The fun begins - SCA now asking for money back...

[D-Queued]

http://msn.foxsports.com/cycling/st...r-bonuses-paid-for-tour-de-france-wins-020613

Apparently SCA wants their money back.

And Herman is speechless: "Armstrong attorney Tim Herman did not immediately respond to messages seeking comment"

So odd, given that he had just finished saying:

Armstrong’s lawyer, Tim Herman, said there was no precedent for such a payback.

“My only point is no athlete ever, to my understanding, has ever gone back and paid back his compensation,” Herman told the paper.

Love that wordplay. Who does he think he is fooling when he tries to frame it as "compensation" as in his regular pay?

The only precedent he should be concerned with is how Texas juries deal with cheaters.

Dave.

 

[Merckx index]

Actually, I guess I owe Tim Herman an apology. I ridiculed him for claiming LA’s busy schedule prevented him from meeting with USADA by Feb. 6. With the DOJ, FDA and now SCA cases to deal with, plus continued uncertainty about Qui Tam, LA really is busy.

For this reason, I predict another settlement offer in the SCA case down the road. LA can’t afford—in terms of time as well as money—for his legal team to be focusing a lot of energy on this case. They offered $1 million before, I bet they would settle for $3 million now. I think SCA would settle for $6-8 million, so a settlement would be somewhere in this range, depending on how the two parties view their chances of winning in court. As discussed here before, now that LA has confessed, SCA has considerably less leverage on him.

 

[BroDeal]

Actually, I guess I owe Tim Herman an apology. I ridiculed him for claiming LA’s busy schedule prevented him from meeting with USADA by Feb. 6. With the DOJ, FDA and now SCA cases to deal with, plus continued uncertainty about Qui Tam, LA really is busy.

For this reason, I predict another settlement offer in the SCA case down the road. LA can’t afford—in terms of time as well as money—for his legal team to be focusing a lot of energy on this case. They offered $1 million before, I bet they would settle for $3 million now. I think SCA would settle for $6-8 million, so a settlement would be somewhere in this range, depending on how the two parties view their chances of winning in court. As discussed here before, now that LA has confessed, SCA has considerably less leverage on him.

I think you are right. He is taking incoming fire from all sides. SCA's leverage went down with the Oprah confession but its position has strengthened with the newly revealed federal and FDA investigations. He will have to plead the fifth if the civil suits get to depositions. That will be a PR disaster. It would be best to get some of this stuff off his plate. He risks being bled white by the legal bills.

 

[Hugh Januss]

The only precedent he should be concerned with is how Texas juries deal with cheaters.

Dave.

Don't they hang them, traditionally?

 

[sittingbison]

...snip...I can't see any public role for Lance once his lawsuits are over.

Mark, look beyond legalities for one moment.

Armstrong has revealed to the whole world that he is a lying cheating vicious scumbag sociopath, entirely lacking human empathy. There is precisely ZERO chance he will have any public role whatsoever in any capacity.

 

[wirral]

CN reports, today, 7 Feb,

"However, SCA Promotions today said that it will move ahead and file a case against Armstrong in a Dallas court."

This particular case seems to be oscillating back and forth.

 

[86TDFWinner]

ESPN'S reporting it too.

 

[Oldman]

Don't they hang them, traditionally?

They elect them to Congress, the Governorship and higher offices, typically. Oh, you're talking about the Court, not Texans in general.

 

[DirtyWorks]

...There is precisely ZERO chance he will have any public role whatsoever in any capacity.

Don't count him out. He'll dig into his backpack of courage, turn the pedals in anger and find something.

I'm half serious. The guy couldn't stay away the first time and couldn't stay banned for 6 months.

 

[MarkvW]

I'm reading SCA's press release styled in the form of a civil complaint. The first nine pages are just grandstanding for the media.

 

[Race Radio]

SCA files
http://thescoopblog.dallasnews.com/...-bonus-paid-by-sports-insurance-company.html/

 

[MarkvW]

The complaint glosses over the settlement agreement.


I think that this is the settlement agreement:
http://www.scribd.com/doc/124041099/Lance-Armstrong-and-SCA-Settlement-Agreement

The settlement agreement contains the following language:

"No promise or representation of any kind has been made to any party or to anyone acting for a party, except as is expressly stated in this SETTLEMENT AGREEMENT, and the parties execute this SETTLEMENT AGREEMENT without reliance of any representation of any kind or character not expressly stated in this SETTLEMENT AGREEMENT."

SCA is going to have a lot of trouble proving that this settlement agreement was procured by fraud....

 

[BroDeal]

The complaint glosses over the settlement agreement...

We'll have to wait to get the opinion of a real lawyer or law student.

 

[MarkvW]

We'll have to wait to get the opinion of a real lawyer or law student.

Yes, of course. Google lawyers can only take you so far.

 

[D-Queued]

SCA files
http://thescoopblog.dallasnews.com/...-bonus-paid-by-sports-insurance-company.html/

Wow - can't believe that Dallas News used a photo from the SCA deposition video.

While it is about as relevant as you can get, even that photo shows Lance in a terrible light.

The shirt unbuttoned far enough to expose his waxed chest hair, he is the epitome of arrogant and deceitful.

And, we aren't even talking about the statements... Totally False...

Lance's Oath; "Ya"

The Final Lance Dance

Dave.

 

[ChewbaccaD]

The complaint glosses over the settlement agreement.


I think that this is the settlement agreement:
http://www.scribd.com/doc/124041099/Lance-Armstrong-and-SCA-Settlement-Agreement

The settlement agreement contains the following language:

"No promise or representation of any kind has been made to any party or to anyone acting for a party, except as is expressly stated in this SETTLEMENT AGREEMENT, and the parties execute this SETTLEMENT AGREEMENT without reliance of any representation of any kind or character not expressly stated in this SETTLEMENT AGREEMENT."

SCA is going to have a lot of trouble proving that this settlement agreement was procured by fraud....

If the only cause of action were fraud, you'd have more of a point.

I am particularly heartened by the Sixth Cause of Action. Called it.

There are multiple theories upon which SCA is proceeding, this isn't a one trick pony as I suggested from the beginning.

 

[Race Radio]

http://reader.roopstigo.com/view/roopster/story/654/#/chapter/2/

Interview with SCA

Armstrong completely surprised by new criminal case

 

[D-Queued]

If the only cause of action were fraud, you'd have more of a point.

I am particularly heartened by the Sixth Cause of Action. Called it.

There are multiple theories upon which SCA is proceeding, this isn't a one trick pony as I suggested from the beginning.

Me, I like #12.

Lance Armstrong (SCA Deposition): You have to comply with the rules

He makes a strong argument. Against himself.

Of course, Herman, being the cunning linguist that he is, cinches the deal:

"If Titles are stripped as a result of official action, then Tailwind agrees to refund any payment made."

Why is there even a dispute?

Dave.

 

[Clorox]

Of course, Herman, being the cunning linguist that he is, cinches the deal:

"If Titles are stripped as a result of official action, then Tailwind agrees to refund any payment made."

Dave.

Yes I love how they are using Herman's own words against him.

 

[D-Queued]

Yes I love how they are using Herman's own words against him.

Not much of a challenge that, is it?

Dave.

 

[BroDeal]

http://reader.roopstigo.com/view/roopster/story/654/#/chapter/2/

Interview with SCA

Armstrong completely surprised by new criminal case

It is pretty funny to think about what Armstrong must have gone through in the last few days. It may have been worse than the $75M day.

The decision to do the Oprah interview is looking worse by the day.

 

[MarkvW]

If the only cause of action were fraud, you'd have more of a point.

I am particularly heartened by the Sixth Cause of Action. Called it.

There are multiple theories upon which SCA is proceeding, this isn't a one trick pony as I suggested from the beginning.

The civil sanctions theory is interesting, but I doubt that it's a big money winner.

All the other theories are going to have to get past the settlement agreement.

The contract claim has to survive this language in the settlement agreement (para 5.2):

THE PARTIES acknowledge that this instrument constitutes the entire agreement between them with respect to the matters being compromised and settled in this SETTLEMENT AGREEMENT, and that this SETTLEMENT AGREEMENT supersedes any and all prior agreements and understandings relating to the subject matter thereof.

(emphasis added) If SCA can get past the settlement agreement, then they're in the land of milk and honey. Until then, though, they've got a fight on their hands.

 

[ChewbaccaD]

The civil sanctions theory is interesting, but I doubt that it's a big money winner.

All the other theories are going to have to get past the settlement agreement.

The contract claim has to survive this language in the settlement agreement (para 5.2):

THE PARTIES acknowledge that this instrument constitutes the entire agreement between them with respect to the matters being compromised and settled in this SETTLEMENT AGREEMENT, and that this SETTLEMENT AGREEMENT supersedes any and all prior agreements and understandings relating to the subject matter thereof.

(emphasis added) If SCA can get past the settlement agreement, then they're in the land of milk and honey. Until then, though, they've got a fight on their hands.

First, you need to read that language very thoroughly. You are missing something in there from what I read, that being that "the subject matter thereof" relates to the claims contained in the "SETTLEMENT AGREEMENT" and does not cover exhaustively ANY of the parts of subparts of the original K because they are not addressed in the "SETTLEMENT AGREEMENT." What you quoted is just a standard language for an integration clause, and only relates to the "SETTLEMENT AGREEMENT." That boilerplate is in any K you will read today. In fact, you'd be disbarred for failing to include it. The other thing of note in that is integration clauses can be, and are blown thorough by courts, so I don't think that is the hurdle you appear to believe it is.

Secondly, The K claim is based on the original K and not the settlement. Again, there are multiple theories involved, not all of them involving the operability of the settlement agreement.

Also note, all of the other theories clearly do not have to get passed the settlement agreement, namely, the theory I put forth here and ever enshrined in the Sixth Cause of Action. There are others.

Lastly, you should be well aware that complaints don't "gloss over" things. We don't have fact pleading like other countries. Sure the Iqbal/Twombly standard in real practice requires more than notice, but any complaints that specified too much detail on the facts upon which the theories of the case are based would be grounds for ethics charges. Incompetent representation is not a good thing. They left a lot of detail out of their COMPLAINT because that's their job. You don't show your whole hand in a complaint. Where are you getting this "gloss over" theory?

 

[D-Queued]

It is pretty funny to think about what Armstrong must have gone through in the last few days. It may have been worse than the $75M day.

The decision to do the Oprah interview is looking worse by the day.

When it comes to 'splaining the complicated stuff to a Jury, Lance certainly did SCA a big favor.

Exhibit A: Deposition Video
Exhibit B: Oprah Video

Jury instructions: Bring popcorn.

Dave.

 

[MarkvW]

First, you need to read that language very thoroughly. You are missing something in there from what I read, that being that "the subject matter thereof" relates to the claims contained in the "SETTLEMENT AGREEMENT" and does not cover exhaustively ANY of the parts of subparts of the original K because they are not addressed in the "SETTLEMENT AGREEMENT." What you quoted is just a standard language for an integration clause, and only relates to the "SETTLEMENT AGREEMENT." That boilerplate is in any K you will read today. In fact, you'd be disbarred for failing to include it. The other thing of note in that is integration clauses can be, and are blown thorough by courts, so I don't think that is the hurdle you appear to believe it is.

Secondly, The K claim is based on the original K and not the settlement. Again, there are multiple theories involved, not all of them involving the operability of the settlement agreement.

Also note, all of the other theories clearly do not have to get passed the settlement agreement, namely, the theory I put forth here and ever enshrined in the Sixth Cause of Action. There are others.

Lastly, you should be well aware that complaints don't "gloss over" things. We don't have fact pleading like other countries. Sure the Iqbal/Twombly standard in real practice requires more than notice, but any complaints that specified too much detail on the facts upon which the theories of the case are based would be grounds for ethics charges. Incompetent representation is not a good thing. They left a lot of detail out of their COMPLAINT because that's their job. You don't show your whole hand in a complaint. Where are you getting this "gloss over" theory?

The agreement, by its own terms, supersedes "any and all prior agreements relating to the subject matter hereof. . ." I'd suggest that the "relating to" language is extremely broad. If any prior agreement "relates" to the subject matter of the settlement agreement (like the original SCA contract), then it's superseded.

It is not correct to say that integration clauses in arms-length settlement clauses are "blown through" by courts. They are routinely upheld as courts favor settlement agreements and you cannot have a settlement agreement without an integration clause. Don't make the mistake of thinking that boilerplate is something to be ignored. It's not. Furthermore, I'm sure you've read section 3.1(g) where it says "THE PARTIES recognize that the recitations contained in this SETTLEMENT AGREEMENT are contractual and not mere recitals." That language was obviously included to eliminate any "mere boilerplate" argument.

The settlement agreement gave Lance 7.5 million dollars. SCA is trying to get that very same 7.5 million dollars back. While SCAs claims may not "involve the operability" of the settlement agreement (your terms), they most definitely "relate to the subject matter of the settlement agreement." That 7.5 million dollars is some serious subject matter that SCA is now trying to relate to!

The fact that SCA isn't pleading any fraud in the inducement of the settlement agreement is interesting to me. They're trying to set aside a settlement agreement on the basis of a fraud theory--and they are not pleading fraud with particularity. That's just indicating to me that they don't have any "fraud in the inducement" of the settlement agreement evidence. No big deal.