“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)”
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!”
Let’s jump right in and start with Judge Senter’s Memorandum Opinion and Order on State Farm’s Motion to Exclude from Evidence the Settlement Agreement Between the Relators and Forensic Analysis & Engineering Corporation:
Mr. Robert Kochan (Kochan), on behalf of Forensic, signed the settlement agreement that is the subject of this motion…
State Farm contends that the terms of the settlement agreement and the statements the settlement agreement contains are hearsay and are therefore inadmissible…Relators acknowledge that the settlement agreement and the statements it contains are hearsay, but contend that the statements are still admissible…for purposes of impeaching Kochan, should his testimony at trial be inconsistent with the statements in the settlement agreement.
In the memorandum State Farm submitted in support of its motion, Kochan’s deposition testimony is extensively quoted. I have read these portions of Kochan’s testimony, and it does not appear to me that Kochan has denied the truth of any of the statements contained in the settlement agreement. In response to State Farm’s questions, Kochan has explained his understanding of these statements and the reason each of the statements was made, and he has done so in very precise terms. In the testimony I have read, he has done so without contradicting the statements set out in the settlement agreement…
To a certain extent, this motion asks the Court to make an abstract ruling, a ruling on the admissibility of potential impeachment material, without having the benefit of hearing what the witness will have to say under oath. For this reason, I will not rule the document inadmissible for the purpose of impeaching Kochan’s testimony at this time. I do agree with State Farm’s contention that the Forensic settlement agreement is inadmissible for any purpose other than impeachment of Kochan.
So, what did Judge Senter decide in his Order? Continue reading “Judge Senter issues three Orders in Rigsby qui tam case”
A notice of appearance filed by Jackson attorney Frank Trapp representing The Rendon Group leads the new “news” on the docket for ex rel Rigsby v State Farm. Trapp, known to long-time SLABBED readers as the attorney who represented Sid Backstrom in USA v Scruggs, is a much admired Jackson lawyer – a catch for Rendon well worth the wait.
Of course, if not for State Farm’s continued “dickin’ around” about the seal and related attempt to remove the Court’s protection from certain deposition testimony, The Rendon Group would have no need for local counsel:
On July 29, 2010 and August 2, 2010, State Farm deposed The Rendon Group, Inc. (“TRG”). ( at 1.) During the course of that Rule 30(b)(6) deposition, counsel for TRG invoked this Court’s  Consent Protective Order and designated certain portions of TRG’s testimony by John Rendon as “Protected Information,” subjecting it to heavy restrictions with respect to use and disclosure. See ( Consent Prot. Order at ¶3) (describing restrictions on Protected Information).
However, the good neighbor apparently just can’t zip it up and, as a result, Trapp filed a Motion to Intervene on Rendon’s behalf:
State Farm’s motions raise two important issues affecting TRG’s interests:
(a) First, the excerpts from the Rendon deposition to be filed in support of State Farm’s pending Motion to Dismiss contain very substantial testimony that has no bearing whatever on the one issue involving TRG that State Farm raised in its motion: whether the Rigsbys violated the seal order by communicating information about this litigation to TRG, or through TRG to the media. Instead, State Farm has submitted deposition testimony that has no relationship whatever to potential seal violations, and that relates in many instances to matters that only occurred after the seal order was vacated on August 1, 2007. Continue reading “What a catch! The Rendon Group lands Frank Trapp, files Motion to Intervene in Rigsby qui tam”
SLABBED is no longer alone in calling “bullshit” – but The Rendon Group put a price on it in a Motion for Award of Attorneys’ Fees under FRCP 45(C)(1) “Avoiding Undue Burden or Expense; Sanctions”:
“A party or attorney responsible for issuing and serving a subpoena must take reasonable steps to avoid imposing undue burden or expense on a person subject to the subpoena. The issuing court must enforce this duty and impose an appropriate sanction — which may include lost earnings and reasonable attorney’s fees — on a party or attorney who fails to comply.”
TRG, the Rendon Group, filed the Motion in federal district court in DC and “requests an award of fees and expenses totaling $15,744.60″…
“arising from State Farm’s failure to comply with its obligation to use reasonable steps to avoid imposing undue burden or expense on TRG in connection with the subpoena duces tecum issued in this matter…”
Naturally, State Farm opposes but the Company’s opposition doesn’t alter the basis of TRG’s Motion: Continue reading “Rendon puts some heat under State Farm – a Rigsby qui tam update”
Two Mississippi blogs that gained some measure of recognition for creating a “Scruggs Sideshow” following the indictment of attorney Dick Scruggs are attempting a re-run based on the otherwise uneeventful ruling of a DC court judge – and “I call bullshit”.
The matter before the DC court was “bullshit”, too – “bullshit” from the “good neighbor” that’s Dick-Scruggs-made-me-do-it-defense to fraud was thwarted when Judge Senter issued an order bifurcating the trial of the Rigsby’s qui tam claim from State Farm’s counterclaim.
I am of the opinion that an attempt to try the Relators’ claim and State Farm’s counterclaim in a single proceeding is likely to hopelessly confuse the jury on the merits of both claims. Accordingly, I will bifurcate the trial of these two claims, and I will hear the evidence on the Relators’ qui tam claim first. I will stay discovery on State Farm’s counterclaim until the trial of the Relators’ claim has been completed, and I will schedule a separate trial to reach the merits of the counterclaim.
Since the fraud was so evident, hopelessly confusing the jury was the only hope State Farm had of defeating the Rigsbys’ claim. A decision for the Rigsbys in the first trial automatically defeats State Farm’s counterclaim as it would prove the documents copied by the Rigsbys were not stolen property but evidence of the fraud.
As the slabbed would expect, State Farm’s legal team came up with a bullshit-and-shovel-strategy to circumvent Judge Senter’s Order. In other words, State Farm launched a deep-sea fishing expedition into all things Scruggs using the D.C. based Rendon Group as bait. Rendon responded with a Motion to Quash and the Order issued yesterday denied all but two of the 20 requests for production State Farm demanded in its subpeona. Continue reading “"I call bullshit" – Mississippi blogs try to revive readership with re-run of "Scruggs Sideshow"”