Wednesday, December 23, 2020

New investigative article at Ban Balch shines white hot light on the slimy road from Mike Thompson to Drummond Company to Luther Strange's pocket

Jessica Medeiros Garrison and Luther Strange

How shady were Luther Strange's activities related to the North Birmingham Superfund bribery scandal? For that matter, what about Jessica Medeiros Garrison, Strange's one-time campaign manager and alleged mistress (per former State Sen. Lowell Barron) who happened to hold an "of counsel" position at the Balch and Bingham law firm, where "the plan" was hatched to defeat EPA regulations that threatened to present more than $100 million in clean-up costs for corporate polluters that reportedly had saturated the mostly black neighborhood with deadly toxins?

Answers to those questions, and many others, apparently were covered up during a criminal trial where U.S. attorney Jay Town reportedly protected powerful political figures and business interests. A $75-million fraud lawsuit from former Drummond Company executive David Roberson promises to shine light, much of it unflattering, on Strange and his associates in the new year.

The Roberson civil case essentially is a rebirth of the EPA scandal, and a report earlier this week from raised new questions about Strange's role in the seediness. Ban Balch Publisher K.B. Forbes, under the headline "Eye of Federal Investigators? Crosswhite, Drummond Family, and Balch’s Biggest Stooge,"focuses on the Alliance for Jobs and the Economy (AJE), the corrupt entity behind $360,000 in bribes to former state lawmaker Oliver Robinson. Writes Forbes:

The AJE was the alleged brainchild of Alabama Power and as we reported in 2017, Mike Thompson of Thompson Tractor was listed as a director of the money laundering entity.

Thompson was also the fundraising chairman in 2017 of Balch’s biggest stooge U.S. Senator Luther Strange and allegedly has had deep and close friendships with Crosswhite and the Drummond family.

Strange involved himself in the North Birmingham EPA matter, allegedly provoked by Balch, even though Strange had no authority to do so. At the time, the Governor had delegated the Alabama Department of Environmental Management to handle all issues related to the North Birmingham EPA matter.

  • On October 13, 2014, convicted felon and Balch-made millionaire Joel I. Gilbert sent Luther Strange, then the Alabama Attorney General, a draft letter about the North Birmingham EPA matter.
  • Four days later, on October 17, Strange accepted a $25,000 contribution from Drummond Company.
  • Six days later after the money was deposited, Strange signed the ghost-written letter and dispatched it on his official letterhead to the EPA on October 23, 2014. (Read the source documents here.)


The Alabama Supreme Court  has denied Drummond's request for a stay on discovery in the Roberson case, meaning evidence should start flowing in the weeks ahead. The court has released no ruling on Drummond's petition for a writ of mandamus, seeking to be dismissed from the Roberson case. As a practical matter, it's hard to see how the court could deny the stay on discovery but grant the mandamus petition -- especially given that state precedent clearly shows Drummond is not entitled to mandamus relief, as a matter of law.

As for Jessica Garrison, we know she beat a hasty retreat at Balch and Bingham-- and her social-media presence evaporated -- after Strange's name first was tied to the Superfund scandal.

As for Mike Thompson, a Ban Balch scoop raises questions that figure to resonate well into 2021:

We have now learned from sources that the $25,000 was allegedly hand delivered in 2014 to Attorney General Strange when Thompson brought him over to Drummond Company’s executive offices, circumventing government affairs (Roberson's department) and meeting with members of the Drummond family directly.

All that was missing was a brown paper bag.

Friday, December 18, 2020

Drummond Company seeks relief from Alabama Supreme Court to which it clearly is not entitled

Drummond Coal

The Alabama Supreme Court should need about 30 seconds (at most) to deny Drummond Company's emergency petition for a writ of mandamus, seeking to overturn the trial court's denial of a motion to dismiss in David Roberson's $75-million fraud lawsuit.

That's because the court long has held a writ of mandamus is an improper vehicle for review on denial of a motion to dismiss or a motion for summary judgment. Why that holding? The simple principle is this: In most cases, a post-trial appeal will be available to the aggrieved party -- as it will be for Drummond in the Roberson case -- and that is the proper remedy.

We don't have an exact number of appellate cases that cite this rule, but it appears to be dozens. Burt Newsome, attorney for Roberson and his wife Anna, cites five of them in a motion to dismiss the mandamus petition filed yesterday. (The Roberson motion and Circuit Judge Tamara Harris Johnson's denial of Drummond's motion to stay discovery in the trial court are embedded at the end of this post.) From the Roberson motion to dismiss:

The issues Drummond raises in its mandamus petition have previously been held by the Alabama Supreme Court to be not reviewable by mandamus. In Ex Parte Sanderson, 263 So. 3d 681 (Ala., 2018) -- cited by Drummond in its mandamus petition -- the court refused to review the case and said, "The denial of a motion to dismiss or a motion for summary judgment generally is not reviewable by a petition for writ of mandamus, subject to certain narrow exceptions . . . " (These narrow exceptions include things like lack of subject-matter jurisdiction by the trial court, which are not at issue in this case.) Drummond cites no cases holding that its defenses based on collateral estoppel, the Hinkle rule or the plaintiffs' alleged failure to state a claim are reviewable by mandamus.

In Ex Parte Nautilus Insurance Company, 260 So. 3d 823 (Ala, 2018), this honorable court stated:

Initially, LFC argues that it was entitled to a dismissal of Precision's claims under Rule 12(b)(6) because, LFC says, those claims fail to state a claim upon which relief can be granted. However, the denial of a motion to dismiss based upon Rule 12(b)(6) is not reviewable by petition for a writ of mandamus. Ex Parte Kohlberg, Kravis Roberts and Co., L.P., 78 So. 3d 959 (Ala., 2011). Any alleged error in the [trial] court's decision to deny the motion to dimiss for failure to state a claim . . . can be adequately remedied by appeal. . . . Accordingly, we do not address LFC's arguments in this regard. 

Why is Drummond seeking a remedy to which it clearly is not entitled? We can only guess, but it appears the company is desperate to avoid discovery.

As for Judge Johnson's order denying Drummond's request for a stay of discovery in the trial court, she writes:

The court file reflects . . . Defendant Drummond has requested and received, in part, discovery from plaintiffs. Yet now, the Defendant Drummond is asking for a stay on discovery requested to be produced by defendant. In other words, Defendant Drummond has participated in the discovery process, as long as it was requesting and receiving discovery; yet, it now asks this court for a stay in the entire discovery process, once discovery is being requested from it. . . .This Court did not provide defendant with the relief sought, to wit: an emergency stay of discovery, as the court finds that the defendant had already begun the discovery process, the requested stay was no longer justified as an emergency.

Thursday, December 17, 2020

Does Doug Jones' background include unpleasantness that could turn his confirmation process into a Clarence Thomas/Brett Kavanaugh slugfest?


Doug Jones

Part Two

U.S. Sen. Doug Jones (D-AL) is seen by many as the most confirmable of Joe Biden's possible nominees for U.S. attorney general. But the D.C.-based publisher of the Justice Integrity Project (JIP) hints that a thorough investigation of Jones' past might unearth ugliness that could turn his confirmation process into a lugfest.

Journalist-lawyer-author Andrew Kreig  suggests Jones' background might include some unpleasantness that could make his confirmation more difficult than some might imagine:

If any senators from either party dared dig beyond the surface? A confirmation proceeding could well become more explosive than any other in modern times, making the Clarence Thomas and Brett Kavanaugh court confirmations seem tame by contrast, and might well tarnish top figures in the Obama-Biden administration for failures to clean up what are reliably reported as shocking levels of official corruption in Alabama in recent years. 

It took many years until nearly the present even for [Tommy] Gallion and [Don] Siegelman to publish 2020 books that penetrate the inherent secrecy of the Justice Department in such sensitive matters.

So, it is no surprise or embarrassment that one of the major Washington Post stories, as of this writing, Biden narrows attorney general list, portrayed Jones as perhaps the most readily confirmable of attorney general candidates because of perceptions that he is a moderate who gets along with most Republicans.

Read further for a deeper view.

Alabama has been riddled with corruption since at least the mid 1990s -- for much of Doug Jones' professional life. And yet, the junior U.S. senator has done precious little to improve the situation, Kreig reports. In essence, Kreig writes, Jones saw the Alabama swamp and dove right in, splashing around with the swamp rats. That hardly seems to make him the kind of rock-ribbed reformer that likely will be needed for justice-related positions in the post-Trump era. That, Kreig writes, would make Jones a particularly poor choice as Joe Biden's nominee to be U.S. attorney general. 

Here is more from a post dated 12/14/20 at the JIP -- under the headline "Sen. Doug Jones As ‘Confirmable’ Biden AG? Bad Idea!". Kreig notes that some Alabamans who have worked closely with Jones do not speak highly of him. That includes Montgomery lawyer Tommy Gallion. Writes Kreig:

Indeed, one of his former law partners, the prominent Alabama attorney Thomas T. Gallion III, published a book this year surveying nearly seven decades of official corruption in the state — and names Jones as part of a "Cabal" working with powerful Republicans in moneymaking schemes that flagrantly violate the law, legal ethics and other  core values of justice and democracy.

The book, Shadow Government, Southern Style: A Saga of Political Corruption From DC to Dixie, was first published in May by Gallion, a partner in the Montgomery firm Haskell Slaughter. Among other posts, he has been County Attorney for Montgomery County (encompassing the state capital) since 1985.

Gallion identifies as a Republican. But his book is a non-partisan slam at those whom he regards as corrupt, including Jeff Sessions, President Trump's first Attorney General after decades as Republican senator and prosecutor in Alabama. Other targets of Gallion include the recent two-term Republican Alabama Gov. Bob Riley (2003-2011), and longtime Bush Family political aide Karl Rove, a White House senior advisor to President George W. Bush.

Regarding Jones (who failed to respond to our invitation this week to comment for this column), Gallion drew on his extensive study of the senator's career to pose near the end of his book a page-long series of questions that he challenged Jones to answer under oath.

Mentioning such allegations does not mean they are true, of course. Nothing like Gallion's allegations have surfaced in national reporting about Jones's unsuccessful campaign for Senate re-election this fall or regarding the Biden-Harris Transition Team appointment process to pick an Attorney General.

That lack of national coverage for allegations against Jones continues as of this writing. That's so, at least for now, even though the Gallion book is receiving good reader reviews and it reports about legal skullduggery of a kind often suspected in Alabama. That's a state where one-party domination creates lucrative opportunities for those close to office-holders and thwarts checks-and-balances, as evidenced by the ouster of the state's governor and House speaker for unrelated scandals in recent years.

More generally, Stealing Our Democracy: How the Political Assassination of a Governor Threatens Our Nation, published in June by former Alabama Gov. Don Siegelman, covers much of the same ground as the Gallion book.

Siegelman, a Jones client and a Democrat who served from 1999 until the Republican Riley took office in 2003, was imprisoned on corruption charges in 2007 in what became a notorious case worldwide because of allegations supported by whistle blowers and legal scholars that he and others had been framed for political reasons.

Kreig writes that Jones' power base has been built on a form of "go-along-to-get along careerism":

At first impression, the moderate and sometimes pro-Trump Jones voting record in the Senate confers confirmable status, especially coupled with Jones's former work as a Judiciary Committee Senate staffer.

But some in the Democratic base are already complaining about Jones as too moderate. That could escalate with wider recognition that he tilts to “go-along-to-get-along” careerism. It hardly helps that he is a white man and that reform pressures are coming most heavily from minorities and civil rights groups, including the NAACP.

Most relevant here is that Jones's connections failed to save his client in one of his biggest legal cases, aside from his duly-praised successes in leading a 1990s civil rights federal prosecution of 1960s Alabama church bombing murderers.

This case, the Bush Administration prosecution of Alabama Gov. Don Siegelman, became a worldwide human rights scandal. A seemingly separate civil lawsuit enriched Jones with legal fees, helping make it possible for him to secure the support enabling his ongoing leadership in the fractured, cash-strapped and largely ineffective Alabama Democratic Party.

Jones thus ascended in 2017 to the Senate seat, which he lost in November’s elections. He is now positioning himself as a front runner for the AG post.


 Does Jones merit front-runner status? No, says Kreig:

Vulnerabilities of Jones are well-documented and are likely to embarrass the Biden team if he is nominated.

That’s especially so because the Jones problems illustrate the concerns that Black and Hispanic criminal justice reformers are voicing already (albeit without the specifics below) about a need for a hard-hitting expert voice helming the Justice Department.

My conclusions endorsing those criticisms of Jones are based on more than a decade of in-depth investigation by the non-partisan Justice Integrity Project of mind-boggling abuses in Alabama where Jones built his career with only occasional demonstrations of extraordinary commitment to rectifying the state's massive official corruption. . . . 

What could all of this mean for Joe Biden's presidency? Writes Kreig:

Before providing a Jones rebuttal to these allegations of defense shortcomings, let’s sketch some of the implications for the incoming Biden-Harris administration.

For one thing, the Obama-Biden Justice Department remained oblivious at best to the allegations and evidence, and at worst aggressively assisted the cover-up for reasons hard to explain, except at best a “don’t rock the boat” mentality.

Thus, Obama Attorney General Eric Holder fired Justice Department paralegal Tamarah Grimes in 2009 when she stepped forward to document what Grimes regarded as outrageous conduct by Leura Canary in supervising Siegelman’s prosecution and specific abuses on a near-daily basis. The conduct included vast spending at the Air Force base, according to Grimes, even though Canary supposedly recused herself. Siegelman, Scrushy and their attorneys have never been able to obtain the paperwork on Canary’s supposed “recusal” despite innumerable requests dating back to their trials.

For another thing, the Obama Justice Department vigorously resisted the appeals of Siegelman and Scrushy, just as it did for other obvious victims of the Bush-Rove “U.S. Attorney Firing Scandal” of 2006, whereby up to nine of the nation’s presidentially appointed U.S. attorneys were fired for failing to bring dubious cases and many others were retained under pressure to indict Democrats regarded as having promising futures.

Siegelman, the only politician in Alabama history to win election to all four of the state’s top political offices, had once been regarded as a future presidential contender, in part because his popularity bridged Black and white constituencies.

Remarkably, the Obama-Biden administration kept Alabama’s Leura Canary in her presidential appointed Justice Department post for more than two years after Obama took office, and long after the scandals broke on the 2008 CBS 60 Minutes broadcast and otherwise.

Then the new Democratic administration replaced her as U.S. attorney (at the suggestion of Alabama’s two Republican senators) with George Beck, the former Nick Bailey attorney who was thus in a perfect position to maintain a cover-up of official misconduct through the end of the Obama-Biden administration.

Before Beck’s confirmation, our Justice Integrity Project published a four-part series documenting why the U.S. Senate should examine Beck’s track record and deny his confirmation. Beck, at age 62 was taking a job normally awarded to a younger attorney, thereby raising questions why he wanted it.

That series had no discernible impact on a self-absorbed Senate and Obama-Biden administration. But it did serve to provide the Bailey-supporting critic Luther "Stan" Pate with a forum to describe Beck as the worst, most despicable attorney he had ever observed because of his failure to protect his client. Beck, like judge Mark Fuller, declined comment. Fuller would go on to be forced to resign from the federal bench after his arrest for beating his second wife, who had been his court clerk during the Siegelman-Scrushy trial -- yet another curiosity in a trial marred by a host of other irregularities.

The series also enabled Jones to defend his conduct at length, via an email reprinted here:

George is eminently qualified to be US Attorney. He is a veteran lawyer who is respected by judges and lawyers on both sides of the aisle. He will be fair and balanced, and not driven by any political agenda, which is especially important for that particular U.S. Attorney position.

This is not a lifetime appointment. So, I am not concerned at all about his age. I think that office needs a seasoned lawyer with a steady hand regardless of age, and he certainly fits that bill.

With regard to his representation about Nick [Bailey], it is not a question whether he might be conflicted. He will be conflicted from any involvement in the case. I think that the real question will be whether it causes the entire office, including the Assistant U.S. Attorneys who prosecuted the case, to also be recused. A strong argument can be made that this case is so controversial that the entire office should be recused, and either another U.S. attorney appointed to oversee the case or someone out of Main Justice. That's a decision to be made by the hierarchy at DOJ.

Finally, all I can say about any questions that have after the fact been raised regarding my representation of Gov. Siegelman while also working on a civil matter against Richard Scrushy is that Don was well aware of the civil case and it was never an issue with us and that is all that matters to me. Moreover, as you know I did not represent him at trial due to a trial conflict with another matter and it is the trial where the rubber meets the road with regard to such issues. Scrushy was ultimately dismissed from our case without any settlement or judgment against him.

Any reporter, as I was throughout the early part of my career before I became a lawyer and federal judge’s clerk, appreciates the willingness of a news subject to provide comment in response to questions on highly sensitive matters that Jones, among others, was in a position to ferret out and, if he so desired, protest.

In fairness, the Jones remarks above show that he is confident and facile in his explanations, qualities that have served him very well, as indicated by such stories as the Washington Post report on Dec. 12 suggesting that he had emerged as the leading candidate for the post even compared to former Obama-Biden Deputy Attorney General Sally Yates, whose management and relevant leadership is far more recent than the regional office work of Jones during the 1990s.

Thus far, Jones has been able to leverage his team’s 1990s prosecution of Alabama church-bombing racists who murdered four schoolgirls in 1964. That has provided Jones with an image of civil rights advocacy cited in most news profiles of him that counters the complaints of Black civil rights leaders who are pressuring Biden for a Black attorney general.

But true civil rights advocacy should not focus simply on identity politics and high-profile jobs for Blacks and other minorities. Instead, the Justice Department, courts and prisons need an expert, passionate and non-partisan recommitment to human rights and justice.

The abuses of the Siegelman-Scrushy case were readily apparent to Republicans like Grant Wood and Stan Pate, as well as a host of other observers. In contrast, after Eric Holder’s retirement from leading the Justice Department I asked him about the Siegelman case following a speech he delivered at the Center for American Progress. He told me as we walked together after the lecture toward his law office he was not familiar with the Siegelman case.

Bottom line: Doug Jones, well-connected as he might be to his current Senate colleagues, has lived a privileged career, buttressed with some major successes but also not buttressed with the extraordinary qualities needed for these times. There are many posts that a former senator and prosecutor can pursue with dignity but supervising the Justice Department at this time is not one of them.

And if Joe Biden and his new administration fail to see why his former staffer Jones fails this test in such a notorious case as Siegelman’s, which is by no means unique considering the untold tales elsewhere in the legal system, that failure is all the more personal to the incoming president and his party because they would have knowingly picked image over substance.

The stakes are high. And, post-Trump, the public is watching.

In an apparent act of panic, Drummond seeks emergency stay with Alabama Supreme Court

Drummond Coal

In an apparent act of "widespread panic," Drummond Company yesterday filed an emergency motion with the Alabama Supreme Court to stay discovery in David Roberson's $75-million lawsuit -- and to consider Drummond's petition for a writ of mandamus to overturn the trial court's denial of its motion to dismiss.

The filing comes before Jefferson County Circuit Judge Tamara Harris Johnson had a reasonable chance to consider Drummond's emergency motion to stay discovery in her court.

What appears to have Drummond in such a panic? In its motion to the state's high court, Drummond states that it is not "practicable" to wait for a ruling from the trial court, "given the approaching deposition dates." Drummond notes that Roberson attorney Burt Newsome has set depositions to begin on Monday (12/21/20), continuing through the holidays and into January 2021. Drummond makes no claim that such a schedule is improper, but it voices concern about the "burden" and "expense" such discovery will impose.

Specifically, Drummond notes that Newsome seeks to subpoena documents from Alabama Power and testimony from its CEO, Mark Crosswhite. From the motion:

The vast majority of the expense for the parties and expenditures of resources by the parties, non-parties, and the trial court lies in plaintiffs' claims concerning the legality of "The Plan" that underlies Roberson's federal conviction. . . . The discovery currently seeking to be stayed in effect seeks to relitigate Plaintiff Roberson's criminal conviction and would be unnecessary if Drummond's petition is granted.

Never mind that Roberson's civil claims involve individuals, entities, and issues that were not part of the criminal trial. And never mind that Drummond already has propounded discovery requests of its own.

The motion goes on to express concerns about interrogatories and depositions that already are set for various executives at Drummond and Alabama Power:

If this court grant's Drummond's petitition for writ of mandamus, all the foregoing discovery will be irrelevent. Accordingly, it does not serve the interests of justice, the parties, or the court system to go through the expense and effort of discovery in this case until this court rules on Drummond's pending mandamus petition.

Is Drummond's concern really about "expense and effort," or does it not want to participate in evidence gathering at all? Is discovery likely to unearth wrongdoing that Drummond wants to keep under wraps?


Wednesday, December 16, 2020

Does Doug Jones' past suggest his future should include a role as U.S. attorney general? Nope, says journalist-lawyer-author Andrew Kreig

Doug Jones

Part One

Is U.S. Sen. Doug Jones (D-AL) cut from the cloth that indicates he has the right stuff to be U.S. attorney general. In a post dated 12/14/20 at the Justice Integrity Project -- under the headline "Sen. Doug Jones As ‘Confirmable’ Biden AG? Bad Idea!"-- Andrew Kreig answers with a firm no. Writes Kreig -- a journalist, lawyer, and author:

Alabama’s Democratic U.S. Sen. Doug Jones has been reported recently as at the forefront of President-elect Joe Biden’s prospects to lead the Justice Department as Attorney General.

That’s in part because Jones has served as a presidentially appointed federal prosecutor, holds a longtime relationship with Biden — and also is considered more readily “confirmable” by Senate Republicans than other top options.

A closer look at the senator’s career suggests that these supposed strengths do not meet the requirements of the job  — and are likely to blow up into controversy.

At first impression, the moderate and sometimes pro-Trump Jones voting record in the Senate confers confirmable status, especially coupled with Jones's former work as a Judiciary Committee Senate staffer.

But some in the Democratic base are already complaining about Jones as too moderate. That could escalate with wider recognition that he tilts to “go-along-to-get-along” careerism. It hardly helps that he is a white man and that reform pressures are coming most heavily from minorities and civil rights groups, including the NAACP.

Most relevant here is that Jones's connections failed to save his client in one of his biggest legal cases, aside from his duly-praised successes in leading a 1990s civil rights federal prosecution of 1960s Alabama church bombing murderers.

This case, the Bush Administration prosecution of Alabama Gov. Don Siegelman, became a worldwide human rights scandal. Another related matter enriched Jones, helping make it possible for him to secure the support enabling his ongoing leadership in the fractured, cash-strapped and largely ineffective Alabama Democratic Party.

Jones thus ascended in 2017 to the Senate seat, which he lost in November’s elections. He is now positioning himself as a frontrunner for the AG post.

What about Jones' weaknesses? Kreig has studied them for years:

My conclusions endorsing those criticisms of Jones are based on more than a decade of in-depth investigation by the non-partisan Justice Integrity Project of mind-boggling abuses in Alabama where Jones built his career with only occasional demonstrations of extraordinary commitment to rectifying the state's massive official corruption.

I first learned of these abuses in 2007 from an Alabama attorney, Dana Jill Simpson,. She was a longtime Republican political operative who became a whistleblower about a nationwide plot to use the Justice Department and scandal opposition research dossiers to destroy the careers of selected targets for political purposes.

Such allegations were so prevalent and concerning after the so-called “U.S. Attorney Firing Scandal” of 2007 that, following my career in business law and trade association work in Washington, I began a reporting fellowship with Brandeis University beginning in 2009 to research the scandal. The focus was on  the harms to communities where prosecutors undertook abusive methods.

The special danger for the Biden-Harris administration going forward is that Jones was close enough to such activities in relevant times, although not personally implicated, that his Justice Department could be regarded as part of a pattern of cover-up that included the Obama-Biden administration and less as a reformer of Trump-era abuses.

These decade-old issues remain far off the Beltway radar screen, as indicated by media coverage of the Biden Transition and the rosy prospects for Jones to advance to the top Justice Department post, as indicated by recent Washington Post stories.

That's partly because Alabama politics and related civic life is so dominated by the Republican Party and media. One commentator, communications lawyer, commentator and law professor Scott Horton, has described both the Justice Department's Office of Professional Responsibility and Alabama's media, for example, as part of the overall problem in both the Alabama cases and nationally. Digging beneath the surface takes more effort than national parties or media are able to provide. Rectifying that is the purpose of this column.

But perhaps also the Biden transition is simply floating names, hoping to “crowd source” research efforts before committing a nomination. Having participated as a volunteer for high-level operatives in previous presidential campaign and transition research, I’ll provide relevant background for others to assess.

This column contains an unusual feature: A detailed rebuttal near the end by Jones against the central allegations. This kind of response is highly unlikely for actual nominees before a hearing.

What about details of the Jones track record? Kreig provides them:

Doug Jones is an Alabama native, born in 1954. He began his professional career after law school working as a staff counsel for U.S. Senator Howell Heflin, an Alabama Democrat, before Jones became an assistant U.S. attorney in Alabama from 1980 to 1984.

Appointed by President Bill Clinton to become U.S. attorney for Alabama’s Birmingham-based district, his most prominent cases were the successful prosecution of two Ku Klux Klan members for a 1963 Birmingham church bombing that killed four African-American girls and the indictment of domestic terrorist Eric Rudolph, a white supremacist.

Jones, moving to private practice at the conclusion of Clinton's presidency in 2001, represented clients who included former Alabama Gov. Don Siegelman (1999-2003), a Democrat whom Republicans prosecuted in two highly dubious federal prosecutions in 2004 and 2006 on corruption charges. Jones did not represent Siegelman in the trial stage of either case, and has told us that trials "are where the rubber meets the road" in cases.

In 2007, the 2006 convictions resulted in an 88-month prison sentences for Siegelman and his co-defendant in the second case, Republican businessman Richard Scrushy. Acting as a lead co-counsel, Jones had also been representing with Siegelman's approval plaintiff investors in a civil fraud class action suit against Scrushy's company, HealthSouth, that resulted in a $455 million settlement in 2006 of a $2.7 billiion accounting fraud that almost bankrupted HealthSouth.

Scrushy was acquitted of criminal wrongdoing involving those frauds, which served largely as a backdrop and not a key element for his corruption trial with Siegelman. The charges centered on prosecution claims that Scrushy made a $250,000 donation in 1999 to the Alabama Education Foundation (which Siegelman had founded) in order for Scrushy to remain on governor-appointed Certificate of Need regulatory board overseeing hospitals.

Trial and conviction on those bribery and extortion charges prompted years of popular outcry in appeals, petitions and the media over what appeared to many as serious human rights violations. Scrushy and Siegelman asserted, for example, that Scrushy didn't even want to remain on the regulatory board and that the chief prosecution witness, Nick Bailey, perjured himself in suggesting otherwise.

The trial irregularities were even more striking to civil rights experts, in a sense, because the defendants were white men, who were well-positioned and well-financed for defense counsel. Yet even their millions of dollars in defense spending failed to find relief for highly disputable convictions affirmed up to the U.S. Supreme Court.

Why the disputes? Because, among other reasons, trial evidence failed to show a “quid pro quo,” or explicit agreement, that Scrushy’s donation to the Alabama Education Foundation, a non-profit advocating better funding for the state’s K-12 public schools, was in return for Siegelman’s reappointment of Scrushy to the regulatory board. Scrushy, a Republican, had served under three previous governors, all Republicans whose campaigns Scrushy had financially supported with massive donations. But Scrushy resigned from the board at the time of Siegelman's election and Siegelman has always said that it was he who wanted the businessman on the board because of his perceived stature in 1999, and not Scrushy's own desire to serve as a volunteer on a relatively low-level board.

Why does the Siegelman-Scrushy case still stand out as an example of prosecutorial overreach?

The Siegelman-Scrushy imprisonment stands in stark contrast to what has long been standard practice at the local, state and federal level whereby political donors receive appointments (obtain ambassadorships in return for multimillion dollar contributions) and favorable federal contracts and policy consideration on a routine basis, according to critics of the Alabama prosecution.

These critics include former Arizona Attorney General Grant Woods, a Republican who was also co-chair that year of GOP nominee John McCain’s 2008 presidential campaign. That year, Woods spoke out to a nationwide audience on CBS “60 Minutes” (Did Ex-Alabama Governor Get A Raw Deal? Scott Pelley, Feb. 21, 2008.60 Minutes Reports On Bribery Conviction Of Don Siegelman In A Case Criticized by Democrats And Republicans.)

"I haven't seen a case with this many red flags on it that pointed towards a real injustice being done," Woods said as he led, in addition to his other duties, an unprecedent effort that grew to 113 former state attorneys general (the chief law enforcers in more than 40 states) who asked Congress and the Supreme Court to investigate the case.

"I personally believe that what happened here is that they targeted Don Siegelman because they could not beat him fair and square. This was a Republican state and he was the one Democrat they could never get rid of," Woods says.

The Jones role in this raises wider implications and concerns.

Back in Alabama, the state Democratic Party has been shattered and ineffective for the most part in the years after Siegelman’s removal from politics.

His prosecutions, imprisonment and “scandal” consumed much of local activist energy after the disputed 2002 election of his Republican rival Bob Riley, right,who benefited from the mysterious late-night switch of some 6,000 electronic ballots in Republican Baldwin County in the late hours after Siegelman had been announced as statewide winner.

Gerrymandered congressional districts each year generate one Democratic seat, currently held by Rep. Terry Sewell in a “Black Belt” seat that stretches from Birmingham through Selma to the outskirts of Mobile.

But other Democrats face almost impossible odds aside from the remarkable situation in 2017 when Jones narrowly defeated sex scandal-plagued Republican Roy Moore in a special election after Republican Sen. Jeff Sessions was appointed Attorney General.

Here’s what happened to Siegelman, with reactions by Jones, one of his lead attorneys. Siegelman himself has documented his two-decade ordeal in a memoir this year, author of Stealing Our Democracy: How the Political Assassination of a Governor Threatens Our Nation, published in June by New South books and in a documentary film produced by Steve Wimberly, Atticus vs. The Architect.

Chief U.S. District Judge U.W. Clemon the presiding judge of Siegelman’s first corruption trial in Birmingham, would force prosecutors to drop it soon after it began in 2004.

In 2009, I invited Clemon to appear at a 2009 forum at the National Press Club I organized about abusive prosecutions exposed in the U.S. Attorney Firing Scandal. The then-retired judge travelled to the nation’s capital at his own expense to speak at the event, which was cablecast for three hours by C-SPAN because of public interest in the national scandals.

In advance, the retired judge wrote Attorney General Eric Holder sharing a copy with me, that the Siegelman prosecution had been “the most unfounded criminal case” that he had presided over during his nearly three decades on the federal bench. Because there is a racial component to concern about fairness in the justice system it is worth noting that Clemon was a pioneering African-American member of the federal bench in modern times in the Deep South.

Did Jones undermine his own client? Kreig reports:

One big problem, though, was that the five-year statute of limitations for Siegelman’s 1999 and 2000 actions was set to expire.

Jones convinced Siegelman to waive the statute of limitations because of prosecutors’ supposed benign intentions, thereby subjecting defendant to indictment, imprisonment and financial ruin for his and Scrushy’s families.

There’s more, much more, and way too much to mention here except in passing.

Jones went on to co-chair with Gov. Riley’s son, Rob Riley, a plaintiff’s class action fraud suit against HealthSouth, a company that Scrushy had founded. With the Scrushy and HealthSouth defense hindered by his criminal conviction and imprisonment without bond, plaintiff lawyers won a reported $455 million judgment, with legal fees doubtless enriching the key lawyers.

In February 2008, the CBS news magazine 60 Minutes expose helped make the case a national and global human rights scandal.

The reporting by CBS correspondent Scott Pelley implicated via Republican attorney Jill Simpson Bob Riley’s campaign manager Bill Canary, head of the Alabama Business Council and a longtime ally of then-White House Senior Advisor Karl Rove, in a plan to use Canary’s “girls.” Simpson, in those days a Republican opposition researcher and attorney for contractors, said the “girls” meant Canary’s wife, Montgomery-based U.S. Attorney Leura Canary, and Birmingham-based U.S. attorney Alice Martin, who prosecuted Siegelman’s first trial, before Judge Clemon.

Chief U.S. District Judge Mark Fuller of Montgomery, was the presiding judge for the second Siegelman-Scrushy trial in 2006. He made a number of key, pro-prosecution rulings generating considerable controversy at the time and through the years. For example, he held secret ex parte meetings just with prosecutors and declined to find significant error in communications between the jury and prosecutors, perhaps most notably a potential flirtatous interest expressed by a juror about a prosecutor who seemed attractive to her.

Separately from the CBS broadcast, Simpson showed researchers via documents that Fuller secretly owned nearly 44 percent of the shares of Doss Aviation, a federal contracting company that received $300 million in no-bid Bush contracts without disclosure to the defendants or others appearing before the judge.

This reporter broke that story in 2009 on Huffington Post, which ran it for days on its front page under this headline: Siegelman Deserves New Trial Because of Judge’s ‘Grudge’, Evidence Shows….$300 Million in Bush Military Contracts Awarded to Judge’s Private Company.

The rarely photographed Fuller invited Alabama photo-journalist Phil Fleming after the verdict to take portrait shots in chambers, which Fleming shared, bought by the Justice Integrity Project. Fuller, later forced to resign his lifetime appointment after a misdemeanor arrest for assaulting his then-wife, a court clerk assisting in the Siegelman-Scrushy trial, has declined our invitation for comment.

I used Simpson’s evidence and other materials for a front-page Huffington Post story in 2009 reporting that Fuller “hated” Siegelman because the governor had tried to expose corrupt practices by Fuller in 2002.

The other materials included a 150-page recusal motion filed by Missouri attorney Paul B. Weeks III in Fuller’s court in 2003 charging the judge with corruption in a scheme to bilk Alabama’s pension fund while Fuller was a state prosecutor, thereby generating an investigative effort by Siegelman.

The court record shows that Fuller refused to recuse himself and suppressed the text of Weeks' ethics complaint from the federal records PACER system that he controlled as his district’s chief judge. Appellate courts found no basis to grant defendant evidentiary hearings despite astonishing prosecution breaches of required procedures.

To be continued


David Roberson denies in discovery for $75-million lawsuit that Balch Bingham invoices for payment to Oliver Robinson Foundation were addressed to him

David Roberson

Has Drummond Company waived its right to seek a third stay of discovery in David Roberson's $75-million lawsuit by sending out discovery requests of its own? A lawyer source says he has never heard of such a tactic, but a definitive answer to the question remains unclear. This much, however, is clear: Drummond  has sent out discovery requests to the plaintiffs, and evidence of that is embedded at the end of this post. In fact, Roberson already has responded to Drummond's requests for admission, and some of his answers are pretty darned interesting. Here are a few that jump out to us:

3. Pertains to the following statement from the [criminal trial] transcript: "Your Honor, I'm an honest and trusted man and have been my entire life. Aside from a speeding ticket 20 years ago, I have not broken the law. I am innocent of all the charges that were brought against me. My entire career for over 42 years has been devoted to being honest and abiding by the law."

e. Admit that during your employment with Drummond, you never recommended, or had any knowledge of, any contribution to a public official which was violative of the law.

Response: Admit as head of government affairs I never made or recommended on behalf of Drummond any contribution to a public official which was violative of the law. Deny the remainder.

12. Admit that, during your employment with Drummond, you never told anyone at Drummond the dealings with Oliver Robinson and/or the Oliver Robinson Foundation were of  questionable legality.

    Response: Deny. 

14 (a)-(f) pertain to the following statement from the [criminal trial] transcript: "I believed then and I still  believe I am innocent because my work with Balch was based on advice of counsel in relation to their contract with the Oliver Robinson Foundation and the foundation grassroots work in the vicinity of the ABC Coke plant.

e. Admit that you suggested Oliver Robinson and/or one of his affiliated entities to perform such work.

    Response: Deny.

f. Admit that you are aware of no one else at Drummond suggesting that Oliver Robinson and/or one of his associate entities perform such work.

    Response: Admit. Neither myself nor anyone at Drummond recommended Oliver for this work.

23. Admit that you were present at a meeting attended by Mike Tracy, Blake Andrews, and Joel Gilbert at which Mr. Tracy asked Mr. Gilbert if the work proposed to be done by Oliver Robinson . . . was legal.

    Response: Admit.

24 Admit that Mr. Gilbert responded to Mr. Tracy's question referenced above . . . that there was nothing problematic with engaging Oliver Robinson . . . 

    Response: Admit.

25. Admit that you are not aware of any invoice ever submitted by Balch and Bingham to Blake Andrews for reimbursement of payments made to the Oliver Robinson Foundation.

    Response: Deny.

26. Admit that every invoice submitted by Balch and Bingham to Drummond  for reimbursement of payments to the Oliver Robinson Foundation were addressed to you.

    Response: Deny.

37. Admit that the only federal crimes with which you have been charged appear in the indictment available on PACER.

    Response: Admit. However the testimony that Scott Phillips was hired by Drummond to lobby his own agency, which I was totally unaware of, played a big role in my being found guilty in my criminal trial.

42. Admit that you never had any written employment agreement with Drummond.

    Response: Deny.

43. Admit that you never told anyone that Drummond had done anything improper in relation to matters made the basis of your complaint until after you were terminated by Drummond. 

    Response: Deny.

Tuesday, December 15, 2020

Has Drummond Company waived its right to delay evidence gathering in $75-million Roberson lawsuit after engaging in discovery proceedings of its own?

Burt Newsome

Drummond Company's most recent motion to stay discovery in a former vice president's $75-million lawsuit is improper because the company already has engaged in discovery of its own, meaning Drummond has no lawful grounds to block plaintiffs David and Anna Roberson from gathering evidence via the discovery process. Writes Burt Newsome, attorney for the Robersons, in their objection to the requested stay:

By filing its own discovery to the Robersons, Drummond Company has clearly waived any alleged right to prevent the Robersons from conducting discovery. See Ex Parte Great Escapes Travel Inc., 573 So. 2d 278 (Ala., 1990). Defendant Drummond Company is estopped from demanding a stay in a discovery process that it participated heavily in just seven days prior to seeking the stay. Such a ruling would be an extreme denial of due process to the Robersons.

 Drummond's attorneys seem to have selective memories regarding discovery in the Roberson case. Writes Nwsome:

Drummond, in its latest "emergency motion to stay discovery," lists out all the discovery that has been filed by the plaintiffs since this court entered an order for discovery in the case to commence. Drummond neglects to mention, however, that it too has filed a large amount of discovery of its own since the stay on discovery was lifted.

Newsome then lists five pieces of discovery Drummond propounded to the Robersons in the seven days before seeking a stay, including interrogatories, requests for production of documents, requests for admissions, and notices of depositions. Newsome also lays out the history of a case that has been marked by lengthy delays. (The Robersons' full objection is embedded at the end of this post.)

Drummond's mandamus petition and emergency motion to stay discovery present nothing new for this court, Drummond previously filed a motion for leave to file an interlocutory appeal and a motion to stay discovery, and this court denied those motions. In an effort to circumvent the denial of its motion for interlocutory appeal and its effect on the case moving forward, Drummond has now filed a mandamus petition with the Alabama Supreme Court and yet another motion to stay discovery (the third such motion seeking to prevent discovery filed by the defendants in this case) with this court. Drummond's most recent motion to stay is due to be denied as well.

Drummond's motion is, again, designed to prevent the Robersons from conducting discovery. Although this action was filed on March 15, 2019, the Robersons were stayed from conducting discovery until October 30, 2020, a period of over 19 months. As this court held, in denying Drummond's earlier motion to stay, it would be unreasonable and unfair to further prevent the Roberson's from conducting discovery.

Monday, December 14, 2020

U.S. Eleventh Circuit Judge Gerald Bard Tjoflat gets away with protecting his financial interests, in part, because laws on financial conflicts are a jumbled mess

Gerald Bard Tjoflat

One of the fundamentals of American law is this: A federal judge automatically is disqualified from hearing a case in which he or an immediate family member has a financial interest. So, how does Judge Gerald Bard Tjoflat, of the U.S. 11th Circuit Court of Appeals (Alabama, Georgia, and Florida) get away with routinely hearing cases that involve JPMorgan Chase (JPMC) and Bank of America (BOA), two financial monoliths in which he has a financial stake, according to public records? One answer might be that Tjoflat, an 89-year-old GOP appointee from the Richard Nixon era, is a poorly policed crook, who just happens to have a robe. Another answer might be that U.S. law on this subject is not nearly as concise and straightforward as it should be -- opening cracks for snakes like Tjoflat to crawl through.

Perhaps most alarming is, according to our research, Tjoflat has a perfect record of favoring his financial interests in court proceedings -- 15-0 in favor of JPMC and 24-0 in favor of BOA. How did this happen? Americans would not tolerate such blatant cheating by sports officials. Well, the relationship between federal judges and their investments, and how that might affect the judges' role as "impartial arbiters," is governed by a jumbled (even contradictory) mish mash of law -- statutory law, case law, U.S. Supreme Court opinions, ethics advisories, and so on.

This should matter to all Americans, and it certainly matters to my wife, Carol, and me. Tjoflat was on a three-judge panel that violated all kinds of precedent to rule against us in an appeal of "The House Case," a lawsuit over the theft of our Birmingham home of almost 25 years via a wrongful foreclosure. Who initiated the foreclosure on our home? Why, that would be Chase Mortgage, a subsidiary of JPMC and part of Tjoflat's financial portfolio. In other words, Tjoflat cheated us by protecting his own pocketbook.

If Tjoflat was disqualified from hearing our appeal -- and there is little doubt he was -- that means the panel's ruling is void and can be attacked as such at any time. It also means we might have a path for getting our house back, and we intend to pursue that with all the gusto we can muster.

That will mean traversing a jumble of laws that should be simple, but is unnecessarily complex. Let's take a brief tour of the relevant law:

I. 28 U.S. Code 455(a)(b)(4)

(A) What it says: "(a) Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.

(b) "He shall also disqualify himself in the following circumstances:

(4) "He knows that he, individually or as a fiduciary, or his spouse or minor child residing in his household, has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding."

(B) Is this the last word? It should be, but it isn't.

II. 28 U.S. Code 455(d)(4)(i)

(A) What it says: "(4) 'financial interest' means ownership of a legal or equitable interest, however small, or a relationship as director, adviser, or other active participant in the affairs of a party, except that:

(i) "Ownership in a mutual or common investment fund that holds securities is not a 'financial interest' in such securities unless the judge participates in the management of the fund."

(B) What the hell? Doesn't this contradict everything stated in section I. above? Heck, doesn't (i) contradict (4)?

(C) Answer: Yes, it sure does. It also does not square with case law, U.S. Supreme Court rulings, and ethics opinions. I told you this was jumbled.

III. Tatham v. Rogers, 283 P. 3d 583 (Wash: Court of Appeals, 3rd Div., 2012)

(A) What it says: "The due process clause incorporated the common law rule that judges must recuse themselves when they have "a direct, personal, substantial pecuniary interest" in a case. Tumey v. Ohio, 273 U.S. 510, 523, 47 S.Ct. 437, 71 L.Ed. 749 (1927)."

(B) What does this say about Tjoflat's actions? That's not fully clear, but he clearly has a pecuniary interest in JPMC and BOA, and the record shows that he rules in their favor every chance he gets. Are his interests "direct, personal, and substantial." We don't know from the public record, but that is an area for further inquiry.

IV. Aetna Life Ins. Co. v. Lavoie, 475 US 813 (U.S. Supreme Court, 1986)

(A) What it says: This case originated in Alabama, and SCOTUS found: "The record in this case presents more than mere allegations of bias and prejudice, however. Appellant also presses a claim that Justice Embry had a more direct stake in the outcome of this case. In Tumey, while recognizing that the Constitution does not reach every issue of judicial qualification, the Court concluded that "it certainly violates the Fourteenth Amendment . . . to subject [a person's] liberty or property to the judgment of a court the judge of which has a direct, personal, substantial, pecuniary interest in reaching a conclusion against him in his case." More than 30 years ago Justice Black, speaking for the Court, reached a similar conclusion and recognized that under the Due Process Clause no judge "can be a judge in his own case [or be] permitted to try cases where he has an interest in the outcome." In re Murchison, 349 U. S. 133, 136 (1955). He went on to acknowledge that what degree or kind of interest is sufficient to disqualify a judge from sitting "cannot be defined with precision." Ibid. Nonetheless, a reasonable formulation of the issue is whether the "situation is one `which would offer a possible temptation to the average . . . judge to . . . lead him not to hold the balance nice, clear and true.' " Ward v. Village of Monroeville . . . .

We conclude that Justice Embry's participation in this case violated appellant's due process rights as explicated in Tumey, Murchison, and Ward. We make clear that we are not required to decide whether in fact Justice Embry was influenced, but only whether sitting on the case then before the Supreme Court of Alabama " `would offer a possible temptation to the average . . . judge to . . . lead him not to hold the balance nice, clear and true.' " Ward, 409 U. S., at 60 (quoting Tumey v. Ohio, supra, at 532). The Due Process Clause "may sometimes bar trial by judges who have no actual bias and who would do their very best to weigh the scales of justice equally between contending parties. But to perform its high function in the best way, `justice must satisfy the appearance of justice.' " Murchison, 349 U. S., at 136

(B) What does this say about Tjoflat's actions? As noted above, Tjoflat has favored JPMC and BOA, combined, in 39 of 39 cases. Can anyone seriously argue that satisfies "the appearance of justice."

V. Committee on Codes of Conduct Advisory Opinion: No. 106: Mutual or Common Investment Funds

(A) What it says: "Although the Code does not define “mutual or common investment fund,” determining whether a fund qualifies for the safe harbor contemplated under Canon 3C(3)(c)(i) involves several related considerations, including: (1) the number of participants in the fund; (2) the size and diversity of fund investments; (3) the ability of participants to direct their investments; (4) the ease of access to and frequency of information provided about the fund portfolio; (5) the pace of turnover in fund investments; and (6) any ownership interest investors have in the individual assets of the fund. . . .

Recusal considerations related to mutual or common investment funds

"As discussed above, investment in a mutual fund normally will avoid recusal concerns because the judge is not considered to have a direct financial interest in the securities that the fund holds. However, there is an additional factor for a judge to consider in determining whether owning a particular mutual fund will effectively avoid recusal considerations related to that fund. In unusual circumstances, recusal may be required under Canon 3C(1)(c) because the judge has an “interest that could be affected substantially by the outcome of the proceeding.”

(B) What does this tell us? I have three takeaways: (1) The committee cannot define a "mutual or common investment fund," so litigants, such as Carol and me, have little way of knowing the nature of Tjoflat's investments in JPMorgan Chase, whose subsidiary held the mortgage on our home; (2) Even if all of Tjoflat's investments are in mutual funds -- and we don't know that they are -- he should recuse if his interest "could be affected substantially by the outcome of the proceeding;" (3) Can Tjoflat direct his investments in any fund that includes Chase? How frequently does Tjoflat receive information about the fund portfolio? What ownership interest does Tjoflat have in individual assets of the fund -- such as those involving Chase? Those three questions should be central to any inquiry about whether Tjoflat was disqualified from hearing our case.

Could our alleged wrongful foreclosure hit Tjoflat in the pocketbook? To the extent that I was wrongfully arrested and jailed for five months, blocking us from correcting issues with our mortgage --  and that would point to Chase being involved in a criminal conspiracy to deprive Carol and me of our civil rights -- that seems to be the kind of grotesque misconduct that could indeed cause the value of Chase stock to take a hit.

Of more importance, in my mind, is Tjoflat's 39-0 record of protecting his big-bank investments. Also key in our case is that the Tjoflat panel blatantly butchered circuit precedent, so as to not even address substantive issues in our appeal. A Tjoflat panel took a similar approach in another Alabama case, Jackson v. Bank of America.

The Committee on Judicial Conduct essentially leaves it to judges to make disqualification decisions. But we believe it's past time to pull back the curtain and inform the public of evidence that Gerald Bard Tjoflat, the nation's longest serving federal judge, has made it a habit to cheat everyday Americans by providing cover for banking behemoths -- violating Due Process rights at every turn. 

Friday, December 11, 2020

Drummond Company tries to go over Circuit Judge Tamara Harris Johnson's head, even though her denial of interlocutory certification clearly was correct

Drummond Coal

Drummond Company today filed a petition for a writ of mandamus, asking the Alabama Supreme Court to overrule Circuit Judge Tamara Harris Johnson's refusal to certify the company's motion for an interlocutory appeal in David Roberson's $75-million fraud lawsuit. The mandamus petition comes even though Johnson's refusal to certify clearly was correct under the law. Drummond also filed an emergency motion to stay discovery in the trial court. That raises this question: Is the Drummond petition simply another stalling tactic in a case that already has been delayed for more than 14 months? (The full mandamus petition is embedded at the end of this post.)

What was the standard that guided Johnson's consideration of Drummond's request for certification? Here's how the judge correctly stated it in her order:

The prerequisites of such an Order, as is requested by the Defendant Drummond, requires a certification by this Court that, in this Court's opinion, the requested interlocutory order involves a controlling question of law as to which there is substantial ground of difference of opinion, that an immediate appeal from the Order, as is requested by the Defendant Drummond from the Court's order would materially advance the ultimate termination of the litigation, and that the appeal would avoid protracted and expensive litigation.This Court cannot certify that it shares the necessary opinion to further the herein request for an interlocutory appeal.

Why did Johnson find that she could not share the necessary opinion for certification? Again, she correctly explained that in her order. From our earlier post:

What is that central question Drummond seeks to place before the high court? Here's how it is stated in the company's brief:

Whether a  corporation, which is not itself a legal services provider, may avail itself of the ALSLA statute of limitations where its alleged liability is based on the conduct of its general counsel, who is a legal services provider?

        The Alabama Supreme Court already has answered that question in a case styled Alabama Educ.             Ass’n v. Nelson, 770 So. 2d 1057 (Ala. 2000). Nelson involved a teacher's efforts to sue AEA                 under the Alabama Legal Services Liabiliy Act (ALSLA) because of alleged legal malpractice by          one of the association's in-house lawyers. That appears to be analogous to Roberson's claims                 related to Drummond in-house counsel Blake Andrews -- and the company's efforts to seek                     protection of the ALSLA and its tight statute-of-limitations, which could make the Roberson lawsuit time-barred.

        But Drummond has a slight problem -- it admits that it is not a legal-services provider, and the Alabama Supreme Court held in Nelson that the ALSLA does not apply in such situations. In essence, the state's high court found in Nelson that ALSLA does not apply to the AEA -- which,  like Drummond, is not a legal-services provider -- so it could not apply to Drummond. That means Roberson's complaint is not time-barred, and Drummond's request for interlocutory appeal should  be sent to the dead letter office. Here is the key finding in Nelson:

            We note that throughout the ALSLA, the language used by the Legislature indicate   that the                    Act  was intended to apply to lawyers and law firms.

Drummond seemingly struggles to accept the fact that it is not a law firm, meaning Roberson's claims cannot be time-barred under the ALSLA. The issue could not be more well-settled under the law, but Drummond continues to argue it in yesterday's filing. 

Perhaps realizing the ALSLA argument is a loser, Drummond focuses heavily in today's filing on the so-called Hinkle rule. From he petition:

The law does not permit Roberson to collaterally attack his criminal conviction. “Where the court trying the case has jurisdiction of the subject-matter and the parties, as here, the judgment, although irregular in form, or erroneous, is conclusive, so long as unreversed, and cannot be attacked collaterally. . . . 

This Court is in accord: “A person cannot maintain a cause of action if, in order to establish it, he must rely in whole or in part on an illegal or immoral act or transaction to which he is a party.” Hinkle v. Ry. Express Agency, 6 So. 2d 417, 421 (Ala. 1942). This settled rule “derives principally not from consideration for the defendant, but from a desire to see that those who transgress the moral or criminal code shall not receive aid from the judicial branch of government.

Johnson did not address Hinkle in her certification denial, and that's probably because Drummond acknowledges the rule applies to only three counts in the Roberson complaint.  Let's briefly revisit the standard that governs certification for an interlocutory appeal:

The prerequisites of such an Order, as is requested by the Defendant Drummond, requires a certification by this Court that, in this Court's opinion, the requested interlocutory order involves a controlling question of law as to which there is substantial ground of difference of opinion, that an immediate appeal from the Order, as is requested by the Defendant Drummond from the Court's order would materially advance the ultimate termination of the litigation, and that the appeal would avoid protracted and expensive litigation.

 Even if the Hinkle-related issues were found in Drummond's favor, other issues would remain, so an interlocutory appeal would not advance ultimate termination of the litigation, and it would not avoid protracted and expensive litigation.

Again, Johnson got it right across the board, so why did Drummond file its petition today?


Thursday, December 10, 2020

Alabama Supreme Court should have an easy call in reversing trial court and restoring Balch Bingham to David Roberson's $75-million fraud lawsuit

Alabama Supreme Court

Former Drummond Company vice president David Roberson has filed an appellate brief seeking to have the dismissal of Balch and Bingham from his $75-million fraud lawsuit overturned. If the Alabama Supreme Court follows its own precedent, Roberson's appeal should be successful -- and the ruling should be fairly easy to reach. 

The Roberson brief is 80 pages long and touches on a host of issues that indicate Balch Bingham should be brought back into the lawsuit to join codefendant Drummond, which had Circuit Judge Tamara Harris Johnson deny its motion to dismiss. (The full Roberson brief is embedded at the end of this post.)

The appeal, however, probably can boil down to two dispositive issues:

(1) Judge Johnson erred in failing to accept as true Roberson's factual allegation that he did not have an attorney-client relationship with Balch Bingham -- 

Johnson apparently found this allegation was conclusory and improperly pled, but that runs contrary to Alabama Supreme Court precedent, as found in a case style Ex parte Austal USA (2007). From our post on the Austal finding:

In Austal, several employees were injured while using a "Miller saw," and they alleged that Austal intentionally injured them, asserting a claim for fraud and stating, "Austal “intentionally made false statements regarding the safety of the Miller Saw” and that those statements were made “with the conscious and deliberate intent to injure its workmen, including plaintiffs, with the Miller Saw so that it could build its ships without having to incur the costs associated with finding a safer alternative method to perform the work. . . .” Austal fraudulently “suppressed, concealed, hid or withheld important facts from the Plaintiffs regarding the known safety hazards associated with the Miller Saw ․ and that Austal knew the tool was unsafe and had made the conscious and deliberate decision to intentionally injure its workmen with the tool so that it could build its ships without having to incur the costs associated with finding a safer alternative method to perform the work.”

Austal labeled the allegations "conclusory" and claimed the injuries were accidental, the kind for which the company was immune from tort liability. The trial court denied Austal's Motion to Dismiss, and the Alabama Supreme Court denied the company's petition for mandamus review. 

The factual allegations in Austal, particularly those involving reliance on false statements, are similar to those in the Roberson case. The Supreme Court's reasoning on denial of a Motion for Dismiss also is instructive for Roberson:

Austal urges this Court to look only to the specific factual allegations pleaded in the plaintiffs' complaint concerning how the injuries occurred and the alleged business motivations Austal had for requiring the plaintiffs to work with a dangerous tool. Those allegations, Austal contends, describe precisely the type of workplace accidental injuries for which it is immune from tort liability. . . . 

At the motion-to-dismiss stage, however, a court's ability to pick and choose which allegations of the complaint to accept as true is constrained by Alabama's broad and well settled standard for the dismissal of claims under Rule 12(b)(6). In this case, there is no question that the plaintiffs have pleaded that Austal “made the conscious and deliberate decision to intentionally injure its workmen.” That allegation -- that a company would deliberately injure multiple specific employees -- is so shocking that it invites skepticism. Moreover, we agree with Austal that a specific intent or desire to cause injury to its employees is not particularly consistent with the alleged cost-saving motivation for causing such injuries. Nevertheless, our standard of review does not permit this Court to consider the plausibility of the allegations. Rather, in considering whether a complaint is sufficient to withstand a motion to dismiss, we must take the allegations of the complaint as true, Ussery v. Terry, 201 So. 3d 544, 546 (Ala. 2016); we do not consider “'whether the pleader will ultimately prevail but whether the pleader may possibly prevail,”' Daniel v. Moye, [Ms. 1140819, November 10, 2016] ___ So. 3d ___, ___ (Ala. 2016) (quoting Newman v. Savas, 878 So. 2d 1147, 1149 (Ala. 2003) (emphasis added)); and “[w]e construe all doubts regarding the sufficiency of the complaint in favor of the plaintiff.” Daniel, ___ So. 3d at ___. Furthermore, a Rule 12(b)(6) dismissal is proper “'only when it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim that would entitle the plaintiff to relief.”' Knox v. Western World Ins. Co., 893 So. 2d 321, 322 (Ala. 2004) (quoting Nance v. Matthews, 622 So. 2d 297, 299 (Ala. 1993)).

In this case, regardless of our view on the likelihood of the plaintiffs' ultimate ability to establish the truth of the intent-to-injure allegations, or even to survive the summary-judgment stage, we cannot deny that there is at least some possibility that those allegations are true. Accordingly, the plaintiffs are entitled to at least limited discovery on the issue whether their claims are subject to the exclusivity provision of the LHWCA.5 Thus, Austal has not shown a clear legal right to a Rule 12(b)(6) dismissal.

In Austal, the plaintiffs' allegations clearly could be labeled as conclusory; in fact, they border on mind reading. But the Alabama Supreme Court made two central findings:

(a) Despite the unlikely nature of the plaintiffs' claims, they had to be taken as true for purposes of a motion to dismiss.

(b) All doubts about the sufficiency of the complaint must be construed in favor of the plaintiff at the motion-to-dismiss stage.

Johnson failed to apply these standards in the Roberson matter, so her dismissal of Balch Bingham should be reversed on those grounds alone.

Those, however, are not the only grounds for reversal:

(2) Judge Johnson erred in finding the Alabama Legal Services Liability Act (ALSLA), and its tight statute of limitations, applied to Balch Bingham even if Roberson had no attorney-client relationship with the firm.

Again, this runs afoul of Alabama Supreme Court precedent as stated in Mississippi Valley Title Ins. Co. v. Hooper, 707 So. 2d 209 (Ala., 1997) From our post on the Mississippi Valley finding. 

Alabama law is clear that ALSLA -- and its tight statute of limitations, which could make the Roberson complaint time-barred -- applies only where there is an attorney-client relationship. Circuit Judge Tamara Harris Johnson correctly stated the law in her recent order dismissing the Balch and Bingham law firm from the Roberson case, citing a case styled Mississippi Valley Title Ins. Co. v. Hooper, 707 So. 2d 209 (Ala., 1997). Harris wrote:

The Court held further that “an attorney-client relationship is an essential element of a claim under the Legal Services Liability Act... To create an attorney-client relationship,there must be an employment contract‘either express or implied’ between an attorney and the party for whom he purports to act or someone authorized to represent such party. . . . ”

The Court in Mississippi Valley, supra, further held, The test for determining the existence of [an attorney-client] relationship is a subjective one and ‘hinges upon the client’s belief that he is consulting a lawyer in that capacity and his manifested intention is to seek professional legal advice.”

In our view, Johnson correctly stated the law in the Balch dismissal, but she applied it incorrectly -- and her order should be reversed by the Alabama Supreme Court, where it stands on appeal.

To summarize:

(1) Roberson must have had an attorney-client relationship with Balch Bingham for his complaint to fall under ALSLA and be time-barred.

(2) Roberson said in his complaint that he had no such relationship with anyone at Balch, and that must be taken as true. On top of that, the record shows no sign of an employment contract, "express or implied," between Roberson and any lawyer at Balch. Finally, there is no hint that Roberson believed he was consulting a lawyer in the capacity of being a client. In fact, the words of Roberson's complaint, which must be taken as true, show just the opposite -- that he had no such belief.

For the reasons cited above, the Alabama Supreme Court should have an easy call in reversing Johnson and bringing Balch Bingham back into the Roberson lawsuit.