Category: Fifth Circuit Court of Appeal

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”

A mind is like a parachute. If it doesn’t open, you’re f#@%*d!

If you’ve wondered why there are differing perspectives about the factual basis of litigation, find the cord to your parachute and open your mind to Harvard Law’s Project on Law and Mind Sciences and situationism.

Situationism is premised on the social scientific insight that the naïve psychology—that is, the highly simplified, affirming, and widely held model for understanding human thinking and behavior—on which our laws and institutions are based is largely wrong. Situationists (including critical realists, behavioral realists, and related neo-realists) seek first to establish a view of the human animal that is as realistic as possible before turning to legal theory or policy. To do so, situationists rely on the insights of scientific disciplines devoted to understanding how humans make sense of their world—including social psychology, social cognition, cognitive neuroscience, and related disciplines…

SLABBED reflects a situationist perspective and even touches on the subject in posts such as:

Recommended holiday (half-time) reading includes the blog post, On the Ethical Obligations of Lawyers: Are We Snakes? Are We Supposed to Be?, and the following readings from Continue reading “A mind is like a parachute. If it doesn’t open, you’re f#@%*d!”

Honest Services (part 2) – a Supremely interesting commentary

“ The prosecutor has more power over life, liberty, and reputation than any other person in America.”

United States Attorney General and Supreme Court Jus tice Robert H. Jackson

Former Mississippi Supreme Court Justice Oliver Diaz provided a supremely interesting commentary on his  “up close and personal” experience  with the honest services law and federal prosecutors, USA v Minor et al,  in a review of the Kings of Torts published in the  Northside Sun, a popular Jackson weekly .

We are left to wonder why the court records were not sufficient to support the author’s positions and opinions? Why do they resort to unsworn statements and unproven allegations?

Specifically, why did the authors feel compelled to state as fact that I lived in a condominium owned by Paul Minor free of charge when prosecutors offered no proof of this because they discovered that it was not true? Why did they describe an event involving Paul Minor at a hotel bar, when court testimony clearly showed the event did not occur? Continue reading “Honest Services (part 2) – a Supremely interesting commentary”

Patsy Brumfield scratches the surface in Too many connections for lawsuit against Scruggs et al…

In Too many connections for lawsuit against Scruggs et al, a post to her blog published by the Daily Journal, Patsy Brumfield touches on a subject that  has needed discussion since the indictment of Scruggs et al back in 2007:

Have you ever expressed your awe for how things just get “connected” in Mississippi?

Like, you find out your Mama is the governor’s second cousin or your former hometown baby-sitter is living down the street? Or you run into the mayor of Lucedale as you ride the elevator to the top of the Washington Monument? (That really happened to me.)

You know what I’m talking about.

Some know what Patsy’s talking about because they recall the motion filed by Scruggs, Scruggs and Backstrom for a change of venue:

Prominent members of the Northern Mississippi legal community, knowing full well the risks of prejudicing a venire in small-town Mississippi, have nonetheless piled on in condemnatory public statements about Scruggs. Clarksdale attorney Charlie Merkel told one reporter about the indictment: “I’m not surprised, because [Scruggs is] willing to use any means to an end. And it irks the hell out of me when Scruggs skates on the edge and makes the profession look bad.”  Elsewhere, Merkel called Scruggs’s alleged acts “despicable.” Grady Tollison, who represented Johnny Jones in the fee-dispute before Judge Lackey, alleged that Scruggs has “had a consistent pattern of violating his fiduciary duties to partners in these legal ventures.”  Another lawyer for Jones, Roy Percy went even further, declaring of Defendants in their hometown Oxford Eagle: “They should be ashamed to the deepest core. My clients are ashamed they were once associated with them…

Patsy did not have the local bar “connections” in mind when she wrote about the connections that appeared to force the Fifth Circuit to go to Texas to get a judge for the latest installment of legal cases against former Oxford mega-lawyer Richard “Dickie” Scruggs and co-horts: Continue reading “Patsy Brumfield scratches the surface in Too many connections for lawsuit against Scruggs et al…”

Judge Starrett on State Farm Fire and State Farm Mutual – a distinction without a difference

Amazing, is it not, that Judge Walker could find no reason to lawfully deny Burger’s motion to file an amended complaint; yet, Judge Ozerden had no problem finding a reason to deny O’Keefe’s:

State Farm Fire maintains that there is a suggestion of bad faith in Plaintiffs’ attempt to add State Farm Mutual, and that allowing Plaintiffs to amend their Complaint to add this Defendant would result in undue delay and would be futile…The Fifth Circuit has interpreted “futility” in the amended pleading context to mean that an amended complaint fails to state a claim upon which relief can be granted…

Clearly Judge Ozerden sees a distinction between State Farm Fire and State Farm Mutual. However, his collegue Judge Starrett has declared it a distinction without a difference:

General Hood made some effort to distinguish State Farm Mutual Automobile Company, a mutual insurance company, from State Farm Fire and Casualty Company, a stock insurance company.  The Court believes this to be a distinction without a difference, since all of the stock in the stock company is in fact owned by the mutual company.

Judge Starrett’s opinion on the relationship between State Farm Mutual and State Farm Fire is found in his Order of recusal, entered in State Farm v  Hood (October 10, 2007).

Hood’s position is understandable with a look at the settlement agreement at issue in the injunction State Farm obtained in Starrett’s court prior to his recusal.

agreement 2

Note the Settlement Agreement is specific to Hood’s case against defendant  State Farm Fire! Continue reading “Judge Starrett on State Farm Fire and State Farm Mutual – a distinction without a difference”

The Price We Pay For “Pro-Business” Courts

As I’ve said in prior posts, I firmly believe Americans can no longer claim we’re “a government of laws not of men” as John Adams, our 2nd US President once pronounced. Adams’ words came to epitomize the venerable “rule of law” in America. In his era, the critical debate was “rule of law” vs. “rule of man.” The prospect that America might become “a government of men not of laws,” is exactly what Adams and our founders feared most, and warned us to stay away from. In their day, “rule of man” referred to the British King George III, who . . . well, just take a look for yourself:

In 1776, the year of our Declaration of Independence, Thomas Paine anonymously wrote a pamphlet titled Common Sense which stated: “in America, the law is king. For as in absolute governments the King is law, so in free countries the law ought to be king; and there ought to be no other.” Adams, a contemporary of Paine, expounded on Paine’s Common Sense, and made sure the Massachusetts Constitution of 1780 included the words “a government of laws not of men.”

In Adams’ and Paine’s day, the King was law, and he served no one except himself. Today, billionaire monopolies are the “King makers.” By purchasing our legislatures, individual judges and elected officials, they bastardize “the rule of law.” Their aim is make America a government of men, not law. This is what happens every day in Latin America, and why we call them “third world.” If we acquiesce, and accept their bastardization of America’s founding premise, we’re right back where we started in 1776. Put another way:

we cannot let this ↓ Continue reading “The Price We Pay For “Pro-Business” Courts”

Judge Senter applies Corban, issues trio of Orders in Bossier v State Farm

Attention now turns to several dispositive motions filed by Plaintiff concerning [77] the issue of the anti-concurrent cause clause in the subject insurance policy; [79] the issue of windstorm; [82] the dwelling extension coverage; and [83] “accidental direct physical loss” suffered by Plaintiff.

At the time these motions were filed, some of the issues were the subjects of an appeal to the Mississippi Supreme Court, Corban v. United Services Automobile Assoc…; the Supreme Court issued an opinion on October 8, 2009, and rejected the principal conclusions reached by the United States Court of Appeals of the Fifth Circuit in Tuepker v. State Farm Fire & Casualty Co…and Leonard v. Nationwide Mutual Insurance Co… However, that does not mean that Plaintiff is entitled to the requested relief.

In addressing Bossier’s dispositive motions, one of the three Orders he issued in Bossier v State Farm last Friday, Judge Senter enters the conversation on the impact Corban will have on the remaining policyholder claims in litigation.

While the Mississippi Supreme Court did not agree with the Fifth Circuit’s interpretation of the anti-concurrent cause clause found in homeowner insurance policies, especially with respect to the “in any sequence” portion of the provision, the decision did not change the essence of this Court’s approach regarding the meaning and–for practical purposes–inapplicability of the anti-concurrent language.

The Mississippi Supreme Court expressly adopted this Court’s analysis in Dickinson v. Nationwide Mutual Fire Insurance Co…Now that the Mississippi Supreme Court has issued its decision, this Court sees no reason to delay trial, for the intention to follow Dickinson and the interpretation of the anti-concurrent cause language has been consistently clear and has merely been affirmed by Corban.

The Mississippi Supreme Court did not go as far as Continue reading “Judge Senter applies Corban, issues trio of Orders in Bossier v State Farm”

Amendments to False Claims Act – implications for Katrina qui tam litigation

President Obama signed the Fraud Enforcement and Recovery Act containing significant amendments to False Claims Act the very day on May 20,2009 – the very day the pre-trial hearing on the Rigsby qui tam claim commenced in Southern District Mississippi Federal Count.

Among the most significant provisions of the new law are its amendments to the False Claims Act, 31 USC §§ 3729-33 (FCA). According to the Senate Judiciary Committee Report, these amendments—the first substantive revisions to the FCA in more than 22 years—were enacted to reverse judicial interpretations which “undermined” the statute by “limiting the scope of the law…”

The cumulative impact of these amendments is to alter significantly the landscape of FCA jurisprudence.

clarifications on fca via fera all files_Page_1One analysis posed the question when is an amendment not an amendment.  The answer – or rather the answer from the perspective of Congress – is when amendments are made as clarification to reflect the original intent of the  law.

code with additions deletions notedIf the Rigsbys’ qui tam claim were filed today, there would be enormous benefit in these amendments.  Even as a pending case, however, the Rigsbys’ claim is subject to certain provisions.

F. SECTION 4(F). EFFECTIVE DATE AND APPLICATION
(f) Effective Date and Application- The amendments made by this section shall take effect on the date of enactment of this Act and shall apply to conduct on or after the date of enactment, except that– Continue reading “Amendments to False Claims Act – implications for Katrina qui tam litigation”

Kodrin v State Farm: a Writ with its wits about it

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Roof to the Kodrin property (Redmann website) The roof was found 1000 feet from where the property stood. Wind blowing in that direction preceded the arrival of flood water when wind was blowing in the opposite direction. The force of water entering the property was not strong enough to have moved the roof from where it landed.

Sop caught the breaking news Kodrins take the 5th to the Supremes last week and, wanting to know more about the Writ, I picked up on the invitation of Kodrin’s Counsel and made a trip to the Redmann Law website.

Kodrin, much to my surprise, is not petitioning the Court to hear insurance issues.  Instead,  Kodrin raises two questions about the federal authory over state law.  Obviously the underlying issues are about state insurance law but the question Kodrin presents are clearly about the extent of any related federal authority, if any authority at all:

  • The court of appeals ruled that under Louisiana law as long as an insurer relies upon its own engineer’s opinion that petitioners’ loss of their home from Hurricane Katrina was not covered under their homeowners’ policy because it was flood-caused rather than wind-driven, it is not acting in bad faith and cannot be assessed extra damages and attorney’s fees under Louisiana law when it wrongfully denies coverage. Does this result overturn settled Louisiana law which penalizes an insurer who acts in bad faith in denying coverage even when it relies upon its own engineer’s opinion in doing so, creating unprincipled federal common law on the subject and subverting the policies of comity and federalism announced by this Court in Erie R. Co. v. Tompkins, 304 U.S. 65(1938)?
  • Did the court of appeals nullify petitioners’ right to a jury trial by usurping the jury’s finding that respondent had acted in bad faith when it delayed deciding about whether petitioners’ homeowners’ policy would cover the loss of their home and then eventually denied coverage for the loss as flood-caused rather than wind-driven?

Skadden Arps attorney Shelia Birnbaum represented State Farm before the Court in Campbell and  figured prominently in State Farm’s settlement with the Scruggs Katrina Group.  Her name came to mind when I opened a State Farm engineer’s report you really could write on a napkin.                 Continue reading “Kodrin v State Farm: a Writ with its wits about it”