Adventures in the Law: The Me and My Big Mouth Award

Todd represented Continental Service Group (ConServe for short) in competing for a $400 million Department of Education debt-collection contract. When rival bidder Performant Recovery won the contract, ConServe was one of 19 losing bidders challenging the award as arbitrary, capricious, and without rational basis.

Todd represented ConServe in the challenge. He was nothing if not zealous in his advocacy, and he didn’t limit that advocacy to court filings. He was quoted in the Washington Post as telling its reporter,

“Given the fact that Performant was not a highly rated [company] and, in fact, was rated fairly low, the agency will need to explain how suddenly these ratings changed so significantly to allow Performant to leapfrog over so many other qualified [companies].”

Performant COO Jeffrey Haughton learned about Todd’s remarks when a Post reporter asked for a comment on them. Needless to say, Jeffrey was steamed to hear his company labeled as “not highly rated” and “rated fairly low.”

But it wasn’t just the content of the comments that angered Jeffrey. It was also the source. You see, Todd’s firm was Performant’s corporate counsel. That meant that Todd was disparaging a current client of his firm and doing so in one of the nation’s leading newspapers. Jeffrey called Todd’s firm to express his outrage.

Nevertheless, Todd continued to represent ConServe in challenging the award to Performant. Performant moved to disqualify Todd and his firm because of the conflict. Todd fought the motion, explaining that his firm’s conflicts system had failed to identify Performant as a current client because it was listed in the system under its old name: Diversified Collection Services.

U.S. Court of Claims Judge Thomas Wheeler rejected that argument, not least because Todd’s firm had advised Performant on changing its name from Diversified Collection to Performant.

What’s more, once Jeffrey had made his angry call, Todd and his firm were fully aware of the conflicting interests of its two clients and of Performant’s objection to the continued representation of ConServe. In a blistering eight-page opinion, Judge Wheeler disqualified Todd and his firm.

The next time a reporter asks you to comment on one of your cases, think about Todd.

The case is FMS Investment v. United States, Court of Federal Claims.

Author

Norman G. Tabler, Jr. 
Columnist and Editorial Member, Voice of Experience

Norman G. Tabler, Jr., is a retired partner with Faegre Baker Daniels, where he led the firm’s health law practice. He serves on the editorial advisory boards of the ABA Senior Lawyers Division’s Voice of Experience, the ABA Health Law Section’s The Health Lawyer, and Law360 Health. He is the host of the American Health Lawyers podcast The Lighter Side of Health Law. He was educated at Princeton (A.B.), Yale (M.A.), and Columbia (J.D.). He may be reached at Norman.Tabler@FaegreBD.com.