And while I’ve been gone we have nooses on the loose at Stone High School while down in the Bay, Hizzoner and his new City Clerk decided to skip last night’s recessed meeting of the Bay City Council. Meantime Rick gave us the backstory on the change at Bay City prosecutor. And that just scratches the surface really.
Looking ahead this is the last week of the regular high school season here in Mississippi for classes 4A to 1A. The playoff brackets are out and it is certainty the Rocks will host the winner of Friday night’s Sumrall-Green County game on November 4th. Because the playoff orderings in Region 5 and 6 are not set there would be a total of 5 possible teams that would be there in Round 2, which would mean road games against Mendenhall, Northeast Jones or Quitman or home games against McComb or Lawrence County depending on who advances. Assuming Poplarville and SSC advance in their brackets, the November 18th match-up at Brother Phillip Stadium in the Bay should be quite the game. Very good teams in Florence and West Lauderdale round out the district winners of Regions 5 and 6 with one of those two teams likely to advance to South State in the other bracket.
In other news one of Slabbed’s inaugural topics, insurance claims handling after Hurricane Katrina hits the U.S. Supreme Court as arguments are scheduled in Ex Rel Rigsby on November 1. On tap the Court will resolve the three way split among the appellate Circuits regarding busting the case seal in False Claims Act cases. The 6th Circuit stands alone requiring auto dismissal if the case seal is broken while the rest have varying standards that would require the dismissal. Here in the 5th Circuit, cases are dismissed “only if the seal violation caused actual harm to the Government” pursuant to a balancing test. Joining what is viewed as the most conservative appellate Circuit in that approach is the most liberal in the 9th Circuit. When the time comes we’ll have a link for those that want to listen in on the oral arguments.
“It has come to my attention that my Memorandum Opinion Concerning State Farm Fire and Casualty Company’s Motion To Dismiss For Relators’ Violation Of Seal Order, Docket Number 871, contains a factual error stated at the top of page 11 and repeated near the bottom of page 13. The opinion states that the Relators have previously been represented by the Scruggs Katrina Group, and this is not the case. Relators were previously represented by The Scruggs Law Firm, LLC, and not by the Scruggs Katrina Group. By this order, I am amending this Memorandum Opinion to correct this error.”
The Order makes no mention of how this matter came to his attention. My guess is from his exceedingly careful reading of documents he’s reviewing before deciding matters currently before the Court. Not that he wouldn’t otherwise, but Don Barrett’s recently filed Motion for Fees pointing out “defense lawyers have been banking their money for years” from Katrina litigation and piling on more work for an already overworked court staff in the process.
In that regard, I suspect – actually I hope – Judge Senter will do as he’s done in the past and allow a document to be filed once and referenced in all briefs thereafter. My experience reading briefs in ex rel Rigsby is like reading the first chapter of a newly purchased Agatha Christi and realizing you paid for a new cover and title to a book you’d already read!
My hope and Agatha aside, Judge Senter’s Order clearly documents his intent to ensure everything about ex rel Rigsby v State Farm accurately reflects the facts of the case. The text revised as a result of his correction is below the jump. Continue reading “just absolutely a class act – Judge Senter corrects the record (a Rigsby qui tam update)”
Judge Senter’s Order denying State Farm’s Motion to Dismiss the Rigsby qui tam case was Breaking News on the 24th of January. In a different sense, it was also breaking news at State Farm – news that broke the Company’s front line defense.
Shortly thereafter State Farm filed a Motion asking the Court to allow the Company to throw the allegations at a different wall – a motion to certify the seal to the Fifth Circus claiming the Court’s “denial of State Farm’s motion to dismiss due to the Rigsbys’ violations of the seal order presents a controlling question of law, that an immediate appeal would materially advance the ultimate termination of the litigation, and that there are substantial grounds for a difference of opinion as to this question”.
The Rigsbys recently filed a Response. However, before taking a look at the State Farm Memorandum and Rigsby Response in Opposition, a little stroll down memory lane is in order. In his Opinion Memorandum, Judge Senter recognized the significance of the partial lifting of the seal that took place on “January 1, 2007, to allow the Relators to make certain disclosures in judicial proceedings in related but independent litigation in Alabama”:
The order partially lifting the seal does not specify that the judicial disclosures themselves be made under seal, and this order could therefore be reasonably interpreted to authorize these judicial disclosures in pleadings and other documents distributed to the litigants and their attorneys in the Alabama litigation. This type of disclosure would effectively make the original seal of the qui tam case moot. In these circumstances, I consider the relevant period of the seal to be from April 26, 2006, (the filing of the original FCA complaint) through January1, 2007 (the partial lifting of the seal)…and the stay was fully lifted on August 1, 2007.
Judge Senter obviously didn’t think it necessary to provide supporting evidence or he would have mentioned a particularly significant event that took place between the date the seal was partially lifted and the date it was fully lifted some eight months later – the May 30, 2007, Motion to Compel that State Farm filed in McIntosh v State Farm: Continue reading “In an amazing act of hubris, State Farm asks Judge Senter to certify seal to the Fifth Circus (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”
On January 14, 2011, more than a year after responses to Relators’ first document requests were due and more than six months after the close of discovery, State Farm disclosed the existence of another 8,000 pages of documents in three boxes labeled “McIntosh Zone Litigation File.” These Documents had been “discovered” in the office of Terry Blaylock, State Farm’s 30(b)(6) witness who was designated specifically to testify on matters related to State Farm’s document production and document retention practices.
State Farm acknowledges that the Documents were “brought . . . to the attention of the State Farm corporate legal department in December 2010” but the existence of the Documents was not disclosed to Relators at that time. Despite the fact that a hearing related to dispositive motions and trial scheduling was to occur on January 12, 2011 and despite the fact that State Farm was taking depositions in this case during the last week of December and the first week of January, State Farm chose not to disclose these Documents to the Relators or this Court. Instead, on January 14, 2011, two days after oral argument, State Farm gave Relators a three-line privilege log that identified these 8,000 pages of Documents simply as “Zone litigation file for
The January 14 “privilege log” in its entirety provides as follows:
As the Rigsbys point out, “…The “log” contained no description of any of the individual Documents, did not identify by whom the Documents were created or collected, did not identify to whom the Documents were addressed or distributed, and failed to identify any privilege or other protection applicable to any such document”. (Relators’ Memorandum in Support of Their Motion for an Order to Compel Complete and Prompt Production of Late-Disclosed Documents in Scribd’ format below) Continue reading “Rigsbys seek Order compelling State Farm to completely and promptly produce all 8000 “late-disclosed documents””
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””
It is abundantly clear that Richard Scruggs and the SKG used formidable public relations resources, including use of The Rendon Group, in an effort to control the public perception of the issue at the heart of this qui tam action, i.e. whether State Farm deliberately mischaracterized wind damage as flood damage in assessing claims under the insurance policies it was adjusting. As far as the wind damage claims are concerned, these attorneys were acting well within their rights as advocates for their clients who had homeowners policy claims. These attorneys were not free to disclose the existence of this qui tam action, and had their improper disclosures (Items 3,7, and 12 above) led to accounts in the public media indicating that such an action was underway, the government’s ability to investigate the Relators’ allegations might well have been compromised. But that is not the case disclosed in the record before me.
State Farm’s Motion to Dismiss the Rigsbys’ qui tam case (for violations of the seal order) was among those motions argued at the recent Status Conference. Today’s uncharacteristically long Memorandum Opinion on Judge Senter’s denial – the 14 page Scribd document at the end of this post – is the first Judge Senter has issued on those motions. One of the more surprising aspects of his decision is his consideration of the partial lifting of the seal that took place on Order of Judge Walker in January 2007:
The first question I must consider is the effect of the partial lifting of the seal on January 1, 2007. At the time Magistrate Judge Walker entered his order partially lifting the seal, this action had been filed and sealed for some seven months. In partially lifting the seal, the Court authorized the Realtors to make disclosures concerning this action to judicial officers presiding in the Alabama litigation. The order partially lifting the seal does not specify that the judicial disclosures themselves be made under seal, and this order could therefore be reasonably interpreted to authorize these judicial disclosures in pleadings and other documents distributed to the litigants and their attorneys in the Alabama litigation. This type of disclosure would effectively make the original seal of the qui tam case moot. In these circumstances, I consider the relevant period of the seal to be from April 26, 2006, (the filing of the original FCA complaint) through January1, 2007 (the partial lifting of the seal).
State Farm identified a total of 48 incidents the Company claimed as violations of the seal order on the Rigsby qui tam complaint. One item alone (#48) required the Court to review a “106-page compilation of e-mails concerning media contacts”. Judge Senter’s Memorandum Opinion lists all, starting on page 1 and continuing until page 8, concluding with, “State Farm contends that the disclosures reflected in these documents constitute such egregious violations of the FCA’s seal requirement, 31 U.S.C. §3730(b)(2), that dismissal of this action is justified. Judge Senter, obviously, thought not: Continue reading “Breaking News – Judge Senter denies State Farm Motion to Dismiss Rigsby qui tam!”
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”
Would love to have been a fly on this wall!
Minute Entry for proceedings held before Senior Judge L. T. Senter, Jr: Motion Hearing held on 1/12/2011. Court Hearing adjourned. APPEARANCES: August J. Matteis, Jr., Benjamin R. Davidson, C. Maison Heidelberg, Derek Yoshio Sugimura, Lucien C. Martinez for Plaintiffs; Michael B. Beers, Robert C. Galloway, Amanda B. Barbour, E. Barney Robinson, III, Jeffrey A. Walker, Benjamin McRae Watson, Phillip B. Abernathy, James R. Robie for State Farm; Larry G. Canada for Haag. RE 738 MOTION for Reconsideration of Scope of Proceedings in Light of Evidence Adduced in Discovery filed by Kerri Rigsby, Cori Rigsby, 734 MOTION for Summary Judgment filed by State Farm Fire and Casualty Company, 736 MOTION for Summary Judgment on Claims of Cori Rigsby filed by State Farm Fire and Casualty Company, 739 MOTION to Dismiss Due to the Rigsbys’ Repeated and Calculated Violations of this Court’s Seal Order filed by State Farm Fire and Casualty Company. (Court Reporter Kati Vogt (228)563-1751)(kbo) (Entered: 01/12/2011)
Last Friday, this was “breaking news” but with my Christmas tree still up, I had to set priorities and these latest Orders from Judge Senter merit more than just a “pop-up” post. If you need background, check the SLABBED post published November 24, 2010, for Judge Senter’s earlier Orders admitting the testimony and/or report of Rigsby expert witnesses Dave Favre and Brian Ford.
After three years of following Katrina insurance litigation, much of it involving State Farm, I thought I’d reached the point where nothing would surprise me. However, State Farm’s legal eagles (AKA “the buckin fuzzards“) clearly proved me wrong with the Company’s Memorandum in Support of Motion for Reconsideration of the Court’s Opinion and Order re: The Brian Ford Report and Memorandum in Support of Motion for Reconsideration of the Court’s Opinion and Order re: Dave J. Favre, Sr.
However, I wasn’t as surprised by content as I was shocked by the threatening tone – and how it intensified in State Farm’s replies in rebuttal to the Rigsbys’ Response in Opposition to each of the Company’s motions. As I was reading, I began to wonder if Judge Senter felt like Travis Brickle when he took a look at State Farm’s briefs:
“You talkin’ to me? You talkin’ to me? You talkin’ to me? Then who the hell else are you talkin’ to? You talkin’ to me? Well I’m the only one here. Who the fuck do you think you’re talking to?”
For example, inState Farm’s Rebuttal brief asking for [demanding, IMO] reconsideration of Judge Senter’s decision on the admissibility of the Brian Ford report, the Company wrote:
Until now, no federal court has ever held that a document Continue reading “BIG NEWS – Judge Senter denies two State Farm motions despite the Company’s threat of appeal! (a Rigsby qui tam update)”