6 44:13 48:18 moac 20:17 month 102:6\nmeaningful 50:17 51:25 21:8 108:3 months 53:16\n 48:23 58:15 68:19 mode 14:15 56:20 65:16\nmeans 19:6,7 69:3,15 70:13 modification 66:21 102:24\n 29:8 37:21 83:15 96:6 22:16 24:7 moot 8:16,18\n 38:24 39:21 107:13 33:5 37:2 15:23 18:19\n 53:15 59:25 mertz 7:11 modifications 33:18 47:16\n 80:4 87:15 messy 59:22 85:2 63:13 72:24\n 93:11 95:10 met 13:21 modified 14:7,7 73:2\n 117:3 14:11 113:12 15:11 18:25\n\n Veritext Legal Solutions\n 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830\n\f[mootness - notice] Page 29\n\n mootness 9:5 61:11 64:20,21 54:9 55:3 ninth 121:4,6\n 9:11,12,14 69:25 70:10 63:11,18 64:6 non 108:18,19\n 13:12,14,15 79:12 111:16 70:9 81:21 114:7 116:9\n 15:6,14,18,20 111:16 85:17 87:19 nonappealable\n 15:21,25 16:3 motions 74:24 90:6 94:3,20 28:24 29:4\n 18:20 19:24 79:13 104:25 105:11 nonbankruptcy\n 20:16,25 21:4 motivations 108:6 119:22 93:10\n 21:17 23:9 43:18 120:23 nonconsensual\n 26:20 32:14,18 move 92:13 needed 12:4 8:13 17:23\n 33:22 44:9,9 moved 20:8 93:17 102:22 18:2,6 68:12\n 44:12 51:19 multi 83:7 121:8 89:1 94:16\n 52:12,13,13,22 multiple 83:7 needs 9:17 nonconsenting\n 53:8,15 54:8 myriad 43:11 20:20 83:18 92:4\n 54:12 55:17,22 44:5 neither 8:16 nondebtor 9:20\n 56:1,6,9,13,15 n 9:1 13:16 9:20 25:10\n 56:16,18 58:8 15:22 40:20 71:25 92:20,21\n n 4:3 6:2 8:3\n 58:21,23 59:3 net 120:25 112:1 121:7\n 122:3\n 59:16,21 60:3 121:2 nondebtors\n name 8:8\n 65:6 66:13,20 neutrality 43:2 11:1 18:13\n naming 41:13\n 67:18 68:4,4 never 31:9,10 25:6,13 112:16\n narrow 17:16\n 68:16,16 72:23 50:3,4 100:5 nonsettling\n 26:17 41:25\n 73:3 75:3,16 100:14 109:19 36:19\n 44:22\n 77:16,19,24,25 110:10 115:8 nordhoff 108:9\n narrower 56:8\n 78:1 80:9 new 4:25 6:13 north 3:5\n narrowly 33:2\n 82:11 102:2 7:23 23:14 northern 69:5\n nature 91:5\n 108:2 120:2 30:14 55:20 nos 1:15\n ne 5:8\n morning 8:4 56:1,15 62:8 notably 52:23\n nearly 10:7\n 45:1 51:18 62:11 102:2 55:18\n necessarily\n 52:4,18 65:8 116:6 note 26:25\n 17:15 80:8\n 67:13 nichols 5:24 48:17 54:24\n necessary 54:1\n morris 5:24 nightmares 62:25 85:2\n 64:19\n mortgage 104:6 90:10,19 93:24\n need 9:17 19:4\n 112:7 nine 100:12 notes 64:13\n 33:3 34:9,9\n motion 28:25 ninety 53:23 notice 16:9\n 35:6 40:15\n 47:15 61:3,9 46:13 117:23\n 41:15 53:25\n Veritext Legal Solutions\n 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830\n\f[notice - order] Page 30\n\n 118:12 objection 28:8 occurred 22:18 operating\n noting 85:13 47:21 61:4 32:22 53:18 23:15\n notion 69:23 67:1 80:7,8,10 55:11 60:21 operation\n 88:4 84:8 97:18 71:6,11 82:4 53:17 95:4\n notwithstandi... 100:3,21 98:4 118:12 operations 3:8\n 21:20 39:25 objections october 55:7 opining 17:17\n 60:13 61:6 83:20,22 86:5 offer 105:4 opinion 44:7\n 66:8 70:18 92:4 106:3,4 offered 22:7 59:25 63:24\n 93:9 94:18 119:11 oftentimes 26:9 76:20 79:11,23\n 104:16 objectors oh 37:12 41:19 82:20\n november 2:8 104:15 42:5 50:5 opinions 10:20\n 122:19,25 obligation 47:4 59:22 117:6 opportunity\n novo 12:10 94:6 105:22 118:17 21:17 22:10\n number 8:21 obligations okay 8:12 18:7 74:15 75:11,14\n 19:1 22:19 34:1,5,18 32:5 34:14 opposite 39:15\n 47:20 50:2 35:11,14,20 36:12 44:20 39:24 40:6\n 93:2 97:22 36:7,8,14,18 51:12 59:22 63:7 76:11\n 101:8 104:18 37:15 38:2 71:2 96:11 77:8 86:1,12\n 105:23 66:8 84:15,20 101:16 110:15 opposition\n numbers 55:7 85:1 86:8,17 114:12 115:9 111:15\n nw 4:6 6:20 87:2 88:8,10 119:4 120:3 opt 46:2 58:14\n ny 4:25 6:13 90:12 107:11 old 95:13 106:7,23\n 7:23 117:13 102:17 108:16\n o observation olson 82:7 options 63:17\n 80:14 once 43:22 oral 100:6\n o 2:12 8:3\n obtained 115:6 103:1 ordeal 103:15\n 30:16,16,18,22\n obtaining onere 35:9 order 9:6,16,18\n 30:24 31:12,16\n 104:17 ongoing 65:9 16:10,12,16,19\n 31:17 64:14\n obviously 65:16 66:21 16:22 20:22\n 111:9,10 122:3\n 13:24 20:13 90:11 101:24 24:5 28:24\n o'melveny 6:18\n 53:3 54:12 oops 73:10 29:4,19,20,21\n object 28:1\n 61:24 74:13 open 108:11 36:25 37:14,21\n objected\n 77:19 81:16 opening 48:8 38:4,14,16\n 119:14,15,16\n occasion 21:20 119:21 121:12 39:21,22 40:1\n 119:18\n 29:24 41:21 45:9\n\n Veritext Legal Solutions\n 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830\n\f[order - participating] Page 31\n\n 49:9 50:24 osram 54:6,21 owe 116:24 panel's 76:20\n 55:3 57:10 82:20 owed 99:17 paper 47:22\n 59:10 60:1 ought 70:24 103:18 70:12,12\n 62:2,23 70:4 outcome 15:5 own 11:23 papers 118:25\n 70:18,23 73:16 15:10 17:21 12:22,23 18:17 121:12\n 73:17 74:12 75:10 77:10 21:19 68:20 paragraph\n 75:17,17 76:14 outline 119:21 106:16 34:16,21 35:2\n 84:22 85:5,6 outlined 102:6 owners 94:4 36:14 45:9\n 87:2,3 93:13 outs 106:23 p 84:22 85:4\n 97:10 100:7,22 outset 26:24 paragraphs\n p 4:3,3 8:3\n 101:23 102:21 59:4 85:7 117:21,22\n p.c. 7:11\n 104:2 112:20 outside 16:16 parentheses\n pacor 10:20\n 113:15,20,23 22:3,13 29:24 115:24\n page 27:19\n 114:7,23 31:1,22 40:10 parker 5:6\n 41:2 59:6 79:7\n orders 97:25 61:9 85:14,21 parlay 117:24\n 79:7 84:23\n 100:9 outsider 22:5 part 13:19 16:8\n 88:19 92:22\n oregon 110:11 22:15 16:15 17:23\n 102:10 116:6\n organization outsiders 22:6 20:1 23:6\n pages 35:16\n 26:9,12 27:13 22:11 27:22 38:11\n 38:6 41:19,19\n 27:15 113:5,18 overall 49:22 43:24 44:14\n 117:17 119:20\n organizations 91:8 99:20,22 45:23 46:25\n paid 28:12 48:3\n 9:23 11:12,15 101:15 118:20 49:25 72:17\n 50:4 76:25\n 11:19,21 12:9 overcoming 73:15 78:2,3\n 77:2 80:22\n 12:14,21 13:2 41:4 78:11 92:10\n 83:9 90:12,16\n 27:5,6,21 28:5 override 41:10 98:13 106:10\n 95:20,22 98:17\n 28:18 71:8 85:15 106:18,22\n 99:19 104:12\n 72:1 88:17 overriding 115:3,3,4,5\n 106:23 107:4\n 106:14 107:14 21:14 parted 20:4\n 110:3 112:14\n 107:16,20 overturned partial 19:19\n 113:2 114:3,19\n 113:2 23:11 24:2 54:22\n 121:1\n original 30:18 overwhelming participated\n painful 103:24\n 31:16 98:14 101:22 22:10 25:16\n paint 57:7,9,14\n originally overwhelmin... 52:6 102:15\n pales 72:21\n 30:17 44:23 66:15 participating\n panel 68:2,24\n 100:17,20 45:22,22 71:8\n 74:16,25 79:13\n Veritext Legal Solutions\n 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830\n\f[participation - plan] Page 32\n\n participation party's 33:17 penny 76:5 pharma 21:9\n 59:11 93:18 pass 103:5 people 57:3,24 25:21\n 94:4,9 passed 103:25 72:15 93:18 philadelphia\n particular patience 105:8 114:16 2:6\n 17:12 26:17 121:13 percent 13:23 philip 67:12\n 45:8 48:24 pause 69:18 42:20 46:21 phillip 6:15\n 52:9 75:7 96:7 pay 37:24 44:4 53:23 55:6 phoenix 3:6\n 108:8 116:22 49:10 90:7 82:17 103:3 5:19\n particularly 109:17 116:14 104:15 phrase 82:4\n 65:6 116:14,22 percentage picture 57:7,9\n parties 9:21,24 121:8 55:5 56:4 57:14 106:23\n 9:25 22:9 29:7 paying 98:25 perfectly 75:2 piece 21:21\n 29:10,13 40:9 payment 54:23 performing 59:16,19 60:2\n 43:18 44:15 75:8,9 82:16 55:19 60:2 70:12\n 54:16 107:9,21 82:18 84:18 period 42:3 74:1\n 107:24 108:18 88:24 89:3,5 77:1 116:9 pieces 59:21\n 114:10,17 90:14,18 91:23 perkins 5:15 98:15\n 121:17,19,21 92:9 101:9 permanently pipeline 69:5\n parting 20:1 108:25 109:9 10:22 12:19 place 68:18\n parts 32:14 109:25 permissible 78:4,5,5\n party 8:13 payments 35:15 92:4,6 117:20 120:17\n 10:22 13:4 80:15 permission 120:21\n 16:11 17:24 peace 77:2 32:10 placed 54:7\n 18:6 19:5 114:5 permits 92:23 places 93:2\n 21:25 25:25 peachtree 5:8 117:12 plain 67:21\n 26:18,21 33:19 pencil 49:18 permitted 87:4 78:6 80:3,4,10\n 40:21 41:14,14 penciled 49:9 87:4 80:22 81:8,13\n 43:8 52:16 penciling 49:23 personal 104:3 plainly 69:12\n 55:21 68:14 65:19 perspective plan 9:9,11\n 75:1 76:21 pending 45:4 101:21 105:5 10:7 11:9\n 79:1 89:1 penetrated persuade 74:8 13:18 15:8,11\n 102:19 106:8 102:13 petition 18:12 16:13,15,20\n 107:13,19 pennsylvania 25:22 97:3 17:3,4,6,11,18\n 116:2 2:6 7:4 98:2,3 115:6 17:22,24 18:1\n 18:1,2,14,19,24\n\n Veritext Legal Solutions\n 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830\n\f[plan - policy] Page 33\n\n 22:15 23:11,16 69:15,23,24 79:16 89:4 pointing 88:24\n 23:18,22 24:3 70:5,10,17,18 116:11,20 points 42:1\n 24:4,7,12,22,25 70:24 71:7,16 plant 48:13 49:13 80:24\n 25:4,8,23 71:17,18,18,23 50:11,12 121:3 110:19 115:10\n 27:22,25 28:23 72:5,12,13,22 121:3,4 policies 11:22\n 28:23 29:3,7 73:4,8,14,16,20 play 22:22 69:6 11:23 12:25\n 29:18,22,25 74:10 75:7,9 97:17 110:6 13:1 26:25\n 30:3,7,11,20,21 75:17,24 76:2 117:24 27:1,1,3,3,4,5\n 30:25 31:2,2,2 77:4 79:2 80:7 pleading 34:25 27:15 28:3,4\n 31:5,14,15,17 83:19 84:9,18 please 8:7 18:9 28:16 34:2,5\n 31:17,19,22,23 84:23 85:4,5 32:8 45:2 36:21 41:13\n 32:21,23 33:4 86:3,4,7 88:22 51:15 67:12 51:23 54:15,19\n 33:5,19 34:4,7 89:2,16 90:6 96:3 101:19 58:4 60:9,14\n 34:15,16 35:6 91:23 92:23 plural 10:1 61:24,24 62:3\n 36:14,24 37:2 93:11 95:8,20 plus 95:17 62:5 70:3,16\n 37:13,15,20,22 96:4 97:8,9,9 pockets 43:8 70:20,25 71:20\n 38:3,16 39:2,4 97:18 101:22 podium 60:20 76:6 80:17\n 39:19,20,22,25 102:6,7,14 point 8:12 12:6 82:6,11,25\n 40:11,16,25 103:22 104:13 18:5 20:10 83:1,2,9,10\n 41:8,11,15,20 104:14,19,21 34:19 45:10 85:2 86:4,18\n 42:16 45:7 106:10,11,25 46:7 47:14 87:4 88:9,13\n 49:5,5,6,22 108:15 109:6,8 48:19 53:13,20 88:13,17 89:20\n 51:17 52:1,2 109:16,22,23 54:5,12 55:13 93:19 97:6\n 52:16,20 53:5 110:25 111:2,5 56:13 60:6 106:9,10 107:5\n 53:6,19 54:7 111:11 113:14 61:7 64:2 67:8 107:6,12,17,18\n 54:18,18 55:3 113:19,23 68:20 69:24 114:4,8,14,18\n 55:16,25 57:4 114:6 115:23 81:18,25 82:22 115:5,7,15,21\n 57:17,25 58:3 116:24 117:7 83:17 85:6,17 115:23,24,25\n 59:5,18,20,20 117:24 118:12 86:6 87:22 118:1\n 59:20,24 60:15 118:21 119:13 90:10 91:21 policy 21:9\n 60:21,25 61:2 119:16,25 98:11 100:1 28:11 38:2\n 61:9,22 62:2,5 plan's 52:7 101:3 119:24 55:19 64:10\n 62:25 64:16,19 93:11 120:8 67:22,24 68:1\n 65:20 66:4,8 plans 17:19 pointed 74:23 77:11 85:1\n 66:14 67:2 39:18 42:8 93:22,23\n\n Veritext Legal Solutions\n 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830\n\f[policy - procedural] Page 34\n\n 107:24 69:12 prefer 63:16 106:1\n policyholder powers 17:8 prejudgment price 62:11\n 37:18 40:22 practical 23:11 24:15 64:11\n 43:20 23:15 43:17 prejudice primarily 9:21\n population 57:12 104:19 116:8 22:3\n 103:4 practice 26:4 prepared 61:8 primary 46:24\n portion 53:25 62:22 78:23 121:19,21 88:20 93:24\n portions 84:19 79:5 93:20 present 51:18 94:8\n portland 4:8 practitioner presentation principal 68:22\n position 38:25 25:24 78:20 32:13 principle 35:9\n 39:1 40:22 pre 11:10,18,20 presented 40:15,16,19,23\n 76:4,7 85:12 12:8 18:12 56:19 60:23 53:4 63:16\n 86:12,13 97:12 29:21 46:9,25 64:18 66:15 116:1,1 117:25\n 118:25 88:6,9,13,16 preservation principles\n positioned 97:3 98:2,3 86:7 96:20 66:20 96:13\n 66:11 67:6 115:6 97:1,14 97:17,19\n possibility precedent 21:3 preserve 32:24 prior 11:12,15\n 78:14,16 21:4,7,19 39:14 40:5 11:17 12:13,21\n possible 8:21 24:13 52:22 41:12 50:23 26:7 76:20\n 12:24 15:23,24 53:11 57:17 51:9 97:2,3 probably 31:10\n 16:2 23:18 75:19 preserved 40:1 94:22\n 79:15 105:19 precedents 66:9 84:20 probate 102:24\n 107:25 108:4,6 54:9 85:10 87:9 problem 48:23\n 108:14 precisely 90:3 106:2,3 116:3 72:11 73:22\n possibly 89:25 preclude 51:20 117:7 81:24 100:24\n 94:18 58:23 69:6 preserves 115:17 117:7\n post 11:10 75:5 precludes 39:13 85:8 118:15,16\n 82:14,14 22:17 56:9 86:11 115:13 problematic\n potential 47:19 58:18 preserving 97:24\n 99:3 107:17 preclusive 39:9 problems 9:9\n potentially 116:16 presumably 35:7 73:1,19\n 45:21 91:6 preempted 87:24 81:22 102:23\n power 20:19 111:19 112:3 presume 79:13 procedural\n 21:7 49:18 preempts pretty 9:19 10:6\n 53:6 68:11 111:25 26:3 98:9\n\n Veritext Legal Solutions\n 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830\n\f[procedure - purdue] Page 35\n\n procedure promised 109:9 protection 29:5 provisions\n 83:23 prong 54:13,25 47:10 50:9 36:21 41:4\n procedures proof 34:19 99:7,12 114:9 42:18 72:18\n 22:20 90:25 89:11 120:14,15,19 92:20 98:12\n 99:21 101:5,15 proper 9:5 protections 116:7 117:17\n proceed 8:4 41:13 28:7 81:17,21 118:13,14\n 20:20 23:25 properties 57:2 protective 86:9 prudential\n 33:11 53:1 57:5,25 protects 39:12 21:11,13\n proceeding property 9:25 prove 22:24 pudding 34:20\n 41:23 42:20 18:22 19:13 102:17,18 pulled 90:25\n 46:14 116:17 20:2 30:2,3,6,8 provide 27:22 purchase 62:11\n proceedings 61:15 62:1 30:7 56:6 64:10\n 121:23 122:7 64:20 80:19 57:20 69:15 purchased\n proceeds 115:2 82:8 88:14 83:16 84:3,7 62:16\n 120:17 92:20,23,25 86:16,22 89:5 purchaser\n process 10:6,8 93:3,6,8 91:15 93:11,17 26:22 80:6\n 16:7,8,11 106:15 111:1 94:6 109:6 81:11,15\n 22:10 25:16 114:15 115:6,8 111:2 purchasers\n 45:25 52:6 proposed 37:1 provided 26:19 16:24 26:23\n 59:6 68:22,23 42:19 44:22,23 28:11 53:16 61:16\n 68:25 83:24,25 49:6,23 51:8 provides 18:1 purchases\n 101:9 119:19 52:15 66:7 63:5 64:5 78:10\n processes 70:1 86:25 84:18,23 87:3 purdue 8:13\n 101:11 102:6 100:5,9,13,17 88:23 89:3 17:13 18:3,14\n profile 91:6 100:20,21 95:2,3 109:22 18:19 21:9,9\n profit 95:14 117:4,5 120:20 providing 21:12,13 25:3\n program 56:25 protect 17:4 80:11 81:20 25:4,20,21\n progressed 18:6 39:19 83:16 109:24 26:2 50:16\n 25:20 protected 29:7 provision 9:5 51:7,25 62:15\n prohibits 80:11 29:10,13,13 28:18 35:18 62:25,25 63:5\n project 98:24 66:4 99:14,19 41:10 42:10 63:10,10 67:19\n projecting 92:2 114:9,17 82:15 87:16 67:20 75:1,5,8\n promise 52:7 protecting 93:10 94:14,19 78:6 79:23,25\n 59:4 114:13 96:10 118:3 81:3,4,19,24\n 84:17 88:21,25\n\n Veritext Legal Solutions\n 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830\n\f[purdue - reason] Page 36\n\n 91:23 92:3,15 q 100:2,14,18,25 reaching 43:7\n 92:16 95:9 qualification 101:4,17 reaction 89:3\n 99:1,4,8 85:5 quite 54:18 read 35:8 39:4\n 100:23 106:2 qualify 31:6 67:23 71:7 56:16 78:6\n 112:8,21 121:1 quantifiable quote 69:25,25 81:5,9 82:4\n purdue's 50:16 46:7 71:22,23,23 83:5 96:16\n purple 42:11 question 26:1,2 72:3 76:15,17 real 44:16 57:2\n purpose 18:24 47:6,13 49:7 82:12 86:2,11 73:18,22 98:19\n 20:10 88:21 49:14 55:10,11 86:15,16 102:7 105:8\n 101:10 57:6,16 58:16 quoted 112:20 119:10\n purposes 19:23 59:15 64:1 quoting 76:20 realities 44:2\n 22:1 40:11 65:5 68:6 69:5 r reality 43:18,25\n 86:20 90:14 69:12,16 70:16 101:2\n r 2:12 4:3 5:21\n 101:7 109:17 70:16 71:12 really 9:1 20:3\n 8:3 122:3\n 112:6 74:24 75:22,23 24:19 25:25,25\n rahe 46:12\n pursuant 16:25 75:25 76:12,13 26:2 33:16\n rainer 5:6\n 36:20 37:22 77:21 78:15,17 34:6,19 41:24\n raise 31:10\n 42:16 54:7 110:23 120:22 44:4 49:23\n 82:21 83:21\n 55:16 61:1,22 questionnaire 61:6,20 62:3,7\n 100:3,11\n 64:17 69:23 59:6 102:11 64:8 68:9 70:9\n raised 21:11,12\n 70:3 104:7 71:14 81:1\n 27:19 31:9\n pursue 37:17 questionnaires 82:8 87:15\n 61:4 95:9 96:8\n 60:13 106:13 22:21 94:25 95:10\n 96:12 119:10\n pursued 89:13 questions 31:25 97:16 117:19\n 119:11\n pursuing 95:7 48:19 65:24 118:10 121:16\n raises 65:24\n pursuit 76:16 66:2 71:3,13 realm 26:20\n range 91:8,16\n 76:20 83:13 84:9 95:23 78:14,16\n rarely 44:12\n put 14:4 22:21 98:10 102:12 reason 15:23\n rather 17:17\n 37:4,5 40:13 105:1 110:21 33:12 41:9\n 67:14 98:2\n 46:21 47:22 quick 110:20 58:11,19,25\n rationale 92:9\n 48:7 67:15,23 quickly 69:21 64:23 65:5\n reach 51:24\n 70:15 75:9 98:9 105:20 74:22 88:11\n 58:14 63:17,18\n 96:21 quinn 7:8 52:3 100:2,11\n 113:20\n putting 70:12 96:3,4 97:20 119:22\n reached 103:14\n 99:5,18,25\n Veritext Legal Solutions\n 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830\n\f[reasoning - relief] Page 37\n\n reasoning 92:7 redound 38:17 reinstatement 83:10,11 84:6\n reasons 74:17 reduce 101:5 90:15 89:1 93:17\n 81:23 98:16 101:15 reject 56:11 94:13,16,17,21\n 121:10 reduced 47:10 64:8 106:8,9,11\n rebuttal 8:10 49:22 50:7 rejected 21:14 107:8 108:15\n 18:10 32:7,11 reduces 49:23 63:13 80:8 114:4,19 121:7\n 105:15 99:21 84:8 85:24 relevance 81:3\n received 23:3,5 reduction 45:8 86:2 relevant 22:1\n 55:12 58:1 45:14 49:9 related 10:13 65:6 82:10\n 103:15 96:10 98:9,11 10:15,17 52:3 103:18\n recent 20:16 98:12 99:20 69:13 71:24,25 reliance 15:15\n recognition 100:19 119:14 72:4 80:20 19:5 22:1,1,5\n 34:25 120:3,24 82:1,22 94:24 22:22 52:5,16\n recognize reevaluate relating 36:19 103:22 104:13\n 62:10 43:16 85:3,3 relied 22:15\n recognized refer 19:18 relation 55:10 44:15 56:23\n 25:1 42:22 48:21 relationship 59:4 94:12\n 91:3 reference 30:21 57:24 104:8 101:23 120:6\n recognizes 21:4 66:6 118:6,7 relative 56:5 121:3\n 21:6 44:2 55:2 referencing release 62:13 relief 8:18,19\n recognizing 110:25 92:21 103:21 8:21 15:23,24\n 64:16 referred 46:17 106:12 107:11 16:2 17:6\n record 22:5 refers 34:16 released 51:8 20:18,21 23:23\n 46:13,21,23 refinanced 93:23 95:6 24:2 32:23\n 48:21 50:7 55:18 107:24 33:8,10,14,21\n 51:1 84:20,23 refunded 102:8 releases 8:14 34:6 41:25\n 85:8,13,14,21 regard 86:17 17:24 18:2,7 44:18 50:19\n 88:16,19 90:18 regarding 23:25 24:9 51:21 52:14\n 93:19 95:18 111:17 112:4 25:25 26:18 53:3,15,19\n 101:6 119:21 112:21 60:10,12 62:17 56:11 58:18,24\n 122:6 regardless 68:14 71:24 60:5,8 62:9\n recover 103:1 113:24 72:4 75:2 68:5,6 75:23\n recovery 43:3 reinstated 76:22 78:10,11 76:13,14 80:11\n red 18:7 90:16 78:12 79:2 83:16,16,17\n 80:20,21 82:24 84:3,7 100:6\n\n Veritext Legal Solutions\n 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830\n\f[relief - respectfully] Page 38\n\n 105:18,21,23 21:3 23:10,20 reorganize require 50:14\n 106:5,6,6,16 24:2,8 25:22 94:5 95:12 60:8 98:21\n 107:25 108:4,6 29:14 32:2,4 reorganized required 20:6\n 108:7,8,11,14 33:23,25 34:4 23:13 25:1 90:2 102:20\n 110:20 113:14 34:9,12 35:25 51:16 55:20 103:1 104:3\n 113:23,24 36:2,4,6,16,18 56:24 114:23\n 118:19 119:19 37:1,4,7,11 repeat 75:4,4 requirement\n relive 102:12 38:21,24 44:19 96:8 20:14\n relived 103:11 56:8 57:6,11 repeatedly 63:8 requirements\n rely 68:12 57:12,15 59:13 63:11 65:21 10:8\n 120:6 59:15 60:4 76:10 87:9 res 42:2,6,11,12\n relying 121:4 61:12 62:15,20 119:18 87:6 96:22\n remain 29:1 63:16,21,22 repercussion 98:1 116:15,21\n 40:1 107:6 64:12 66:3 33:13 reserve 8:9\n remained 28:13 67:1,4,11 replicate 91:1 18:10 32:10\n remaining 52:3 71:12 72:11 reply 28:24 47:18\n remains 24:24 73:22,25 74:3 44:20 114:2,6 reserving 47:23\n remand 49:2 74:6,9,17,21,22 116:7 resided 46:22\n 49:16,16 101:3 75:21 77:6,13 represent resolution 12:1\n 104:14 120:23 78:8,18,20,24 18:11 48:22 66:16\n 121:12 79:15,18 80:18 representatives 105:11 113:9\n remanded 81:1 82:20 72:1 resolutions\n 43:15 83:18 84:19,21 represents 91:1\n remedied 102:9 89:7,8,9,15,21 103:3 resolve 25:7\n remedies 104:4 90:5 95:24,25 request 42:23 respect 55:14\n remedy 49:1 99:1,16 100:16 63:13,25 64:9 57:23 58:2\n 56:6,10 104:18 110:22 84:5 96:9 82:9 84:5\n remember 111:13 112:17 97:13 89:14 91:19\n 28:14 rendell's requested 96:12,22,23\n reminding 52:9 105:18 51:21 56:10,12 117:15 118:3\n remove 30:21 render 30:9 58:24 63:8 119:24\n removing rendering 100:5 respectfully\n 37:13 72:11,15 47:10 requesting 56:14 61:21\n rendell 2:13 reorganization 46:19 62:21 68:2\n 14:14 19:25 29:25 31:23 71:15 78:24\n\n Veritext Legal Solutions\n 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830\n\f[respectfully - sale] Page 39\n\n 121:10 reversed 14:7,8 35:3,11,20 92:14 94:23,25\n respond 74:7 16:5 18:24 36:6,7,8,13,15 95:2 110:13\n response 47:15 24:5,8,9,12,14 36:18 37:10,15 112:14\n 81:25 88:4,14 24:25 25:3 38:4,7,15,18 rules 35:5 41:8\n responsibilities 28:23 57:9 39:7,8,14,20,21 ruling 80:9\n 79:14 114:6 40:1,5,9,20,21 87:7,23\n responsible revert 39:12 41:8,20 43:13 rulings 12:15\n 45:21 reverting 56:3 50:15 51:9 87:19 98:5,6\n rest 75:24 review 21:21 53:1 66:1,5,8 runs 43:23\n 104:22 45:21,25 61:13 70:22 71:9 s\n restrictive 69:6 73:16 72:19 85:1\n s 4:3,19 7:13\n 59:17 74:6,8 75:12 86:3,11 93:21\n 8:3 61:2\n result 26:10 83:18 103:8 94:3 96:15,20\n 122:10,16\n 40:23 42:12 109:13 118:25 97:2,3,14\n sackler 92:19\n 43:19 44:4 reviewed 92:1 103:22 106:15\n sacklers 62:16\n 49:22 reviews 79:1 109:4 115:14\n sadly 103:3\n resulting 91:14 revote 118:17 115:24 116:8\n safer 78:4\n retained rewrite 98:12 117:6,13,25\n sale 16:4,5,6,7\n 118:16 right 16:16 118:1 120:11\n 16:7,11,18,21\n retracted 22:25 17:1 24:17 rigorous 80:2,2\n 16:25 17:7,12\n retraumatizat... 26:22 31:6 rise 77:23,24\n 17:15,16,18,22\n 59:12 33:11 40:11 risk 46:11\n 17:22,25 18:4\n return 15:1 41:12 43:8,9 ritchie 3:3\n 29:18,24,24\n 18:24 33:9 45:25 47:4 122:5,12\n 30:2,3,8,11,12\n 62:17 65:4 48:4,17,25 road 5:17\n 30:22,23,25\n 78:12 53:8 60:15 82:18\n 31:5,14 59:18\n returned 14:6 62:10 70:15 robust 90:18\n 59:19,20,23,24\n 23:3 24:16 77:10 94:1 rogers 6:6\n 60:2,9,11,16,17\n returning 57:8 99:25 100:2 role 22:21 96:5\n 60:20,21 61:1\n reuse 116:1 101:2 117:14 roman 27:5\n 61:3,10,18,20\n reversal 22:16 rightly 99:3 28:5,8,19\n 61:22 62:18\n 24:6 rights 10:1 routine 90:11\n 64:10,16 69:23\n reverse 76:2 27:16,21 29:12 rubber 79:8\n 69:25 70:2\n 108:15 111:18 32:25,25 33:19 rule 24:14\n 71:14,17,19\n 111:25 112:3 34:5,16,22,25 58:20 80:12\n 72:12,18,21\n Veritext Legal Solutions\n 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830\n\f[sale - seems] Page 40\n\n 73:11,12,15,18 satisfied 21:23 scheme 21:14 secret 102:20\n 73:20 75:24 53:12,14 58:12 scientific 91:3 104:11\n 76:14,16,18,23 64:23,24 scirica 2:13 section 16:3,9\n 78:11 80:7 112:14 13:10,13,25 17:2 29:15,25\n 81:2,10,13,13 satisfies 14:17 29:15 31:25 30:1,4,10,11,16\n 82:14,25 83:2 satisfy 10:7 32:1 77:12,15 30:18,19 31:11\n 83:8,8,12,21 92:2 109:20 82:23 31:15 51:20,22\n 84:2,4 99:7 saw 79:10 scope 108:7 52:23 58:17,22\n 106:8,11 107:2 saying 11:20 scoured 102:16 60:7 61:1,3,5,8\n 107:6,10 18:5 23:21 scouting 56:24 61:10,23 62:19\n 110:24,24 30:10 42:12 59:11 71:24 63:3 64:2,17\n 111:2,4,4,11 49:9 53:10 72:4 80:20 64:20,22 69:19\n 114:12,13,14 56:1 60:20 102:15,17 70:3 93:8\n 114:14 66:5 71:7 103:16 113:7 111:2,7 118:23\n sales 16:10,16 72:18 73:6,19 scouts 1:6 8:5 sections 64:13\n 16:19 18:5 97:5,24,24 9:22 18:13 64:13\n 26:17,25 27:1 99:2 107:7 23:13 24:22,23 securities 22:3\n 28:13,15,15 112:17 114:15 25:4,8,11,14 see 41:2 54:17\n 29:1,18 31:1,1 says 16:23 20:5 26:8,10,10,13 64:3 70:25\n 31:17,19,21,22 30:6 35:2,17 26:14 27:2,15 72:11,25\n 57:3 71:22 35:18 36:6,24 28:15 51:11,16 104:24 118:25\n 76:1 77:23 38:8 39:19 53:16 77:7 seek 33:13\n 82:2,3 111:11 40:4 41:5,7 84:13 112:22 63:18 118:24\n 113:24 42:4,5,10 43:1 scramble 33:18 seeking 32:20\n sat 59:7 49:11,11 51:7 scrambling 32:21 33:18,21\n satisfaction 61:2,22 62:7 52:16 52:2 60:8\n 52:1 90:6 64:19 66:7 scrutiny 78:12 66:17 67:9\n 92:14 94:25 80:5 81:9,23 se 7:4 8:14 18:3 83:17 87:25\n 95:2,3 105:19 82:8 86:20 second 8:5 115:11 117:25\n 108:22 109:1,1 96:21 113:15 20:13 32:15 118:20\n 109:7,9,12,15 113:19 115:23 54:24 70:14 seem 19:1\n 109:15,23,24 121:4 74:14 75:14 40:11 88:1\n 110:5,6,7,8,13 scar 104:1 secondary 16:1 106:24\n 110:15 112:4,5 scharffenber... seconds 118:7 seems 16:24\n 112:14 31:5 21:24 27:22\n\n Veritext Legal Solutions\n 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830\n\f[seen - situation] Page 41\n\n seen 31:10 settled 40:8 114:2 115:22 significance\n self 22:7 45:6 46:15 116:9 40:13 72:22\n sell 30:6 61:15 71:11 94:20 seventh 4:24 significant 22:6\n 61:19 64:20 99:13 seventy 18:11 significantly\n 93:3,6,14 94:1 settlement several 106:6 101:15\n 111:1 19:12 28:13 106:17 110:9 silly 70:8\n selling 62:23 45:18,20 46:6 110:11 silverstein 70:7\n 78:11 46:10,12 51:4 severity 91:2 71:22 79:6\n send 117:6 70:2 72:3 sex 107:19 similarly 53:2\n senior 93:10 85:12,23,23 sexual 103:20 simple 57:22\n sense 9:2 12:20 87:17 88:15 103:24 104:5 65:19 67:8\n 18:17 19:25 94:21 95:8 105:24 simpler 78:5\n 41:9 95:22 108:25 109:1 share 27:16 simply 10:18\n 120:15,19 109:17,18 46:8 12:9 14:19\n sensitive 117:2 110:1,2,4 shared 10:21 27:12 32:22\n sent 25:11 113:16,21 11:5,8,10,17,22 37:14 41:11\n 112:25 116:13,18 11:25 12:2,7 49:1 70:12\n sentence 37:7 settlements 12:10,12,16,22 78:1 80:9 82:3\n separate 16:10 27:12 28:16,22 12:25 13:5,8 84:4 100:15\n 16:19,21 27:4 29:8,19 47:1 88:4,6,10 106:12 117:8\n 27:14 28:4,11 113:6 114:11 106:14 107:24 117:13\n 29:21 38:12 114:18 114:24,25 sincerely 57:16\n 70:9 77:4 settling 11:23 sharing 11:1 single 56:17\n 106:9 11:25 14:6,20 sheds 95:1 94:14 95:3\n separately 15:4,10 16:23 shoes 116:2 112:11\n 60:22 27:12,14 28:6 shortened 48:9 sir 38:21\n separates 75:24 28:10,17 29:3 show 22:15 sit 119:3\n series 79:16 29:9 33:10 shown 8:19 sits 40:22\n seriously 79:15 44:10 46:7,22 shred 72:8 sitting 15:9\n serving 22:7 51:3 71:10,24 sic 121:19 53:23 54:2\n set 21:24 32:4 72:1 76:25 sight 104:24 56:21\n 35:9 94:19 79:21 99:10 signature situated 53:2\n setting 61:7 106:24 107:4,4 122:10,16 situation 48:13\n settle 93:7,15 107:22 111:16 signed 103:21 53:22 54:22\n 99:9 113:15,20 103:21 56:2 61:14\n\n Veritext Legal Solutions\n 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830\n\f[situation - statutory] Page 42\n\n 63:5 68:9 sort 15:25 113:14,15,19 102:10\n 98:22 52:25 56:14 115:23 121:4 starting 11:9\n six 103:9 57:21 60:11 specifies 93:9 54:12\n size 56:5 64:3 82:1,23 speculation state 40:7\n skip 10:14 87:7 95:10 22:7 23:6 111:24 115:15\n small 53:25 sotomayor 49:8 speculative stated 18:21\n 56:4 96:19 sought 74:15 47:7 101:2 21:9 23:2\n 105:23 76:14 spelled 35:6 29:23 112:17\n smola 7:17 52:4 sounded 9:13 spend 84:16 112:20\n 101:19,20 sounds 15:15 118:6 statement 37:7\n 105:13 38:21 39:1 spent 79:8,10 41:22 112:24\n society 95:16 source 81:19 sphere 98:22 states 1:2 2:3\n sold 27:14 southern 30:14 split 25:17 43:1 63:9\n 54:16 57:3 91:25 spoke 85:2 110:9,11\n 58:4 60:14 speak 66:24 92:15 status 24:15\n 61:23,25 62:4 67:7 94:12 sponsored 9:23 71:3,4 82:23\n 70:16,20,25 speaks 94:15 spouse 104:11 statute 19:3\n 76:6 80:5 104:9 sprinkled 83:6 20:18,21 21:24\n 99:11 107:5,6 special 53:1 squarely 21:18 41:17 50:12,15\n 115:7 105:25 106:5 31:2 63:25 68:3,3\n solicited 119:13 108:17 stage 53:16,20 69:14 78:7\n 120:4 specific 32:23 stamp 79:8 80:10 91:7\n solid 90:21 39:18 43:12 stand 41:12 92:23 111:20\n somebody 50:12 52:14 91:17 111:20,21,23\n 83:22,24 54:4 64:5 standard 54:10 111:23 121:5\n somebody's 94:18 108:11 55:1 62:22 statutes 68:15\n 10:5 109:7 117:4 standpoint 68:16,16 81:14\n someday 77:20 118:24 121:5 51:22 63:19 statutorily 8:15\n sophie 6:6 specifically 66:13 18:19\n sorry 27:8 32:3 10:19 30:4 stands 116:2 statutory 9:4\n 67:3 71:4 85:3 42:10,19 44:3 start 18:20 9:14 13:14,19\n 89:9 106:20 44:20 46:20 36:12 38:13 15:6,20,21\n 107:2 115:3 58:3 94:15 52:21 67:16 16:3 19:16\n 121:20 96:4 103:6 85:13 88:24 20:25 21:14,25\n 112:7,18,19 92:13,14 93:2 26:7 31:9,13\n\n Veritext Legal Solutions\n 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830\n\f[statutory - survivor] Page 43\n\n 32:14,18 44:9 strike 108:15 20:14 21:23 supplement\n 44:9 52:13 striking 23:24 47:9 54:10,25 84:24\n 54:10,13,25 37:14 68:19 supplemental\n 56:6,9,12 58:8 strongest 56:18 substantially 27:20\n 59:16,21 60:3 struck 98:14 13:22 19:7 supplementing\n 67:18 69:16 subject 14:6 54:14 55:4 84:25\n 75:3,16 77:24 36:24 37:13,15 88:23 support 10:19\n 78:1,3 92:16 37:20 38:3,15 successor 14:10 21:1 28:25\n 92:19 93:1,13 39:20 41:20 suddenly 40:21 47:15 51:1\n 94:1,10 108:2 46:16 85:5 43:23 88:5 98:14\n stay 63:6,8,11 90:20 114:24 sue 27:13 28:10 101:6,14,22\n 74:14,16,17,24 subjected 59:5 29:11 95:5 supported\n 75:14 79:13 103:9 114:16 30:13 72:7\n stayed 63:1 subjecting 87:2 suffered 22:6 supporters\n steep 104:3 submit 49:14 sufficient 12:25 51:17 96:4\n step 9:14 10:7 50:18 95:22 36:9 64:8 88:5 supposed 44:12\n 13:21 19:2,6 119:20 120:24 92:2 74:6\n 48:25 103:20 121:10 suggest 75:2 supreme 8:17\n steps 14:10 submitted suggested 8:20 20:17 21:7,16\n 19:4 47:16 64:18 48:7 87:16 40:19 42:25\n stop 36:23 88:25 116:14 106:6,17 49:8 63:1,9\n 48:18 subsection 30:2 suggesting 77:7 68:2 74:25\n straight 80:6 30:4,7,12,15,16 suggestion 77:20 79:22\n 106:25 30:18,22,22,24 56:14 106:1 108:3\n straightforward 30:24,25 31:12 suggests 96:24 sure 10:1 15:12\n 9:19 31:12,15,16,16 suit 29:10 26:1 46:12\n strangers 57:4 31:20,22,23 suite 3:5 4:7,16 52:11 54:4\n streamline 111:7,9,10,11 5:9,18 7:5,14 64:15 72:12\n 101:11 117:10 substance suits 24:17 74:7 94:10\n street 2:5 3:5 15:25 sunk 102:8 97:20\n 4:6,15 5:8 6:2 substantial superb 121:16 survivor 22:8\n 6:12,20 7:13 13:10,12,17,20 superfluous 26:8 53:2 62:6\n strict 73:12 13:24 14:10,12 30:9 66:16 91:7\n strictly 50:12 15:8,14,16,19 supervise 17:8 104:4,6,7,9,15\n 73:12 19:3,7,23 104:20\n\n Veritext Legal Solutions\n 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830\n\f[survivors - think] Page 44\n\n survivors 18:16 taken 10:4 94:13 103:6 81:9,13\n 18:18 23:1 17:20 85:12 115:18 textual 64:12\n 27:13 28:17 takes 20:20 telling 44:7 thank 8:7 18:8\n 29:11 52:5 talk 9:18,21 tells 81:4,24 31:24 32:6,8\n 55:12,14 59:3 17:10 34:18 ten 48:15 55:6 44:25 51:13,14\n 66:14 95:17 35:14 36:14 82:17 90:16 67:10,11 79:18\n 98:17 101:10 37:12 39:17 tens 104:12 79:19 84:10,11\n 101:20,22,23 48:18 49:12 term 36:13 95:23 96:1,2\n 102:7,10,11,14 57:8 58:18 64:19 70:8 101:17,18\n 102:16,20,23 64:25 96:8 109:2 105:1,3,13,14\n 103:4,25 104:1 103:11 105:7 terminology 105:15,16\n 104:12,17,23 121:7 15:13 110:16,17\n 104:24 105:24 talked 15:13 terms 11:3 15:7 115:9 119:5,6\n suspect 52:8 39:6,7 50:20 15:17 16:6 121:13,14,15\n sustained 80:10 talking 10:21 19:9 21:24 121:22\n sustaining 80:6 14:22 15:16,17 36:20 39:2 theirs 99:3\n sylvania 54:6 17:16 55:12 41:25 44:11 theories 8:16\n 82:20 57:13 65:1 46:8 52:2 64:9 13:17\n system 10:6 93:10 95:13,16 65:13 66:23 theory 15:21,22\n 46:2 69:7 91:1 99:9 110:23 67:9 69:22 24:9\n 95:21 104:23 talks 31:17 76:4 80:11 thing 42:23\n t 36:10,15 84:25 87:6 47:14 54:24\n tdp 36:20 46:2 92:15 62:24 70:4\n t 5:3 122:3,3\n 86:11 87:1 terribly 104:3 118:9,22\n table 24:25\n 97:23 test 10:20 things 9:12\n tail 71:15,15\n tdps 116:7 13:19 54:13 22:25 26:2\n take 16:16\n teach 51:5 testified 72:10 38:12 43:11\n 21:17,21 28:17\n 53:21 90:19 52:19 72:18\n 37:9 38:5\n teaches 33:16 testimony 76:9 89:4 96:8\n 46:13 56:1,13\n technical 9:2 24:22 90:22 97:8,22,25\n 64:25 68:3\n technically 92:1 98:15 101:8\n 71:21,21 76:7\n 46:12 tests 112:8 108:11 114:4\n 98:24 101:12\n tell 35:22 39:10 texas 46:17 115:4\n 106:23 109:20\n 43:4 45:10 text 64:3,7 80:3 think 9:7 10:11\n 111:10 117:23\n 59:8 90:8 80:4,6,22 81:8 12:14 13:3,6\n 118:11 121:22\n Veritext Legal Solutions\n 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830\n\f[think - transcriber] Page 45\n\n 15:4,21,24 117:10,15,23 throwing 53:5 took 25:19 63:1\n 18:3 26:4 31:8 118:19 thrown 53:8 79:14 100:9\n 31:9,13 33:7 third 1:2 2:4 tied 29:21 topic 52:9\n 44:24 45:19 8:13 9:20,23 108:10 tore 104:1\n 49:3,17 51:5 9:25 10:22 time 18:11 tort 10:6 43:23\n 52:17 53:13,20 13:4 14:13 25:23 32:6 46:2 91:1\n 54:5,21,24 16:10 17:24 33:20 46:5 95:21\n 55:2,9,11,16 18:6 19:5 47:6 50:5 total 23:6 55:12\n 56:17 58:11,19 21:25 22:2 51:13 56:20 62:12 71:17\n 58:21,25 59:1 23:6 24:25 67:2 78:2 79:7 89:7,9,15,21,22\n 60:4 61:6 62:6 25:24 26:18,20 79:9 80:24 103:4\n 62:19,21,22 29:22,23 33:19 84:14,17 89:12 touch 44:17\n 63:5,22,23 35:9 39:10,10 98:8 105:2 60:1,2 73:11\n 64:8,15,22 44:15 52:16 108:2 119:23 73:13 102:3\n 65:4,10,12,18 54:25 55:21 121:13 touching\n 65:21 66:10,13 68:14 75:1,14 timely 89:13 107:24\n 66:19,23 67:5 76:21 79:1 105:11 tougher 11:4\n 67:7,8,14,16,17 88:11 89:1 times 59:9 towards 103:20\n 67:18,22 69:8 102:19 106:7 90:24 91:12 trade 6:11\n 69:18 70:7 107:9,13,19 102:13 training 95:15\n 72:21 73:8,11 116:12 timing 74:23 transaction\n 75:23 76:19 thorough 91:18 75:10 117:2 17:14 33:15\n 77:23 78:3,4 thought 10:12 tiny 8:21 44:10 65:22\n 78:24 79:16,17 16:25 24:4 tissue 104:1 83:3 118:8\n 79:22 80:25 61:5 title 14:4,5 54:8 transactions\n 81:2,5,22 82:7 thousands 52:5 61:24 69:19 22:12 30:5,11\n 82:23 83:5 53:18 55:15 today 8:13 31:14,18 32:22\n 87:23 88:3 56:20,22 57:23 25:20 77:1 44:16 49:6\n 90:9 91:23 59:3 90:23 80:2 84:16 53:18 55:11,13\n 92:12 94:16 91:12 103:13 88:21 105:4 55:15 56:21\n 96:11 97:11,21 104:12,16 together 79:23 57:24 111:8\n 97:21,23 99:5 three 13:19 90:25 transcribed 3:3\n 100:23 101:4,6 88:7 90:19 told 38:5,14 transcriber\n 101:8,11 throw 52:20 tomorrow 122:13\n 102:12 117:5 75:10\n\n Veritext Legal Solutions\n 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830\n\f[transcript - unambiguously] Page 46\n\n transcript tremendous 116:18 120:9 tta 122:13\n 119:17 121:20 121:14 120:12,12,17 tunnell 5:24\n 122:6 trial 35:12 72:9 120:18,20 turn 88:20\n transfer 14:15 100:12 trust's 65:25 turning 26:19\n 14:16,17,18,23 tribune 33:16 99:21 turns 48:11\n 19:23 20:1 55:23 trustee 14:4,9 81:22\n 21:22 28:2 tried 100:14 20:10,11,14 twenty 100:11\n 30:19,20,21 trigger 33:9 30:6,19 34:21 twice 91:15\n 35:10,13,19,19 troops 9:23 34:21 35:10 two 8:9,23 9:10\n 80:19 83:10 truck 42:24 37:16,17,21 14:10,12 30:10\n transferee 43:10 44:2 38:1,8,8,19,22 32:10,14 38:12\n 116:2 118:23 42:15 43:24 39:17 41:25\n transferred true 41:24 42:5 54:2 62:17 42:18 52:18\n 13:22,23 14:4 50:8 60:18 65:17 77:9 58:10 69:21\n 14:5,20,24 82:19 83:19 85:12,23,25 70:9 76:19\n 15:1 18:22,23 84:4 100:10 86:1,15,21 77:4 80:16,24\n 19:8,11,18 112:23 114:5 87:17,24 85:17 88:9\n 20:5 35:12 120:10 122:6 101:25 102:18 100:9 107:21\n 54:7,9,14,17,19 truest 120:15 103:19 110:2 111:8 114:4\n 80:18 81:14 trump 9:12 111:1 116:23 116:7 118:24\n 82:9,12,13,19 trust 18:23 117:15,24 type 55:20\n 83:3 88:18 19:12 27:21,23 trustee's 32:25 108:11\n 107:7 115:21 29:7 45:19,20 117:22 types 106:6\n 115:22 116:3 46:6 47:18,21 trustees 118:1 108:11\n transferring 47:24 48:5,10 truth 87:8 u\n 20:3 115:23 48:11 54:21 truthful 63:22\n u.s. 69:19\n transfers 31:17 56:5 65:18 try 57:14 69:21\n ultimate 19:12\n 31:19,21 71:9 72:3 74:7,7 77:4\n 19:14,17 20:4\n treat 61:9 83:22 88:15 79:4 81:5\n 20:6\n treating 108:19 90:25 91:14 84:13\n ultimately\n treatment 53:4 92:1 96:24 trying 33:13\n 82:15 98:14\n 105:25 106:1 98:17,19,20,21 41:11 60:17\n 100:8\n 108:17 109:6,8 99:17 101:5,11 65:8 116:25\n um 100:25\n trees 70:11 101:14 103:23 117:23\n unambiguously\n 113:3 116:13\n 83:11\n Veritext Legal Solutions\n 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830\n\f[unchallengeable - value] Page 47\n\n unchallengea... 107:5,11,16,18 unique 32:19 upshot 12:3\n 84:1 109:8 110:24 59:1 urge 75:21\n unchanged 110:24,25 unit 113:8 104:20\n 97:6 118:2 111:1,2,4,4,11 united 1:2 2:3 use 43:1 61:5\n unconstitutio... 111:11,19,24 42:25 63:9 70:8 78:10\n 24:10 112:8 115:7 unknown 47:6 79:4 111:1,2\n uncontrovers... 120:16,19,25 unlawful 17:4 used 10:18,24\n 97:12 121:5,22 18:6,15 79:16 11:13 17:4,5\n undefended underly 66:20 unlawfully 56:24 96:25\n 47:2 underlying 86:3 116:15\n under 8:17 45:24 76:5 unnoticed useful 54:12\n 10:17,19 14:9 86:17 59:14 uses 13:19\n 14:15,24 15:1 underscore unpalatable using 15:12\n 16:9,24 18:14 69:24 81:3,18 55:25 66:6 115:6\n 19:8 22:20 underscores unscramble usually 114:23\n 25:3,4 27:16 67:20 32:21 utter 76:3\n 27:25 29:7,8 understand unscrambling utterly 23:1\n 30:2,3,6,7,11 27:18 34:9,10 15:15 57:13 v\n 30:12,20,21,22 44:11,24 55:24 unsettled 89:20\n v 31:5\n 30:24 31:6,14 58:16 117:3 91:13\n vague 87:15\n 31:19,21 34:1 understanding unsold 57:25\n valerie 3:3\n 34:5 36:7 33:25 unstayed 76:14\n 122:5,18\n 40:20 41:3 undisputed untangle 83:10\n valid 29:1\n 43:15 45:7,14 80:14 114:3,18\n 114:12,14,14\n 46:2 47:11 undo 23:19 untell 104:5\n validity 17:15\n 49:15 50:15,16 104:6 unwind 32:21\n 80:7 81:12\n 50:20 52:24 undone 23:16 49:5 57:17\n 83:21 84:2\n 53:18 60:1 23:18,23 24:3 104:10\n 106:25 114:13\n 61:3,10 64:20 24:4 unwinding\n value 16:24\n 69:19 72:23 unfair 49:24 33:14 55:25\n 58:6 61:16\n 77:3 78:13 72:17 73:5 104:14\n 62:1,2,5,23\n 79:24 85:1 uniform 93:20 unwound 102:8\n 65:17,24 81:15\n 86:3 87:4 unimpaired 104:19\n 89:19 91:13\n 89:16 90:2 109:3,8 uphold 76:1\n 93:16 94:6\n 92:3 100:9\n 108:25 109:1\n Veritext Legal Solutions\n 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830\n\f[value - wolff] Page 48\n\n 109:17,18,18 vote 66:14 107:11,22 107:13 121:6\n 110:1,4 112:6 109:5 118:12 114:21 whatsoever\n 112:10,11,11 120:4 wants 43:22 38:11\n 112:13,18 voted 120:5 warrants white 7:20\n valued 90:23 votes 42:21 104:13 whittman\n 90:24 voting 98:17 wary 65:12 47:17,17,20,20\n values 91:11 w washington who've 22:8\n valuing 92:1,1 6:21 7:6 wide 108:7\n wade 65:23\n variety 101:7 waste 119:22 wilderness\n wag 71:15\n 101:10 way 13:13,16 43:10\n wait 23:20\n vast 101:21 18:25 30:8 willkie 4:22\n waiting 15:9\n 103:17 39:17 41:12 wilmerhale 6:9\n 95:17 104:17\n vaughn 4:4 8:9 43:14 49:17 wilmington 6:4\n waive 93:21\n vehicle 49:10 51:6,10 55:14 wind 114:20\n waived 15:6\n verification 56:8 57:3,5 windfall 49:24\n 60:22 70:6,13\n 59:11 58:2 60:23 50:2,4,10,19\n wall 26:5\n versa 26:14 64:10 65:23 51:1\n want 8:12\n versus 69:14 67:10,14,23 winsberg 5:12\n 15:12 33:25\n vested 27:23 94:7,11,22 45:1,2,13,15\n 34:6,10 37:4,5\n vice 26:14 114:7 117:12 46:9,20 49:3\n 37:8 42:1\n victims 103:21 118:23 50:1 51:13\n 43:25 44:16,17\n 107:19 ways 43:11 119:7,8\n 44:18,21 48:8\n view 83:3 44:5 88:7 wish 11:2\n 49:5 51:4\n viewed 33:5 99:19 118:20 witness 72:10\n 52:20,24,25\n violates 35:8 we've 15:13 witnesses 72:9\n 56:13 58:19\n 99:1 16:14 19:21 72:9\n 60:9,10,11\n violating 10:5 22:12 24:6,6,7 wolff 4:13,19\n 61:12,17 62:8\n violation 32:25 31:6 39:15 18:9,10 19:10\n 62:13 65:18\n violence 51:10 56:2 65:1 19:20 20:7\n 67:8,16 69:14\n virtue 118:2 111:17 116:21 21:6 22:2,23\n 69:18,23 73:8\n vis 71:9,9,9,10 121:11,16 23:17,22 24:6\n 81:3,25 85:11\n 107:20,21 went 13:18 24:12,21 26:6\n 88:6,20 102:2\n voided 17:14 25:8 49:8 50:8 26:24 27:8,10\n 116:4,5,25\n volume 55:10 60:25 66:14 27:25 29:17\n wanted 9:13\n 71:23 79:12 31:8 32:3,6\n 24:4 49:16\n Veritext Legal Solutions\n 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830\n\f[wolff - zero] Page 49\n\n 110:18,18,22 x\n 110:22 111:6 x 1:3,9,15\n 111:15 112:19\n y\n 114:21\n word 34:18 yeah 10:9,10\n 68:15 71:21 45:15 49:21\n 75:25 76:2 year 95:13\n words 78:7 years 76:8 77:5\n 116:23 77:9 90:16\n work 47:21 95:18 102:21\n 49:11 50:9 103:5 104:6\n 68:18 103:24 120:1\n 103:25 108:9 york 4:25 6:13\n 121:16 7:23 30:14\n working youth 95:15\n 121:18 z\n works 32:16 zero 72:9,9\n 47:21\n world 6:11\n 98:4\n worry 81:17\n writing 26:5\n 67:21\n written 27:11\n 43:17 64:5\n 74:11 76:4\n 80:3 81:7\n wrong 12:9\n 13:9 66:6\n 70:16\n wrote 63:2 79:6\n 98:7\n\n\n\n\n Veritext Legal Solutions\n 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830\n\f Certificate of Accuracy\n\n I am liaison counsel in this matter and hereby certify that, with the\n\ncorrections submitted by all counsel made, the transcript of oral argument is\n\naccurate.\n\n MORRIS, NICHOLS, ARSHT &\n Dated: November 20, 2024 TUNNELL LLP\n Wilmington, Delaware\n /s/ Sophie Rogers Churchill\n Derek C. Abbott (Del. No. 3376)\n Andrew R. Remming (Del. No. 5120)\n Sophie Rogers Churchill (Del. No. 6905)\n 1201 North Market Street, 16th Floor\n P.O. Box 1347\n Wilmington, Delaware 19899-1347\n Telephone: (302) 658-9200\n Email: dabbott@morrisnichols.com\n aremming@ morrisnichols.com\n srchurchill@morrisnichols.com\n\n\n Attorneys for the Reorganized Debtor-\n Appellees, Boy Scouts of America and\n Delaware BSA LLC\n\f","ocr_status":2,"date_upload":"2024-12-17T10:06:18.812082-08:00","document_number":"259","attachment_number":null,"pacer_doc_id":"003014848588","is_available":true,"is_free_on_pacer":null,"is_sealed":null,"document_type":1,"description":"","acms_document_guid":""}],"date_created":"2024-12-06T08:21:13.307537-08:00","date_modified":"2026-05-27T14:13:59.203864-07:00","date_filed":"2024-11-20","time_filed":null,"entry_number":259,"recap_sequence_number":"2024-11-20.001","pacer_sequence_number":5298391,"description":"ECF FILER: Transcript of oral argument on 11/06/2024 prepared at the direction of the Court. [23-1664, 23-1665, 23-1666, 23-1667, 23-1668, 23-1669, 23-1670, 23-1671, 23-1672, 23-1673, 23-1674, 23-1675, 23-1676, 23-1677, 23-1678, 23-1780] (SR) [Entered: 11/20/2024 04:37 PM]","tags":[]},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/docket-entries/410291446/","id":410291446,"docket":"https://www.courtlistener.com/api/rest/v4/dockets/67166181/","recap_documents":[{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/422971990/","id":422971990,"tags":[],"absolute_url":"/docket/67166181/258/in-re-boy-scouts-of-america-and-delaware-bsa-llc/","date_created":"2024-12-06T08:21:13.292434-08:00","date_modified":"2026-05-27T14:13:59.174118-07:00","sha1":"","page_count":null,"file_size":null,"filepath_local":null,"filepath_ia":"","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":"","ocr_status":null,"date_upload":null,"document_number":"258","attachment_number":null,"pacer_doc_id":"003014836755","is_available":false,"is_free_on_pacer":null,"is_sealed":null,"document_type":1,"description":"","acms_document_guid":""}],"date_created":"2024-12-06T08:21:13.277537-08:00","date_modified":"2026-05-27T14:13:59.154543-07:00","date_filed":"2024-11-06","time_filed":null,"entry_number":258,"recap_sequence_number":"2024-11-06.002","pacer_sequence_number":5292772,"description":"CLERK'S LETTER to counsel written at the direction of the Court, the counsel are hereby directed to file a transcript of oral argument by Wednesday, November 20, 2024 in the above entitled case. Liaison counsel should immediately advise the Clerk's Office of the Court Reporter or agency handling the Transcription of oral argument The parties shall divide the cost of the preparation of the transcript. (Please see letter attached for full text) [23-1664, 23-1665, 23-1666, 23-1667, 23-1668, 23-1669, 23-1670, 23-1671, 23-1672, 23-1673, 23-1674, 23-1675, 23-1676, 23-1677, 23-1678, 23-1780] (PM) [Entered: 11/06/2024 05:38 PM]","tags":[]}],"entries_total":"https://www.courtlistener.com/api/rest/v4/docket-entries/?count=on&docket=67166181&page_size=40"}