It’s way too late to do more than link the two responses in oppositions to Allstate’s attempt to dismiss ex rel Branch v Allstate, et al and ex rel Denenea v Allstate and quote the pertinent text from both – sorry, but one thing Rossmiller got exactly right is that “work” really is “the curse of the blogging class”.
The relator intends to consolidate this matter with the Branch relator, which may avoid additional judicial expense as to any potential conflicts on first to file issues between Denenea and Branch. There still exists the issue of first to file as to the present case and Rigsby; however, that issue is either resolved under recent jurisprudence, or should be addressed on a full hearing on the merits of the status of the Rigsby case pertaining to Allstate. The remainder of the motion should be denied for the reasons stated, or that the motion should be converted to a full motion for summary judgment allowing for the full supporting facts to be submitted for this courts consideration. The relator therefore suggests that the motions filed by Allstate be denied.
Branch notes that Allstate has not taken the position that the later-filed Denenea case has preclusive effect as to this action. Thus, Branch has made no attempt to brief the issue here, and the Court should not entertain any such argument in Allstate’s reply or at oral argument. Branch also notes that, with regard to contents coverage, it does not believe there is overlap between the Denenea allegations and this action because Branch’s claims do not concern that coverage. Branch nonetheless is in favor of consolidating Denenea with this action and anticipates filing a motion to that end.
Definitely, something to think about and, as time permits, write much more about the points made in both opposition briefs.
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.
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.
Branch is rockin’ and rollin’ over Protective Orders! Chain of fools was the opening act for please release me, let me go Elvis-impersonating Allstate’s attempt to place trial exhibits under seal in Weiss v Allstate. Judge Vance’s post-trial Order in Weiss provides context for an examination of the protective motions and orders in Branch:
To counter the presumption in favor of the public’s common law right of access to court records, Allstate argues that the Court should seal the documents designated Exhibits 7, 31, and 31A because other courts have found similar insurance materials to be confidential in nature, and thus subject to a protective order. Allstate also asserts that it would be prejudiced in litigating other claims arising from Hurricane Katrina if plaintiffs in those other cases had access to the exhibits outside of the normal course and scope of discovery. The Court finds that neither interest is sufficient to overcome the right of public access in this instance.
Allstate does not point to a single document or excerpt of a document within the approximately 185 pages that comprise Exhibits 7, 31, and 31A that might be harmful to its competitive position. Its failure to do so is particularly telling given the facially benign nature of these exhibits. Exhibit 7 includes a press release, a list of publicly available phone numbers, tips to policyholders affected by Hurricane Katrina, and suggested answers for its personnel to use when responding to questions from policyholders with hurricane claims. Exhibit 31 and 31A contain customer service guidelines to be followed by Allstate personnel, including information that was intended to be passed along to customers. It is not apparent that these documents contain sensitive material of any kind.
Judge Vance’s use of the word benign provides an interesting contrast to “our documents are malignant” espoused by insurer defendants in Katrina policyholder litigation. As a result, there has been an epidemic of protection orders in federal courts in both Mississippi and Louisiana. However, as the Order indicates, insurers cry “malignant” but submit the “benign”.
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!