Surely Allstate doesn’t think Judge Sarah Vance is the “other brother Darryl” – “good hands” trying to put words in her mouth (a Branch qui tam updaate)

Left to right: Larry, his "other brother Darryl, and his "brother Darryl"

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.

If you knit, you know that a dropped stitch can’t be covered.  Magistrate Shushan’s recent Orders make it clear that dropping a stitch in a “wool-over-court’s-eye” scheme also can’t be covered. Continue reading “Surely Allstate doesn’t think Judge Sarah Vance is the “other brother Darryl” – “good hands” trying to put words in her mouth (a Branch qui tam updaate)”

taproot – digging out the fact of Branch qui tam UPDATED

Taproots develop from the radicle of the seed, which forms the primary root. It produces branches called the secondary roots, and they in turn produce branches to form tertiary roots…very difficult to uproot – the plant itself gives way, but the root stays in the ground and may sprout again.

Who better than Judge Sarah Vance to do the digging and get to the fact of the Branch Consultants qui tam claim? None that I can think of considering the depth of research evident in the Order that Sop reported in Judge Sarah Vance Educates Insurers about Federal Court Jurisdiction in False Claims Act Cases – A Branch Qui Tam Update.

However, shortly after Judge Vance’s well-reasoned 69-page Order was issued, the Defendants filed for certification of an Interlocutory Appeal to the Fifth Circuit:

Relying on pre-Rockwell out-of-circuit decisions, this Court has reached a different conclusion, finding that Branch’s investigation of a publicly disclosed fraud provides direct and independent knowledge such that Branch is an “original source” whose allegations provide this Court subject matter jurisdiction. It is this question Defendants seek to have certified for interlocutory appeal: whether a “sleuth” like Branch, without first-hand involvement in an alleged fraud, can qualify as an “original source” by providing additional examples of a publicly disclosed, alleged fraudulent scheme.

Naturally, the Branch Consultants responded in Opposition:

…whether a particular case was decided pre-Rockwell or post-Rockwell misses the point. Instead, the relevant question is whether Rockwell overruled any of the legal points on which the Court based its decision. It did not, and Defendants do not argue otherwise. Continue reading “taproot – digging out the fact of Branch qui tam UPDATED”