hide-and-go-seek in Branch qui tam – and Liberty Mutual, you’re &#IT

96 – 97 – 98 – 99 -100!  Time to open your eyes Magistrate Shushan!

Liberty Mutual is “It” and the game is hide-and-go-seek and see if Branch can find you.  Two new entries of the docket show how the game is played.  The first is an Order issued by Magistrate Shushan:

Considering the foregoing Ex Parte Motion to Seal Pleading (“Motion”) filed by Defendant Liberty Mutual Fire Insurance Company (“Liberty Mutual”), IT IS HEREBY ORDERED that Liberty Mutual’s Motion be and is hereby GRANTED. The Clerk of Court shall designate Record Document Nos. 387-2 and 395 as “Confidential”, and seal said pleadings.

Sop linked the motion granted by this Order in his post Evidence of bad faith is not a trade secret. Hidden in a footnote for those who seek to find was Liberty Mutual’s admission the documents it wanted to seal had been given to Branch in fall 2009 – but, never fear, “Liberty Mutual is in the process of re-bates labeling its production, and will provide all parties with a new set of documents labeled “HIGHTLY CONFIDENTIAL.”

Personally, I’d never trust anyone who thought it was possible to “re-bates” a label.

Now, you’ll see why.  Liberty Mutual didn’t have the decency to even wait for the ink to dry on Shushan’s Order before the Company filed a Motion for Leave to File Sur-Reply Memorandum in Support of Opposition to Branch Consultants Motion to Compel.

However, the Memorandum does not address points in Branch’s Motion to Compel (can you believe it?).  Instead, “Liberty Mutual’s Sur-Reply….”merely seeks to address two misstatements related to Liberty Mutual contained within Branch’s reply brief (R. Doc. No. 395)”.  The second concerns the arrest of Liberty Mutual’s insured: Continue reading “hide-and-go-seek in Branch qui tam – and Liberty Mutual, you’re &#IT”

qui tam Olympics: Branch throws javelin to protect Disclosure Statement; Rigsbys got speared when Judge Walker gave their Disclosure to State Farm in the McIntosh case!

“Sharing of information between the Government and the relator does not waive either the attorney-client privilege or the work product protections.” FALSE CLAIMS ACT:  WHISTLEBLOWER LITIGATION, §9-4(a)(5), attached as Ex. 1.

Well, hell’s bells! The Branch Opposition to Defendants’ Motion to Compel delivered a tutorial on disclosure on a silver platter with Exhibit 1 as the rose!

The United States District Court for the District of Columbia has now expressly ruled that information shared between the relator, his counsel and the United States is protected from discovery by the joint-prosecutorial privilege.  The joint prosecutorial privilege is the Government/relator counterpart to the recognized joint defense or common interest privilege. It is grounded in the language of the False Claims Act itself which empowers the relator to bring the action “in the name of the Government” and awards the relator a percentage of the proceeds recovered by the United States.  Such statutory language make clear Congress’ intent to align the interest of the Government with that of the relator.

By law, a whistleblower must file the qui tam Complaint under seal.  However, the Complaint is but one of the two documents a whistleblower must file.  The other is an evidentiary disclosure.  I learned that reading the law journal article authored by Tony DeWitt,  the Rigsbys’ former counsel:

Although the filing of the document is jurisdictional and the Act requires that one be filed, it is important to remember that the purpose of the filing is to make the government aware of what evidence the relator has, and what other evidence might be available should it decide to intervene in the case.

Little wonder then that Branch’s opposition states “the written disclosure statements comprise… counsel’s mental impressions, conclusions, opinions, and legal theories, they constitute opinion work product and are not discoverable.”  Conversely, in Rigsby, Continue reading “qui tam Olympics: Branch throws javelin to protect Disclosure Statement; Rigsbys got speared when Judge Walker gave their Disclosure to State Farm in the McIntosh case!”

Branch Consultants file Rock(well) solid opposition to Protective Order – explain why Walker’s Order won’t protect State Farm’s a$$ in Rigsby qui tam

Defendants argue that the Court should adopt Judge Senter’s interpretation of Rockwell and require Branch to prevail at a trial limited to the 27 Exemplar Properties before allowing Branch to obtain discovery concerning other properties…No court has ever interpreted Rockwell to mean that a relator who alleges a long-running scheme has to have direct and independent knowledge of every individual instance of that scheme…

The Branch Opposition alone is 58-pages and there is much more to cover about Rockwell along with a little scienter, a lot about the NFIP, and a  ding-a-ling of an idea for a “bellwether trial”

By definition, a bellwether is an indicator of trends. The term originated from the practice of tying a bell around the neck of a wether (a castrated male sheep) to induce other sheep in a flock to follow the belled-wether…Courts utilize a bellwether approach when large numbers of plaintiffs are proceeding on the same theory or claim and there is no other feasible way for the courts to handle the enormous caseload.

Not only is there is a feasible way to handle the Branch qui tam case – the statistical sampling proposed by Branch that is the litigation standard for identifying fraud in federally funded insurance programs – there’s something slightly creepy about proposing a bifurcation procedure involving a wether to Magistrate Shushan.

Suggesting such a proposed bifurcation models Judge Senter’s decision in Rigsby is really over the top – so is Fidelity’s claim there was no scienter involved in the Company’s adjustment of the Exemplary Property at 2625 & 2627 General Pershing. Continue reading “Branch Consultants file Rock(well) solid opposition to Protective Order – explain why Walker’s Order won’t protect State Farm’s a$$ in Rigsby qui tam”

State Farm’s Protective Orders are Dispositive Motions in disguise – more games scheduled for the qui tam Olympics

Companies will soon learn that the best protection and defense against a potentially serious and morale lessening whistleblower suit is to have in place a corporate culture that emphasizes ethical conduct by all involved in the company.

In contrast to the opinion expressed in a lecture at the Brookings Institute, the dockets of Katrina litigation provide ample evidence that the corporate culture of State Farm is one that, instead, views a protective order as the Company’s best protection and defense.  At SLABBED we call the tactic gutting a case to settlement.  However, by any name,  the process begins with a protective order that consistently ends up disposing of so much evidence it effectively disposes of most plaintiffs’ Constitutional right to a jury trial and, in turn, either disposes of the case itself or forces settlement,.

SLABBED has published numerous posts documenting how the routine protective orders granted State Farm have repeatedly been used to shield damaging evidence of State Farm’s claims handling following Katrina. One such post quoted a plaintiff’s attorney who wrote:

It is black-letter law that a litigant who might be embarrassed, incriminated, or exposed to litigation through dissemination of materials is not, without more, entitled to the Court’s protection. Stated otherwise, those types of harm do not constitute “good cause” for entry of a protective order under the Rules…

State Farm has not right to an automatic protection from the public being granted access to evidence of its misconduct in the arena of responding to Hurricane Katrina claims in Mississippi.

Discovery in a qui tam case, more than any other, should be transparent for the Relators stand in the place of the USA which in turn represents the public interest.  We the people, therefore, have a concomitant right to know.  Nonetheless, as SLABBED recently reported in Qui Tam Olympics – the protection game: ex rel Rigsby v State Farm, State Farm filed for a Protective Order seeking to limit the Rigsbys’ discovery. Counsel for the Rigsbys has now filed the Relators’ Response in Opposition :

State Farm asserts that the contested discovery requests “do not pertain to the McIntosh flood claim and amount to mere speculation by the Rigsbys of the type that has been condemned by this Court.” State Farm’s Motion at 6. In fact, the Relators have tailored carefully their discovery requests based on this Court’s August 10, 2009 Order…and  this Court’s related rulings in individual policyholder cases. Accordingly, all of the discovery sought by the Relators seeks information that may lead to admissible evidence regarding whether the Defendants submitted a false claim with respect the McIntosh flood claim. Continue reading “State Farm’s Protective Orders are Dispositive Motions in disguise – more games scheduled for the qui tam Olympics”

New GAO report pulls juggling act from qui tam Olympics – puts Rigsby and Branch in the lead!

With this week’s GAO release of Financial Management: Improvements Needed in National Flood Insurance Program’s Financial Controls and Oversight, there is no longer a need for a juggling act to find the truth of claims made in earlier reports and the evidence policyholders present the courts – and, in the interest of judicial economy, the qui tam defendants should just kiss their arguments goodbye:

FEMA’s Bureau and Statistical Agent (BSA) serves as a liaison between the government and WYO insurance companies. GAO identified weaknesses at three levels of the NFIP transaction accountability and financial reporting process.

  • First, at the WYO level, our internal control testing of a statistical sample determined that almost 71 percent of WYO company claims loss files did not have the necessary documents to support the claims, or reports were filed late.
  • Second, incomplete BSA-level premium data files (lacking key information such as insureds’ names and addresses) prevented an assessment of the reliability of reported NFIP premium amounts. Further, BSA-level internal control activities were ineffective in verifying the accuracy of WYO-submitted data.
  • Lastly, FEMA’s financial reporting process uses summary data that is overly reliant on error-prone manual data entry.

Apparently, the Branch Defendants decided no one would notice the OIG only examined .0062% of total claims and decided they would try and pass off Hurricane Katrina: Wind versus Flood Issues (Exhibit A, Response to the Branch Proposed Discovery Plan) as a statistically reliable report and sell it to Judge Vance: Continue reading “New GAO report pulls juggling act from qui tam Olympics – puts Rigsby and Branch in the lead!”

Qui Tam Olympics – the protection game: ex rel Rigsby v State Farm

Qui Tam Olymics – Defendants’ games pit Judge Vance (Branch) against Judge Senter (Rigsby) introduced the interplay between the Rigsby and Branch qui tam defendants.  The name of the Olympic event currently taking place in Judge Senter’s Mississippi courtroom is the Protection Game –  State Farm hardball versus the Rigsby sisters.  The next post in this series will cover the protection game going on in ex rel Branch over in Louisiana before Judge Vance – hopefully by then I’ll have mastered whatever trick is needed for the slides to run as a show!

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