[Missouri-l] Blind Pension update
chip at gatewayfortheblind.com
Mon Oct 4 22:21:48 CDT 2010
From: DEBORAH S. GREIDER, LLC 314.726.1299 [office]
Attorney at Law 314.727.9969 [FAX]
Parkway Tower-Suite 620 314.479.3745 [cell]
225 S. Meramec 314-727-8910[general line]
St. Louis, MO 63105
dgreider at greiderlaw.com
To: Chip Hailey
Date: October 4, 2010
Re: Appeal-Class Action Lawsuit/Blind Pension Fund
You recently asked me to give you an update regarding the present status of the appeal in the case Gerken v. Sherman, Case No. 06AC-CC00123-01, which is pending before the Missouri Court of Appeals, Western District.
This case, as you know, was appealed by the Department of Social Services, Family Support Division, State of Missouri, in May 2010, after the Court-appointed Special Master, Dr. James LePage, PhD., CPA, determined that the State owed the class approximately $19 million plus prejudgment interest of approximately $11 million and after the Circuit Court adopted Dr. LePage's report and findings as the Court's judgment against the State of Missouri.
The total due the class, according to the Order of the Court, is approximately $22 million. This leaves about $7.4 million for repayment to MCB, payment to Saint Louis University, and payment to me. The judgment is earning interest at a rate equal to about $2.7 million per year or over $220,000 per month.
The State's brief on appeal was due on October 4, 2010, but the Attorney General asked for a 15-day extension, to which I did not object knowing that the Court of Appeals would grant a first extension.
Accordingly, the State's brief is now due October 19, 2010, which is really just around the corner.
While I will not know with absolute certainty all the issues that the State might raise on appeal until I see its brief, I have anticipated issues and have begun preparations accordingly. Our brief will be due on November 18, 2010. The State will have 15 days after I file our brief to file a reply brief. Sometime thereafter, the Court of Appeals will set the matter for oral argument. After oral argument, the Court of Appeals will issue its decision.
Neither the parties nor their attorneys have any control over when the Court of Appeals might set cases for oral argument or issue a decision in an appeal. I think that the Court acted pretty quickly last time-when they reversed the decision of the Circuit Court and sent the matter back to the Cole County Circuit Court.
I am hopeful that the Court of Appeals will act as quickly this time, and I am very optimistic about our position.
We are going into Court as the winners: 1) the Court of Appeals already decided that the State administered the Blind Pension Fund in an illegal manner; 2) the Court of Appeals already sent the case back to the Circuit Court so that Judge Joyce could determine how much is owed to the class of blind pensioners; and, 3) Judge Joyce hand-picked Dr. LePage to do the accounting and figure out the dollar amounts owed to the class.
The State cannot now argue that the Court of Appeals was wrong in its decision that the State mismanaged the Blind Pension Fund, and, furthermore, the State finds itself in the unenviable position of arguing that Dr. LePage figured the damages incorrectly. Bear in mind that Dr. LePage has been the auditor for Cole County for over 19 years, is the former Director of Revenue for the State of Missouri, and is a professor of accounting and finance. And, bear in mind that the State agreed with us and with the Court that Dr. LePage was well-qualified to do the accounting.
In late July of this year, per the request of William Hawkins, Treasurer of MCB, I prepared a memorandum regarding the procedural history of this case, the appellate process generally, and included my assessment as to what I thought we could fairly expect in this case. I believe that William discussed this memorandum with the Board and offered copies to anyone who wished to review it. However, if anyone else would like a copy, I am happy to e-mail or mail a copy of that memorandum to him/her.
I hope that this is helpful to you and that the Convention goes very well this year.
Best regards, Debbie
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