Nanny, nanny boo- boo!
“…the Fifth Circuit knew full well that Allstate had been voluntarily dismissed from Rigsby before it ruled…”
You can’t catch me!
Significantly, Branch does not even attempt to address any of the controlling authority cited by Allstate that a voluntary dismissal is not tantamount to a dismissal under Rule 9(b) or for lack of any factual basis, much less a concession that the suit is a sham.
Judge Vance doesn’t strike me as someone with any interest in having her courtroom turned into a playground – much less someone with patience for bullies on any playground. However, along came Pilot to add to the taunt.
Stick you face in doo-doo!
Indeed, unlike any of the ninety-one other insurers not named in Rigsby (or the adjusters for those insurers), Pilot and Crawford were identified in Rigsby as “co-conspirators” that worked on the same “sites” as Allstate and State Farm, the defendant insurers for which they provided adjusting services.
Pilot then steps in deep doo-doo citing the Fifth Circuit: “claiming it would be difficult to argue that Rigsby placed the government on notice of fraud by all of the ninety-one other WYO insurers involved with Hurricane Katrina…”
So, Judge Vance is supposed to believe that the relatively small number of defendants named in either Rigsby or Branch were willing to risk their making out like bandits wouldn’t stick out like a sore thumb? Not believable!
More likely – and more believable – is there were a relatively small number who were not shifting loss or inflating revenue. Named defendants and “John Does”, alike, had to be all in it together.
Allstate, however, as bullies are prone to do, had defendants cornered until the company tripped:
Since Hurricane Katrina, Allstate has been sued in multiple qui tam actions alleging the same fraud, despite the fact that the government has thoroughly investigated and declined to intervene in any of these suits. Indeed, a fourth qui tam suit against Allstate has just been unsealed, making the same claims as Rigsby, Branch, and Denenea. United States ex rel. Sonnier v. Allstate Ins. Co., No. 3:09-cv-01038, Dkt. 1 (M.D. La. filed Dec. 11, 2009) (ordered unsealed November 3, 2010). It was precisely to cut off such repetitive litigation that Congress imposed a first-to-file bar that does not evaporate the moment the first complaint is dismissed.
First, the there is no relationship between the government’s decision to intervene and there merits of a case. The significance is attached when the government allows relators to continue the case.
Secondly, when there are multiple cases, those cases are consolidated and the first-to-file applies to claims within each case. There is no intention a single case become a “”free pass” for other wrongdoing.
Obviously, Allstate prefers to have Denenea and Sonnier dismissed because of Branch – but that’s not the way it works. IMHO, Denenea trumped Branch on Allstate, maybe Sonnier, too – but I leave the explanation to Judge Vance and eagerly await her Opinion.
For those who want today’s docket entries for Branch:
Allstate’s “nanny, nanny boo-boo” Reply Memorandum in Support of Defendant Allstate Insurance Company’s Motion to Dismiss and Alternative Motion to Strike
Pilot’s “stick your face in doo-doo” Reply Memorandum in Support of Pilot Catastrophe Services, Inc.’s Motion to Dismiss the Second Amended Complaint