Judge Vance dismisses Branch qui tam – but leaves Allstate a “sitting duck” in the Rigsbys’ pond!

JUDGMENT: ORDERED that Branch’s claims against Allstate are DISMISSED W/OUT PREJ on first-to-file grounds. FURTHER ORDERED that Branch’s claims against American Reliable, Standard Fire, Colonial, Liberty Mutual, SIMSOL, ANPAC, Fidelity, and Pilot are DISMISSED WITH PREJ because Branch is not an original source of those claims, a determination that is intertwined with the merits and that was decided on summary judgment. FURTHER ORDERED that the inflated-revenue claims, added by amendment, are DISMISSED W/OUT PREJ because the Court lacks jurisdiction over Branch’s original ccmp. Signed by Chief Judge Sarah S. Vance on 1/25/11.(bbc, ) (Entered: 01/25/2011)

Long story Order and Reasons short, Judge Vance took 68-pages to explain how Branch failed to comply with the requirements of the False Claims Act.

As the Judgment indicates, the dismissal of Branch centered on two key points of qui tam law – the “first to file” and the “original source” requirements.

In his “stock basher style” post announcing the dismissal, Sop opined Vance had “busted Allen Kanner’s balls”.  Maybe so, but, her very exact detailing of what appear to be preventable deficiencies in the filing and content of the Complaint would have definitely crushed his ego.

You won’t see such deficiencies in Rigsby.  Think what you will about Dick Scruggs but, in this situation, he knew his limits and, early on, put the case in the expert hands of a team of attorneys with experience specific to cases filed under the False Claims Act. Kanner, on the other hand, filed Branch – but that alone did not lead to the dismissal.

“subject-matter jurisdiction ‘depends on the state of things at the time of the action brought.’ “

Every qui tam Relator files without knowing if a similar sealed claim exists.  The Branch Complaint was filed and sealed August 2, 2006, naming both State Farm and Allstate among the defendants that allegedly filed false claims with the government’s National Flood Insurance Program (NFIP) following Hurricane Katrina.  However, the Rigsbys’ qui tam case was filed and sealed on the 26th of April and it, too, alleged filed false claims were filed with the NFIP following the hurricane and also included both State Farm and Allstate among the named defendants.

Consequently, Rigsby holds first-to-file status and the concomitant subject matter jurisdiction rests with the southern district Mississippi federal court.

Little else about Judge Vance’s decision can be as simply stated.  What I can and will do is briefly address a few of the points of interest and refer those who want more to the full copy of her Order and Reasons for dismissal of Branch in Scribd format at the end of this post.

Point: Deficiencies in the filing of the Complaint

As this Court has noted, it is “undisputed” that a relator must voluntarily provide the information underlying its allegations to the government before filing suit.

The prefiling disclosure requirement is distinct from the requirement of § 3730(b)(2) that the relator serve the government with “[a] copyof the complaint and written disclosure of substantially all material evidence and information the person possesses[.]”

In this case, Branch made its first disclosure to the government on August 2, 2006, the same day it filed the original complaint. Branch’s attorney Allan Kanner asserts that he did not file the complaint until after he discussed the allegations with Assistant U.S. Attorney Sharon Smith, provided her with a copy of the complaint and written disclosure statement, and received confirmation that a copy of the complaint and the disclosure statement had been delivered to the Department of Justice in Washington.

Defendants argue that Branch’s disclosure is insufficient under 31 U.S.C. § 3730(e)(4)(B) because it was made the same day the complaint was filed…

Point: Deficiencies in the content of the Disclosure

Judge Vance follows stating, “the Court does not need to reach that issue. Instead, the Court will consider whether the contents of Branch’s disclosures are sufficient”.

Under 31 U.S.C. § 3730(e)(4)(B), “the information” that the relator must provide to the government before filing is “the information on which the allegations are based,” about which the relator must have “direct and independent knowledge.” This implies that the relator must disclose to the government the information it relies upon in asserting that it is an original source.

Thus, Branch must demonstrate that the information contained in its pre-filing disclosure is sufficient to make it an original source. To be an original source, a relator’s knowledge of the information underlying its allegations must be both direct and independent.

In making its original source showing, Branch cannot rely on the two supplemental disclosures it made to the government after filing the original complaint but before filing the First Amended.

If Branch was not an original source at the time it filed the original complaint because it had not adequately disclosed its allegations to the government, this Court lacks jurisdiction.

When all was said and done, Branch’s claims against all defendants, with the exception of Allstate, were dismissed with prejudice because “Branch’s original disclosure was insufficient”.

Point: Allstate is a “sitting duck”

“if it looks like a duck, walks like a duck and quacks like a duck, it’s a duck” (even if it’s sitting “dismissed without prejudice”)

Allstate has the distinction of being a named defendant in four different qui tam cases!  The Rigsby sisters voluntarily dismissed the Company as a defendant but currently retains jurisdiction under the first-to-file rule.

It was Judge Vance’s application of this same rule that resulted in her decision to dismiss Allstate without prejudice in Branch and shortly thereafter, Denenea as well.  Had Sonnier been before her Court, it would likely have suffered the same fate.

Time will tell.

Time will also tell if Branch will appeal Judge Vance’s decision. In my non-lawyer opinion, some of her reasoning may very well prove to be shakey – but SLABBED reports, you decide.

[scribd id=47574720 key=key-zqtvwux6nupgsjrfzw4 mode=list]

10 thoughts on “Judge Vance dismisses Branch qui tam – but leaves Allstate a “sitting duck” in the Rigsbys’ pond!”

  1. I would characterize the “Branch” (and I guess the “Denenea” and “Sonnier” cases, although I haven’t been following them) litigation as “an exercise in mental masturbation”. To get thrown out of Court on Monday, January 24, 2011 with “This Court lacks jurisdiction” in a case which has been pending (although with another Judge for a while) since October 2006 strikes me as an AWFUL waste of time, money, effort and judicial resources. Sarah Vance has been the Chief Judge for some time, since Berrigan stepped down from the position, post-KATRINA. BOTH have allowed “shit, piss and corruption” to flourish within the Eastern District Bench on their watches, including criminal conduct by Duval-Daley-Fayard and Lemelle (not to mention the “levee board settlement” which was negotiated by Africk). And what did either of them ever do to interrupt what Porteous was recently convicted of in the Senate (Berrigan was Chief Judge while much of this was going on). Let me tell you a Sarah Vance story from personal knowledge: In my suspension proceedings, Lemelle issued an Order and Reasons on October 14, 2008, which FALSELY (Lemelle wouldn’t know the “truth” if it hit him in the face) stated that “Prior to ruling on the instant attorney disciplinary complaint, Respondent-Attorney (that’s ME) stated he could not think of a fairer Judge to hear the complaint against him than the undersigned.” Record Document No. 22 in Civil Action No. 08-1492. This LIE was compounded and repeated by Vance in an En Banc Order she signed on November 7, 2008, in which she FALSELY stated: “Indeed, O’Dwyer acknowledged to Judge Lemelle that he could not think of a fairer Judge to hear the complaint against him.” In point of fact, I had filed a Motion for Disqualification and Recusal of ALL of the Eastern District Judges, including Lemelle, and had told that BASTARD to his face “on-the-record”: “So that’s all I really have to say. Listen, I like you. A voice in me says, ‘Go with Judge Lemelle’, BUT I CAN’T TAKE THE CHANCE, JUDGE.” Record Document No. 23 in Civil Action No. 08-1492, page 11, lines 11-13. That Sarah Vance, the Chief Judge of the Eastern District, could be so derelict as to accept, without checking or verifying, a false statement by a fellow jurist who is RENOWNED for LYING, whenever he thinks he can get away with it, in a matter which involved a man’s profession and livelihood, IS DESPICABLE. Ashton O’Dwyer avers that there is a special place in HELL waiting for Sarah Vance. If she could get it so “wrong” in my case, what did she get “wrong” in Branch? Ashton O’Dwyer a/k/a “The WHITE Henry Glover”.

  2. A few other points: The plaintiffs in Rigsby, Branch, Denenea and Sonnier are not “whiplash” victims. They are citizens who have witnessed fraud and public corruption and want it REMEDIED, with the public fiske made whole. Query: Can Nowdy or anyone else point to the Federal Government’s (that’s the U.S. Department of “Injustice” headed at first by Alberto Gonzalez and now by Eric Holder) lifting one goddamned finger to put a stop to fraud on the Treasury by private insurance companies post-KATRINA in any of these cases? To the contrary, it looks to me that the Federal Government has done everything in its power to de-rail the plaintiffs’ cases and to let the insurance companies “walk”. Just what the HELL is going on here? And don’t forget who issues Sarah Vance her paycheck. And now for some “serious levity”. On November 17, 2008, in an effort to correct the false statement by Lemelle (SPIT!) about my having said that I “…could not think of a fairer Judge to hear the complaint against him [ME] than the undersigned”, I wrote Vance and copied all of the other Judges, saying: “I know that I did not say any such thing to Judge Lemelle***** Accordingly, contrary to Your Honor’s and Judge Lemelle’s false assertions that that ‘he [O’Dwyer] could not think of a fairer judge’, in point of fact I told Judge Lemelle to his face that I could not take the chance of his not being fair and impartial, and that I wanted him recused from deciding the matter against me. I really would like to know what kind of ‘Kool Aid’ you and Judge Lemelle have been drinking. Whatever you do, please keep it away from the other Judges, and in the future, please read the written submissions prior to entering ‘a fair and impartial’ decision which strips a man of his chosen profession and livelihood.” This letter was returned “unopened” by Africk, Berrigan, Barbier, Englehardt, Feldman, Lemelle, Vance and Zainey, who are GUTLESS DOGS and on “Kool Aid”. Ashton O’Dwyer a/k/a “The WHITE Henry Glover”.

  3. The first to file issue is bogus. The two cases do not allege the same fraud. They use different facts about different false claims with different inside information. Just because they both allege fraud on NFIP claims does not mean they are blowing the same whistle. If one person files a case with evidence that a hospital defrauded Medicare by billing for lab tests that were not performed it would not preclude another person from filing a different action based on evidence of overbilling by the same hospital on prescription drugs or some other facts or claim that were not covered by the first case. Here we have the Rigsby case that still may be limited to only those cases identical to McIntosh but the other cases that would cover other fraudulent practices may be nullified because Rigsby was first. Ridiculous and counter to the purpose of the False Claims Act.

  4. Ashton, — I didn’t know you are/were an atty. I presume you are still suspended or have you been reinstated? In process?

    Best regards.

  5. I’ll answer the question. It’s a whitewash. Obama needs the “web” of “deceitful” insurance companies and their agents to ensnare the American populace into the new Government Run Healthcare system (he who has the gold makes the rules.)

    THINK ABOUT IT: The SS death benifit is $255. If it costs MORE THAN $255 to keep you alive, you will DIE as a part of fiscal policy.

    Hitler did the same thing FOR THE SAME REASONS in 1933. It was called “T4” — a system of Euthanasia. That evolved into what is now known as mass gassing and murder under the heading of “Holocaust.”


    Query: Can Nowdy or anyone else point to the Federal Government

  6. I am a disbared, disgraced, humiliated and embarrassed lawyer by education, who deigned to call CRIMINALS who wear black robes on the State and Federal Benches CRIMINALS. This includes the current Chief Justice of the Louisiana Supreme Court (which has regulatory authority over Members of the Bar) and “Duval-Daley-Fayard” and Lemelle (among others) on the Federal Bench. Fat chance of my ever being reinstated before I die (I am age 63). So I have dedicated my life to trying to put these CRIMINALS behind bars before I die, and I WILL DO IT, even if it kills me. Ashton O’Dwyer a/k/a “The WHITE Henry Glover”. P.S. Anybody want to sign up for an advance copy of “the book”, which will pull no punches? AROD.

  7. What the hell, I’ll answer, What the Hell but it’s almost 5 so I’ll keep it short until I can get to my blogging computer this evening.

    In Louisiana, the government took an interest in the qui tam cases – here the government responded like a bunch of monkeys trying to fk a football.

    At least two times during the Branch litigation, the government’s Louisiana offices filed documents supportive of the relator’s position on an issue before the Court – and the Docket in ex rel Denenea documents the government’s effort to protect evidence discovered in its investigation.

    What the government filed in Rigsby, on the other hand, documented that dickin’ around with Dick was more important than protecting the nation’s Treasury and its taxpayers.

    Consequently, the answer to your question”what the hell is going on here” is we have been going through HELL. I’ll be giving a guided tour a little later. Stay tuned!

  8. What I tell you in the dark, speak in the daylight; what is whispered in your ear, proclaim from the roofs.

    Matthew something another

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