Evidentiary disclosure is Michael Oher protecting the Rigsby qui tam.
Nonetheless, State Farm, Forensics, and Haag each recently took a shot – a strategic play intended to force Judge Senter to reveal his game plan.
On its face, Judge Senter’s focus on the McIntosh claim seems too narrow. In the context of evidentiary disclosure in qui tam litigation, however, it takes on a different look – one that makes evidence such as the McIntosh claim secondary to the scheme of the fraud. A Fifth Circuit decision explains:
We hold that to plead with particularity the circumstances constituting fraud for a False Claims Act § 3729(a)(1) claim, a relator’s complaint, if it cannot allege the details of an actually submitted false claim, may nevertheless survive by alleging particular details of a scheme to submit false claims paired with reliable indicia that lead to a strong inference that claims were actually submitted.
The “reliable indicia” include those contained in the Complaint as well as the those in the Disclosure Statement. While the Complaint is filed under seal, the disclosure statement is not.
Copies of the complaint are given only to the United States Department of Justice, including the local United States Attorney, and to the assigned judge of the District Court……the relator must serve upon the Department of Justice a “disclosure statement” containing substantially all the evidence in the possession of the relator about the allegations set forth in the complaint.
Judge Senter is not limited to McIntosh as the sole example of a policyholder claims documenting wind damage fraudulently claimed as damage from flood and billed to the NFIP.
The policyholder claims referenced in the evidentiary disclosure and any related documents contained therein – including supplemental disclosures made by the relators – are also evidence of the scheme stated with particularity in the Rigsbys’ complaint .
Regardless of allegations to the contrary, the policyholder claims handling records copied by the Rigsby sisters were evidence of the scheme – a protected action, as well as a properly served supplemental disclosure.
Thus evidentiary disclosure is Michael Oher protecting the Rigsbys’ qui tam complaint from plays that only make sense if the Court is playing by State Farm’s rules:
- State Farm filed the Company’s Second Amended Answer, Defenses and Counterclaim to Relators’ Personal Claims in Relators’ First Amended Complaint – shown with the recently filed Amended Answer in compare-text format in the linked document.
- Forensics filed a Request for Clarification of Order Denying Motion for Summary Judgment.
- Haag Engineering filed two documents also shown in compare-text format – Answer and Defenses to Relators’ Complaint for Damages Under the False Claims Act and Answer to the Rigsbys’ May 22, 2007, Amended Complaint!
Although State Farm filed the Company’s first amended answer only after Judge Walker issued an order granting the related motion, no defendant filed a motion seeking leave of the court to file these documents.
Haag’s answers, for example, fail to meet the related requirements of the Department of Justice:
Each named defendant has the duty to file an answer to the complaint or a motion within 20 days after service of the government’s complaints.
However, Haag’s late in the game effort is far from the only deficiency in the firm’s position. Stay tuned as SLABBED takes a closer look.