Tangling over Branch – a Rigsby qui tam update

In late January, SLABBED reported Double Vision – Rigsbys and State Farm each file Notices citing Branch as “Intervening Authority”. Not content to let the two positions stand, a week later State Farm filed a Motion for Leave to Submit Supplemental Memorandum on three motions – the Rigsbys’ Motion for Reconsideration of Scope of Proceedings, State Farm’s Motion for Summary Judgment, and State Farm’s Motion for Summary Judgment on the Claims of Cori Rigsby.

In light of the significance of the Branch Opinion – a significance acknowledged by both sides to this litigation – State Farm believes it would assist the Court to have a response from State Farm to the matters briefed by the Rigsbys in their Notice.

Judge Senter quickly followed with a text-only Order granting State Farm’s Motion and setting the date for the Rigsbys’ Response.  Time will tell if State Farm’s motion “assisted the court” but it definitely assisted the Rigsbys. Continue reading “Tangling over Branch – a Rigsby qui tam update”

Double Vision – Rigsbys and State Farm each file Notices citing Branch as “Intervening Authority”

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.”

State Farm incorrectly contends that the Branch decision suggests that the “threshold issue in this litigation” is the McIntosh claim rather than State Farm’s scheme to defraud the government. Continue reading “Double Vision – Rigsbys and State Farm each file Notices citing Branch as “Intervening Authority””

Anita Lee reports on the Rigsby qui tam Status Hearing

Although I wished to have been a “fly on the wall”, I don’t think I could have held on for four hours – and Anita Lee reports that’s just how long the attorneys argued:

Judge L.T. Senter Jr. is weighing whether to dismiss a whistle-blower lawsuit against State Farm Fire & Casualty Co. or expand its scope beyond one policyholder’s Katrina claim.

Attorneys spent four hours in federal court Wednesday presenting their arguments to Senter, who is presiding over his last major Hurricane Katrina case, Rigsby vs. State Farm.

State Farm attorneys argue the case should be dismissed because sisters and former insurance adjusters Cori and Kerri Rigsby have turned up no evidence of fraud during extensive pre-trial investigation, called discovery. Senter limited the scope of discovery to one policyholder claim, McIntosh, because the Rigsbys have firsthand knowledge of how it was adjusted.

Attorneys for the Rigsbys argue they have discovered a pattern of fraud by State Farm and should be allowed to expand discovery beyond the McIntosh claim. The Rigsbys maintain State Farm minimized its costs for wind-damage claims by overcharging the National Flood Insurance Program for losses caused by storm surge.

It takes two to tango but you can’t dance around the fact that an “exemplar case” alone is not the widespread scheme alleged in the Rigsbys’ complaint. In that regard, Judge Vance’s related decision in the Branch Consultants qui tam case is insightful: Continue reading “Anita Lee reports on the Rigsby qui tam Status Hearing”

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”

Please release me, let me go Protection in Branch qui tam in the context of Judge Vance’s post-trial Order in Weiss v Allstate

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 AllstateJudge 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”.

Why our courts have been quick to issue protective orders will be one of the legacy questions of Katrina litigation.  Some have suggested the Magistrate Judges were convinced protective orders were the only way to assure plaintiff’s access to needed documents – a suggestion that begs another why.  Rather than speculate at the answers, let’s look at evidence of alternatives. Continue reading “Please release me, let me go Protection in Branch qui tam in the context of Judge Vance’s post-trial Order in Weiss v Allstate”