Category: ex rel Rigsby v State Farm

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!”

Walker grants State Farm’s Motion for Protective Order In Part – but part isn’t big enough to cover the Company’s a$$ in Rigsby qui tam

Magistrate Judge Walker’s Order Granting In Part Motion for Protective Order made short work of State Farm’s Motion.  By count, it was a tie on the four points –  one was granted, one denied, and two were split.  However, by what counted most, the Rigsby sisters were clearly the winners.   Take a look at the outcome and see if you don’t agree. If you need a refresher, State Farm’s Motion is linked in Qui Tam Olympics – the protection game: ex rel Rigsby v State Farm and the Relator’s opposition in response can be found in State Farm’s Protective Orders are Dispositive Motions in disguise – more games scheduled for the qui tam Olympics.

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the good neighbor doesn’t want to play in the McIntosh neighborhood – Part 3: Rigsby sisters designate experts and disclose expert testimony

At your request, we have provided a report that we prepared regarding the Mucha Property at 2558 South Shore Drive, which is located less than 400 feet from the McIntosh house...

As can be seen from my Special Inspection report of the Mucha house, we concluded that the structure of the Mucha house was destroyed by wind before the storm surge of Hurricane Katrina arrived. The Mucha house was subjected to these conditions during the landfall of Hurricane Katrina on August 29, 2005 …

Mr. Mucha…stated that he saw the garage blow apart before 9:00 AM on August 29, 2005. This garage landed in the street in front of the house.

The disclosures of the Rigsbys’ expert witnesses  included the post-Katrina engineer’s report on the Mucha residence prepared by John A Fowler PE, President of Fowler Engineering.

There is over 1,000 feet of unobstructed open marsh behind the house which leaves a very large unobstructed path with for wind to come across the marsh from the south and southeast during a storm and damage the house. This is probably the reason why the Mucha house was destroyed by wind and some of the neighbors’ houses were not. The neighbors’ houses did not have an unobstructed path between their house and Hurricane Katrina as the Mucha’s did. With the Mucha’s house standing for some period of time before it was totally destroyed during Hurricane Katrina, it shielded the other houses in the neighborhood. The other houses in the neighborhood are also at varying angles to one another and shield each other, but this is not the case with the Mucha’s house.

With engineering reports like this replaced with one claiming flood damage, State Farm was unable to keep the whistleblowing Risby sisters down on the Farm.

Little wonder, then,  State Farm filed a Motion for Protective Order to limit the Rigsbys’ discovery to the McIntosh property only. After all, State Farm’s Protective Orders are Dispositive Motions in disguise –  a very thin disguise in the Rigsby qui tam after the Company’s local counsel Robert Galloway tossed his reputation for integrity to the wind in his Reply to the Rigsbys’ Response in Opposition to State Farm’s attempt to conceal evidence of the alleged fraud: Continue reading “the good neighbor doesn’t want to play in the McIntosh neighborhood – Part 3: Rigsby sisters designate experts and disclose expert testimony”

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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Judge Vance denies Defendants Motion for Interlocutory Appeal and Branch qui tam rings in the new with Motion to amend complaint adding Allstate and Pilot Catastrophe Service

Defendants contend that a specific question of law controls this matter: “whether a ‘sleuth’ like Branch, without first-hand involvement in an alleged fraud, can qualify as an ‘original source’ by providing additional examples of a publicly disclosed, alleged fraudulent scheme.”

…The Court need not resolve this question because district courts do not certify “questions” for the court of appeals upon the grant of a § 1292(b) motion.

The eleven-page Order and Reasons s is classic Vance – another pick ’em up, put ’em down tutorial on qui tam law!

Defendants’ primary argument is this: the Supreme Court, in Rockwell International Corp. v. United States, 549 U.S. 457, 470- 71 (2007), abrogated the Fifth Circuit’s “original source”decision in United States ex rel. Laird v. Lockheed Martin Eng’g & Sci. Servs. Co., 336 F.3d 346, 356 (5th Cir. 2003)…Defendants contend that the Court’s Order “diverges from Fried based on pre-Rockwell, out-of-circuit decisions,” R. Doc. 237 at 1, and that there is substantial ground for difference of opinion as to whether a relator who initiates an investigation after an alleged fraud can be considered an original source…

Initially, although defendants make repeated use of the term “pre-Rockwell,” they point to nothing in Rockwell itself that makes it a watershed decision as to the specific issue they identify. Continue reading “Judge Vance denies Defendants Motion for Interlocutory Appeal and Branch qui tam rings in the new with Motion to amend complaint adding Allstate and Pilot Catastrophe Service”

Now, about that document State Farm produced for Judge Senter in Rigsby qui tam

so I may know the outer limits of the potential claims involved in this
action, I will require State Farm to submit, in camera, a list containing the name of the insured, the address of the property, and the amount of flood insurance paid, for all SFIP claims that meet the following criteria…

Let’s just cut to the chase here and consider whether the  list of State Farm policyholder claims the Company was Ordered to provide Judge Senter was worth the paper it was written on.

Lizana’s response to State Farm (Lizana v State Farm) gives cause for concern about the integrity of the claims file produced in discovery for any given case  and even more about the integrity of the list of claims meeting Judge Senter’s criteria.

On or about February 6, 2009, Plaintiffs served discovery requests to Defendant, which contained numerous requests for information regarding Defendant’s first party property claims handling procedures, the investigation and handling of Plaintiffs’ claims, and Defendant’s data storage systems, retention policies and procedures, and communication transmittals, among other requests seeking relevant information and data.

Fast forward to November 2009. Continue reading “Now, about that document State Farm produced for Judge Senter in Rigsby qui tam”

Let’s talk – the Branch qui tam, Rigsby, and Judge Sarah Vance

SLABBED has been talking about the Maustaud directive on expedited claim handling process. Like most good conversations, one thing led to another – and the most recent “another” was a discussion of the relative merits of the qui tam claims filed by the Rigsby sisters and the Branch consultants.

The last SLABBED update on Branch – Support for Rigsby qui tam found hanging on the Branch qui tam docket – reported Judge Vance had requested the parties submit an order for preservation of documents.

The content of that post as well as that of a more recent post on an order issued by Judge Vance – Federal District Court Judge offers tutorial – proof of loss and segregation of damages – is relevant to the ongoing conversation about the Maustaud directive.

For example, the June update on Branch reported a Statement of Interest in Opposition to Defendant State Farm’s Motion to Dismiss filed by the United States among the entries made before the Order dismissing Branch was issued:

The fact that FIA and the WYO carriers enter into an agreement, and the agreement relates to the WYO carriers’ alleged violation of the FCA, does not mean that the FCA claim is founded on that agreement. Rather, the FCA claim is founded on the defendants’ alleged violation of a federal statute which prohibits a person, like the defendants, from acting with appropriate scienter to submit false or fraudulent claims to the government or make false statements in order to avoid an obligation to the government. Further, the FCA provides for relief – treble damages and penalties – that is not available under the Arrangement but that arises instead by statute.

The Fifth Circuit reinstated Branch, in part, last February.  The current conversation, like an off-blog mention of the case last June, reminded me to check the docket where this time I found the most recent entry was this past July, the Order and Reasons of Judge Vance’s decision on the preservation of documents : Continue reading “Let’s talk – the Branch qui tam, Rigsby, and Judge Sarah Vance”

this little piggy went to mediation…and this little piggy

This little piggy went to market mediation,
This little piggy stayed at home,
This little piggy had roast beef got taken
This little piggy had none.
And this little piggy Presentation2 aCSC went “Wee wee wee” all the way home.

Evidence was produced showing State Farm staged the mediations in advance and actively concealed material evidence from homeowners during the “mediation” process.

Bam Bam’s Bonnet was full of bees and following his buzz about the MID mediation led to a hornet’s nest of information stirred up during State Farm’s  May 1, 2007 deposition of Kerri Rigsby in McIntosh v State Farm.  Attorney Dan Webb, counsel for State Farm, asked the questions:

Q. Do you recall being involved…in putting on mock mediation?
A. We did put on mock mediation, that is correct.
Q. Do you remember you doing anything related to that?
A. Yes.
Q. What part did you play?
A. …Oh, okay. Yes. When we started mediation, they — they asked that — I guess because I had done mediation in Florida, they asked that Cori and I role play mediation for the entire mediation team. Continue reading “this little piggy went to mediation…and this little piggy”