As last night’s Breaking News reported, Judge Senter has popped the big question: should “the scope of…[the Rigsby qui tam]… litigation…be expanded to include evidence concerning properties other than the McIntosh residence?
Some were expecting Senter to consider the question after Judge Vance rocked on Rockwell in her Order expanding the scope of discovery in ex rel Branch v Allstate:
… allegation that defendants engaged in a far-ranging scheme is a natural extension of the specific information asserted in its complaint…nothing in the statutory language requires Branch to be the original source for each manifestation of the allegedly fraudulent scheme…none of the relevant case law — as articulated in Rockwell, the cases cited in Rockwell, as well as post-Rockwell cases that apply the claim-smuggling prohibition — holds that the claim-by-claim analysis requires a district court to make original-source determinations with respect to every example or instance of a single scheme of fraudulent conduct…
However, instead of relying on Vance’s decision to raise the question, the Rigsbys took a more direct approach, asking Judge Senter “for additional time to conduct Discovery into “the Scheme”‘:
“Relators, through limited discovery, have already obtained sufficient evidence to demonstrate that State Farm engaged in a broad, systemic, intentional scheme to defraud the government. Moreover, discovery has revealed that State Farm’s scheme extends far beyond the McIntosh flood claim…”
Interestingly, neither Judge Vance’s Order nor the Rigsbys’ Motion addressed “the Solicitor General’s amicus brief for the United States in Ortho Biotech Products v. United States ex rel. Duxbury (09-654), filed with the Supreme Court on May 19, 2010″:
Subjecting qui tam relators to that requirement [pleading with particularity each false claim submitted pursuant to a fraudulent scheme] is especially unwarranted because it attaches elevated significance to the relator’s awareness of facts that in most instances are already known to the government. The government rarely if ever needs a relator’s assistance to identify claims for payment that have been submitted to the United States. Rather, relators who make valuable contributions to the government’s enforcement efforts typically do so by bringing to light information, outside the four corners of the claims for payment, that shows those claims to be false…
However, if this is one of those “rare cases” of the government needing help, the Rigsbys are prepared. According to the docket, the Relators’ legal team now includes an attorney with expertise in sovereign immunity, a M.Div. from Jesuit School of Theology and both a J.D. from Yale law and a J.C.L. (magna cum laude) from Pontificia Università Gregoriana.
Given the rest of the items on Judge Senter’s agenda for the Status Conference, this additional skillset may prove helpful in preventing another “and what do you think of that, Larry?”