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Motion for Clarification of This Court’S April 4, 2008 Order in Mcintosh

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Motion for Clarification of This Court’S April 4, 2008 Order in Mcintosh IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF MISSISSIPPI SOUTHERN DIVISION UNITED STATES OF AMERICA ex rel.; CORI RIGSBY; AND KERRI RIGSBY RELATORS/COUNTER-DEFENDANTS v. CASE No. 1:06-cv-433-LTS-RHW STATE FARM MUTUAL INSURANCE COMPANY DEFENDANT/COUNTER-PLAINTIFF and FORENSIC ANALYSIS ENGINEERING CORPORATION; EXPONENT, INC.; HAAG ENGINEERING CO.; JADE ENGINEERING; RIMKUS CONSULTING GROUP INC.; STRUCTURES GROUP; E. A. RENFROE, INC.; JANA RENFROE; GENE RENFROE; AND ALEXIS KING DEFENDANTS RELATORS’ LOCAL RULE 7.2(h) MOTION FOR CLARIFICATION OF THIS COURT’S APRIL 4, 2008 ORDER IN MCINTOSH Pursuant to Uniform Local Rule 7.2 (h), Cori and Kerri Rigsby (the “Relators” or “Rigsbys”), through undersigned counsel, respectfully move this Court for clarification of its April 4, 2008, Order of Disqualification entered in McIntosh v. State Farm Fire & Cas. Co., No: 1:06-cv-1080, Docket No. [1173] (“McIntosh Order”). Specifically, the Relators move this Court to confirm that the McIntosh Order does not preclude them from testifying in this action. As set forth below, undersigned counsel believe that the McIntosh Order quite clearly does not preclude the Rigsbys from testifying in this False Claims Act case. However, we file this motion out of an abundance of caution to confirm that our reading of the order, which predated our appearances in this matter, is accurate. 1. On April 4, 2008, this Court issued the McIntosh Order, which disqualified the Scruggs Katrina Group (“SKG”) and other attorneys “from representing these plaintiffs or any other individuals who have claims against State Farm Fire and Casualty Company and against E.A. Renfroe & Company, Inc., for property damage sustained in Hurricane Katrina in this case and any other cases in the United States District Court for the Southern District of Mississippi.” McIntosh Order at 1. The Order also disqualified the Rigsbys as witnesses. Id. 2. The disqualifications in the McIntosh Order do not appear to apply to this case because this case was not brought by “individuals who have claims against State Farm . for property damage sustained in Hurricane Katrina.” Id. at 1 (emphasis added). Rather, this action was brought on behalf of the United States to determine whether State Farm and the other defendants submitted false claims for payment under the National Flood Insurance Program. See Memorandum Opinion May 19, 2008 (“May 19th Opinion”) Docket No. [780] at 1 (“[t]he United States is the real party in interest, even when it declines to intervene”). 3. Indeed, this Court’s May 19th Opinion, which disqualified the Relators’ successor counsel from this action, is consistent with this interpretation of the McIntosh Order. The May 19th Opinion described the McIntosh Order as having (1) disqualified members of the SKG “from further participation in the storm damage cases pending in this court;” and (2) disqualified the Rigsby sisters “as witnesses in these individual cases.” Id. at 3 (emphasis added). 4. The May 19th Opinion went on to hold that the Relators’ successor counsel should be disqualified from this matter, but found that “[f]rom the point of view of the Rigsby 2 Sisters, I see no evidence that at the time they made their arrangement with Scruggs they were aware of the ethical implications of such an agreement.” Id. at 5. 5. Accordingly, this Court appears to have held that the basis for disqualification of counsel from this matter does not apply to the Rigsbys, and therefore does not disqualify them as witnesses in this case. 6. In addition, this Court’s Scheduling Order for Dispositive Motions Pending on August 5, 2008, provided instructions for how parties should designate deposition testimony given by the Rigsbys. Docket No. [205] at 2. Since this Court is allowing the parties to use deposition testimony previously given by the Rigsbys, it seems highly unlikely that this Court intended the McIntosh Order to preclude the Rigsbys from testifying in this case. 7. Moreover, we respectfully submit that our reading of this Court’s orders is consistent with the False Claims Act, which includes statutory protections for whistleblowers that are “intended to encourage those with knowledge of fraud to come forward.” Robertson v. Bell Helicopter Textron, Inc., 32 F.3d 948, 951 (5th Cir. 1994). Indeed, courts have not allowed companies to prevent their employees from disclosing evidence of fraud to the United States government. See, e.g., U.S. v. Cancer Treatment Centers of America, 350 F.Supp.2d 765, 773 (N.D. Il. 2004) (agreeing with the government and the relator that even a “confidentiality agreement cannot trump the FCA’s strong policy of protecting whistleblowers who report fraud against the government”); X Corp v. Doe, 805 F.Supp. 1298, 1310 at n.24 (E.D. Va. 1992) aff’d, Under Seal v. Under Seal, 17 F.3d 1435, No. 93-1495 (4th Cir.1994) (unpublished table decision) (“To the extent it prevented disclosure of evidence of a fraud on the government, [a Confidentiality Agreement] would be void as contrary to public policy. In other words, X. Corp cannot rely on any contract to conceal illegal activity.”). 3 WHEREFORE, we respectfully move this Court to clarify the McIntosh Order by confirming that it does not preclude the Relators from testifying in this case. THIS the 8th day of August, 2008. Respectfully submitted, /s/ C. Maison Heidelberg C. MAISON HEIDELBERG, MB #9559 GINNY Y. KENNEDY, MB #102199 OF COUNSEL: MAISON HEIDELBERG P.A. 795 Woodlands Parkway, Suite 220 Ridgeland, Mississippi 39157 Phone No. (601) 351-3333 Fax No. (601) 956-2900 August J. Matteis, Jr. (admitted pro hac vice) Craig J. Litherland (admitted pro hac vice) Benjamin Davidson (admitted pro hac vice) GILBERT RANDOLPH LLP 1100 New York Avenue NW Suite 700 Washington, DC 20005 Phone No. (202) 772-2200 Fax No. (202) 772-3333 Attorneys for Cori Rigsby and Kerri Rigsby 4 CERTIFICATE OF SERVICE I, C. Maison Heidelberg, attorney for Cori Rigsby and Kerri Rigsby, do hereby certify that I have this day caused a true and correct copy of the foregoing instrument to be delivered to the following, via the means directed by the Court’s Electronic Filing System or as otherwise set forth below: Larry G. Canada, Esq. Kathryn Breard Platt, Esq. GALLOWAY, JOHNSON, TOMPKINS, BURR & SMITH 701 Poydras Street, Suite 4040 New Orleans, LA 70139 (p) 504-525-6802 ATTORNEYS FOR HAAG ENGINEERING CO. William C. Bell, Esq. WILLIAM C. BELL, ATTORNEY P.O. Box 1876 Ridgeland, MS 39157 (p) 601-956-0360 ATTORNEY FOR JADE ENGINEERING James C. Simpson, Jr., Esq. MONTGOMERY, BARNETT, BROWN, READ, HAMMOND & MINTZ, LLP 2310 19th Street Gulfport, MS 39501 (p) 228-863-6534 David A. Ward, Jr., Esq. THE WARD LAW FIRM 10003 Woodloch Forest Drive, Suite 100 The Woodlands, TX 77382 (p) 281-362-7728 ATTORNEYS FOR RIMKUS CONSULTING GROUP, INC Frank W. Trapp, Esq. Kelly R. Blackwood, Esq. PHELPS DUNBAR P.O. Box 23066 Jackson, MS 39225 (p) 601-352-2300 ATTORNEYS FOR STRUCTURES GROUP H. Hunter Twiford, III, Esq. MCGLINCHEY STAFFORD P. O. Drawer 22949 Jackson, MS 39225 (p) 601-960-8400 Beth C. McClain, Esq. John T. Boese, Esq. FRIED, FRANK, HARRIS, SHRIVER & JACOBSON, LLP 1001 Pennsylvania Avenue, N.W., Suite 800 Washington, DC 20004 ATTORNEYS FOR E. A. RENFROE, INC., GENE RENFROE, AND JANA RENFROE Robert C. Galloway, Esq. Emerson Barney Robinson, III, Esq. Jeffrey A. Walker, Esq. BUTLER, SNOW, O’MARA, STEVENS & CANNADA, PLLC P.O. Box 22567 Jackson, MS 39225 (p) 601-948-5711 Michael B. Beers, Esq. BEERS, ANDERSON, JACKSON, PATTY & FALWAL, PC 250 Commerce Street, Suite 100 Montgomery, AL 36104 (p) 334-834-5311 ATTORNEYS FOR STATE FARM MUTUAL INSURANCE COMPANY Philip Williams Thomas, Esq. PHILIP W. THOMAS, P.A. P.O. Box 24464 Jackson, MS 39225 (p) 601-714-5660 ATTORNEY FOR EXPONENT, INC. Felicia C. Adams, Esq. U. S. Attorney’s Office 188 E. Capitol Street, Suite 500 Jackson, MS 39201 (p) 601-965-4480 ATTORNEY FOR UNITED STATES OF AMERICA 2 Via U.S. First Class Mail Robert K. Kochan, President 3401 Atlantic Avenue, Suite 101 Raleigh, NC 27604 FORENSIC ANALYSIS ENGINEERING CORPORATION, PRO SE This 8th day of August, 2008 /S/C. Maison Heidelberg Maison Heidelberg MSB #9559 MAISON HEIDELBERG P.A. 795 Woodlands Parkway Suite 220 Ridgeland, MS 39157 3.
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