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  #521  
Old 01-01-13, 00:52
D-Queued D-Queued is offline
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The SCA situation is interesting because SCA and Armstrong already litigated the issues in arbitration. SCA was forced to settle because the original contract did not forbid doping. What has changed?

There might be an argument that Armstrong lying about his drug use in his deposition was not material to the case. Armstrong's lawyers might be able to draw the case out for years by arguing every nitty gritty procedural point. They will start with contesting whether SCA can even reopen the can of worms ten years after it was closed. They will point to the ASO saying Riis is not considered the winner in 1996 but the ASO backtracked; in ten years time will Armstrong be expected to sue SCA if the ASO has a similar change of mind? They will use their own parsing of the contract language to say that "winning" meant being declared the winner at the end of the Tour. They will use the time thta has passed. It has been ten years. How many months or years of back and forths will it take to force Armstrong to be deposed?
Unbeknownst to the Court, SCA and Lance at the time: Lance didn't actually win any TdFs even though this was well understood by the infamous Forum 12.

Completely different circumstances.

Just as the original arbitration was not about doping, this case shouldn't be either.

Dave.
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  #522  
Old 01-01-13, 01:18
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Using the threat of deposing of Armstrong as leverage does not give SCA carte blanche to demand whatever it wants. There is a limit that Armstrong will determine by looking at the the various cases that can be filed against him; the probability of winning and losing each potential case; his own financial ability to withstand the best, most probable, and worst case scenarios; and his comfort with risking the worst. My point is that if the SCA's case is weak, and I am guessing the settlement agreement will be very hard to set aside, then the total amount from all cases that Armstrong is likely to lose is considerably lower than what would make SCA whole, which with legal fees and interest would be about $20M. There is no reason for Armstrong to settle for anything close to $20M if he figures that he can fight everything and most likely pay out somewhere around $10M. It would come down to whether his pride of continuing to deny is worth $10M to him. If he is borrowing $8M against his house then I will guess that $10M is a very large chunk of change to him despite whatever estimates Forbes has made about his net worth.

My second point is that SCA's deposition leverage has a time limit on it. It becomes worthless if the DOJ joins the qui tam. Armstrong's lawyers might use delaying tactics to put off making a settlement. If the DOJ acts during the delay then Armstrong will be able to get away with a much lower settlement figure.

I am skeptical about the qui tam anyway because if the DOJ was serious about recovering money then it would have kept the criminal case active so it could be used as pressure to force a settlement. This sort of thing seems to happen all the time in white collar cases. A settlement is made, no criminal charges are brought, and no admission of guilt is made.
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  #523  
Old 01-01-13, 01:29
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Fortyninefourteen Fortyninefourteen is offline
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Quote:
Originally Posted by BroDeal View Post
The SCA situation is interesting because SCA and Armstrong already litigated the issues in arbitration. SCA was forced to settle because the original contract did not forbid doping. What has changed?

There might be an argument that Armstrong lying about his drug use in his deposition was not material to the case. Armstrong's lawyers might be able to draw the case out for years by arguing every nitty gritty procedural point. They will start with contesting whether SCA can even reopen the can of worms ten years after it was closed. They will point to the ASO saying Riis is not considered the winner in 1996 but the ASO backtracked; in ten years time will Armstrong be expected to sue SCA if the ASO has a similar change of mind? They will use their own parsing of the contract language to say that "winning" meant being declared the winner at the end of the Tour. They will use the time thta has passed. It has been ten years. How many months or years of back and forths will it take to force Armstrong to be deposed?
All while Herman and co. run the meter @ 500 per hour for Timmy, and 200-300 for his grunts. 10 K a day to sniff for safety...WINNING a la Charlie Sheen....
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  #524  
Old 01-01-13, 10:55
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Originally Posted by D-Queued View Post
Unbeknownst to the Court, SCA and Lance at the time: Lance didn't actually win any TdFs even though this was well understood by the infamous Forum 12.

Completely different circumstances.

Just as the original arbitration was not about doping, this case shouldn't be either.

Dave.
This is absolutely right. I really don't understand the 1 million dollar settlement approach of camp Armstrong.
Not to forget the perjory charges he might be getting in the near future.
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  #525  
Old 01-01-13, 13:30
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Originally Posted by D-Queued View Post
Unbeknownst to the Court, SCA and Lance at the time: Lance didn't actually win any TdFs even though this was well understood by the infamous Forum 12.

Completely different circumstances.

Just as the original arbitration was not about doping, this case shouldn't be either.

Dave.
This..........................
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  #526  
Old 01-01-13, 22:50
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Here is one track that will be played out if SCA files the lawsuit we are talking about. At any point this track may be interrupted by a final settlement agreement.

(1) SCA files its lawsuit.

(2) At the outset, Lance Armstrong moves to dismiss. He argues that the final settlement agreement precludes any further litigation regarding the original SCA insurance contract(s) and the earlier related litigation. He also moves to stay discovery (namely, his deposition), pending resolution of his motion to dismiss.

The stay of discovery pending resolution of the motion to dismiss (and the scope of the stay) will be highly contested. SCA is going to argue that it needs discovery to adequately respond to Lance's motion to dismiss. Lance is going to argue that the whole point of the settlement agreement was to forestall any further litigation over the set of facts now presented by SCA. Lance's fallback position is that discovery is only appropriate regarding the circumstances surrounding the execution of the settlement agreement.

Regarding the stay of discovery: If Lance Armstrong loses on both his original position and his fallback position, then he's going to get deposed about his doping before his motion to dismiss is decided. SCA will be in a dominant position from now until the resolution of the motion to dismiss. The settlement value of the case is now massively jacked up in favor of SCA (because Lance wants to avoid his deposition).

The motion to dismiss is then heard by the court.

(2)(a) If Lance Armstrong wins, the case is over and SCA gets to cry in its beer.

(2)(b) If SCA wins, then the case proceeds. Lance will wriggle on the hook, but eventually he will be deposed under penalty of perjury (if he hasn't already been sufficiently deposed). That is very bad for Lance, for reasons discussed before in this thread. The litigation will be a quagmire and lots of attorney money will be spent before the case is ultimately resolved. I'll leave prediction of the ultimate outcome to others. I like SCA's chances should the the settlement agreement be invalidated.

Ignoring the settlement agreement already entered into in this case is ridiculous. Courts favor settlement agreements and will enforce them. It is impossible for us to reliably predict the outcome of Lance's motion to dismiss because we know nothing about the terms of the settlement agreement or the circumstances surrounding its execution.

My guess is that the settlement agreement will be enforced. I'm guessing it was an arm's length deal that was intended to finally end all possibility of future litigation between SCA and Lance Armstrong. The idea that SCA can invalidate the settlement agreement based upon a fraud theory appears silly to me. I note that Chewbacca has posed some ideas on how SCA can defeat the settlement agreement defense on theories not related to fraud. Maybe those theories can work. Again, we're all guessing here.
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  #527  
Old 01-01-13, 23:08
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Unless SCA wants to go whole hog and argue that the original contract was a scheme to defraud, much like an arsonist taking out fire insurance on a building he intends to burn down, Armstrong's doping is irrelevant to what SCA paid out. That issue was already decided in the previous arbitration.

Wouldn't it be funny if the settlement agreement prevents SCA from getting its $7.5M back from the contract's last year but does not prevent it from getting back money from the previous years?
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  #528  
Old 01-02-13, 02:12
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It is not a question "If" SCA will file but "When".

I expect the month of January will have lots of billable hours
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  #529  
Old 01-02-13, 02:17
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MacRoadie MacRoadie is offline
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Quote:
Originally Posted by MarkvW View Post
Here is one track that will be played out if SCA files the lawsuit we are talking about. At any point this track may be interrupted by a final settlement agreement.

(1) SCA files its lawsuit.

(2) At the outset, Lance Armstrong moves to dismiss. He argues that the final settlement agreement precludes any further litigation regarding the original SCA insurance contract(s) and the earlier related litigation. He also moves to stay discovery (namely, his deposition), pending resolution of his motion to dismiss.

The stay of discovery pending resolution of the motion to dismiss (and the scope of the stay) will be highly contested. SCA is going to argue that it needs discovery to adequately respond to Lance's motion to dismiss. Lance is going to argue that the whole point of the settlement agreement was to forestall any further litigation over the set of facts now presented by SCA. Lance's fallback position is that discovery is only appropriate regarding the circumstances surrounding the execution of the settlement agreement.

Regarding the stay of discovery: If Lance Armstrong loses on both his original position and his fallback position, then he's going to get deposed about his doping before his motion to dismiss is decided. SCA will be in a dominant position from now until the resolution of the motion to dismiss. The settlement value of the case is now massively jacked up in favor of SCA (because Lance wants to avoid his deposition).

The motion to dismiss is then heard by the court.

(2)(a) If Lance Armstrong wins, the case is over and SCA gets to cry in its beer.

(2)(b) If SCA wins, then the case proceeds. Lance will wriggle on the hook, but eventually he will be deposed under penalty of perjury (if he hasn't already been sufficiently deposed). That is very bad for Lance, for reasons discussed before in this thread. The litigation will be a quagmire and lots of attorney money will be spent before the case is ultimately resolved. I'll leave prediction of the ultimate outcome to others. I like SCA's chances should the the settlement agreement be invalidated.

Ignoring the settlement agreement already entered into in this case is ridiculous. Courts favor settlement agreements and will enforce them. It is impossible for us to reliably predict the outcome of Lance's motion to dismiss because we know nothing about the terms of the settlement agreement or the circumstances surrounding its execution.

My guess is that the settlement agreement will be enforced. I'm guessing it was an arm's length deal that was intended to finally end all possibility of future litigation between SCA and Lance Armstrong. The idea that SCA can invalidate the settlement agreement based upon a fraud theory appears silly to me. I note that Chewbacca has posed some ideas on how SCA can defeat the settlement agreement defense on theories not related to fraud. Maybe those theories can work. Again, we're all guessing here.
THIS is what I was hinting at (although obviously MUCH more fleshed out).
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  #530  
Old 01-02-13, 03:11
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Quote:
Originally Posted by Race Radio View Post
It is not a question "If" SCA will file but "When".

I expect the month of January will have lots of billable hours
Unless the parties settle. . .
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