Judge Vance plays trump card on ESI Depositions in Branch qui tam

This can only be one of those “SLABBED reports, you decide” posts – assuming, of course, I’ve not outgrown yet another pair of reading glasses.

Yesterday’s docket in the Branch Consultants’ qui tam case noted, “the motion to stay the the Branch defendants’ Motion to Adjourn ESI Depositions for Forty-Five Days…was set for hearing…and would be decided by the magistrate judge”.  As I recall, the hearing was set for the 15th of December.

Needless to say, I was surprised to find a related Order from Judge Vance when I checked the docket tonight:

Defendants Liberty Mutual, Standard Fire, Allstate, and Pilot move to adjourn the scheduled ESI depositions for forty-five days. The motion is DENIED. The Court has already considered this issue and sees no reason to change its previous order. Defendants’ motion to expedite is DENIED AS MOOT. (emphasis added)

I gather the first sentence in the defendant’s motion to adjourn the ESI depositions got on Judge Vance’s last nerve:

Defendants Liberty Mutual Fire Insurance Company (“Liberty Mutual”), The Standard Fire Insurance Company (“Standard Fire”), Allstate Insurance Company (“Allstate”), and Pilot Catastrophe Services, Inc. (“Pilot”) move the Court to adjourn the ESI depositions for forty-five days to allow the Court to consider whether it has jurisdiction over this matter.

Something certainly prompted her to make it clear that she had jurisdiction unless  she decided otherwise – and, clearly, that she won’t decided until after the date of the last deposition on the schedule.

Larry, his brother Darryl and his brother Darryl take their act to the Qui Tam Olympics

A little background here for new readers and a refresher for others:  Larry, a character on the old Newhart show, spoke for himself and his two mute brothers, both of whom were named Darryl. (h/t Sop for the reminder).  “Qui Tam Olympics” is SLABBED shorthand for the insurance industry’s effort to play Mississippi Judge L.T.Senter and the Rigsby qui tam case against Louisiana Judge Sarah Vance and the Branch Consultants’ qui tam case and, now, the Denenea case too.

Got the picture? Meet the cast.  Although the roles change when to their advantage, at the moment Allstate has taken the role of Larry, State Farm that of one Darryl with the rest of the industry playing the other.

In other words, those in the insurance industry that were  “all in it together” – “it” being “the scheme” of fraudulent claims handling that followed Hurricane Katrina – are still “all in it together” with “it” being a pull-the-wool-over-the-court’s-eye scheme to fool the federal courts into dismissing all three qui tam cases. How do I know?  Well, wet wool smells – some say like a wet dog – and I picked up the scent reading documents filed in all three cases.

Hold your nose and I’ll link this wool-pulling scheme to the scheme and the qui tam insurance defendants that are among “The Ten Worst Insurance Companies in America”– and, if you’ll follow me as I briefly introduce Moffett, et al v Computer Sciences Corporation, et al (Maryland), I’ll also briefly introduce a breath of fresh air, Opperman, et al v Allstate, et al (New Jersey). Continue reading “Larry, his brother Darryl and his brother Darryl take their act to the Qui Tam Olympics”

Judge Vance has her Reasons – orders Nielsen to dance with Branch; band is playing fraud

Qui tam plaintiffs move to strike Fidelity’s Third-Party Complaint against its policyholders… Because Fidelity’s claims do not meet the appropriate standard under the Federal Rules of Civil Procedure and because third-party practice is considerably restricted in False Claims Act actions, the motion is GRANTED.

With 24-pages of Reasons supporting her Order, no one can call Judge Sarah Vance a party pooper for turning  down Nielsen’s “morally correct” [sic] Third Party Demand.

Fidelity has filed an answer to Branch’s complaint, and this answer includes a complaint asserting claims against third parties.1 R. Doc. 247. Specifically, Fidelity, acting in its “fiduciary capacity” as a “fiscal agent of the United States,” brings claims against certain of its own policyholders for breach of contract and unjust enrichment, as well as the common-law doctrine of payment by mistake. Fidelity proposes to sue those Fidelity policyholders whose property adjustments Branch put in issue in its complaint against Fidelity. Fidelity alleges that, if Branch proves that Fidelity overpaid its policyholders, these policyholders improperly received payments that are rightfully the property of the United States government.

In a footnote, Judge Vance point out, “These claims are brought by Fidelity only. None of the other defendants has brought a similar complaint against its own policyholders or has filed support for Fidelity’s.”  Surprisingly, however, Judge Vance goes no further.  Since she once again demonstrates mastery of a broad range of controlling decisions in discussing the Reasons for denial of Fidelity’s motion, the obvious assumption is she elected to spare the Company’s counsel, Gerald Nielsen, the embarrassment of revealing his apparent failure to read the Maurstad memo:

FEMA will not seek reimbursement from the company when a subsequent review identifies overpayments resulting from the company’s proper use of the FEMA depth data and a reasonable method of developing square foot value in concluding claims.

According to Nielsen, “Currently, virtually every major participant “Write-Your-Own Program” (“WYO”) insurance company in the NFIP utilizes Nielsen Law Firm, L.L.C. to handle its NFIP-related litigation on a national basis”  In that case, the embarrassment he was spared could just as easily been that his motion was an admission by omission.  In other words, Fidelity Fidelity did not properly use “the FEMA depth data and a reasonable method of developing square foot value”.

Whatever grace Nielsen was extended, however, was short-lives when Vance began the discussion of his motion on its merits: Continue reading “Judge Vance has her Reasons – orders Nielsen to dance with Branch; band is playing fraud”