Mississippi Litigation Review & Commentary

Mississippi Litigation Review & Commentary

Comments on the Latest Developments in Mississippi Civil Litigation

Philip is a trial attorney based in Jackson, Mississippi with a diverse civil litigation practice.

Miss. Bar to Provide Fastcase Legal Research to Members

Posted in Legal Technology

The announcement in the Bar’s weekly email that it will provide Fastcase Legal Research Service for members is great news. I’ve been using Fastcase for a while and discussed it in this post.

Here is info. on the Bar’s website.

Fastcase has been a good alternative to the expensive and predatory billing and collection practices of Westlaw and Lexis. The fact I now will not have to pay $95 per month is great.

Fastcase integrates with Clio case management software, which offers a 10% discount for Bar members.

Fastcase is worth trying for attorneys still paying though the nose legal research.

Judicial Election Time

Posted in Politics in Mississippi

The deadline for running for judicial office has passed. Luckily for me, the topic has already been written about.

Judge Primeaux covers the races for chancery court seats.

The Clarion-Ledger covers the state and local races.

My first impression is that there are more contested seats than usual. A number of sitting judges are not running, so there will be new faces on the bench.

Madison Timber: Receivers and Clawbacks

Posted in Madison Timber Ponzi Scheme

The winners in the Madison Timber ponzi scheme might not be winners for long. This Miss. Business Journal article by Jackson attorneys Win Gault and Spencer Ritchie discuss clawback actions to recover money paid out to ‘investors.’

Clawbacks are bad news for early investors who think they dodged a bullet by getting out.

Meanwhile, Kingfish has a post about the SEC and Secretary of State’s efforts to have a receiver appointed for Lamar Adams and Madison Timber. A receiver would likely be the person/ entity who leads the clawback efforts.

I’m surprised there has been only 1 civil action filed so far.

WSJ: Public Pension Funds Making Promises They Probably Can’t Keep

Posted in PERS Crisis

The Wall Street Journal reported last week on the latest investment returns for public pensions like Mississippi’s PERS. It has a good explanation of why governments aren’t doing anything about the growing PERS crisis:

But government officials seeking to make their investment targets more conservative have a powerful disincentive: Assumptions of high returns appeal to elected leaders because they reduce the amount governments need to set aside to cover pension promises.

It also notes the risks in current investments:

“They’re taking a lot [of] risk in their plans with high allocations to equity and other return-seeking assets,” said Ed Bartholomew, a consultant. “Someone is bearing that risk, and the question should always be ‘who is bearing that risk?’ ”

The answer is: everyone.

If PERS implodes, this will affect us all.

PERS Doing Great!!!!!

Posted in PERS Crisis

Not really.

Here is a Charlie Mitchell column in the Clarion-Ledger about PERS. It includes:

While PERS is far more solvent than Social Security, Uncle Sam’s program for senior citizens, there are some question marks.

Bad analogy. Uncle Sam can print money to pay Social Security benefits. Literally. Mississippi can’t print money. You can’t compare State obligations to federal obligations. You just….can’t.

It goes on:

Any good news?

Yes. During the year, PERS slowly closed the gap between its assets and its projected liabilities.

I’m a glass is half empty kind of guy. To me, that’s bad news. The stock market is 3x above the 2009 lows. It rose every month in 2017. At this point, the funding gap should not be closed. It should be erased. The stock market is not going up every year.

So far, it’s not going up this year. Here is the PERS investment report for the quarter ending March 31: PERS Investment Report.

It earned .1%.

It concludes:

Perhaps more significantly, Mississippi’s plan is working better than those in 26 other states, according to Crain’s Business Report. Tennessee is way up on the “solid” list, followed by Arkansas, which is also ahead of Mississippi. Louisiana is doing slightly worse and Alabama, along with Kentucky and Illinois, are much worse.

There will come a time when PERS needs more fiscal attention from the Legislature. Not every year will have rosy investment returns and other happy news.

For now, though, it’s a point of pride that public employees in Mississippi can breathe easy. “Will there be any money there when I get ready to retire?” is a serious question. For now, the answer is a confident, “Yes.”

It’s like this was ghost written by the PERS director and Tate Reeves.That’s not significant at all. On a scale of 1-10, it’s a 0.

How is other states doing worse going to help? It’s like telling someone on the Titanic that everything is ok because there are a couple of thousand other people going down with them.

Plus, compared to other states, Mississippi is near the bottom in funding levels. Last time I checked, 10th worst. The phrase polishing a turd comes to mind.

Will there be any money when you retire? Yes. Will it be all the money you were promised? Probably not.

Most people in the system who haven’t retired yet are going to take a haircut. And the longer the Legislature plays ostrich, the bigger the haircut.

Civil Lawsuit Filed Against Madison Timber, Salesman in Madison County

Posted in Madison Timber Ponzi Scheme

This may be the first non-SEC civil lawsuit against Madison Timber and its salesmen. It will not be the last.

Highway 22 LLC v. McHenry Complaint.

Highway 22 LLC sued William McHenry, Lamar Adams and Madison Timber in Madison County Circuit Court on Wednesday. McHenry solicited a $150,000 ‘investment’ for MT in 2016. When checks bounced and plaintiff tried to record the deed securing the loan, she discovered the land did not exist.

Eddie Abdeen of Madison represents the plaintiff. That’s going to be a problem for McHenry.

Abdeen is smart.

$350,000 Jury Verdict in Lamar County Sexual Harassment Case

Posted in Verdicts in Mississippi

On Friday a Lamar County jury rendered verdicts totaling $350,000 in Hillman v. Stafford Const. Co.

Here is the Complaint.

Plaintiff alleged Melvin Stafford sexually harassed her at work and fired her after ‘snitching’ on him and refusing to let him stick his hand down her shirt.

The jury returned a compensatory damages verdict of $250,000.

The jury returned a punitive damages verdict of $100,000. It is believed to be the only punitive verdict in at least 20 years in Lamar County.

Daniel Waide with Johnson Ratliff & Waide in Hattiesburg represented plaintiff. Bill Ducker from Purvis represented Defendants. Circuit Judge Tony Mozingo presided.

My Take:

Has there ever been a punitive verdict in Lamar County?

Here’s One of the Timber Scam Sales Documents

Posted in Madison Timber Ponzi Scheme

Someone gave me a Madison Timber sales document. Here it is: Timber return spreadsheet.

The document appears to be from 2011. Here are some questions:

  • if this business is so lucrative, why do they need my money?
  • if they have cash flow to start repaying in a month and pay the loan off in a year, why would they need to borrow money from individuals at 10%?
  • why wouldn’t they go to a bank and get all the money they needed at under 10%?
  • wouldn’t a bank have loaned them the money if they had that cash flow and held assets in a commodity?
  • the hot under the radar investment was…timber? for real?
  • look at a chart for the timber company Weyerhauser (WY). Its stock peaked in 2007, got hammered in the collapse and still hasn’t recovered.
  • who needed all the timber? sawmills were in the toilet because no one was building anything, right? has construction recovered to this day?
  • are these types of investment pitches ever legitimate?

If you want to invest in making loans, you might want to try peer-to-peer lending with companies like Lending Club. You might even get 10% returns. But it will involve investing in loans with a high risk for default.

Ponzigeddon

Posted in Madison Timber Ponzi Scheme, U.S. District Courts in Mississippi

People all over Mississippi woke up this morning glad they had never heard of Arthur Lamar Adams before this week. Except for the victims of the biggest Ponzi scheme to hit Mississippi in around 15 years.

Here is the Felony Charges Filing.

Here is the SEC Complaint.

A.P. stories on the scandal are in the Washington Post and N.Y. Times. Kingfish is on it.

In retrospect, we were due for a Ponzi scheme to break in Mississippi. It’s been at least 15 years since the Namric-Nance Panama Blue Crab Ponzi scheme rocked the Delta. Here is my 2009 blog post mentioning that scheme and linking an article that Madison Timber investors probably wish they had seen.

Non-victims should not be too smug. The only people guaranteed to never fall for a Ponzi scheme are people who never have any money to invest. Ponzi schemes work because the stories are convincing and often backed up with fake documents that look real.

Word is that a lot of local doctors are victims. If you are a doctor-victim, the problem is not that you are dumb (although you may be). The problem is that you live in a state where your profession is at the top of the wage earning ladder.

You’re a target. Get used to it. This will not be the last time. Educate yourself. Don’t be a financial dummy. Don’t trust anyone with your money. Not an accountant, investment advisor, stockbroker, attorney or anyone else. Trust must be earned–not given.

If someone tells you that you can make 10% on an investment and it’s not risky–run. It’s either very risky, or it’s a scam. That may not have been the case in the 80’s when interest rates were 15%. It’s definitely the case now with 10-year treasuries paying 3%.

But there is a foolproof way to make 10 or even 20%. It’s guaranteed. There are no risks. You don’t have to trust anyone with your money. And I’m willing to share this big secret with you for free. Here it comes. Wait for it…..

SPEND LESS MONEY

Live below your means. Banks and brokerage firms let you open as many accounts as you want. Get money out of your checking account into other accounts where you are less likely to spend it. Tell yourself that if you are ever going to accumulate wealth, you have to slow your burn rate.

I’m really sorry if that’s not as appealing as a Ponzi scheme promising 20% returns. But I guarantee you that if you save 20% of your salary this year, you just made a 20% return.

A Look at That 5th Circuit Decision Everyone is Talking About

Posted in 5th Circuit Court of Appeals

A lot of articles are being written about the recent 5th Circuit decision ‘blasting’ prominent plaintiff attorney Mark Lanier. Here is the ABA’s story.

Here is the opinion: Aoki v. Depuy. The Court reversed a $502 million hip implant verdict (already reduced to $151 million due to Texas caps) and remanded the case for a new trial.

Lanier made too many references to defendants bribing Saddam Hussein’s regime and got way too cute with how he paid his experts.

My Take:

My view is more nuanced than Lanier got blasted. Lanier won.

Lanier made inflammatory arguments reminiscent of the Mississippi jackpot justice days, defendants objected, the court overruled the objections and the 5th Circuit reversed the huge verdict because of the improper arguments. It’s hard to argue with the Court’s decision.

If you aren’t familiar with Lanier, check out my post reviewing a book about Lanier trying a Vioxx case. One of the things the book talks about is Lanier having an in-house jury consultant. Let that simmer.

When Lanier tries a case he is swinging for the fences. He is trying to inflame the jury into rendering the $500 million verdict.

When that’s how you roll, you are always going to get close to the line on permissible arguments. Sometimes, you are going to cross the line.

That’s not how I roll. But who’s to say I’m right? I can’t argue with Lanier’s results. And he’s a lot more entertaining at a CLE than me.

Those arguments that Lanier shouldn’t have made may have been the key to the $500 million verdict. Without them, he might have been an underdog to win or win anywhere close to that amount. And he would have known based on the work of his in-house jury consultant.

Say what you want about Mark Lanier. This wasn’t his first rodeo. He knows what he is doing.

I don’t view the opinion as being that bad for Lanier. He got cute. It worked, until it didn’t. But it’s not over. The 5th Circuit remanded for a new trial.

Everyone focuses on Judge Jerry Smith taking Lanier to task. But he doesn’t even get there until page 43 of 57. Most of the decision rejects defendants’ various arguments that would have resulted in a reverse and render. It’s a beautifully written opinion on products liability law.

Products cases are a murderers row for plaintiffs. There are trap doors everywhere. Research Daubert and preemption long enough and it looks like plaintiffs can’t get a case to the jury.

But this case was a decision for the jury. Plaintiffs navigated all the trap doors and it held up on appeal.

Did Lanier and his co-counsel think a $500 million verdict would be held up on appeal?

Whatever they thought, what happened wasn’t anywhere near the worst case scenario. I’m betting Lanier means it when he says he’s not upset about the ruling.

The pressure on Lanier and the other plaintiffs’ counsel at the retrial will be much lower than the first trial. I bet they aren’t sick today and the defendants and their lawyers aren’t celebrating.