So much for my thinking the next item listed on the Rigsby qui tam docket would be one of the two remaining motions argued at the recent Status Hearing. State Farm filed its first Notice of Intervening Authority before the ink was dry on Judge Vance’s order dismissing the Branch qui tam case; and, when Judge Vance filed an Amended Judgment, State Farm filed a second Notice. (Notices in scribd format follow)
The Rigsbys legal team obviously differed with State Farm’s take on case and Friday they, too, filed a Notice of Intervening Authority citing the Branch decision (Notice in scribd format follows):
[T]he Rigsbys believe that the latest Branch decision again supports their motion to reconsider the scope of the current litigation. The Branch court’s ruling recognized that “a relator need not be an original source of the actual false claims made by the defendants to the government,” as long as the relator is “an original source of a certain core of information, such as the basic modus operandi of the fraud.” Thus, this most recent opinion reinforces the Branch court’s prior ruling, which held that original-source knowledge would have “entitle[d] [the Branch relator] to discovery on all the alleged instances of fraud in the loss-shifting scheme, even those outside the examples in the First Amended Complaint.”
JUDGMENT: ORDERED that Branch’s claims against Allstate are DISMISSED W/OUT PREJ on first-to-file grounds. FURTHER ORDERED that Branch’s claims against American Reliable, Standard Fire, Colonial, Liberty Mutual, SIMSOL, ANPAC, Fidelity, and Pilot are DISMISSED WITH PREJ because Branch is not an original source of those claims, a determination that is intertwined with the merits and that was decided on summary judgment. FURTHER ORDERED that the inflated-revenue claims, added by amendment, are DISMISSED W/OUT PREJ because the Court lacks jurisdiction over Branch’s original ccmp. Signed by Chief Judge Sarah S. Vance on 1/25/11.(bbc, ) (Entered: 01/25/2011)
Long story Order and Reasons short, Judge Vance took 68-pages to explain how Branch failed to comply with the requirements of the False Claims Act.
As the Judgment indicates, the dismissal of Branch centered on two key points of qui tam law – the “first to file” and the “original source” requirements.
In his “stock basher style” post announcing the dismissal, Sop opined Vance had “busted Allen Kanner’s balls”. Maybe so, but, her very exact detailing of what appear to be preventable deficiencies in the filing and content of the Complaint would have definitely crushed his ego.
You won’t see such deficiencies in Rigsby. Think what you will about Dick Scruggs but, in this situation, he knew his limits and, early on, put the case in the expert hands of a team of attorneys with experience specific to cases filed under the False Claims Act. Kanner, on the other hand, filed Branch – but that alone did not lead to the dismissal.
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)
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.
Staying up late reading Gresham’s latest legal thriller is probably not something I should do the night before a day I’ve set aside to write for SLABBED. On the other hand, who could know what’s up on the 19th of November and not wonder what’s up when none – nada, not a single one – of the Branch defendants was able to schedule an ESI deposition until December.
A quick review of what went up on SLABBED in October explains a lot. You’ll find a discussion of Allstate’s ESI capacity here; an update on the Branch case here; and an update on the Denenea case here.
The 19th of November is D-day and what’s up then are the hearings Judge Vance will conduct on more motions than I can count – some to dismiss individual defendants, others the entire the Branch qui tam case. The Allstate and Pilot motions to dismiss the Denena qui tam case are also scheduled for a hearing on the 19th.
“Conspiracy” can be definedan act that is innocent in itself but becomes unlawful when done by the combination of actors and “obstruction of justice” as one that involves interference, through words or actions, with the proper operations of a court or officers of the court.
Although their shared name is sufficient reason for thinking the two brothers Darryl are one in the same, an examination of available evidence reveals two distinctly different individuals. In this third of an intended four-part series, SLABBED examines the evidence available on the most recently unsealed Katrina qui tam case, ex rel Denenea v Allstate – a distinctly different case from the other also named Allstate, ex rel Branch Consultants v Allstate.
In an attempt to convince the federal courts in Louisiana these two qui tam cases are one in the same and both should be dismissed, Allstate has launched what can best be described as a “wool-over-the-court’s-eye scheme“. A key element of the scheme and the centerpiece of Allstate’s defense is, of all things, the qui tam case filed in Mississippi, ex rel Rigsby v State Farm – perhaps because several years ago Denenea caught the yarn the Company was trying to spin and unraveled their knitting right in front of none other than the federal district judge assigned to Denenae’s qui tam case, Judge Sarah Vance.
In my most recent post on the three Katrina qui tam cases, I compared Allstate to Larry, the character on the old Newhart show who spoke for his two mute brothers – “my brother Darryl and my other brother Darryl”. This update on the Branch Consultants’ qui tam case is the first of three follow-up posts, each focusing on a single case. While Louisiana federal district Judge Sarah Vance is not only more attractive than Larry’s “other brother Darryl”, pictured center in photo on the right, one might think she, too, mute given Allstate’s attempt to put words in her mouth.
Allstate certainly has good reason to be concerned. The Company has the distinction of being a named defendant in all the Katrina qui tam cases. Allstate argues it is a distinction without a difference and that, on that basis, Judge Vance lacks jurisdiction under the “first to file” requirement of the FCA (False Claims Act). A related SLABBED post, Allstate files Answer in Branch – and this I couldn’t make up!, introduced Allstate’s position; i.e., the Rigsby sisters were the first to file.
Despite having once invited Branch counsel Allen Kanner to “kiss my***ex rel“, I do not believe Judge Vance can determine jurisdiction until discovery has been completed in Branch, the recently unsealed ex rel Denenea v Allstate and Rigsby with the scope of expanded. Allstate represents the FCA restriction on similar claims too narrowly, IMO, but more importantly, there is currently no way to know for certain.
My position, however, is contrary to the strategy of the “wool-over-court’s-eye” scheme concocted, or so I believe, by Allstate and other insurers as an element in the overall scheme of fraudulent claims handling that followed Hurricane Katrina – and it is the context of that wet-dog smelling scheme unraveling before Judge Vance that we examined the current status of the Branch Consultants’ qui tam case.
While Liberty Mutual’s and Standard Fire’s motions to sever have been pending, the Branch docket has had a severe case motion sickness. Judge Vance offered the cure in short order in what is a really short Order denying both motions as “premature”.
A typical Sarah Vance Order is detailed and lengthy – and this one is neither. When I read it the first time, I thought it would just take a few minutes to compose this post; but, then, I read it again and that was hours ago and this is my fourth sentence. Obviously, I’ve done more thinking than writing. Is it short and lacking in detail because it would be “premature” to say more or is she deliberately guarded?
She gives only one reason for denying the two motions to sever:
There appear to be at least one or more common issues of law or fact in this action that warrant consolidation under Rule 42 of the Federal Rule of Civil Procedure, at least in the pretrial phase of this case. See FED. R. CIV. P. 42(a) (“If actions before the court involve a common question of law or fact, the court may . . . consolidate the actions.”).
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)
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.
Ordinarily, a Motion to appear Pro Hac Vice does not merit a mention, much less a post. However, there is nothing ordinary about the appearance of a Susman Godfrey attorney for the plaintiffs in the Branch Consultants qui tam case.
Founded in 1980, Susman Godfrey focuses its nationally recognized practice on just one thing: big – stakes commercial litigation. We are one of the nation’s leading litigation boutique law firms with locations in Houston, Dallas, Los Angeles, Seattle, and New York. Each of the firm’s 79 trial attorneys devotes all of his or her time and talent to achieving excellent outcomes within the complex commercial litigation environment…
Susman Godfrey’s very first case, the Corrugated Container antitrust trial, led to one of the highest antitrust jury verdicts ever obtained.