Believe me folks, State Farm won’t be pressing the Wall Street Journal to pick this story up – but that’s not to say State Farm’s Motion to Withdraw isn’t breaking news, only that some may have forgotten the history of discovery in the Rigsbys’ qui tam case.
Nowadays, there’s too much evidence on the table and the latest installment of the State Farm-created “Sticky Note Caper” in filed northern Mississippi federal court proved no more effective than “dickin” around with oiled silk paper.
The “Sticky Note Caper” actually began with a Court in Washington, D.C. before it moved to Kentucky. Oxford, where State Farm’s Motion to Withdraw Motion for Return of Property was filed with hubris in USA v Scruggs, however, should be the last stop. The Motion to Withdraw summarizes this short-lived attempt to play State Farm’s Scruggs sideshow” in a three-ring circus:
On July 20, 2010, State Farm filed its motion pursuant to Rule 41(g) of the Federal Rules of Criminal Procedure, for the United States to return property that State Farm believed may have been seized by searching agents while executing search warrant(s) issued in No. 3:07-mc-24 in this district.
State Farm’s motion was primarily seeking the recovery of the original of a document, to wit, an engineering report and “sticky note.” State Farm had reason to
believe that the papers may have been in the possession of Scruggs Law Firm, P.A., and seized during the execution of search warrant(s) on the premises of Scruggs Law Firm.
On July 27, 2010, the United States filed its response to State Farm’s motion, and in its response the United States asserted that:
Without waiving the fact that the search warrant proceedings are still under seal with this Court, the United States represents that the engineering report and “sticky note” requested by State Farm are not among those items sought or seized pursuant to the search warrant. In fact, after a complete review, the United States would represent that no documents proprietary to State Farm are among the items seized in this matter. The items seized pursuant to the warrant in this matter were limited to copies (not originals) of computer files and computer hard drives. See United States of America’s Response to Motion for Return of Property and Motion to Dismiss for Failure to State a Claim, Doc. 298, at p. 2 of 4.
In view of the representation made by the United States that the subject document was not among the documents seized in this matter, the motion for return of property is rendered moot.
For these reasons, the movant State Farm hereby withdraws its Motion for Return of Property [Doc. 294], and requests that this Court enter an Order withdrawing the motion from the pleadings in this case.
A fitting end to a paper chase that, like so much of what State Farm has filed in the Rigsby qui tam case, has never been anything other than an attempt to misrepresent the truth and create a distraction. The Motion to Intervene, filed by SLF, Inc., includes a full copy of the First Amended Complaint from McIntosh v State Farm in the Exhibits, providing this interesting disturbing history documenting State Farm’s first “Sticky Note Caper”:
“State Farm and its employees and agents acting within the scope of their employment and consistent with State Farm’s fraudulent Katrina claims handling practices, undertook a fraudulent, illegal, tortious, and unethical course of conduct to conceal the favorable conclusions of the October 12 engineering report from the Plaintiffs and to defraud them out of money they were entitled to under their homeowners policy….This October 12 report later appeared within State Farm’s own files with a “sticky” note affixed to the first page, the note saying “Put in Wind file-DO NOT Pay Bill DO NOT discuss.”
State Farm was aware of the fact that there were two different engineering reports from Forensic on October 20, 2005 because State Farm commissioned Forensic to do the second report.
State Farm was again made aware of the existence of the October 12 report by ABC news on August 15, 2006…attorney Wayne Drinkwater, who represents State Farm in Mississippi…claimed in the interview to know nothing about the October 12 report.
However, on August 17, 2006, State Farm lawyer Tamara Rennick called Mr. McIntosh to allegedly inquire about his claim, this despite the fact that State Farm had shown absolutely no interest in Plaintiffs or their claim since the date of their denial. During this conversation, Mr. McIntosh informed Ms. Rennick that the Mississippi Attorney General had informed him that there were two different engineering reports to State Farm regarding his property.
Ms. Rennick, despite State Farm’s prior knowledge, failed to mention or provide anything about two engineering reports to Mr. McIntosh. Instead, she requested that Mr. McIntosh meet with a lawyer retained by State Farm, Peter Barrett of the Butler, Snow, O’Mara, Stevens & Cannada law firm.
Her subsequent email to Mr.McIntosh confirming his agreement to meet with Mr. Barrett falsely and misleadingly noted that the transmission was an “ATTORNEY CLIENT COMMUNICATION/ATTORNEY WORK. PRODUCT,” although neither Mr. Barrett nor Ms. Rennick were Plaintiffs’ lawyers and did not represent Plaintiffs in any manner whatsoever.
On August 18,2006, Mr. McIntosh received a call from Peter Barrett who requested that Mr. McIntosh meet with him “as soon as possible.” Mr. McIntosh agreed to meet with Mr. Barrett on the following Monday, August 21, 2006.
On August 21, 2006, two lawyers from the Butler Snow law firm, J. Kennedy Turner, III and Peter H. Barrett, acting as agents for State Farm, met with Mr. McIntosh. Mr. Barrett asked Mr. McIntosh many questions about whether or not he was satisfied with the way in which State Farm had settled his claims. After that Mr. Barrett told Mr. McIntosh that he was going to give him some “confidential” information that he preferred to remain confidential but Mr. McIntosh could do whatever he wanted with said information. Barrett then explained that there were individuals within State Farm that had “stolen” documents and that one of the stolen documents related to the McIntosh’s claim.
Mr. McIntosh again relayed to the State Farm representatives that the Attorney General’s office had told Mr. McIntosh of the existence of two different engineering reports. Mr. Barrett revealed that there were two reports, but produced to Mr. McIntosh only two versions of the October 20th report. Mr. Barrettthen falsely and fraudulently represented to Mr. McIntosh that State Farm was trying to “go paperless” and that one was the “file copy” and the other was the scanned image of the “file copy.” After reviewing those reports with Mr. McIntosh, Mr. Barrett also mentioned to Mr. McIntosh that he may hear something about or there would be some discussion of a “post-it note” but that post-it notes can be moved or stuck to anything and sometimes don’t mean what they say.
Mr. Barrett was clearly aware of the “post-it note” found on the October 12 Forensic report which stated “Put in Wind file – DO NOT Pay Bill DO NOT discuss.” He did not, however, reveal the content of that “post-it note” to Mr. McIntosh nor did he reveal the existence of the October 12 Forensic report.
Mr. Barrett, still without advising Mr. McIntosh of the October 12 report or providing him a copy, then attempted to have Mr. McIntosh sign a statement Mr. Barrett prepared which stated that Mr. McIntosh was satisfied with State Farm’s settlement of his claim. Mr. McIntosh advised Mr. Barrett that the statement incorrectly stated that Mr. McIntosh was “happy” with his settlement.
Mr. McIntosh advised Mr. Barrett, based on the information he had at the time, that he was only “satisfied” witll the handling of his claim. Mr. Barrett allowed the statement to be changed accordingly. Mr. McIntosh, without the benefit of the October 12 report, signed the document along with Mr. Barrett and Mr. Turner. Mr. McIntosh only signed the statement out of fear that if he did not cooperate his insurability would be jeopardized.
Mr. McIntosh fully relied upon the representations made by the State Farm lawyers that Forensic did not produce more than one engineering report, the October 20 report, and that the conclusions were the same in both reports.
State Farm then sent ABC a copy of this false and fraudulently induced “statement” in an attempt to get ABC not to publish or air on television the story it was doing on State Farm’s handling of the Plaintiffs’ and others’ Katrina claims. ABC, based on the fact State Farm had failed to provide Plaintiffs a copy of the October 12 report prior to obtaining the statement, refused to alter the story or show Mr. McIntosh’s alleged “statement” on the 20/20 episode.
State Farm then falsely and fraudulently posted the fraudulently induced statement on its website in response to the ABC 20/20 episode on tlle matter, falsely and fraudulently representing that the ABC episode was inaccurate and that Plaintiffs were satisfied with their adjustment. These misrepresentations were made despite the fact that State Farm had still not advised Plaintiffs of the October 12 report or provide them with a copy. Upon information and belief, are false representations about Plaintiffs’ statement are still on State Farm’s website.
After the August 21,2006 meeting between State Farm’s lawyers and Mr. McIntosh, State Farm was again made aware of the fact that there was an October 12th report from Forensic when, on August 25,2006, ABC producer Joe Rhee provided said report to them before the airing of the 20/20 program that night.
…It was only after Mr. McIntosh executed his statement (Exhibit “E”) that he understood that there was an October 12th report with different conclusions from the October 20th report. Mr. McIntosh discovered this through his own efforts and not from any of his conversations or contacts with State Farm representatives.”
The SLF Motion to intervene also includes State Farm’s Answer to the first amended McIntosh Complaint among its Exhibits and the Company’s admission XXXVI (page 98) reads:
“That this Defendant admits the allegations contained in Paragraph XXXVI of the First Amended Complaint.” (emphasis added)
Paragraph XXXVI of the First Amended Complaint, in turn, states:
“This October 12 report later appeared within State Farm’s own files with a “sticky” note affixed to the first page, the note saying “Put in Wind file-DO NOT Pay Bill DO NOT discuss.” (Emphasis in original). See Exhibit “C.” Upon information and belief, this statement was written by Lecky King.“
Surely, State Farm checked its files before making this admission in the Answer filed June 12, 2007 – ten full months after ABC news showed viewers what could only have been a copy of Brian Ford’s report with the “sticky note” attached.