Randy K. Clark

Practice Areas

Complex Litigation :

Success and excellence in litigation requires a broad spectrum of skills and resources: perseverance, intellect, diligence, aggressive pursuit of client objectives and other talents. When the litigation involved can be characterized as "complex," all of these skills remain important, but complex litigation typically requires additional skills, experience and resources that many highly competent attorneys/firms do not possess. Some examples of when litigation can be characterized as complex include:

  • Massive document productions by or to the client
  • Large numbers of potential deponents and witnesses
  • Issues involving complex calculations and large quantities of data
  • Complexity and interrelationship of multiple issues
  • Class actions

This firm is experienced in such litigation. In addition, when necessary, this firm collaborates with other lawyers and subject matter experts experienced in complex litigation, and assembles teams tailored to the particular complex facets of each case. We then utilize the skills of these lawyers in conjunction with the latest technology to achieve efficiency, and—ultimately the most important factor—to deliver results. Some of the particular advantages that RANDY K. CLARK, P.C., brings to complex litigation are as follows:

  • Litigation Support and Pretrial Computer Management Systems
    We have experience in the use of sophisticated litigation support and computer systems and database development and management. We have our own software and hardware systems, fully developed and ready to apply to client needs, without needing to hire external litigation support consultants to spend months designing a workable system. Our graphics, computers and technical equipment are top level. Our approach recognizes that every case is different, and that there are economic trade-offs between possible approaches that only the client can decide. Through technology and our structure we are able to function on a regional, national and if needed, a global basis.
  • Use of Sophisticated Expert Witnesses
    Success in many complex cases depends upon the ability to identify those issues that require expert witnesses, identify the potential experts, evaluate them, and recommend the ultimate selection to our client. We have experience with experts on a local, regional and national basis.
  • Analysis of Masses of Data and Use of Complex Computer Programs
    Some cases involve more than masses of data, such as where there are many claimants or damage issues involving long time periods and multiple variables. The failure to understand and master the pertinent data can seriously damage a client's interests. Early and complete mastery of the data to assess exposure or potential recovery can drive choices regarding settlement versus continued litigation.
  • Class Action Cases
    While not every class action qualifies as a complex matter, many do. The complexity, number of claimants and sometimes long periods of time involved, along with special rules for the class action certification process - result in a variety of complexities.
  • Trial and Pre-Trial Presentation Techniques
    The typical complex litigation matter today extends the complexity of pretrial and trial preparation into the courtroom. This situation requires trial lawyers to recognize and adapt to current reality. Courtroom technology has advanced at a rapid pace but not all attorneys or firms take advantage of these developments. We understand the new technology, and how it can be employed to advance our clients' interests, while at the same time understand that "high-tech" is not the right answer in every trial situation. We are experienced in using systems that quickly call up pertinent documents on large monitors for the court and jury, and that permit such documents to be annotated in a way that drives home key points. We are experienced in using not only live testimony, but video testimony, and if appropriate, presentation of testimony by video conferencing into court in cases where a witness will not or cannot come to court.
  • Case Management and Resources
    Litigation is expensive. Complex litigation can be particularly so. But overall costs can be controlled by using case management and budgeting techniques and by closely coordinating other litigation counsel and resources as needed. Legal research, too, can be expensive. However, we are set up to minimize this costs with no negative impact on our clients, we can access legal research on all topics from anywhere in the world at any time. Further, the resources to sustain extended and drawn out litigation can be enormous. This firm has experience and the proven ability to do so.

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Class Action Cases :

Class action lawsuits may offer a number of advantages because they aggregate a large number of individualized claims into one representational lawsuit. They include:

  • First, aggregation can increase the efficiency of the legal process, and lower the costs of litigation. In cases with common questions of law and fact, aggregation of claims into a class action may avoid the necessity of repeating "days of the same witnesses, exhibits and issues from trial to trial."
  • Second, a class action may overcome "the problem that small recoveries do not provide the incentive for any individual to bring a solo action prosecuting his or her rights." In other words, a class action ensures that a defendant who engages in widespread harm – but does so minimally against each individual plaintiff – must compensate those individuals for their injuries. For example, thousands of shareholders of a public company may have losses too small to justify separate lawsuits, but a class action can be brought efficiently on behalf of all shareholders. Perhaps even more important than compensation is that class treatment of claims may be the only way to impose the costs of wrongdoing on the wrongdoer, thus deterring future wrongdoing.
  • Third, in "limited fund" cases, a class action ensures that all plaintiffs receive relief and that early-filing plaintiffs do not raid the fund (i.e., the defendant) of all its assets before other plaintiffs may be compensated. A class action in such a situation centralizes all claims into one venue where a court can equitably divide the assets amongst all the plaintiffs if they win the case.
  • Fourth, a class action avoids the situation where different court rulings could create "incompatible standards" of conduct for the defendant to follow. For example, a court might certify a case for class treatment where a number of individual bond-holders sue to determine whether they may convert their bonds to common stock. Refusing to litigate the case in one trial could result in different outcomes and inconsistent standards of conduct for the defendant corporation. Thus, courts may allow a class action in such a situation.

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State & Federal False Claims (aka Qui Tam/Whistle-Blower) :

State

New Mexico has two applicable state statutes. They are:

  • The Medicaid False Claims Act. The Medicaid False Claims Act, found at Section 27-14-1 et seq., New Mexico Statues Annotated, specifically addresses aspects of fraud against state Medicaid.
  • The Fraud Against Taxpayers Act. Also know as the New Mexico False Claims Act, is found at Section 44-9-1, New Mexico Statutes Annotated. This law is the general statute applicable to false claims under New Mexico state law.

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Federal

The Federal False Claims Act establishes liability when any person or entity improperly receives from or avoids payment to the Federal government (tax fraud is excepted). The Act prohibits:

  • Knowingly presenting, or causing to be presented, a false claim for payment or approval
  • Knowingly making, using, or causing to be made or used, a false record or statement material to a false or fraudulent claim
  • Conspiring to commit any violation of the False Claims Act
  • Falsely certifying the type or amount of property to be used by the Government
  • Certifying receipt of property on a document without completely knowing that the information is true
  • Knowingly buying Government property from an unauthorized officer of the Government
  • Knowingly making, using, or causing to be made or used, a false record to avoid, or decrease an obligation to pay or transmit property to the Government

The most commonly used of these provisions are the first and second, prohibiting the presentation of false claims to the government and making false records to get a false claim paid. By far the most frequent cases involve situations in which a defendant—usually a corporation but on occasion an individual—overcharges the federal government for goods or services. Other typical cases entail failure to test a product as required by the rigorous government specifications or selling defective products.

The False Claims Act was amended in 1943 to, most notably, reduce the relator's share of the recovered proceeds. The law was again amended in 1986. By that time, there was great concern that the national deficit had risen dangerously and President Ronald Reagan had declared that a vast amount of government spending was being misused through waste and fraud.

After the 1986 amendments strengthening the Act were passed, the Act was used primarily against defense contractors. By the late 1990s, however, the focus had shifted to health care fraud, which now accounts for the majority of cases filed by whistleblowers and the government. The Act was amended again in 2009 by the Fraud Enforcement and Recovery Act of 2009 ("FERA"), which includes significant amendments to the civil False Claims Act ("FCA") 31 U.S.C. § 3729 et seq. In broad terms, FERA extends the FCA's reach to any false or fraudulent claim for government money or property irrespective of:

  • whether the claim is "presented" to a government official or employee;
  • whether the government holds title or has physical custody of the money; or
  • whether the defendant specifically intended to defraud the government.

Under the False Claims Act, the Department of Justice is authorized to pay rewards to those who report fraud against the federal government in an amount of between 15 and 30 percent of what it recovers based upon the whistleblower's report.

Certain claims are not actionable, including:

  • Certain actions against armed forces members, members of Congress, members of the judiciary, or senior executive branch officials
  • Claims, records, or statements made under the Internal Revenue Code of 1986 which would include tax fraud

There are unique procedural requirements in False Claims Act cases. For example:

  • A complaint under the False Claims Act must be filed under seal
  • The complaint must be served on the government but must not be served on the defendant
  • The complaint must be buttressed by a comprehensive memorandum, not filed in court, but served on the government detailing the factual underpinnings of the complaint

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Wrongful Death & Serious Injury Claims

We have over 15 years experience in state, federal and tribal courts which provide the foundation upon which we serve our clients and their families. We take a hands on approach, tailored to each client and/or their family. We work, live and represent clients here in New Mexico. We do not use billboards, infomercials or other types of mass marketing. Our approach is to make ourselves available to discerning clients, recognizing that we take and maintain a limited case load at any given time so that our clients receive maximum personal and professional attention. Our experience includes handling cases from inception, through trial and appeal if necessary. We have successfully represented the injured, their families and their beneficiaries in a broad spectrum, including but not limited to:

  • Wrongful death cases arising from the negligence, gross negligence and/or recklessness of others
  • Death and injury cases arising from drunk driving crashes (sometimes referred to as DUI or DWI)
  • Motorcycle crashes arising from negligent driving of others
  • Death and injury claims arising from truck crashes caused by negligent driving and/or faulty training, management and maintenance of commercial semi-trucks
  • Wrongful death and serious injury claims arising from medical negligence of health care providers and/or facilities such as hospitals, clinics and nursing homes
  • Wrongful death and serious injury claims arising from the negligence of agencies and/or employees of the U. S. Government & State and Local Governments

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Insurance Company Failure to Pay/Defend (Bad Faith) Claims

Insurance companies have duties and obligations to their insureds (policyholders). As an insured person in New Mexico, you are entitled to be treated in accordance with not only the provisions of your insurance contract (policy), but the provisions of state law on claims handling and practices by insurance companies. All insurance companies issuing policies/coverage in New Mexico, must comply with New Mexico law. In some instances, in order to save money, insurance companies place their own interests above that of their insureds (policyholders). This practice is not allowed. Some conduct, which is prohibited by law if without basis, includes:

  • Insurance company failing to communicate with policyholders
  • Delayed response to policyholder questions
  • Denying coverage generally
  • Denying you were a covered person under the policy
  • Denying the loss/property at issue was covered by the policy
  • Repetitive, duplicative or excessive forms and/or procedures being required by the insurance company
  • Requesting additional information or even the same information multiple times
  • Not disclosing to policyholders, coverage that is in the policy
  • Failure to promptly or thoroughly investigate a claim
  • Inadequate claims processing
  • Unreasonable denial of payment
  • Delay in payment
  • Failure to settle an underlying suit against the insured
  • Failure to defend a suit against the insured
  • Claiming you were late paying a premium as a justification for denying coverage

This is but a sampling of conduct that is prohibited by law. All types of insurance policies, including disability, life, homeowner, automobile and accidental death policies require that the insurer act in good faith. If you believe that your insurance company may not be or may not have acted in good faith, you may have legal rights. However, as with all other legal rights, there are statutes of limitations that may bar claims that are untimely. As insurance bad faith law can be complex and insurance companies have resources that virtually no policyholders have, consultation with attorneys experienced in this area is a must.

Contact us for a free, confidential, consultation in this area: 575.622.4241.

Insurance related online resources:

  • FBIC is a private non profit organization focusing on the bad faith conduct of insurance companies.
  • Coalition Against Insurance Fraud
    Information on a variety of insurance fraud topics for both consumers and regulators.
  • The Insurance Journal online publication
  • National Association of Public Insurance Adjusters®
    NAPIA® provides certification and training services for adjusters.
  • For general reading, defining of bad faith, this is the Wikipedia view.
  • National Association of Insurance Commissioners
    The NAIC® is an organization of insurance regulators from the 50 states, District of Columbia and five US territories. The NAIC's mission is to help state insurance regulators in serving the public interest, promoting competitive markets, facilitating fair treatment of consumers, promoting the reliability and financial solidity of insurance institutions and supporting and improving state regulation of insurance.
  • Online resource for "Risk and Insurance Solutions"
  • ABA® Insurance Claims and Issues
    This "blog" discusses issues related to insurance coverage and to the duties of good faith and fair dealing as presented in claims and as ruled on by courts.
  • American Insurance Association
    Site of the American Insurance Association (AIA), which is the leading property-casualty insurance trade organization, representing 350 insurers.

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Will & Estate Fraud Contests

There are many different types of will/estate fraud. They include, but are not limited to:

  • Misusing a power of attorney to take money from a person's bank account or transfer or dispose of another person's property
  • Destruction of a will to force an estate into intestate succession where state law will dictate the disposition of estate assets in effect overruling the destroyed will so that the deceased person's wishes are not followed.
  • Creating a will by forensic manipulation and/or fraud in order to direct the disposition of estate assets
  • Making fraudulent and/or forged changes to an existing and otherwise valid written will
  • A friend or family member uses undue influence to coerce favorable treatment by changing of will, beneficiary designation or other testamentary documents
  • The personal representative of an estate or trustee of a trust delays prompt administration of the estate/trust while spending estate/trust assets.

About Our Fees: We pride ourselves on our ability to structure attorneys fees in a way that works for you. We can handle estate fraud cases on an hourly basis or we can also consider handling cases on a contingency fee basis or making other alternative fee arrangements.

Contact Us Today for a Free Consultation: If you suspect someone may be committing estate fraud, contact us right away as it is very difficult, if not impossible to recover money once it's gone. We have experience in will/estate fraud cases including having handled them from the investigative/forensic stage all the way through trial. We can help whether you need to contest a will, defend a will contest or have some other will/estate dispute related needs.

Contact us for a free consultation: 575.622.4241

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Corporate Shareholder Disputes

State statutes and case law provide for the rights and procedures to enable the protection of shareholders (also referred to stockholders) in New Mexico businesses. This is especially important to and for minority shareholders. We have experience in corporate dissolutions, minority shareholder claims against majority shareholders and related complex corporate and business matters. These claims can be complex and are often paper and record intensive. We have experience in both state and federal courts in handling these matters as well as the proven ability to assemble and utilize the legal, accounting, forensic and technical resources required to effectively and efficiently maximize the potential outcome for our clients.

Contact us for a free consultation: 575.622.4241

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