“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!”
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”
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.
The “drafts file” is overflowing (again) and time is short (again) – nothing to do but pull a handful of things I think worth a mention and go for what Sop has called a “round-up” post.
First up is an update on Young v Scruggs – brief because the case is stuck on proper service of the summons issued to Dick Scruggs, a discussion I passed on recenty when reporting Defendant’s Rebuttal. What’s happened since the, however, is more interesting. First, the defendants fied a Motion to Strike Purported Summons that basically restated the argument Scruggs was not lawfully served and there was a pending motion to dismiss on that basis. Next, plaintiffs pop up and file Notice the summons has been reissued – and on that same day, according to the docket, defendants filed anAmended Motion to Strike that cites and attaches a recent Mississippi Supreme Court ruling on the subject that’s worth a look.
The latest news on USA v Minor (Whitfield and Teel) makes for interesting reading – so did the recently filed Motion for Rehearing that was sitting in drafts when most media had the story up. Here’s the Motion and here’s the latest:
Pursuant to Federal Rule of Appellate Procedure 28(j), Paul Minor notifies the Court of the Supreme Court’s recent decision in Citizens United v. FEC, No. 08-205 (Jan. 21, 2010). That decision clarifies that the jury instructions in this case, which allowed the jury to convict the defendants of honest services fraud for campaign contributions made with only an intent to influence and without any quid pro quo, violate the First Amendment. h/t Legal Schnauzer (entire letter posted there)
Now, news on the “odds” – the first “odd” appears to be Gerald Nielsen or, more accurately, Mr. Nielsen appears to be odd – long on ego but short on memory. Continue reading “Scruggs, Minor, and some legal odds and ends (pun intended) – Nielsen, Wilson, Robie and Tort Reform”
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!”
So, in a way I was hedging and saying that if the Olympic stuff doesn’t work out at least I can be a lawyer.
Digging through the latest filings in the Rigsby and Branch qui tam cases, I began to notice the Branch Defendants’ were using rulings from the Rigsby case in their defense – a strategy that could prove helpful to State Farm’s current defense effort to limit discovery in Rigsby. Coincidence? Probably not given the way Renfroe v Rigsby, the Alabama case, was used for Rigsby qui tam discovery in McIntosh v State Farm.
Games with Judge Acker were child’s play. However, there is only one way to describe games that pit Louisiana Federal District Judge Sarah Vance against Mississippi’s L.T. Senter – a qui tam Olympics with a torch too hot to handle!
Continue reading “Qui Tam Olympics – Defendants’ games pit Judge Vance (Branch) against Judge Senter (Rigsby)”
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”
Although the United States has declined to intervene and is therefore not a party to this action, the United States remains the real party in interest, entitled to share in any recovery that may be obtained in the qui tam action…The United States therefore has a substantial interest in ensuring that the FCA is interpreted correctly…The United States herein takes no position on the overall merits of any of the claims or third-party claims raised in this case or Fidelity’s opposition brief. The United States submits that Relator’s motion to strike the third-party claims for overpayment asserted by defendant Fidelity against its individual flood-insurance policyholders named in Relator’s complaint should be granted, in keeping with well-established law prohibiting third-party practice in FCA cases.
In a June, SLABBED reported the first Statement of Interest filed by the USA in the Branch qui tam case Support for Rigsby qui tam found hanging on the Branch qui tam docket. Background on the issue prompting the USA to file a second Statement of Interest – defendant Fidelity’s assertion of third party claims – can be found in the recent SLABBED post, taproot – digging out the fact of Branch qui tam.
While a striking departure from the conduct of the USA in the Rigsby qui tam, these statements of interest reflect nothing than the need for the President to fill the vacant US Attorney positions in Mississippi – preferably with individuals who understand the prosecutor’s special duty is not to convict, but to secure justice.
As was the case with the first, the US Attorney’s office in Baton Rouge has demonstrated the competence and commitment necessary to fulfill a “prosecutor’s special duty” in this second Statement of Interest: Continue reading “USA files Statement of Interest – supports Branch qui tam relators’ Motion to Strike defendant’s third party claims”
My computer broke before I could post the breaking news (hence the “almost”). $%#& Now, I’m broke; $%#& However, Sop (and everyone else who saw the Katrina survivor I typed on until today) will tell you that I’ve needed a new computer at least as long as he’s known me.
I’ve got one now…it looks a lot like the trip to the beach I was planning because I didn’t just buy one, I bought two and an external hard drive that backs up what I put on them (and will hold more than I’ll have to save before placing my order with Walmart) – but enough of that and on to the (almost) breaking news.
Rigsby qui tam is going to trial. December 1 is the date…2010 is the year – according to the scheduling order locked in my old computer.
It’s been a long day. I started shopping after lunch but didn’t have everything working until an hour or so before midnight. So, tomorrow Scarlett (or maybe the next day) I’ll come up with the scheduling order and update this post. Meanwhile, let us all ponder WTF is the reason there will be no trial on the Rigsby qui tam claim until the sixth year following Hurricane Katrina.
Kudos and props to Nowdy as all that time and hard work she put in reorganizing our legal pages has been recognized in the media. Jeff Amy has the story for the Mobile Press Register:
Pilot Catastrophe Services Inc. has been dismissed from a federal lawsuit in New Orleans that claims insurers overbilled the National Flood Insurance Program for flood damage so they could pay policyholders less for wind damage from 2005’s Hurricane Katrina.
The Monday ruling allowed the whistleblower suit by Branch Consultants, a group of former insurance adjusters, to go forward after two years of wrangling. But it severed Pilot and two other adjusting firms — NCA Group and Crawford & Co. — from the case.
State Farm Fire and Casualty Co. and Allstate Corp. were removed earlier. Left as defendants are Travelers unit Standard Fire Insurance Co., Liberty Mutual Fire Insurance Co., American National Property & Casualty Co., Fidelity National Property and Casualty Insurance Co., American Reliable Insurance Co., Colonial Claims Corp. and Simsol Insurance Services Inc.
Insurers say there’s no merit to claims that they pumped up flood damage and reduced estimates for wind damage to increase their profits. A similar suit is pending in Mississippi.