Official Lance Armstrong Thread: Part 3 (Post-Confession)

[ChewbaccaD]

The quotes from both RR and others refer to what they should have spent. That's not splitting hairs, it's an important distinction. a dictionary can explain the difference.

I don't care what anyone said, it doesn't matter what someone should or would or could have spent. All that matters is the exact cash outlay, and we know that figure. The government couldn't care less about your ignorance of the case, or Wonderboy's smoke screen tactics.

Get a clue junior, you're trying to play a game you don't understand.

 

[Merckx index]

There is no "enrichment" part of the case.

Well, there is, but it's only one count out of seven:

The crux of the relator and government complaints is that the cycling team’s doping and use of banned enhanced performance techniques breached the terms of two the [sic] sponsorship agreements. They contend that the defendants defrauded the government by either encouraging allowing or participating in the doping, making false statements about the doping, failing to inform the USPS of the doping, and/or continuing to collect payments under the sponsorship agreement even while knowing of the breaches of contract.

(11-12)

The plaintiffs’ complaints include four Counts under the FCA: (1) Presentation of False Claims; (2) Presentation of False Records or Statements; (3) Conspiracy to Present False Claims, Records, or Statements; and (4) “Reverse” False Claims. Gov’t Compl. ¶¶ 74–85; Relator SAC ¶¶ 239–277. The claims asserted by the plaintiffs are brought under the versions of the FCA prior and subsequent to the May 2009 Fraud Enforcement and Recovery Act (“FERA”) amendments, Pub. L. No. 111-21, 123 Stat. 1617 (2009). The government additionally asserts common law fraud claims against each intervened defendant, breach of contract against TS LLC and its predecessors, and an unjust enrichment claim against Defendants Armstrong and Bruyneel. Gov’t Compl. ¶¶ 86–93

So only one of the complaints seems to be subject to the argument that the government profited from the relationship.

Some other interesting aspects of the case:

LA tries to have FL’s claims dismissed with BS arguments that, if you read between the lines, just reek of his disgust that Landis could get enriched from this process. But many of Floyd’s arguments were summarily dismissed, and the judge also ruled that the tolling applies to his case, so his claims only go back to June 10, 2004. I assume that will substantially reduce the share of money he gets assuming the government wins. And this means that if the government had not joined the case, beyond the greatly added legal firepower, LA would have had a huge advantage in that all of the time USPS was actually sponsoring the team would have been off the table. Only the government is allowed to go back before then, let alone all the way back to 1995.

Another interesting thing is that according to the ruling summary, LA and JB did not even try to have the first and third counts against them dismissed. So if I understand this correctly, even if the judge had ruled entirely in their favor, the case would have gone forward.

And this from Gran’s link:

Media reports say Armstrong offered to pay $5 million to settle, but the government wanted twice that amount.

This may not be correct, of course, but it’s what was reported.

 

[ChewbaccaD]

Arguing with an ignorant person who is convinced they're informed is a futile exercise. Go listen to Journey's Don't Stop Believing and hug your Livestrong underpants, I really can't be bothered anymore with this subject.<- This was to eleven and Bro, not you Merckx.

 

[ChewbaccaD]

Well, there is, but it's only one count out of seven:

(11-12)



So only one of the complaints seems to be subject to the argument that the government profited from the relationship.

Some other interesting aspects of the case:

LA tries to have FL’s claims dismissed with BS arguments that, if you read between the lines, just reek of his disgust that Landis could get enriched from this process. But many of Floyd’s arguments were summarily dismissed, and the judge also ruled that the tolling applies to his case, so his claims only go back to June 10, 2004. I assume that will substantially reduce the share of money he gets assuming the government wins. And this means that if the government had not joined the case, beyond the greatly added legal firepower, LA would have had a huge advantage in that all of the time USPS was actually sponsoring the team would have been off the table. Only the government is allowed to go back before then, let alone all the way back to 1995.

Another interesting thing is that according to the ruling summary, LA and JB did not even try to have the first and third counts against them dismissed. So if I understand this correctly, even if the judge had ruled entirely in their favor, the case would have gone forward.

And this from Gran’s link:



This may not be correct, of course, but it’s what was reported.

You do understand that each count is a distinct count, and that there is a progression to them, right? The first count is the one that really counts. Everything else is just covering bases.

P.S. Also note some VERY important language there, that being "additionally asserts common law fraud claims." There is a great big thing you guys seem to be missing about this lawsuit: the government is just adding on that charge because that's what they do. They don't need it.

Unjust enrichment is an argument for people who don't understand what is really happening, but carry on if you guys want to. I'm out because this is another one of those times where the nuances are being missed. I seem to remember the same type of thing with the whole "ironclad settlement agreement" in the SCA case, and look how that turned out...

 

[sittingbison]

Settle down fellas. It's not about us, it's about lancing a boil

 

[Merckx index]

You do understand that each count is a distinct count, and that there is a progression to them, right? The first count is the one that really counts. Everything else is just covering bases.

P.S. Also note some VERY important language there, that being "additionally asserts common law fraud claims." There is a great big thing you guys seem to be missing about this lawsuit: the government is just adding on that charge because that's what they do. They don't need it.

Unjust enrichment is an argument for people who don't understand what is really happening, but carry on if you guys want to. I'm out.

The bolded is your admission that this claim is not part of the progression. Floyd did not include it in his charges.

Calm down, Chewy, I'm not making the argument that that claim is crucial to the government's case. I never said they needed it, and I'm not sure that anyone else here except BroDeal did. I'm just pointing out that it is potentially subject to the counter-argument that they profited from the relationship.

 

[ChewbaccaD]

The bolded is your admission that this claim is not part of the progression. Floyd did not include it in his charges.

Calm down, Chewy, I'm not making the argument that that claim is crucial to the government's case. I never said they needed it, and I'm not sure that anyone else here except BroDeal did. I'm just pointing out that it is potentially subject to the counter-argument that they profited from the relationship.

If Floyd didn't make it, how is it not part of the progression?

 

[Granville57]

Settle down fellas. It's not about us, it's about lancing a boil

I thought it was about boiling a Lance.

 

[thehog]

Arguing with an ignorant person who is convinced they're informed is a futile exercise. Go listen to Journey's Don't Stop Believing and hug your Livestrong underpants, I really can't be bothered anymore with this subject.<- This was to eleven and Bro, not you Merckx.

Charming. You have such a great way with people. You're very good at conveying your message and explaining concepts without losing your cool

 

[D-Queued]

I thought it was about boiling a Lance.

Pretty sure Bison was leading us there.

The quotes from both RR and others refer to what they should have spent. That's not splitting hairs, it's an important distinction. a dictionary can explain the difference.

If this is of any help:

USPS agreed to pay, and did pay Tailwind a known sum, under certain explicit conditions.

There is no claim nor any counter-suit that USPS failed to meet its contractual obligations.

Thus, what USPS agreed to pay is, in fact, the exact sum that they should have paid.

Please note that there are various legal principles around 'sophisticated parties'. Tailwind would be regarded as a sophisticated party.

The amount that should have been paid would be crystallized within the contract, not outside of it, through explicit negotiation by sophisticated parties.

There is no new math required to arrive at some different number. Any such argument is just smokescreen by the same people that gave us 500 fictitious doping tests.

Dave.

Edit to add:

As Lance et al are now arguing that it was common knowledge doping would be involved by Lance ant the team, that would appear to be a full admission that they entered the USPS agreement on false premises - that they knowingly intended to breach the terms.

That would seem like a crazy argument, but this is Lance we are dealing with.

Should be interesting.

 

[blackcat]

Pretty sure Bison was leading us there.
USPS agreed to pay, and did pay Tailwind a known sum, under certain explicit conditions.

The amount that should have been paid would be crystallized within the contract, not outside of it, through explicit negotiation by sophisticated parties.

implicit in the contract when the marketing and finance boffins put their heads together to budget forecast, is the future wealth of PR goodwill annuity from the sponsorship.

even if USPS was a one million per, parking lot crits team. They still invest not for retail present, but for the midium term where the sum can be ameliorated no?

and the bonuses and re-signing when they win France, is not merely for them to grab a little retail market from UPS or DHL, its coz their goodwill compenent just blew up large, and goes longterm when every cycling and non cycling person, sees the annals, and then connects USPS to a 7 time Tour winner and Cancer Jesus. Oh, whoops.

so this medium-long term marketing annuity just got turned on its @rse, and the marketing cancer jesus is now the marketing diablo like didi seft, or didi sempt, or whatever his name is.

 

[Stingray34]

Thank you for taking time to post here. It must be hard to find the time in your busy schedule of yelling at Frankie and eating Big Macs like they were Tic Tac's

Pages 66 & 67 of Wilkens latest ruling are certainly interesting. Even Lance's high priced liars, who are devoid of all feelings by now, must have been depressed after reading it.

Reading the various filing by the Feds, the judge, and Lance it seems clear that both sides are focusing on the false negotiations. Given the damages for these types of cases are based on what the Government would have paid if the defendants had not lied it is easier to understand Lance's often bizarre media strategy over the last 2 years.

Lance's strategy in the Qui Tam case is that the USPS must have known the team was doping. IF he can show that the USPS knew the team was doping then they suffered no damage. He will say they paid willingly, with full knowledge of the facts.

Lance's media strategy over the last few years has been focused on breaking down the myth he has built over the years. Starting with Oprah, and followed with multiple interviews, he has pushed the same message

*He doped and he is "Sorry"
*Everyone was doing it. It was part of the sport for decades, ingrained in the fabric of the sport
*Smear, or co-opt, potential witnesses

Many have wondered why he is doing this. One of the goals is to change the public perception of his doping. Ask anyone today and they will say "Of course Armstrong is a doper" .....that is precisely what he wants a jury to think, that he obviously was a doper. If they could see it then then surely "insiders" like the USPS marketing team must have known....thus no damages.

Of course we know the perception in 2000 was significantly different then it is today.... but changing the public narrative is a good way to induce amnesia and make his claim that USPS must have known more palatable to a jury.

Thanks to Hitch for giving me the heads up on this being my 10,000 post.

Lance is using the Don Draper defence: "If you don't like what they're saying, change the conversation."

It worked for Lucky Strike, until it didn't.

 

[Stingray34]

I understand such parallelisms, but let's cut to the chase. It's (or should be) either one or the other. Either public funds were used unlawfully as the exclusive criteria for culpability, or the financial gains override any illicit behavior.

Which is it? And based on what it is, the integrity of the legal process.

Interesting. I wonder where US law stands on ends vs means? That's a real can of Pandora's worms.

 

[rhubroma]

The False Claims Act is about getting money under false pretenses rather than using government money for illicit purposes.

It is also about keeping contractors honest. Otherwise they'll be selling adulterated food to Union soldiers, and stuff much worse than that. Like Miller's 'All My Sons.'

Doesn't the one, though, presupose the other? This is why I could never be a lawyer.

 

[rhubroma]

Interesting. I wonder where US law stands on ends vs means? That's a real can of Pandora's worms.

Too wily for me.

 

[ChewbaccaD]

Charming. You have such a great way with people. You're very good at conveying your message and explaining concepts without losing your cool

Sorry, didn't mean to leave you out of the "ignorant people" category...I'll try not to forget you next time. Please accept my humble apology.

On another note, and this is just a suggestion, maybe stop opining on subjects before ever really understanding what you're talking about. It will help hide your TrollKraft much better. You're welcome.

 

[ChewbaccaD]

Doesn't the one, though, presupose the other? This is why I could never be a lawyer.

Not really. It is quite possible to procure government money under false pretenses, without the motive of using them for illicit purposes.

 

[D-Queued]

Not really. It is quite possible to procure government money under false pretenses, without the motive of using them for illicit purposes.

But the Lance defense is the opposite.

'The only way to procure government money is expressly and knowingly for illicit purposes'

The "Whatta ya mean ya didn't know?" concept.

But, it is hard to understand the pretzel logic behind such a defense - other than it is fully explained because it is Lance using it.

As noted above, perhaps Lance et al can provide the hard copies of their strategy outline and plan that were circulated to USPS pre contract signing. The plan that would include such items as:

- And then we will get this Vrijman guy to write an exoneration statement
- And then we will inflate the number of tests from 300 to 500
- And then we will pay all of these interns to run amok on webchat

Dave.

 

[blackcat]

interns dont get paid. Hombre's son just got some excess and used livestrong knicks for his efforts bombing fora

 

[MarkvW]

Doesn't the one, though, presupose the other? This is why I could never be a lawyer.

I contract with the government to build widgets made of stainless steel that will never rust. I knowingly deliver widgets made of iron that rust out in a couple of weeks.

In this instance, I'm not using the government's money for illicit purposes, but I am making a false claim.

(edited a previous post to make it more like this case)

 

[rhubroma]

I contract with the government to build widgets made of stainless steel that will never rust. I knowingly deliver widgets made of iron that rust out in a couple of weeks.

In this instance, I'm not using the government's money for illicit purposes, but I am making a false claim.

(edited a previous post to make it more like this case)

You see, I'm just not wily enough!

 

[D-Queued]

I contract with the government to build widgets made of stainless steel that will never rust. I knowingly deliver widgets made of iron that rust out in a couple of weeks.

In this instance, I'm not using the government's money for illicit purposes, but I am making a false claim.

(edited a previous post to make it more like this case)

Well, that's a start.

Then I claim that the government knew all along that I was using iron instead of stainless steel.

Of course, I got that iron from radioactive rebar harvested from the Chernobyl reactor while claiming that the iron has been tested 500 times and found to be non-radioactive.

I even have a non-expert from the Netherlands write a report to exonerate the iron.

I harass witnesses. I pay off a lot of people.

Having contracted cancer from the radioactive iron, I start a 'cancer support' funding organization. After all, if it is about support, then it is just natural that all those cancer choads should support me and my expensive lifestyle with their funds.

When, finally and inevitably, the jig is up, I go on TV to explain all of the details. I do like to be the center of attention.

Then, in a behind the scenes movie, while gloating I ask, "Was it one big lie or a whole bunch of little lies?"

Oddly, the plaintiff uses that quote when I try and convince a jury that the government knew all along that I was supplying them with radioactive steel from Chernobyl.

And, can you believe it, the damn jury thinks I was lying. Choads!

Dave.

 

[MarkvW]

Well, that's a start.

Then I claim that the government knew all along that I was using iron instead of stainless steel.

Of course, I got that iron from radioactive rebar harvested from the Chernobyl reactor while claiming that the iron has been tested 500 times and found to be non-radioactive.

I even have a non-expert from the Netherlands write a report to exonerate the iron.

I harass witnesses. I pay off a lot of people.

Having contracted cancer from the radioactive iron, I start a 'cancer support' funding organization. After all, if it is about support, then it is just natural that all those cancer choads should support me and my expensive lifestyle with their funds.

When, finally and inevitably, the jig is up, I go on TV to explain all of the details. I do like to be the center of attention.

Then, in a behind the scenes movie, while gloating I ask, "Was it one big lie or a whole bunch of little lies?"

Oddly, the plaintiff uses that quote when I try and convince a jury that the government knew all along that I was supplying them with radioactive steel from Chernobyl.

And, can you believe it, the damn jury thinks I was lying. Choads!

Dave.

Lance's only hope is summary judgment on the statute of limitations, but to do that he's got to develop proof that the government knew that he was a dope cheat (and the statute of limitations started running from the first time the government knew). Unfortunately, Lance can't even sufficiently allege that the government knew--much less prove it. Unless Lance finds a smoking gun, my guess is that he is doomed on the SOL issue.

That seems to leave no disputed facts on the issue of liabillity.

I don't see this thing blowing up as you describe. I see liability, and a good chunk of damages, resolved at summary judgment (after full discovery).

 

[RobbieCanuck]

One thing I don't understand is how they determine the multiple of damages. E.g., suppose the court decided LA had cost USPS $5 million. Can the Feds automatically get three times that, or is the factor also subject to judicial review, and if so, on what basis do they decide?

With a little bit of light lifting (Chewie?) I found an interesting article posted by a Philadelphia law firm, Berger & Montague, PC who does FCA cases, and they describe various methods used by the federal courts to determine damages and specifically the 3x multiple of damages.

It appears it often depends what circuit court in which one files ones claim as there are competing judgments between circuit courts as to the correct methodology. Essentially there are two methods, the Gross Trebling Approach versus the Net Trebling Approach

In the gross trebling approach, the court trebles the amounts paid by the government and then subtracts any value received by the government.

In the net trebling approach, any amounts or value the government has received is subtracted from the amount the government has paid and the result is then trebled.

Depending on which approach is used there can be a huge difference in damages. Berger & Montague give the following example,

"Assume that as a result of false claims, the government paid $300,000 for services that had a value of $185,000. A comparison of the two methods illustrates the impact of these different methods of damage calculation:

Gross Trebling (300,000 x 3) minus 185,000 equals 715,000
Net Trebling (300,000 minus 185,000) x 3 equals 345,000

There are competing judgments on the correct approach. The article states,

" ... the United States and the Department of Justice rely on a decision of the Supreme Court in United States v. Bornstein, 423 U.S. 303, 314 (1976) where the court agreed that False Claims Act "damages should be [multiplied] before any compensatory payments are deducted because that method of compensation most faithfully conforms to the language and purpose of the Act" . This view has also been accepted by the Ninth Circuit, United States v. Eghbal, 548 F.3rd 1281, 1285 (9th Cir. 2008).

On the other hand in the 7th Circuit,

"the Seventh Circuit rejected the government's approach to calculating damages, United States v. Anchor Mortgage Corp., 711 F.3rd. 745 (7th Cir. 2013). The court found that the defendants provided false information with regard to a number of residential mortgage loans insured by the Federal Housing Administration (FHA). The trial court had adopted the gross trebling damage calculation. The appellate court disagreed, holding that a net trebling approach should be used with the government's damages, before trebling, being "the amount paid on the guarantee less the value of the collateral", id, at 751. In doing so, based on its interpretation of a footnote, it read Bornstein to support the net trebling approach . The Anchor court rejected the conclusion of Eghbal."

For the full article on the other aspects of how damages are assessed in FCA cases go to the following link,

http://www.bergermontague.com/pract...should-false-claims-act-damages-be-calculated

This may remove some of the speculation in the Clinic about how damages are calculated in these cases (however when it comes to a Clinic debate, even the logic of this article may not be enough to temper the free-for-all of a raucous
argument)

 

[MarkvW]

With a little bit of light lifting (Chewie?) I found an interesting article posted by a Philadelphia law firm, Berger & Montague, PC who does FCA cases, and they describe various methods used by the federal courts to determine damages and specifically the 3x multiple of damages.

It appears it often depends what circuit court in which one files ones claim as there are competing judgments between circuit courts as to the correct methodology. Essentially there are two methods, the Gross Trebling Approach versus the Net Trebling Approach

In the gross trebling approach, the court trebles the amounts paid by the government and then subtracts any value received by the government.

In the net trebling approach, any amounts or value the government has received is subtracted from the amount the government has paid and the result is then trebled.

Depending on which approach is used there can be a huge difference in damages. Berger & Montague give the following example,

"Assume that as a result of false claims, the government paid $300,000 for services that had a value of $185,000. A comparison of the two methods illustrates the impact of these different methods of damage calculation:

Gross Trebling (300,000 x 3) minus 185,000 equals 715,000
Net Trebling (300,000 minus 185,000) x 3 equals 345,000

There are competing judgments on the correct approach. The article states,

" ... the United States and the Department of Justice rely on a decision of the Supreme Court in United States v. Bornstein, 423 U.S. 303, 314 (1976) where the court agreed that False Claims Act "damages should be [multiplied] before any compensatory payments are deducted because that method of compensation most faithfully conforms to the language and purpose of the Act" . This view has also been accepted by the Ninth Circuit, United States v. Eghbal, 548 F.3rd 1281, 1285 (9th Cir. 2008).

On the other hand in the 7th Circuit,

"the Seventh Circuit rejected the government's approach to calculating damages, United States v. Anchor Mortgage Corp., 711 F.3rd. 745 (7th Cir. 2013). The court found that the defendants provided false information with regard to a number of residential mortgage loans insured by the Federal Housing Administration (FHA). The trial court had adopted the gross trebling damage calculation. The appellate court disagreed, holding that a net trebling approach should be used with the government's damages, before trebling, being "the amount paid on the guarantee less the value of the collateral", id, at 751. In doing so, based on its interpretation of a footnote, it read Bornstein to support the net trebling approach . The Anchor court rejected the conclusion of Eghbal."

For the full article on the other aspects of how damages are assessed in FCA cases go to the following link,

http://www.bergermontague.com/pract...should-false-claims-act-damages-be-calculated

This may remove some of the speculation in the Clinic about how damages are calculated in these cases (however when it comes to a Clinic debate, even the logic of this article may not be enough to temper the free-for-all of a raucous
argument)

Thanks! That sure is useful. I looked at Anchor Mortgage. Damages may be more complicated than I first guessed.