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EXHIBIT B Case 1:03-cv-10641-RWZ Document 111-2 Filed 08/30/12 Page 2 of 68
UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS
) UNITED STATES OF AMERICA ex rel., ) GREGORY W. THORPE, et al., ) Civil Case No. 03-10641-RWZ ) Civil Case No. 03-10398-RWZ Plaintiffs, ) ) v. ) ) GLAXOSMITHKLINE PLC, et al. ) ) Defendants. ) ) ) CROSS & BENNETT, L.L.C. ) ) ) Intervenors ) )
CROSS & BENNETT, L.L.C.’S COMPLAINT IN INTERVENTION
INTRODUCTION
1. On July 2, 2012, the Department of Justice (“DOJ”) announced that
GlaxoSmithKline (“GSK”) had agreed to plead guilty and pay $3 billion to resolve this
consolidated civil matter and related criminal liability arising from GSK’s unlawful promotion of
certain prescription drugs, its failure to report certain safety data, and false price reporting
practices.
2. Relators Gregory W. Thorpe (“Thorpe”) and Blair Hamrick (“Hamrick”) were
represented by Cross & Bennett, L.L.C. (“Cross & Bennett”) in connection with this matter from
November 2002 into November 2009. Cross & Bennett agreed to represent Thorpe and Hamrick
almost 10 years ago, when liability arising from the off-label promotion of drugs was unsettled
and any recovery was far from certain. As Thorpe and Hamrick’s present qui tam counsel,
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Kenney & McCafferty, P.C. (“Kenney & McCafferty”), recognized in a July 2, 2012 press release, this was “among the very first qui tam suits filed against a pharmaceutical company involving allegations of off-label promotion.”
3. Cross & Bennett filed the relevant qui tam complaint in Colorado in January
2003. It was this filing that first alerted the government to fraud by GSK. For seven years,
Cross & Bennett worked tirelessly on behalf of Thorpe and Hamrick with the United States, the various states, and counsel for other relators to build the case against GSK.
4. Late in 2009, by which time a large settlement appeared probable, Thorpe and
Hamrick began efforts to bully Cross & Bennett into reducing its contingency fee. By this time,
Cross & Bennett had completed the vast majority of the work necessary to support the qui tam complaints that ultimately resulted in the historic recovery referenced above. In fact, DOJ had already begun settlement negotiations with GSK. When Cross & Bennett refused to renegotiate its fee agreement, Thorpe and Hamrick began to complain about the quality of Cross & Bennett’s legal work.
5. Contrary to doing substandard legal work, Cross & Bennett, through years of dedicated representation, was instrumental in achieving the extraordinary results which will now leave Thorpe and Hamrick very wealthy men. Indeed, GSK’s settlement is the largest combined federal and state health care fraud recovery in a single settlement in the history of the
United States and Thorpe and Hamrick will receive relator payments totaling almost 75 million dollars. This substantial settlement resulted from Cross & Bennett's working as a team with the government attorneys assigned to this case, particularly A.U.S.A. Sara Bloom from Boston,
A.U.S.A. Edwin Winstead from Colorado, and Andy Mao and Patrick Jasperse from DOJ in
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Washington, D.C., as well as attorney Erika Kelton and her associate attorneys, Sam Brown and
Erin Krimbill, who represented relators Burke and Gerahty.
6. Thorpe and Hamrick’s present qui tam law firm, Kenney & McCafferty, began its
representation in January of 2010 by which time DOJ and GSK were negotiating a settlement
and the case was in its final stages. This was less than a year before the announcement of
intervention by the United States and long after the bulk of the work that resulted in the recovery
had already been done by Cross & Bennett. On information and belief, Kenney & McCafferty
agreed with Thorpe and Hamrick to a 10% contingent fee.
7. Thorpe and Hamrick have taken the position before this Court that Cross &
Bennett is not entitled to any legal fees and are thereby seeking to reduce their total attorney’s
fees from a contractually-set and industry-accepted 40% to only 10%. Quite simply, Thorpe and
Hamrick ask this Court to bless their unjust enrichment at the expense of the attorneys who made
their recovery possible.
8. This effort to deprive Cross & Bennett of a well-earned fee implicates important
public policy issues concerning the leverage afforded successful qui tam relators, the stability
and enforceability of contingent fee arrangements and the importance of compensating counsel
who risk taking on representations on a contingent fee basis where recovery is uncertain, but
significant public health, safety, and fiscal interests are at stake.
9. Cross & Bennett hereby seeks to protect, enforce, and reduce to judgment its
Colorado attorney’s lien on Thorpe and Hamrick’s share of the settlement, and further, asks this
Court to determine the measure of legal fees and disbursements due and owing to Cross &
Bennett for its remarkably successful, seven year representation of Thorpe and Hamrick. The
Court should not permit Thorpe and Hamrick to be unjustly enriched at the expense of Cross &
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Bennett by allowing them to keep fees earned by Cross & Bennett and thereby limiting their fees in a high risk contingent fee case to only 10%.
PARTIES
12. Cross & Bennett is a law firm organized as a Colorado limited liability company with a usual place of business in Colorado Springs, Colorado.
13. Cross & Bennett employs Keith F. Cross, Esq. (“Cross”) and Joseph F. Bennett,
Esq. (“Bennett”).
14. Cross has been a trial lawyer for over 30 years. He has focused his practice on all aspects of employment law and over the past decade has expanded his concentration to include the False Claims Act, health care fraud, defense contractor fraud, and pharmaceutical fraud. He is licensed to practice in all courts of the state of Colorado, the federal district court for the
District of Colorado, the Tenth Circuit Court of Appeals, the Fifth Circuit Court of Appeals and the United States Supreme Court. Cross has also handled, with associate counsel, cases in
California, Louisiana, and Texas. He formerly served as a Judicial District Attorney and Public
Prosecutor. Cross received a J.D. from the University of Colorado School of Law in 1978, an
M.A. from Ohio State University in 1974, and a B.A. (Magna Cum Laude) from the University of Massachusetts in 1972.
15. Bennett has practiced law for 26 years, beginning his legal career as a public prosecutor in Colorado's Ninth and Fifth Judicial Districts. Since moving to Colorado Springs in
1990, Bennett has been primarily involved in civil and personal injury litigation. He presently represents patients and their families in medical malpractice cases, major personal injury lawsuits, and wrongful death cases. Bennett received a J.D. from the University of Colorado
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School of Law in 1986 and a B.A. (Magna Cum Laude) from the University of Massachusetts in
1983.
16. Thorpe is an individual who, on information and belief, resides at 258 Arrowleaf
Lane, Mountain Home, AR 72652.
17. Hamrick is an individual who, on information and belief, resides at 4509 Watrous
Avenue, Tampa, FL 33629.
JURISDICTION AND VENUE
18. Jurisdiction in this Court is invoked based on 28 U.S.C. § 1367, 28 USC § 1332, and under Rule 24 of the Federal Rules of Civil Procedure.
19. This Court has personal jurisdiction over Thorpe as he is a plaintiff in the underlying action.
20. This Court has personal jurisdiction over Hamrick as he is a plaintiff in the underlying action.
21. Venue is properly in the District of Massachusetts pursuant to 28 U.S.C. §
1391(b) as the legal services at issue here were rendered substantially in Massachusetts in connection with this case, the settlement and settlement funds are subject to the jurisdiction of this Court, and the Attorney’s Lien at issue was filed in this Court.
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FACTS1
22. On October 3, 2001, Thorpe first met with Cross to discuss issues related to
Thorpe’s employment at GSK, including purported violations by GSK of the Age Discrimination
and Employment Act of 1967.
23. Between October 2001 and August 2002, Cross & Bennett, through Cross,
advised Thorpe on employment issues, including certain disciplinary actions that GSK had taken
against him. Among other things, Cross sent a letter to GSK concerning Thorpe’s employment
issues, which raised violations of off‐label marketing regulations. Significantly, that letter was
later used by the United States as an exhibit to its Complaint in Intervention, filed on October 26,
2011.
24. In May 2002, Thorpe and Cross first discussed a qui tam action under the False
Claims Act against GSK. After initially contacting Cross concerning the potential FCA claim,
Thorpe was told by Cross that he may not have sufficient time to handle this case. Then
unbeknownst to Cross, Thorpe submitted some of the details of his case to Phillips & Cohen, a
prominent, national whistleblower firm located in Washington, D.C. in the hope that the firm
would represent him, Phillips & Cohen declined to represent Thorpe. Thereafter, Cross agreed
to represent Thorpe on the FCA case.
25. Throughout the summer and fall of 2002, Cross researched medically accepted indications and payment for covered drugs, among other relevant topics. At that time, there was little authority or precedent regarding qui tam actions arising from off-label marketing, so Cross was largely breaking new ground as he formulated, researched and prepared this suit.
1 The following recitation highlights significant work performed by Cross & Bennett attorneys on behalf of Thorpe and Hamrick and important events over the course of the engagement. It is not intended, nor should it be construed to be, an exhaustive list of all work by Cross & Bennett. 6
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26. In August 2002, Thorpe first indicated that he might want to bring his friend,
Hamrick, on as a co-relator. At that time, Hamrick was still working for GSK, while Thorpe had signed an enhanced separation agreement in August of 2002, resigning from GSK in exchange for “an unusually favorable severance package . . . .” (See paragraph 139 of Government's
Complaint in Intervention in this case).
27. In November 2002, Cross met with Hamrick for the first time and on November
27, 2002, Cross & Bennett, Thorpe, and Hamrick executed a Contingent Fee Agreement to
represent Thorpe and Hamrick on the FCA claims against GSK. Since Thorpe had released GSK
on his personal claims in his enhanced separation agreement, there was no agreement to
represent Thorpe on his potential personal retaliation claims.
28. Throughout December 2002, Cross conducted factual and legal research on issues
relevant to the prospective qui tam action, including: law and regulatory authority relating to the
off‐label marketing of prescription drugs; the relationship of the drug compendia to off-label
marketing; the approved uses for Imitrex, Lamictal, Wellbutrin, Lotronex, Flovent, and Advair;
the use of Wellbutrin for treatment of pediatric ADHD; the use of Lamictal in the treatment of
bipolar disorder; the use of Imitrex for pediatric Migraine; the use of “Medical Scientists” to
market off-label; and the use of Advair for the treatment of COPD.
29. During that time, Cross quickly and efficiently reviewed the documents being
provided by Thorpe and Hamrick and drafted a qui tam complaint alleging that GSK had
violated the federal False Claims Act by illegally marketing its prescription drugs to the
Medicaid and Tricare programs.
30. On January 3, 2003, Cross filed the qui tam complaint under seal against GSK in
U.S. District Court for the District of Colorado, 1:03-cv-00008-WYD-BNBC. Due to Cross’
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diligence, Thorpe and Hamrick were the first relators to file such an action, a critically important status under federal law.
31. Cross reviewed documents from Thorpe and Hamrick throughout 2003 and conducted his own research concerning, inter alia: Imitrex, Wellbutrin, Advair, Lotronex, and
Lamictal; marketing and sales training on various drugs; top prescription writers for different prescriptions and symptoms; the wining and dining of physicians; methods of targeting high prescribers; GSK’s minority marketing; Canadian drug sales; drug sampling; Medline; FDA approval of drugs; and medication used to treat bipolar disorders. During this time, Cross was in almost daily contact with Thorpe and Hamrick and in frequent contact with Edwin Winstead,
Esq. (“Winstead”) of the United States Attorney’s Office (“USAO”) in Denver. Cross met with
Winstead and delivered boxes of relevant documents to him. Cross also transmitted documents and supplemental memoranda to Andrew Mao, Esq. (“Mao”) and other attorneys at the DOJ in
Washington, D.C.
32. In early 2003, Cross prepared himself and Thorpe and Hamrick for a significant meeting with representatives from the DOJ, the USAO, the Federal Bureau of Investigation
(“FBI”), the Office of the Inspector General for the U.S. Department of Health of Human
Services, and the Colorado Medicare Fraud Control Unit. The meeting took place on March 3,
2003 in Denver, lasted several hours, and included interviews of both Thorpe and Hamrick. The various government representatives present seemed very interested in the allegations made in the qui tam complaint and appeared to be relying upon the information provided by Thorpe and
Hamrick and the legal analysis of Cross & Bennett.
33. After this meeting, through April and May of 2003, Cross continued to confer with Thorpe and Hamrick and to gather and review documents. During that time, Cross focused
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on: Lamictal for Bipolar off‐label; off‐label presentations about the use of Advair for COPD; the
FDA Adverse Event Reporting Program; HHS Guidance on Financial Interests in Research; the use of Wellbutrin for weight loss; and Paxil, Valtrex, and Advair formulary information and promotion.
34. On July 18, 2003, Michael Theis, Esq. (“Theis”), U.S. Attorney for the District of
Colorado, and Winstead called Cross to inform him of a related case that had been later filed in the District of Massachusetts by Erika Kelton, Esq. (“Kelton”) of Phillips & Cohen. That case was brought by GSK employees who were much higher-level than Thorpe and Hamrick, with a significantly larger database of documents and potentially better inside knowledge of GSK’s management. As a result of their broader access to information and documents, their complaint contained allegations that expanded the geographic scope and substance of GSK’s misconduct, in effect expanding a regional case to a national case. Theis and Winstead encouraged Cross to work out an agreement with Phillips & Cohen whereby Thorpe, Hamrick, and the Phillips &
Cohen relators would pool their knowledge and resources to advance both the Colorado and
Massachusetts qui tam matters.
35. In the fall of 2003, Cross provided the government with a list of prominent GSK paid speakers who were likely to be making off-label presentations to physicians.
36. Between August 2003 and January 2004, Cross, in close concert with Thorpe and
Hamrick, negotiated an agreement with Phillips & Cohen. Thorpe initially wanted to agree to a
2/3 to 1/3 split, but ultimately decided that he would agree to a 50-50 split as long as Phillips and
Cohen had two, not just one, higher level GSK employees as relators. Hamrick also agreed. The agreement, executed by Thorpe, Hamrick and the Phillips & Cohen relators, pledged, inter alia, that they would work together to litigate their respective cases and to share “all monies that are
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awarded as relator share awards in each of the Colorado and Massachusetts qui tam actions, no matter what allegations form the basis for the Governments' recovery(ies) and ultimate award(s).” Thorpe and Hamrick were kept informed of the settlement negotiations throughout and consented to the agreement with full disclosure of the potential risks and benefits.
37. During the second half of 2003, Cross was in regular communication with government agents, including officials at the U.S. Food and Drug Administration (“FDA”), who were working on the ongoing investigation of GSK. Cross provided the government with research and documents concerning: pediatric migraines and Imitrex; Paxil; top off‐label speakers; and numerous other subjects related to the off‐label promotion of drugs documented in
Thorpe and Hamrick’s initial qui tam complaint.
38. In January 2004, the Colorado USAO issued its first subpoena to GSK, based largely on information provided by Thorpe and Hamrick and the Phillips & Cohen relators. GSK began producing documents pursuant to the subpoena on a “rolling” basis. According to
Winstead, the initial production totaled between one and two million documents. GSK produced more documents pursuant to the subpoena each year thereafter. As of 2009, the federal government had accumulated between 15 and 17 million documents from GSK.
39. On February 4, 2004, the government notified Cross of a complaint filed in 2000 prior to Thorpe and Hamrick’s complaint. Cross, in close concert with Thorpe, Hamrick, and
Kelton engaged in protracted negotiations with that plaintiff’s counsel concerning his entitlement to any percentage of the relator’s share. Ultimately, the parties reached agreement in July 2004 to share a percentage of any recovery with that plaintiff, who then dismissed his case with prejudice.
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40. Cross continued throughout 2004 to receive and evaluate information forwarded
by Hamrick on various drug issues, including: company initiatives related to fraudulent activity, such as the destruction and replacement of notebook computers for all GSK marketing representatives and GSK’s new “Write‐Right” program; new speaker programs; GSK’s FaxBack documents; and literature and studies it was providing to physicians through its marketing representatives.
41. Also throughout 2004, Cross was in almost daily contact with his clients and in frequent contact with the federal and state governments. Additionally, Cross was sharing information back and forth with Kelton, pursuant to the agreement between their clients.
42. From January through April 2005, Cross devoted much of his time to preparing the First Amended Complaint, which was filed on April 27, 2005. The First Amended
Complaint included retaliation and termination claims on behalf of Thorpe and Hamrick.
Although the value of these claims was not clear, Cross felt that the retaliatory conduct by GSK against its former employees would help spur the government to action. At the time, Thorpe told
Cross that he was very happy with the First Amended Complaint.
43. From May 2005 through December 2005, Cross continued to confer with
Winstead and Kelton concerning the case. During 2006, at the request of Thorpe and Hamrick
(who were increasingly distressed by the pace of the government’s investigation), Cross spoke with Kelton and Winstead about advancing the case. Cross then reached out to state Medicaid
Fraud Control Units in Texas and Virginia in an effort to convince them to independently pursue state claims. Cross also explored the possibility of electronically mining the millions of documents produced by GSK in an effort to assist the government in its investigation and prosecution of the FCA claims.
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44. Cross & Bennett and Thorpe and Hamrick executed a Contingent Fee Agreement dated February 1, 2007, which superseded the Contingent Fee Agreement executed on November
27, 2002. The February 1, 2007 Agreement provided that Cross & Bennett’s fees would be 40% of the gross amount collected. (See Exhibit 1 hereto). Further, Cross & Bennett agreed to advance money for costs related to the matter, which, in the event of settlement or judgment, would be reimbursed in full.
45. The February 1, 2007 Agreement also provided that, in the event that Thorpe and
Hamrick terminated the agreement,
without wrongful conduct by the attorneys which would cause the attorneys to forfeit any fee, or if the attorneys justifiably withdraw from the representation of the clients, the attorneys may ask the court or other tribunal to order the clients to pay the attorneys a fee based upon the reasonable value of the services provided by the attorneys. If the attorneys and the clients cannot agree how the attorneys are to be compensated in this circumstance, the attorneys will request the court or other tribunal to determine: (1) if the clients have been unfairly or unjustly enriched if the clients do not pay a fee to the attorneys; and (2) the amount of the fee owed, taking into account the nature and complexity of the clients' case, the time and skill devoted to the clients' case by the attorneys, and the benefit obtained by the clients as a result of the attorneys' efforts. Any such fee shall be payable only out of the gross amount collected by or on behalf of the clients and the amount of such fee shall not be greater than the fee that would have been earned by the attorneys if the contingency described in this contingent fee agreement had occurred.
46. Throughout 2007, Cross continued to send additional information to the federal government, and, in particular, documents and data directly to Sara Bloom, Esq. (“Bloom”) of the Boston USAO and Mao of DOJ. Cross researched and forwarded information concerning
“Operation Hustle,” including tapes and documents; and Imitrex, Wellbutrin, and Advair. Cross also responded to inquiries by Winstead with regard to the off-label use of Lamictal.
47. In January 2008, Cross traveled with Thorpe and Hamrick to Boston for meetings with Bloom and FBI agents. Over the course of the trip, Thorpe and Hamrick engaged in a series
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of interviews and made sworn statements. Thereafter, Cross responded to additional requests for
information from Bloom, the FBI, and Mao on subjects including Valtrex, Imitrex, and Seratonin
syndrome.
48. Cross also drafted a Second Amended Complaint to correct minor errors in the
first and to add states that had recently adopted qui tam statutes. Cross filed the Second
Amended Complaint on July 11, 2008.During July 2008, Cross fielded requests for information
from Patrick Jasperse, Esq. (“Jasperse”) of the DOJ Office of Consumer Litigation, concerning
the role of GSK’s attorneys and compliance officers in off-label marketing.
49. During this same time, Cross worked with Kelton to convince the DOJ to permit
Cross and Kelton to data mine documents that GSK had produced in response to the government
subpoena in order to help build the case against GSK on behalf of their clients.
50. To facilitate the data mining, Cross purchased a notebook computer and data
mining software and had it delivered to the office of the United States Attorney in Boston. Cross
then performed data mining in Boston during the second and last weeks of October 2008.
51. Through the rest of 2008, Cross continued to research and review medical
literature relating to: Advair; spirometry; asthma and COPD; and the clinical trials that GSK
used to obtain approval for Advair. He also purchased texts relating to statistics and clinical
trials; familiarized himself with clinical trial terminology; and researched trials for an ICS/LABA
combination drug that were eventually terminated by GSK. In November 2008, Cross
researched off‐label issues relating to Lamictal for Winstead and sent him information that he
had requested concerning certain former GSK employees.
52. After conducting extensive research and data mining with Kelton and her associates, in November, 2008, Cross prepared a detailed analysis for the government of the
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off‐label promotion of Advair for disease states not indicated on the FDA label, particularly mild
intermittent asthma. His analysis linked his research of marketing ploys used by GSK in
promoting Advair to off‐label pediatric marketing, manipulation of clinical trials, and use of
misleading journal literature in GSK marketing based on GSK marketing training manuals
obtained from Hamrick. This research helped form the foundation for the most significant part
of the government's case against GSK: the off‐label promotion of Advair for first‐line treatment of mild, intermittent asthma.
53. In December 2008, Cross provided additional Lamictal research to Winstead and traveled to Boston to meet with Bloom and Kelton and continue data mining.
54. Towards the end of December 2008, Cross drafted a Third Amended Complaint, adding allegations concerning, inter alia, Paxil, Advair, and steroid sparing in asthma treatment.
Cross filed the Third Amended Complaint on January 2, 2009.
55. Cross continued to send additional research to the government throughout the month of January and, from January 27‐31, 2009, conducted additional data mining in Boston with Kelton and Bloom.
56. Between February 2009 and April 2009, Cross researched whether GSK had misrepresented certain study results on the efficacy of Advair for COPD and side effects.
57. Cross obtained a partial lifting of the court’s seal and sent certified letters to the states named in the amended complaints in March 2009. During the course of the representation of Thorpe and Hamrick, Cross was in regular contact with state Medicaid Fraud Control Unit attorneys and paralegals from various states, including Virginia, Texas, Florida, and New
Hampshire. Cross was informed that the states had formed a joint task force, at that time led by
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the Ohio Medicaid Fraud Control Unit, and that none of the states intended to try to prosecute
any of the claims against GSK separately.
58. From May 16 to 20, 2009, Cross again traveled to Boston, conducted data mining,
and met with Kelton and Bloom.
59. Cross traveled to Boston from June 13 to 18, 2009 for data mining and to meet
with Kelton, Bloom and DOJ investigators. These meetings focused on educating Bloom and
DOJ about the significant dangers of off‐label Advair marketing.
60. On August 21, 2009, Cross sent a detailed analysis to the DOJ of GSK’s misuse
of medical literature in its off‐label marketing of Advair, along with an analysis of the National
Asthma Education and Prevention Program classification of asthma severity to demonstrate how
GSK marketed Advair off‐label nationwide. Cross and Bennett traveled to Boston from August
26 to 30, 2009 for data mining and to again meet with Bloom and Winstead. During that time,
Kelton, with the assistance of Cross, gave a presentation on Advair for mild asthma. The
presentation juxtaposed evidence that GSK officials had assured the FDA that Advair would
never be used for mild, intermittent asthma or as a first-line treatment for asthma, with
documents evidencing GSK’s program to market Advair nationwide for exactly these uses.
61. In September 2009, Cross continued to research and share information on Advair
with Kelton and her associates in anticipation of a meeting in Washington with DOJ. The
meeting was being held for the purpose of the relators presenting to DOJ a well-supported
argument that the Advair case alone was worth as much as $1.5 billion.
62. On September 9, 2009, Thorpe sent an email to Cross telling him that he had
identified a new potential “associate” attorney who was willing to step in to “help us finalize all of the important issues and get the settlement WE deserve…and nobody else.” According to the
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email, the new attorney was also willing to renegotiate the agreement with the Phillips & Cohen relators to a more “reasonable 25-30%.” (See Exhibit 2 hereto).
63. From September 17 to 19, 2009, Cross attended the meeting in Washington, D.C. with all of the government representatives interested in the case. Cross and Kelton presented their arguments that the Advair off‐label case alone was worth $1.5 billion. (This was in addition to the amount of approximately $400 million that Bloom had already indicated, in a previous meeting with Cross, would be due from GSK's illegal marketing practices involving other GSK drugs.)
64. On September 22, 2009, Thorpe sent an e-mail to Cross again discussing proposed new associate counsel, saying “[w]e have a proposed sharing agreement, which we think is fair and equitable.” He also admits that new counsel “respects how far the case has gotten.” (See Exhibit 3 hereto).
65. On September 22, 2009, Cross sent Thorpe and Hamrick a letter declining to amend the fee agreement in the manner proposed. (See Exhibit 4 hereto). Cross also told
Thorpe and Hamrick that, although he did not see any need for associate counsel on the case, if they wanted to retain associate counsel he would be willing to work with him, provided that this would not affect the fee agreement already in place. Cross refused to accede to his client’s transparent efforts to reduce their liability for legal fees by alleging specious claims of ethical violations and malpractice.
66. The next day, Thorpe forwarded the proposed agreement which provided, inter alia, that Cross & Bennett would receive, at most, 24% of any award to relators and the
“associate counsel” would receive 8%. This would have had the effect of reducing Thorpe and
Hamrick’s overall contingency payout to 32%. The new proposed agreement further provided
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that Thorpe would receive 39% of any award while Hamrick would receive only 29%. Thorpe
and Hamrick also threatened to bring malpractice claims against Cross & Bennett, but offered to
“void” such claims if Cross & Bennett agreed to all terms of the proposal, including substantially
discounting their fees. (See Exhibit 5 hereto). Thorpe and Hamrick had not raised the issue of
decreasing their attorneys’ fees prior to a significant recovery looking reasonably certain.
67. Cross also prepared the Fourth Amended Complaint, which he filed on October 2,
2009 and which set forth new, detailed allegations concerning Advair.
68. On October 9, 2009, Thorpe sent Cross an email stating “[a]s you said to us...How
much money do you need. Well, we want every penny we deserve at this stage….In the end, you
may get nothing and I am not sure you deserve anything after talking to other counsel and how
this matter was handled since I walked into your office. On the other hand you may get
something, but I will have the money to fight you as long as you want or Counsel willing to do
it.” (See Exhibit 6 hereto).
69. On October 21, 2009, Thorpe sent a termination letter to Cross by facsimile.
70. On October 22, 2009, Thorpe sent Cross another email in which he said, “You
need to think about your situation, as if any more happens that I deem detrimental to our
case..one thing-you will have done it to yourself. You hold your own future as to how you behave, post termination. My legal options are endless, and could be highly detrimental to your future in the legal profession. (not just my opinion)…..Please do not let your emotions ruin your career, you have more money than you need right now...as you always told us "how much do you need?” (See Exhibit 7 hereto).
71. On October 30, 2009, Thorpe sent an email to Cross in which he stated “Please be aware of what I said, that if you did one more thing that was not only unbalanced as to your
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mental state, as well as VIOLATING my attorney client privilege, you would trigger a
malpractice suit and we would attempt to deny you anything in the matter, up to and including
any attorney fees and costs. You blew your mediation chance, in other words, and furthered the
malpractice issues….Get over it, you are finished and you did it to yourself.” (See Exhibit
8 hereto). The October 2009 emails described herein, were transparent attempts by Thorpe to
coerce Cross & Bennett into waiving its claim for fees.
72. On November 11, 2009, Thorpe and Hamrick, as promised, did, in fact, file a
formal grievance with the Colorado Supreme Court's Office of Regulatory Counsel, which
investigates and prosecutes attorney discipline matters in that state, alleging that Cross had
committed malpractice and various ethical violations. On November 23, 2009, the Office of
Disciplinary Counsel informed Thorpe and Hamrick that it had reviewed the allegations of
misconduct and “determined that the information you provided does not set forth facts, which if
proven, would constitute grounds for the imposition of discipline by the offices of the Supreme
Court of Colorado. Therefore we are closing this matter and will take no further action on your
request.” (See Exhibit 9 hereto).
73. On November 12, 2009, Cross & Bennett filed a Notice of Attorney’s Lien in the
Colorado action. (See Exhibit 10 hereto). The Attorney’s Lien claimed a lien upon a portion of
all monies, properties, choses in action, claims and demands in suit, upon any property which
may be awarded to the Thorpe and Hamrick in this matter and upon any and all Relator shares, regardless of the source of those shares, and upon any money due to Thorpe and Hamrick in the hands of GSK, the United States of America, the Department of Justice, and the states of
California, Delaware, Florida, Georgia, Hawaii, Illinois, Indiana, Louisiana, Massachusetts,
Michigan, Nevada, New Hampshire, New Jersey, New Mexico, New York, Oklahoma, Rhode
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Island, Tennessee, Texas, Virginia, Minnesota, North Carolina and Wisconsin, and the District of
Columbia, and any other state that is a participant in the settlement or judgment in the instant
case, or in the currently sealed case of United States ex rel. Gerahty in the United States District
Court for the District of Massachusetts, or in any other sealed or unsealed case against
Defendants arising from or related to the same causes of action.
74. In November 2009, Thorpe and Hamrick retained Marcella Auerbach, Esq.,
Kenneth Nolan, Esq., and William Martinez, Esq. In January 2010, Auerbach and Nolan withdrew from representation of Thorpe and Hamrick and were replaced by the law firm of
Kenney & McCafferty.
75. From November 2009 through April 2010, Cross & Bennett spent hundreds of hours Bates stamping and forwarding their litigation file, including documents, exhibits, and emails to Thorpe and Hamrick’s new counsel.
76. On information and belief, Kenney & McCafferty agreed to a 10% share of
Thorpe and Hamrick’s recovery, and thus will receive approximately $7.439 million for work done in the comparatively short period of time it represented Thorpe and Hamrick.
77. The United States filed a Notice of Intervention on January 14, 2011.
78. On March 7, 2011, the Colorado case (1:03-cv-00008-WYD-BNBC) was transferred to the United States District Court for the District of Massachusetts and assigned case number 1:11-cv-10398-RWZ. On April 5, 2011, the Court consolidated 1:11-cv-10398-RWZ into case 1:03-cv-10641-RWZ.
79. The United States filed its Complaint in Intervention on October 26, 2011.
80. On November 3, 2011, GSK announced an agreement in principle to pay the
United States $3 billion in a global settlement of all illegal marketing claims.
19
Case 1:03-cv-10641-RWZ Document 111-2 Filed 08/30/12 Page 21 of 68
81. Again, on July 2, 2012, the Department of Justice announced that GSK had agreed to plead guilty and pay $3 billion to resolve its criminal and civil liability arising from, inter alia, the company’s unlawful promotion of certain prescription drugs.
82. Of the $1.017 billion civil settlement, the overwhelming majority -- $686,049,841
-- was attributed to the off-label marketing of Advair. Recovery for that conduct was due, in significant part, to the hard work of Cross, working as a team with Bloom, Winstead, Mao,
Jasperse, Kelton, and her associates. This was a theory of liability identified, researched, and largely substantiated by the legal team and its work mining all of the available data. Thorpe and
Hamrick would not have realized such an extraordinary recovery without Cross’ efforts. Thorpe provided almost no information relevant to off-label marketing of Advair for mild intermittent asthma, and Hamrick did provide valuable information in support of the theory, but only after being asked to do so by Cross as the theory was being developed.
83. At all times, Cross & Bennett acted carefully and prudently to protect the interests of both Thorpe and Hamrick. This is evidenced by Cross & Bennett’s retention of special ethics counsel to assist them in dealing with Thorpe and Hamrick, who became progressively more difficult as time went on. Cross also advised Thorpe and Hamrick to retain separate counsel to resolve a dispute that they were having between themselves as a result of Thorpe wanting to increase his percentage share of any recovery at the expense of Hamrick. Further, in October
2009, Cross told them to retain independent counsel if they wanted to allege misconduct by
Cross & Bennett. (See Exhibit 11 hereto).
84. Even after the termination of Cross & Bennett, Cross continued to assist new counsel, Kenney & McCafferty, when requested. At the same time this assistance was being supplied, Thorpe and Hamrick’s other counsel, William Leonard, Esq. was threatening
20
Case 1:03-cv-10641-RWZ Document 111-2 Filed 08/30/12 Page 22 of 68
malpractice claims and telling counsel for Cross & Bennett that their Attorney’s Lien was
worthless.
85. On information and belief, federal and state share payments to Thorpe and
Hamrick are imminent. The federal share payment due to Thorpe and Hamrick (excluding
monies owed to the Phillips & Cohen relators) is approximately $63,562,195 and the state share
is approximately $10,834,696. Cross & Bennett asserts a lien upon 40% of the federal share, the
state share, and any other recovery by Thorpe and Hamrick in this action.
86. Cross & Bennett calculates that its attorneys worked thousands of hours on behalf
of Thorpe and Hamrick and that it incurred over $34,064.43 in unreimbursed expenses.
87. Further reflecting the volume of work performed by Cross & Bennett on behalf of
Thorpe and Hamrick and the intensity of the attorney-client relationship are Cross & Bennett’s
litigation files, which included more than 42,000 Bates-numbered pages and 4,750 email messages to and from these clients during the period that Cross & Bennett represented them.
COUNT I – QUANTUM MERUIT (UNJUST ENRICHMENT)
88. Cross & Bennett repeats and incorporates by reference the allegations contained
in paragraphs 1 through 87 above.
89. By providing legal services to Thorpe and Hamrick from November 2002 through
November 2009, Cross & Bennett conferred a benefit upon Thorpe and Hamrick which was
appreciated and accepted by Thorpe and Hamrick under such circumstances that it would be
inequitable for the benefit to be retained without payment of its value.
21
Case 1:03-cv-10641-RWZ Document 111-2 Filed 08/30/12 Page 23 of 68
REQUESTED RELIEF
WHEREFORE, Cross & Bennett requests that the Court:
A. Order that, pursuant to the Attorney’s Lien, 40% of Thorpe and Hamrick’s federal and state recoveries, and any other monies subsequently recovered by Thorpe and Hamrick in this action, be deposited into the Registry of the Court and not released until further order of this Court;
B. Order that this matter be handled on an expedited basis given that Cross & Bennett has waited almost 10 years for payment of attorney’s fees and reimbursement of expenses;
C. Determine the measure of legal fees and disbursements due and owing to Cross & Bennett, pursuant to the Attorney’s Lien, for its representation of Thorpe and Hamrick;
D. Reduce Cross & Bennett’s Attorney’s Lien to Judgment; and
E. Award Cross & Bennett any additional relief that this Court deems just and proper.
Dated: August 30, 2012 Respectfully submitted,
CROSS & BENNETT, L.L.C.
/s/ Allison D. Burroughs______Allison D. Burroughs (BBO # 609346) Benjamin L. Mack (BBO # 661590) NUTTER, McCLENNEN & FISH, LLP 155 Seaport Boulevard Boston, MA 02110 (617) 439-2775 [email protected] [email protected]
22
Case 1:03-cv-10641-RWZ Document 111-2 Filed 08/30/12 Page 24 of 68
EXHIBIT 1 Case 1:03-cv-10641-RWZ Document 111-2 Filed 08/30/12 Page 25 of 68 Case 1:03-cv-10641-RWZ Document 111-2 Filed 08/30/12 Page 26 of 68 Case 1:03-cv-10641-RWZ Document 111-2 Filed 08/30/12 Page 27 of 68 Case 1:03-cv-10641-RWZ Document 111-2 Filed 08/30/12 Page 28 of 68
EXHIBIT 5 Case 1:03-cv-10641-RWZ Document 111-2 Filed 08/30/12 Page 29 of 68
9/23/09 Revised qui tam FCA proposal -GSK
ADDITION OF ASSOCIATE COUNSEL
The Relators in the above mentioned action, Gregory Thorpe and Blair Hamrick have decided to hire Mr. of . as an Associate Counsel in the above action. Mr. has indicated his associate, Ms. may also help with some issues, if needed. For these purposes, the agreement will refer to Mr. only. Ms. inclusion in the matter, will be determined by Mr. .
Mr. Thorpe and Mr. Hamrick, have decided, in their best interests as well as the best interests of coming to an equitable agreement between defendant GlaxoSmithKline and all parties subsequent to the Original filing that the addition of Mr. is necessary and appropriate. Mr. will add his considerable experience and expertise to the case, especially working with the Department of Justice to maximize any award, whether it be in the civil or criminal fine arena. Mr. will also work in areas where current Counsel has either refused, or been delinquent in his duties. The Relators, after completely examining all the facts in the case since day one.... have again mutually come to this decision, with appropriate legal advice.
The Relators, in addition to their belief that certain matters of this case have not been handled properly, especially in the Original Complaint, retaliation issues, the "joining" of other lawfirms and the subsequent tardiness of any Amended Complaint(s), in part- have decided that they need third party Counsel to resolve various issues that current Counsel, Mr. Keith Cross has failed to resolve or completely ignored.
Mr. comes in as a totally independant Counsel, that will work with Mr. Cross. It is the hope of the relators that the relationship will be mutually effective in furthering the case to a fair and most important, ethical and complete conclusion.
Mr. should not be seen as an adversary, but an essential person to resolve longstanding disagreements with the Relators and their Counsel, which if left unchecked would no doubt result in the dismissal of Cross and Bennett and lengthy Court proceedings to determine many outstanding issues and allegations.
GSK003262 Case 1:03-cv-10641-RWZ Document 111-2 Filed 08/30/12 Page 30 of 68
AGREEMENT CHANGES AND REVISIONS
The terms of the former Contingency agreement, with Cross and Bennett must necessarily be altered to allow for the admission of Mr. . to the matter.
The present Contingency Agreement with Cross and Bennett allowed for a 40% sharing agreement of all of the Award, be it from Federal or State to include the statutorily awarded Attorneys fees, expenses and costs in an amount termed the Gross Amount. (refer to agreement)
To these ends, the Relators must amend the sharing agreement to supercede the original, adding the services of the firm of .
The original Contingency Agreement between Cross and Bennett is dissolved and changed as follows: All monies awarded to the parties from the Federal Government, as well as any State awards will be divided as follows:
1) The firm of Cross and Bennett shall receive 24% of any awards to the Relators. 2) The firm of shall receive 8 % of any awards to the Relators. 3) The Original Relator, Gregory Thorpe shall receive 39% of any awards to Relators. 4) The added Relator, Blair Hamrick shall receive 29% of any award to the Relators.
The Relators, aforementioned, will forfeit any and all rights to any award of Attorney fees, expenses and costs made to them by the Court from GSK, to the firm of Cross and Bennett. Relators will no longer lay any claims, as stated in the former agreement, enabling them to a majority 60% share. This change, to the obvious benefit of Cross and Bennett, will in effect substitute for the change in percentage of award to the firm. Since the firm alleges that it has done an immense amount of work on this matter over the period commencing with the Original complaint (almost 7 years), then Relators believe that the Attorneys fees, expenses and costs that they will be awarded should go entirely to the firm of Cross and Bennett.
The Relators will forfeit any and all awards of Attorneys fees, expenses and costs made to them by the Court from GSK, to the firm of , in totality. This will constitute payment in full of fees and costs.
GSK003263 Case 1:03-cv-10641-RWZ Document 111-2 Filed 08/30/12 Page 31 of 68
"OTHER" SHARING ISSUES
Under separate agreement, Relators gave up their rights to 50% of drugs that were solely their own, namely Lotronex and Flovent, and in addition to other drugs even though "first to file", as an integral part of an agreement with the lawfirm of Phillips and Cohen.
The "Phillips and Cohen sharing agreement" does not include-any other award (s), whether it be Federal or State, or from any other source for the drugs Flonase, Amerge, Zyban and Paxil. These drugs, as added to the Relators Amended Complaint(s), are not subject to any sharing agreement with any other party. The primary responsibility for the addition of any appropriate award (s) associated with these drugs shall be left with Mr. , and his staff.
Several legal authorities agree with Relators on this issue. Current Counsel, Mr. Keith Cross, has declined to represent his clients properly regarding this issue, and instead decided to oppose the interests of his own clients, siding with two other "Relators" and their Counsel.
We, using also other legal experts opinions, believe that Mr. Cross is at best, on the wrong side of the argument, if any. In fact Mr. Thorpe has repeatedly asked Mr. Cross to act in his clients behalf on these drugs, mainly Paxil. Mr.Cross has refused, putting the clients position and their claim in jeopardy.
Mr. Cross is at liberty to help Mr. in any way he chooses, at the discretion of Mr. , in his role as Associate Counsel. Relators believe that they have already given the lawfirm of Phillips and Cohen too much of their case and will protect their interest in drugs that are not in the agreement with said firm, at all costs.
Relators, contrary to the opinion of Mr. Cross, are not "negating" any agreement whatsoever in this regard. In fact one of the reasons third party Counsel has been sought is the repeated, seemingly never-ending failure of Mr. Cross to support his own clients, ultimately to the benefit of others, namely the lawfirm of Phillips and Cohen and their two proposed "Relators." In spite of the actions/nonactions of Mr. Cross, Relators will "conditionally" include his firm in any award(s) from GSK regarding these four drugs.
Awards for these four drugs shall be divided as follows:
GSK003264 Case 1:03-cv-10641-RWZ Document 111-2 Filed 08/30/12 Page 32 of 68
15% awarded to the firm of Cross and Bennett. 23% awarded to the firm of . 35% awarded to the Original Relator Thorpe. 17% awarded to added Relator Hamrick.
All attorneys fees, expenses and costs will be inclusive in the agreement set forth above regarding the case in totality regarding these items . In other words, they are included in the total award of fees and costs to each firm, and Relators will seek no portion awarded to themselves.
Should Mr. Cross deny to support the recovery of any monies from these four products, in any fashion, he will forfeit 25% of any awarded attorneys fees, expenses, and costs as described previously. He will also forfeit his designated share of 15% of the total award from the four drugs-specifically Flovent, Amerge, Zyban and Paxil. These monies will then added together and be divided equally between Mr. , Mr. Thorpe, and Mr. Hamrick.
If the issue arises that these four drugs are not "specifically delineated" as to their contribution to the Total Award to the Relators from the Court. These four drugs shall be assumed to have contributed at least 25% of the Total Award to the Relators, no matter what the source be it Federal, State or any other source of payment.
OTHER AGREEMENTS
Finally, Mr. with the help of Mr. Cross shall cooperate to the fullest extent in determining the validity of any agreement formerly entered into with the law firm of Boies -Schiller and Mr. David Stone, regarding the 2.25 % claim to any monies by Mr. Joseph Piacentile.
Relators are of the belief and opinion that said award be paid in total, if assumed valid by the firm of Phillips and Cohen and their two Relators. Relators Thorpe and Hamrick believe that some severe ethical considerations have come into play since the signed agreement of the parties to pay 50% of the 2.25% to Mr. Piacentile out of the total award.
These ethical considerations are known to both firms representing Relators Thorpe and Hamrick. Mr. agrees to pursue this agreement, amending it if possible, so that Relators Thorpe and Hamrick share no responsibilities in the payment of Mr. Piacentile. Relators have decided that they do not wish to be party
GSK003265 Case 1:03-cv-10641-RWZ Document 111-2 Filed 08/30/12 Page 33 of 68
to any issue that they deem to be at the very least unethical and possibly illegal, regarding Piacentile, Stone and the lawfirm of Phillips and Cohen which came to the attention of Relators, for the most part--only after an agreement was signed.
To wit, Mr. will express his concerns to the law firm of Phillips and Cohen, namely Ms. Erika Kelton. Should Ms. Kelton maintain that it should NOT be the responsibility of her firm to pay Mr. Piacentile, then the Relators and their Counsel shall reserve all remedies necessary, post settlement, or pre-settlement to determine if the actions of the law firm of Phillips and Cohen, in concert with the actions of the law firm of Boies Schiller should legally, if not ethically void any previous agreements regarding Joseph Piacentile.
Of course if Ms. Kelton agrees that the responsibility to pay any fee to Mr. Piacentile, should, under the circumstances rest with their firm, then the final total award will include the 1.125 % (formerly excluded) to Relators Thorpe and Hamrick and be divided between Counsel and the Relators as part of the total award in the qui tam action, with appropriate percentages in place.
TERMINATION AND RETALIATION CLAIMS
The firm will handle the 3730 (h) section of the qui tam section of the False Claims Act regarding any retaliation claims or wrongful termination claims, whether they occurred before or after the filing of this action-or any other separate action(s) deemed just and proper, for any relief rightfully due to either Relator, including but not limited to GSK or it’s employees. This may include “blackballing” issues by GSK or the failure of GSK to conform to the terms of the Release signed by Relator Thorpe.
A separate agreement will be entered into regarding these claims. The law firm of Cross and Bennett, will not seek any attorney fees regarding any wrongful termination, retaliation, or post retaliation actions nor be responsible for any final settlement of these claims.
However, to the extent the firm of Cross and Bennett may be liable for any actions and/or non-actions, Relators reserve the right to proper restitution as any Court may order, should Cross and Bennett refuse to cooperate fully in the just compensation due the Relators in any way regarding these issues-past, present and future.
GSK003266 Case 1:03-cv-10641-RWZ Document 111-2 Filed 08/30/12 Page 34 of 68
Relators Thorpe and Hamrick will void all claims to any misconduct-past or present by Cross and Bennett regarding these matters, if and only if, Cross and Bennett agree to all terms of this agreement, in full and in totality--to avoid the possibility of full blown litigation in this matter.
Relators realize that this agreement is constructed by non-attorney litigants (forced into a "pro se" situation) unfortunately by Counsel hired to represent their interests. The final "legal and binding" document should be done by the two firms working together, to prepare a full and complete legal document.
To that end, however, the Relators-Thorpe and Hamrick believe that their intentions in finalizing agreements in this case are set forth here and should be agreed to by all parties, before a final document can be prepared.
Relators, Thorpe and Hamrick have agreed to the fairness and finality of this decision on their part to amend the agreement adding the firm of to settle all matters in a congenial manner, forwarding the case to its conclusion. To this extent and to further urgent final resolution, Relators Thorpe and Hamrick have jointly agreed not to entertain any substantial counter-offers. ______Greg Thorpe Keith Cross ______Blair Hamrick
GSK003267 Case 1:03-cv-10641-RWZ Document 111-2 Filed 08/30/12 Page 35 of 68
EXHIBIT 9 Case 1:03-cv-10641-RWZ Document 111-2 Filed 08/30/12 Page 36 of 68
Greg Thorpe 258 Arrowleaf Lane Mountain Home, Ar. 72653 870-481-6754 870-404-0693
Blair Hamrick 4509 Watrous Ave. Tampa, EL 33629 813-786-3683 Colorado Supreme Court Office of Attomey Regulation 1560 Broadway, Suite 1800 Denver, Co. 80202 303-866-6400 Ath: Grievance Committee tutu09
Re: X'ormal Grievance against Keith Cross. Esq
Keith Francis Cross 108 East St, Vrain Colorado Springs, Co. 80903 719-633-1359 800-231-1017
We believe that severe ethics violations have occurred in our case and are ongoing, therefore this is being filed in an emergency efflort to have Mr. Cross cease and desist his actions against his former clients, whose complaints against him are numy, varied and have rnerit, but most of all are continuing through the date of the filing of the these complain(s) against Keith Cross.
Both parties, Greg Thorpe and Blair Hamrick jointly have agreed to file this complaint, to hopefirlly bring Mr. Cross to justice and stop the continued actions he insists on conducting in a totally unprofessional, unethical and illegal fashion, which while serrring in a position as an Agent of the Court- should never be allowed to occur.
The following synopsis has been redacted only as to certain sealed issues, as the case remains under Seal by the Courts. However, if in order to fully investigate the mafier, this Supreme Court has the ability to provide complete confidentiality in the matter the Relators will supply information, as they will be assured of complete confidentialrty of the involved parties to the case. This will no doubt be possible as the plaintiffs are certainly aware of the confidentiality of the proceedings in themselves. However, the main complaints can probably be evaluated on their merit with the information provided here, to begin with. Case 1:03-cv-10641-RWZ Document 111-2 Filed 08/30/12 Page 37 of 68
1) First is the termination letter sent to Cross on l0l2ll09 alleging multiple acts of misconduct, many of which Plaintiffs believe are in violation of the Co. Code of Professional Responsibility, and grievable offenses.
2) Following the letter are several other recent acts of clear attorney malpractice, examined and witnessed by current Counsel.
3) Further more recent allegations directly related to firther Attomey malpractice.
1) (Iermination letter to Keith Cross, with malpractice and ethical allegations-- further recent allegations follow the letter) r0t2u2009
Dear Mr. Cross,
You are advised upon receipt of this correspondence and the date of October 21' 2009 that, according to the terms of our CONTINGENCY FEE AGREEMENT'we have jointly and separately decided that in the best interests of this case and our own penonal best interests to terminate your employment for just cause in the below captioned action.
Re:
The just causes include- but are not limited to. the following issues-which have been ongoing in nature and date back to the beginning of this filing and some months prior. We have concluded that your representation has hurt us tremendously, not only in the monetary award aspects of the case but speci{ically in the delays and actions/non-actions that you have undertaken, while we as clients put our trust in you and your abilities.
You have gross$ failed to meet obligations required by statute in the State of Colorado as noted below specifically:
1.1:330 Standard of Care
An attorney generally is held to a negligence standard of cme. See CJI-Civ. 3d 9:1. That standard is defined as sn act which a reasonably careful attorney would not do or failing to do an aetwhich areasonably careful attorneywould do. The conduct must be measured against what an attorney having and using the skill of attorneys practicing lan at the same time would or would not hwe done under the same or similar circumstances. CJI-Civ. 3d 15:23. See SectionEtL-;ZL supra. Case 1:03-cv-10641-RWZ Document 111-2 Filed 08/30/12 Page 38 of 68
An attorney owes his client a duty to employ that degree of lmowledge, skill and judgwent ordinarily possessed by members of the legal profession. There is no requirement that he be infallible. [Citations omitted.J Making a mistslce is not negligence ss amatter oflaw. [Citations omiued.JO MeyersEv. Beem,712 P.2d ]092, 1094 (Colo. App. 1995), 96. Providing services in areas inwhich the lawyer laclcs sfficient experience is aviolation of the rule. People v. Franlc, 752 P.2d 539 (Colo. 1988)..
The standmd of care is more than to be corcect in the taskundertaken; it moy include the requirement that a reasonably prudent attorney must foresee and avoid for the client disputes andproblems. First Interstate Bankof Denver, N.A.Ev. Berenbaum,872 P.2d 1297, 1300 (Colo. App. 1993), cert. granted MryE2, 1994, Stip. for dismissal granted, Aug.EI5, 1994; Temple Hoyne Buell FoundationEv. Holland & Hart, 851 P.2d 192, 198 (Colo. App. 1992), cert. denied, Mqt 10, 1993.
1) InNovember of 2002, Mr. Thorpe hired you for the above captioned matter and signed a contingency fee agreement. After that time, you advised him that since he had signed a Release with the company named in the qui tam FCA (redacted ) , that he needed to find someone who had not signed a Release to join the case. Therefore, Mr. Thorpe recruited Mr. Blair Hamrick, still employed with (redacted) as a co-relator. A new contingency fee agreement was signed, adding Mr. Hamrick and essentially awarding him half of any award from the government, if one did occur. Only recentlv, upon speaking with at least three separate attomeys in September and October of 2009 and reading the statute did Mr. Thorpe find out that signing a Release (especially since (redacted) reneged on it's terms) did not prevent Mr. Thorpe from pursuing a qui tam case on behalf of the United States Government on his own behalf. To wit, Mr. Thorpe gave up 50% of his proceeds unnecessarily due to incorrect advice on the matter from his counsel, Keith Cross.
2) Mr. Hamrick left his employ at GSK after being harassed and terminated from his job, largely due to his firthering of FCA actions initiated by Mr. Thorpe and left the company later in October, 2004. Mr. Hamrick was also harmed due to the fact that he was told by Counsel Cross that he could not negotiate any release. Mr. Hamrick was told that if he did he could not join the case and both Mr. Thorpe and Mr. Hamrick could losd standing to file the qui tam action. Mr. Hamrick lost a substantial amount of money, by being advised by Counsel Cross that if he signed a Release for monies that he could not sue in a qui tam FCA action. Therefore, Mr. Hamrick was also harmed due to the actions and advice from Connsel which were incorrect and just exposed to him, in September, 2009by other competent Attorney(s).
3) Even though Mr- Thorpe sought to file the qui tam FCA action in early 2002, and Mr. Cross agreed to take the matter as early as June 2002. Mr. Cross, while even knowing the importance of 'first to file" did not file the action until January 1,2003- This delay was notbecause he took his time to properly prepare it by any means as related in the following paragraphs. Case 1:03-cv-10641-RWZ Document 111-2 Filed 08/30/12 Page 39 of 68
4) The Original filing was nothing more than approximately 12 pages in paragraph form of 'Junk laui', done in haste with no adequate preparation or forethought. It was also prepared, seemingly showing atotal lack of intimate knowledge ofeven the FCA statute itself. Mr. Cross knew or should have known that the States with qui tam laws had to be served, yet he failed to file any State claims, whatsoever.
This was at a time that Mr. Cross claimed he was fighting in the Colorado legislature to acquire a "qui tam " stafute in the state. That alone begs the question, if Mr. Cross was that involved at the time, how could he fail to even file State claims with the states that already had laws in place ? In that regard, also..in spite of years of urging by Relator Thorpe to get states involved, he either failed or was negligent in pursuing them properly, as other attorneys had done in these types of cases, with some success.
Mr. Cross knew, or should have knownthat a large part of what Mr. Thorpe and Mr. Haffiick had given him, and in fact left the company (redacted) for --were reasons consisting of (redacted). I\[r. Cross did not file any illegal kickback issues whatsoever in the original complaint. In particular, both clients had not only pointed out many local problems, but a national speakers list consisting of the top "prostituting physicians" nationwide. Mr. Thorpe was in fact, disciplined by the company, for not being a "team player", by refusing to participate in offlabel lectures, by at least three National "thought leaders". Yet for whatever reason, kickback allegations against (redacted ) were non- existant inthe original complaint frled by Attorney Cross.
Mr. Cross was given information indicting the company on a nationwide basis, by both parties, yet in the original filing he chose to file the case against minor individuals, sales representatives in Colorado. Mr. Cross had information at the time that not only was the head of Global Compliance involved in coverups, but also the COO and CEO of the company were involved as well as many upper management personnel. Mr. Cross specifically failed to state this in the complaint, and inferred by filing against minor individuals that this may be due to a few "rogue representatives". This, in reading the case seemed to narrow the scope and importance to anyone reading the complaint.
Although he eventually changed this, albeit 2.4years later in the First amended complain! it was an obvious enor in judgement. Relators Thorpe and Hamrick were totally unaware of how actions such as these, at the time, could eventually severely affect the case and their standing in the future.
ln short, Mr. Cross declared to the Relators that he was an "expert" in qui tam FCA matters, in so many words. Yet, in the frling of this complaint Mr. Cross shows that he was ill-qualified, and lacked the knowledge or skills in this area of legal practice. The Relators put their faith in Counsel and had no idea at the time how incomplete, shallow and ill conceived the original complaint was. The Relators had no legal expertise or knowledge and relied on Mr. Cross in totality. [n fact, as I related when I complained to (redacted) in the beginning up and until reporting wrongdoing, I had no idea a remedy was available like a qui tam FCA action.
Relators Thorpe and Hamrick were deceived by Keith Cross into believing he had Case 1:03-cv-10641-RWZ Document 111-2 Filed 08/30/12 Page 40 of 68
the adequate skill, experience and knowledge to perform the action he was hired to do. He failed miserably according to several experts in FCA qui tam law, as well the Colorado Standard of Care expected when representing clients.
5) After the original complaint was filed, Mr. Cross was repeatedly approached by his Relators, knowing at the very least as lay people that there was much information given to him that had not in fact been filed. Counsel Cross was asked, pleaded with and begged time and again, to do an Amended Complaint, detailing in full, especially all of the pertinent facts laid on his desk in mid 2001 and continuing. Mr. Cross at first declined to do any Amended Complaint. He said it was not necessary, because he was being told by the Department of Justice that it was not necessary, and he himself felt that it was unnecessary. The Relators felt differently, and it is proven later, rightfully so.
ln spite of repeated emails and phone calls from both clients relating to Counsel Cross the necessity of an Amended fi.rll, complete complaint-- none was ever filed until late April of 2005. This was almost 2Yzyears after the filing of the faulty, incomplete original complaint in January of 2003. Then it was only done because both Relators worked hard to get it done, actually writing most of it in their lay terms for Cross. In fact, many pages carne back to the Relators as a finished product with not only grammatical errors but errors regarding people, places and various drug knowledge that had been discussed many times. Finally an Amended Complaint was completed in April 2005 only due to the insistence and badgering of the Relators. It turned out to be too little, too late for many issues to come up inthe futue.
6) It tunred out also in early 2004 tlwt Keith Cross was informed by the Department of Justice that another qui tam case existed, filed AFTER ours in mid 2003. This case was filed by one Reliator and represented by ( redacted.) Most importantly, it was during this time that Counsel Cross was refusing to do an amended complaint, because he did not think it necessary.
The filing by (redacted ) was complete with State filings, kickback issues and did not address individuals as defendants, only (redacted) and was properly done. It was originally filed with one sole Relator.
Relator Thorpe told Keith Cross that in early 2002,before Cross had decided to take the case that he had gone to the same law frm with much of the same information that they had in the complaint. Thorpe told Counsel Cross that the same law firm had told him that "offlabel" was a "gay area"- yet approximately one year later the same firm, (redacted) had somehow found a Relator and filed virtually the same claims.
Mr. Cross told Relator Thorpe specifically not to approach the other law firm and that it was not an issue. Mr. Thorpe is of the belief and opinion that Mr. Cross told him that to be able to conveniently join the firm with no hassles or arguments so he could "piggyback"on their work, doing little himself which was the for the next five (5) years.
This, essentially along with other issues cost Mr. Thorpe and Mr. Hamrick any bargaining issues in joining the other law firm, especially even at a lower "sharing Case 1:03-cv-10641-RWZ Document 111-2 Filed 08/30/12 Page 41 of 68
percentage". Looking back, Relators Thorpe and Hamrick did not have an attorney that truly would represent the best interests of his clients, even at that time.
Later in an Amended complaint,(redacted ) somehow fotrnd another Relator to join the case, but he refused to sign on and give his name. That was no problem with Mr. Cross. If it was not for the refusal of Mr. Thorpe to go forward, unless the second Relator *ghost actually signed on for a share, that would not even have been done, and a relatot'' would have gotten 25o/o of anaward, if any. It seems that Attorney Cross refused to "rock the boat" in any fashion for his clients interests at every important juncture that evolved in the case.
In spite of Mr. Thorpe glving( redacted) his information, and he believing they used his "call report" template to file their own with new Relators, advice from Counsel Cross to Mr. Thoqpe was that it was not an issue at the time. Mr. Thoqpe still believes if they recruited other Relators with a lot of the information that was given them a year earlier, that it was a huge issue and at least a "bargaining chip" if the firms joined. However, upon advice of Counsel Cross, Mr. Thorpe let the matter rest. This was a huge error in hindsight, expressed by competent Counsel reviewing the issue only recently.
7) After Cross was informed there was another case out there he approached Relators Thorpe and Hamrick. He convinced both Relators, even though they were fust to file that they should join the other case. Not only, that he said it should be a 50/50 split with no negotiations whatsoever. His reasons were only that the frm of (redacted) was "powerfrrl", had a lot of resources, and we should just join them for those reasons. He also threatened us that if we did not that they could hold up the case for 'brho knows 5- 10 years with Court dates and appeals-"Cross repeatedly and consistently throughout the case- in correspondence, by phone and in person essentially alarmed the Relators with the "horrors" of many things that he concluded could delay the case for "ten years or more". It turned out to be for the most part sheer scare tactics to make his clients more "submissive", after all he was the attomey and knew the laws. We later learned that the government will do what it has to on it's schedule, and there is little if anything a firm can do to create decades in delay tactics.
Of course the Relators, both Thorpe and Hamrick broke financially, confused, retaliated against and blackballed by (REDACTED), had no choice but to go with the advice of their Counsel, giving up 50% of their case to the second to file with absolutely no negotiations on any gromds. Half the case was just given up to the SAME firm that did not want the case a few short months ago when Relator Thorpe laid most of the same information in their laps.
It was only in September of 2009 when Mr. Thorpe finally began talking to other Counsel to retain, because of suspicions throughout the years, regarding the competancy of Keith Cross in qui tam FCA cases. They (counsel) all wondered why 50% of the case was given up so easily. Several attorneys asked Mr. Thorpe for the original complaint to review. At least three experts at qui tam law TOLD Mr. Thorpe, why Mr. Cross had recommended a 50/50 split of any award. Case 1:03-cv-10641-RWZ Document 111-2 Filed 08/30/12 Page 42 of 68
THE REAL REASONS THE CASE WAS SPLIT 50/50 WAS ONLY DUE TO THE INCOMPETENCE OF KEITH CROSS IN THE OKIGINAL FILING CONSISTING OF A FEW PAMGRAPHS AND APPRONMATELY 12 PAGES IN JANUARY OF 2003.
Expen aftorneys concluded that since CROSS had not filed any State claims with the qui tam action. nor had he filed the appropriate "kickback" claims given to him bv Relators Thorpe and Hamrick in late 2001-that he had no choice but to split the case 50/50 with (,redacted) and the Relators she recruited. In other words, the shoddily done Original Complaint filed by Cross, a self-proclaimed qui tam expert had cost Relators Thorpe and Harnricktheir sfanding as 'firstto file' and had also, importantly cost them 50% oftheir case.
It was not, again, until speaking with outside Counsel in September and then in October of 2009 that Relators Thorpe and Hamrick understood that the gross malpractice of attomey Cross in frling the Original complaint was the real reason for losing half their case. Itwas not as Cross stated- that " they should jointhe frm and give them 507o because they were powerfi.rl or had resources". The real reason that Relators Thorpe and Hamrick had to give up half the case was because it was due to attomey Cross malpractice....to wit-
A. Filing of an faulty, incomplete original complaint B. Failing to timely file any amended complaint.
Again, these issues only came to the attention of Relators Thorpe and Hamrick while talking to expert attorneys in September and October of 2009,The Relators could not have known otherwise until this point, or should have reasonably been expected to have known. They had complete trust in the judgement of Attomey Cross at the time.
Hence begins the recent decision, in part, to fire Keith Cross for cause. This was not anything his clients knew or should have known prior to September,2009.It was a sovere case of negligence and breach of Fiduciary duty, just discovered. Clients Thorpe and Hamrick were told previousl]' by Mr. Cross that he was hiehly skilled in these cases. it turned out he was at best incompetent.
8) Regarding 3730 (h) Retaliation claims, attorney Cross let the statute of limitations expire on Relator Thorpe's Claims, at the very least. Any attorney whose client was harassed out of employ for turning in criminal acts directly related to the False Claims Act, should knowthat the Retaliation Claims should be filed as soon as possible. Itwas obvious when the Original Complaint was filed that (redacted) was had reneged on their consideration for a Release, refusing to pay Relator Thorpe compensation due him. The last contact was a letter from Thorpe inNovember of 2001, to the company, after Cross had given up, specifically stating that there was NO release agreement in effect because GSK had not fulfilled their terms of any Release agreement, finthering their harassment of Mr. Thorpe, who had become a whistleblower and witness to their crimes .
Relator Thorpe had no knowledge of any FCA laws at the time,let alone any statute of limitations on filing a Retaliation claim. The terms wrongful termination and Case 1:03-cv-10641-RWZ Document 111-2 Filed 08/30/12 Page 43 of 68
retaliation were used virtually interchangeably throughout this period. Relator Thorpe frequently inquired about statutes, not knowing the true difference between personal wrongful termination suits and any relief due under a False Claims Act statute.
Attorney Cross, knew or should have known that the statute of limitations was contested at the time and either the state statute for FCA cases (2 years in Colorado) or the FCA statute running concurrently (6 years). Counsel should have known that a Supreme Court cas€ wils pending that decided it came down to the various state statutes of limitations, not the 6 year statute for FCA claims.
It was not until an email in September of 2009 from Keith Cross that he finally admitted to Relator Thorpe that the statute of limitations for 3730(h) claims, was 2 years and not six years.
Prior to that time, Cross deceived Relator Thorpe using terms like wrongfrrl termination and retaliation to confirse. Relator Thorpe, only after again talking to competent third party counsel, who told him in September ,2009 that his statute of limitations had run out- finally realized that it was not just a personal wrongfirl termination that had run out. Due specifically to attorney negligence and breach of fiduciary duty, his statute had run onthe very FCA claims that he was terrrinated and later harassed for purzuing.
Attorney Cross, who included the 3730(h) Retaliation claims in the First Amended complaint only, showed that Ins 2 % YEAR delay in filing the amended complaint also cost Relator Thorpe potentially up to 6 million dollars in retaliation claims under the terms of the FCA. In fact recent revisions to this clause would further inflate the amount due Thorpe if duly and timely filed.. Attorney Cross failed to even mention the n€wer statute to either Relator, knowing he was negligent and not wanting the subject discussed.
To this date, Attorney Cross seems to wish to delay the Retaliation issues, even thoughongoing, for both Relators. He has recently made statements that he will ASK the govemment if he can litigate the claims separately, when the FCA law specifically states the govemment retains no interest or say in 3730(h) Retaliation issues..
9) After talking to competent counsel in various states, and finding out finally all of the malpractice issues, being only lay persons..... Relator Thorpe along with Relator Hamrick decided they at least needed to hire an associate Counsel to bring the case to a close regarding all remaining issues. All of the malpractice issues that only came to light in September of 2009 and stated above were proposed to Mr. Cross to be handled by competent Counsel in (redacted), successful qui tam attomey in many pharmaceutical cases.
The Relators still did not want to totally remove Cross from the case. He was a "nice guy", although at this point would seem more like a "wolf in sheep's clothing", having been given the benefit of the doubt at every juncflre inthe case. Case 1:03-cv-10641-RWZ Document 111-2 Filed 08/30/12 Page 44 of 68
At any rate, an agreement was devised whereby Attorney (redacted) was to come on the case. He had a lot of experience and had recently helped settle the (redacted) case. Mr. Cross at first refused to even talk to him. Relators were informed that they had a right to hire an associate Counsel and made up a detailed, fair and logical sharing agreement. This was in spite of the urge to terminate Mr. Cross for cause.
However, Mr. Cross who was dready to receive 40o ,the majority of any award- plus attomeys fees and costs, would not sacrifice a dime to allow for the Relators to pay for a cornpetent attomey to close the case. Therefore the Relators only hope for competent help, without terminating Mr. Cross was gradually coming to an end. The possible monies they should have received had been lost or divided so many times that coming up with exha fees to pay a competent attorney was out of the question. The greed of Mr. Cross at this point, is incredible, especially because he had to know that it was due only to his incompetence and failure to practice any reasonable standard of care, that the Relators had to find outside help.
10) It was also during this same time frame that another issue evolved that had been brewing for some time. The Relators signed a SPECIFIC sharing agreement with the t'wo other Relators under(redacted) as related previously. This agreement was signed in June of 2004 and all the drugs to be shared 50/50 were delineated (reda.cte{D, specifically in the agreement.
Lnthe Amended complaint of Relators Thorpe and Hamrick filed in April of 2005, four drugs were added, that if competent counsel were present would have been in the original complaint. At any rate, it was only relator Thorpe that had any intimate knowledge of any unethical conduct regarding the four drugs. Above all, Relator Thorpe insisted that at least the drug (redacted) was theirs alone-arguing to that effect since April of 2005. The other Relators contributed absolutely nothing with any of the drugs however, and Relators Thorpe and Harnrick had already given the Kelton relators 2 additional drugs to share. At any rate, Attorney Cross who admittedly has conflicts of interests with the Kelton finn, regarding employmen! and possibly other issues, sided withthe opposing Relators and Ms. Kelton.
Attorney Cross, eventhoughthe sharing agreement only included specific drugs at the time of the agreement, and the( redacted ) relators had done nothing to forward the addition of the four drugs at arry time since the sharing agreement took sides against his own clients rights and wishes. He adamantly refused to approach (redacted), even in some amicable bargaining fashion to get his clients what they deserved.
This action was one of the final straws in what had just become known to Relators Thorpe and Hamrick as a continuing and for whatever reason, ongoing lack of response to his own clients best interests and rights in the case.
His client, Relator Thorpe essentially LostT5Yo of any possible awatd, as well as pre-termination retaliation claims. Relator Hamrick lost 50% of the case, also. It was at this juncture that Relators and Clients Thorpe and Hamrick decided that new Counsel may be inevitable. Attorney Cross had cost them up to 80-85% of the case, which could Case 1:03-cv-10641-RWZ Document 111-2 Filed 08/30/12 Page 45 of 68
amount according to recent estimates from Cross, up to $200 million dollars. This had been recently revealed to be a severe issue of malpractice, and was ongoing.
Finally, Keith Cross starts sending status updates in the last few days, very encowaging by mail, which he had never done in almost seven years on the case. In seven years he had to our knowledge made around 6 trips and most of those were recent, to Boston. He has had only 34 productive meetings face to face with Department of Justice attorney (redacted), in Relators opinion. He now begins a pattern of what seems to be preparing for protecting his interests, when in fact now his clients realize that is only what he was interested in for the entire case (his own interests). He tolls his clients he will no longer read emails that are "abusive", when these emails only point out or question his past or previous actions. He has become impossible to ffust or work with, actually hiding malpractice issues with actual lies and half truths. Also, the futh will show that he has relied on the government and (redacted) presentations to do most if not virtual$ all the work. This can be shown by the small under $20,0000 in costs incurred and he claims at most 2000 hours of work, over a 7 year period. Both clients Thorpe and Harnrick feel he is bying to divide and conquer by at least keeping one client. However, both clients are of the belief and opinion that Mr. Cross does not deserve one client, and furttrer never did deserve this important case.
This is a serious matter, not to be treated as some temporary "part time folly"-6y Counsel hired to bring justice to severe civil and criminal acts against patients and trucpayers. However, throughout the years, Mr. Cross has not suffered, as one only needs to visit his website to view the successful medical malpractice cases he has pursued for millions of dollars, while his clients and their farnilies continue to suffer immensely. He has pwsued his own practice to the maximurn, while neglecting and/or letting others perform the work needed on the most important issue of his clients and their families lives.
Unfortunately, both clients and Relators Greg Thorpe and Blair Hamrick have given up years of employ, retirement benefits, pensions and a total of 31 years (24 andT) respectively with (redacted), the Defendants. The Relators Thorpe and Hamrick are the only "true Relators" and in fact the ONLY ones to suffer emotionally and financially on the roller coaster they have been put on.
It is disconcerting to say the least, to be at a juncture where the case may finally bring (redacted) to justice, largely due to our sacrifices, and (redacted) hard work. But yet, at the same time, at a point with their Counsel that will no doubt cause more grief to them, only due to specific and conclusive attomey malpractice
It is hardly a time to celebrate the possible light at the end of the tunnel- Now we are forced to hire competent Counsel, possibly facng future difficulties, and more time getting them up to speed...... because of the recent$ uncovered (9/2009), acts of Keith Cross, who cost his clients at least 800/o of this case in totality, which could be a huge sum of money, that both Relators have earned through sweat and yes, tears.
When asked to come clean about all of these issues. Attorney Cross has Case 1:03-cv-10641-RWZ Document 111-2 Filed 08/30/12 Page 46 of 68
commented by mail and on the phone that they (his clients) need to take these issues up with "separate Counsel".....he will not answer to us, his clients of seven years. Well, the advice of Mr. Cross will be well taken at this point and that can be assured.
It is for these reasons, but not only these reasons..(there may be others we do not understand), and there are other issues of ethics involving other Counsel that need not be disclosed for purposes here....that we finally do terminate the employment of attorney Keith Cross, for just cause and deny that he should be paid anything for this litany of what we see as sheer incompetence, negligence, conflict of interests, breach of contract and fiduciary duties that h€ was hired to complete. On the contrary, he should be held responsible for all the issues above, financially and professionally as a Court sees fit and proper, under the circumstances. This may include, but not be limited to malpractice actions and the involvement of the Colorado Supreme Court-Office of Attorney Regulatory Counsel, depending on the response of Mr- Cross.
-EFID OF LETTER- (signed by both parties and sent to Cross on 10/21109 by email, facsimile and regular mail)
2) IMPORTAIIT ADDITIONS from Plaintiff Hamrick/Ihorpe (pre-temination of Cross): Most recently, about two weeks prior to his terrrination, he began contacting only one Relator-clientn Mr. Hamrick,even though he was still representing both as a team and Co-Relators...telling him he can set loans and giving him information about how in the last few days the case looks even brighter for them qtlogl-Thorpp, further telling Mr. Harnrick not to tell Mr. Thorpe he had called, telling Mr. Hamrick that Mr.. Thorpe had psycholosical issues that were disrunfins the matter. and demanding that Hamrick keep him as Counsel should T ..
Cross had multiple conversations with Hamrick, the co-relatorwithout informins his other client. and original client. Greg Thorpe. Cross also alleged to Hamrick that ThorBe demeaned his (Hamricks) Retaliation case asainst the company. and would attempt to lower Ilamricks percentage of the case further. (among other issues.).
3) ADDITIONS TO GRIEVANCE discovered recently, and ongoing in nature-- tutu09
Keith Cross recently filed an Amended Complaint in the matter, on his own. without the clients reading the document. This is the case of the clientso not the attorney. They are the Plaintiffs/Relators in the maffer and anything filed in the case must be reviewed and met with their approval. Keith Cross frled a Complaint (at$ to the Plaintiffs original filing. The Plaintiffs had no idea what the document said. had no chance to proof read the document -and they have never given Counsel the authori8 to file Complaints against the Defendant in the matter without their review. approval and usuallv signature.
Hence, many errors are evident in the complaint that should have been corrected. Importantly even one paragraph. # 82 was redacted. so that the clients. even if they were Case 1:03-cv-10641-RWZ Document 111-2 Filed 08/30/12 Page 47 of 68
allowed to preview the complaint. were prohibited from viewine. This is another acute act of gross negligence and malpractice, which in itself compromises the ability of the Plaintiffs to plead their own case. It also puts them in legal jeopardy. Cross at the time, early October 2009 knew his employment may be terminated, as he was informed of the adverse events of his actions. Yet, on his own and without full knowledge or consent of his client Plaintiffs he filed an entirelv different complaint against the Defendants._ Plaintiffs Thorpe and Hamrick have no idea what the hidden paragraph says to the Defendents. but it is obviousl)' . to say the least abnormal procedure to file something as an attorney- representing Plaintiffclients to the Defendants without letting the Plaintiffs even see the filing. At the end of the complaint it reads by Realtors Greg Thorpe and Blair Hamrick, through their attomeys... and is signed by Keith Cross.For some reason unknown to the Plaintiffs Hamrick and Thorpe, Keith Cross took the role of Plaintiffand filed a Motion. partially blacked out. and again without the Plaintiffs approval. The PlaintifflRelators were not even provided a Certificate of Service on the final page either, as they were never copied nor informed when the Cornplaint was filed on Ocotber 2, 2009.
Connsel Marcella Auerbach and Counsel Bill Martinez ... the new Attornevs for RelatorslPlaintiffs shown below are now investigating the tactics of Keith Cross in sltpping the Complaint into the case without review, or even copied provided until after he was terminated and copy was requested by current counsel. The date again of the Cross termination letter was l0l2ll09 and he was given notice on that date by Facsimile, Email, and certified Regular Mail.
Now. it seems, the Plaintiffs are held responsible for a 135 pase filins that thev had no knowledge of when filed, were not even allowed to review the contents" and in fact at least one entire paraeraph was redacted from their view. vet filed under their name. The malpractice is ongoing and must be stopped.
In a recent hearing for dismissal of Cross on 11/09/09, Cross dernanded to the Cotut that he still be involved in the case-- with no standing whatsoever....intimating that he may file an Attorneys lien against the Plaintiffs/Relators. Although that may be his right, and will be an issue for the Court, it does not allow him to actively participate or be involved in the case in anv way, His employ was terminated officially by the Court in a hearing held on 1ll9/09 in which Attorney for Thorpe/Hamrick appeared, namely William Martinez, Esq. of Denver.
ST]MMARY:
Attorney CROSS engaged in a specific, malicious, scheme playing one client against the other. He lied and made gross general misrepresentation to both clients. He attempted to bribe, coerce, blackmail and threaten Mr. Hamrick by offering him loans, misleading him in many different ways, demeaning and slandering his partner, Thorpe and using other unethical ploys to break the Plaintiffs from each other, in order that possibly he would be retained by one at least, in the case . Both Clients had equal standing in the case, had signed the same contingency agreement and at the time both were considering termination of Cross for cause, as the contract allowed. Case 1:03-cv-10641-RWZ Document 111-2 Filed 08/30/12 Page 48 of 68
This conduct flies in the face of any type of ethics and is clearly an issue of malpractice at it's worst... to be avoided at all costs when representing multiple clients equally and jointly. Mr. Hamrick was directly approached, independently in many ways and Mr. Thorpe was grossly slandered by Mr. Cross, soley for the purpose of retention on the case. tvlr. Haffick has a clear record of the conversations and the dates they occurred.
It became evident to both that Cross needed to be terminated for just cause and these acts were the final straw in the eyes of both clients Thorpe and Hamrick. Both clients were in financial hardship, yet only one was offered a loan from attorney Cross. It was no more than a bribe on top of all of the other slanderous lies to Hamrick regarding Thorpe (his partner of 7 years).
It also needs to be noted that following his termination on l0l2ll09, Mr. Cross continued to contact Department of Justice Attorneys, violating Attomey-Client privilige and demeaning the acts of the two Relators in the case, slandering their motives and intentions in his removal to not only both DOJ attorneys involved but the lawfirm sharing proceeds of the case 50/50 with the two original Relators, his clients..Thorpe and Hamrick. Both Thorpe and Hamrick have intimate knowledge of this, yet the seal prevents the discussion of the actions of Cross shortly before and then after his terrnination for cause.
It is the sincere opinion, and especially due to the ongoing insults, threats and slander coming from Attomey Cross to others involved in the case that he should be punished as harshly as possible, up to and including his ability to practice law in the State of Colorado. The Relators are essentially trnder a "gag order" due to the seal, yet Cross continues to defame the intentions of his former clients and even after the fact, mislead DOJ officials regarding the reasons for his termination. Thorpe and Hamrick remain unable to defend themselves from this continuing unethical behavior due to the Seal they have to comply with, yet Cross freely has violated every aspect of the conditions of his employ.
**Confidentiality is extreme$ important, and if assured that we can discuss the people/company involved in the matter, we will-- provided the Seal remain intact, as it has for seven (7) years. That is up to the Supreme Court OIfice of attomey regulations to assure us confidentiality as required.
X'oryour information : Current Counsel for Relators/Plaintiffs Greg Thorpe and Blair Hamrick are:
Bill Martinez. Esq.r l)enver, Co. ( McNamara, Roseman, Martinez & Kazmierski LLP)
Nolan and Auerbach (Marcella Auerbach, Esq.) X't. Lauderdale, X'1.
Both Counsel know of the actions of Keith Cross, support the Plaintiffs and of course, Case 1:03-cv-10641-RWZ Document 111-2 Filed 08/30/12 Page 49 of 68
were informed of thepossibility of a grievance. However, this matter is confidential as required, at this time.
For the committees information, the reputation of the above Counsel is "stellar" and Ms. Auerbach, was a high ranking prosecuting attorney in the United Stated Department of Justice, State of Florida for almost 25 years. The Plaintiffs have her full backing, and although Bill Martinez,Esq, is relatively new to the case, he has also some knowledge of the malpractice alleged by Plaintiffs Hamrick and Thorpe in the sealed matter with the Deparhrent of Justice in Colorado as well as in Massachussetts.
Please feel free to contaet either party at the addresses or phone numbers shown at the top ofthe correspondence.
Sincerely,
Greg Thorpe
Blair Hamrick Case 1:03-cv-10641-RWZ Document 111-2 Filed 08/30/12 Page 50 of 68 Case 1:03-cv-10641-RWZ Document 111-2 Filed 08/30/12 Page 51 of 68 Case 1:03-cv-10641-RWZ Document 111-2 Filed 08/30/12 Page 52 of 68 Case 1:03-cv-10641-RWZ Document 111-2 Filed 08/30/12 Page 53 of 68 Case 1:03-cv-10641-RWZ Document 111-2 Filed 08/30/12 Page 54 of 68
EXHIBIT 10 Case 1:03-cv-00008-WYD-BNB *SEALED* Document 71 Filed 11/12/2009 USDC Colorado Page 1 of 6 Case 1:03-cv-10641-RWZ Document 111-2 Filed 08/30/12 Page 55 of 68
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
UNITED STATES OF AMERICA ) EX REL. [UNDER SEAL] ) C.A. No. 03-CV-00008- WYD - BNB ) Plaintiffs, ) v. ) )NOTICE OF ATTORNEY’S LIEN [UNDER SEAL] ) Defendants ) ______)
FILED IN CAMERA AND UNDER SEAL
Keith Cross, Esq. Joseph F. Bennett, Esq. CROSS & BENNETT, L.L.C. 108 E. St. Vrain, #20 Colorado Springs, CO 80903 Tel: (719) 633-1359 Fax: (719) 633-5788
Interested Parties Case 1:03-cv-00008-WYD-BNB *SEALED* Document 71 Filed 11/12/2009 USDC Colorado Page 2 of 6 Case 1:03-cv-10641-RWZ Document 111-2 Filed 08/30/12 Page 56 of 68
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
CIVIL ACTION NO: 03 CV 00008 WYD - BNB
UNITED STATES OF AMERICA ex rel. GREGORY W. THORPE and BLAIR HAMRICK,
Plaintiffs,
vs
SMITH KLINE BEECHAM INC. and GLAXOSMITHKLINE PLC d/b/a GLAXOSMITHKLINE, Defendants.
NOTICE OF ATTORNEY’S LIEN
PLEASE TAKE NOTICE that pursuant to C.R.S. §§ 12-5-119 and 12-5-120, the law
firm of Cross & Bennett, L.L.C. (herein, “Cross & Bennett”) claims an attorney’s lien upon a
portion of all monies, properties, choses in action, claims and demands in suit, upon any property
which may be awarded to the Relators in this matter and upon any and all Relator shares,
regardless of the source of those shares, and upon any money due to the Relators and Plaintiffs in
the hands of Defendants SMITH KLINE BEECHAM INC. and GLAXOSMITHKLINE PLC
d/b/a GLAXOSMITHKLINE, the United States of America, the Department of Justice, and the
states of California, Delaware, Florida, Georgia, Hawaii, Illinois, Indiana, Louisiana,
Massachusetts, Michigan, Nevada, New Hampshire, New Jersey, New Mexico, New York,
Oklahoma, Rhode Island, Tennessee, Texas, Virginia, Minnesota, North Carolina and
Wisconsin, and the District of Columbia, and any other state that is a participant in the settlement
or judgment in the instant case, or in the currently sealed case of United States ex rel. Gerahty v.
GlaxoSmithKline PLC and SMITHKLINEBEECHAM PLC, C.A. No. 1 03-CV-10641-NG filed Case 1:03-cv-00008-WYD-BNB *SEALED* Document 71 Filed 11/12/2009 USDC Colorado Page 3 of 6 Case 1:03-cv-10641-RWZ Document 111-2 Filed 08/30/12 Page 57 of 68
in the United States District Court for the District of Massachusetts, or in any other sealed or
unsealed case against Defendants arising from or related to the same causes of action. As
grounds therefore, the undersigned attorneys state the following:
1. On November 27, 2002, Relators Thorpe and Hamrick retained Cross & Bennett
to represent them in this action through attorneys Keith Cross, Esq., and Joseph F. Bennett, Esq.
2. The compensation agreement between Cross & Bennett and the Relators is set
forth in the operative written Contingent Fee Agreement (the “Agreement”) dated February 1,
2007. This Agreement superseded a written Contingent Fee Agreement executed on November
27, 2002. The nature of the compensation Relators agreed to pay Cross & Bennett is detailed in
the Agreement. Further, Cross & Bennett agreed to advance money for costs related to the matter
and in the event of settlement or judgment, these costs will be reimbursed in full. A copy of the
Agreement is attached as Exhibit #1 to this Notice of Attorney’s Lien, without “Appendix A”
referenced in the Agreement, which is not related to attorney compensation. A copy of the first
Contingent Fee Agreement dated November 27, 2002 is attached as Exhibit #2.
3. On or about October 21, 2009, the Relators terminated the services of Cross &
Bennett without cause.
4. The Plaintiffs and Relators may collect funds by way of settlement or judgment of
the federal and pendant state claims in this matter. Accordingly, the Plaintiffs and Relators are
indebted to Cross & Bennett for a portion of all Relator shares, monies, properties, choses in
action, claims and demands in suit, upon any property which may be awarded to the Plaintiffs
and Relators in this matter, and upon any money due to the Plaintiffs and Relators in the hands of
the Defendants, including all relator share payments from the United States of America and all Case 1:03-cv-00008-WYD-BNB *SEALED* Document 71 Filed 11/12/2009 USDC Colorado Page 4 of 6 Case 1:03-cv-10641-RWZ Document 111-2 Filed 08/30/12 Page 58 of 68
relator share payments made from any of the states participating in the settlement or judgment of
this matter.
WHEREFORE, by this notice, Cross & Bennett hereby claim an attorney’s lien on a
portion of all monies, properties, choses in action, claims and demands in suit, upon any property
which may be awarded to any Relators in this matter, upon any and all Relator shares, including
any money due to Relators that is in the hands of Defendants SMITH KLINE BEECHAM INC.
and GLAXOSMITHKLINE PLC d/b/a GLAXOSMITHKLINE, and any Relator shares whether
awarded by the United States of America and the Department of Justice, the states of California,
Delaware, Florida, Georgia, Hawaii, Illinois, Indiana, Louisiana, Massachusetts, Michigan,
Nevada, New Hampshire, New Jersey, New Mexico, New York, Oklahoma, Rhode Island,
Tennessee, Texas, Virginia, Minnesota, North Carolina and Wisconsin, and the District of
Columbia, or any other state or governmental body participating in the judgment or settlement of
the claims herein, or resulting from the judgment or settlement of the claims herein, and any and
all cases against the Defendants, sealed or unsealed, that are related in any way to the judgment
or settlement of the claims herein, including but not limited to United States ex rel. Gerahty v.
GlaxoSmithKline PLC and SMITHKLINEBEECHAM PLC, C.A. No. 1 03-CV-10641-NG filed
in the United States District Court for the District of Massachusetts, and any other sealed or
unsealed cases known or as yet unknown against these Defendants arising from or related to the
same causes of action, and upon any money due to the Relators and Plaintiffs in the hands of the
Defendants. Case 1:03-cv-00008-WYD-BNB *SEALED* Document 71 Filed 11/12/2009 USDC Colorado Page 5 of 6 Case 1:03-cv-10641-RWZ Document 111-2 Filed 08/30/12 Page 59 of 68
Respectfully submitted this 12th day of November 2009.
/s/ Keith Cross Keith Cross, Esq. Cross & Bennett, L.L.C. 108 E. St. Vrain, Suite #20 Colorado Springs, CO 80903 Telephone: (719) 633-1359 Facsimile: (719) 578-5127
/s/ Joseph F. Bennett Joseph F. Bennett, Esq. Cross & Bennett, L.L.C. 108 E. St. Vrain, Suite #20 Colorado Springs, CO 80903 Telephone: (719) 633-1359 Facsimile: (719) 578-5127 Case 1:03-cv-00008-WYD-BNB *SEALED* Document 71 Filed 11/12/2009 USDC Colorado Page 6 of 6 Case 1:03-cv-10641-RWZ Document 111-2 Filed 08/30/12 Page 60 of 68
CERTIFICATE OF SERVICE I further certify that on the 12th day of November, 2009 I caused to be served and delivered a true and correct copy of the foregoing to the following addressees:
Marcella Auerbach, Esq. /s/ Dionne L. Alexander Nolan & Auerbach, P.A. Dionne L. Alexander, CLA 435 N. Andrews Avenue Suite 401 Paralegal for Cross & Bennett, LLC Ft. Lauderdale, FL 33301
Attorney General Eric Holder U.S. Department of Justice 950 Pennsylvania Avenue, NW Washington, DC 20530-0001
Department of Justice Andy Mao, Sr. Counsel for Health Care Fraud 601 D Street NW Washington, D.C. 20005
Civil Process Clerk Hon. David M. Gaouette United States Attorney Asst. U.S. Atty. Edwin Winstead, United States Attorney for the District of Colorado 1225 Seventeenth Street, Suite 700 Denver, CO 80202
Civil Process Clerk Hon. Michael K. Loucks Asst. U.S. Atty. Sara Bloom United States Attorney for the District of Massachusetts 1 Courthouse Way, Suite 9200 Boston, MA 02210 Case 1:03-cv-00008-WYD-BNB *SEALED* Document 71-2 Filed 11/12/2009 USDC Colorado Page 1 of 4 Case 1:03-cv-10641-RWZ Document 111-2 Filed 08/30/12 Page 61 of 68
EXHIBIT #1
CONTINGENT FEE AGREEMENT Case 1:03-cv-00008-WYD-BNB *SEALED* Document 71-2 Filed 11/12/2009 USDC Colorado Page 2 of 4 Case 1:03-cv-10641-RWZ Document 111-2 Filed 08/30/12 Page 62 of 68 Case 1:03-cv-00008-WYD-BNB *SEALED* Document 71-2 Filed 11/12/2009 USDC Colorado Page 3 of 4 Case 1:03-cv-10641-RWZ Document 111-2 Filed 08/30/12 Page 63 of 68 Case 1:03-cv-00008-WYD-BNB *SEALED* Document 71-2 Filed 11/12/2009 USDC Colorado Page 4 of 4 Case 1:03-cv-10641-RWZ Document 111-2 Filed 08/30/12 Page 64 of 68 Case 1:03-cv-00008-WYD-BNB *SEALED* Document 71-3 Filed 11/12/2009 USDC Colorado Page 1 of 4 Case 1:03-cv-10641-RWZ Document 111-2 Filed 08/30/12 Page 65 of 68
EXHIBIT #2
INITIAL CONTINGENT FEE AGREEMENT (11/27/02) Case 1:03-cv-00008-WYD-BNB *SEALED* Document 71-3 Filed 11/12/2009 USDC Colorado Page 2 of 4 Case 1:03-cv-10641-RWZ Document 111-2 Filed 08/30/12 Page 66 of 68 Case 1:03-cv-00008-WYD-BNB *SEALED* Document 71-3 Filed 11/12/2009 USDC Colorado Page 3 of 4 Case 1:03-cv-10641-RWZ Document 111-2 Filed 08/30/12 Page 67 of 68 Case 1:03-cv-00008-WYD-BNB *SEALED* Document 71-3 Filed 11/12/2009 USDC Colorado Page 4 of 4 Case 1:03-cv-10641-RWZ Document 111-2 Filed 08/30/12 Page 68 of 68