# The justice dept speaks



## King Arthur (Nov 13, 2009)

Justice Department: Lance Armstrong was 'unjustly enriched' - U.S. News


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## upstateSC-rider (Aug 21, 2004)

Unjustly enriched? Really?
They should charge each and every member of Congress with that first.


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## Local Hero (Jul 8, 2010)

For those unfamiliar with the legal theory of *unjust enrichment*: Unjust enrichment - Wikipedia, the free encyclopedia



> Unjust enrichment has three elements. First, the plaintiff must have provided the defendant with something of value while expecting compensation in return. Second, the defendant must have acknowledged, accepted, and benefited from whatever the plaintiff provided. Third, the plaintiff must show that it would be inequitable or Unconscionable for the defendant to enjoy the benefit of the plaintiff's actions without paying for it. A court will closely examine the facts of each case before awarding this remedy and will deny claims for unjust enrichment that frustrate public policy or violate the law.


In Armstrong's case, the justice dept will have a hard time showing that Armstrong did not pay for the benefit. Even if Armstrong benefited, didn't he work? And how did he harm USPS? 

Given that USPS made money from their sponsorship of Armstrong, on what basis can they make a claim for restitution?


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## Bluenote (Oct 28, 2012)

It's a tough one. Hard to say if the Government is throwing everything and the kitchen sink into a lawsuit to strengthen their bargaining position. 

Clearly, if LA thought the whole thing was garbage, he wouldn't be negotiating with them at all. 

The spector if LA being deposed under oath, or details of financials being made public are also possible factors to think about. 

Landis' lawsuit hints at a lot if money flowing one way. It wouldn't help what little shred of credibility LA has left - if those allegations are true and he did make stacks of cash while investors and domestiques got pennies. 

Justice Department Files Action Against Lance Armstrong | Outdoor Adventure | OutsideOnline.com


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## Doctor Falsetti (Sep 24, 2010)

Local Hero said:


> And how did he harm USPS?
> 
> Given that USPS made money from their sponsorship of Armstrong, on what basis can they make a claim for restitution?


Nope

USPS to Drop Lance Armstrong Sponsorship



> According to a February 2003 USPS Inspector General (OIG) report, the objective of the sponsorship was to "increase revenue and sales of Postal Service's products on a global basis and to increase sales in key international markets" with a specific monetary goal of increasing [annual international] revenue by $20 million. However, despite the cycling team's outstanding performance and extremely high profile, revenues from USPS international operations in 2003 were actually $12.8 million less than four- years earlier in 1999.


Of course there is a "Study" that showed they got 100 million in exposure, but those figures were provided by Tailwind.



> We found the Postal Service was unable to verify sponsorships' financial performance


Hard to not see the damage the USPS brand suffered. They are forever associated with organized doping, bags of blood, and cheating. exactly what they were trying to avoid when they inserted the doping clause into the agreement


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## spade2you (May 12, 2009)

Doctor Falsetti said:


> Hard to not see the damage the USPS brand suffered. They are forever associated with organized doping, bags of blood, and cheating. exactly what they were trying to avoid when they inserted the doping clause into the agreement


Yes, it is Lance who is responsible for the decline of the USPS.


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## Local Hero (Jul 8, 2010)

spade2you said:


> Yes, it is Lance who is responsible for the decline of the USPS.


Speak for yourself! Dr. Falsetti stopped buying stamps because of Lance Armstrong. 

Due to the nature of my work I am still forced to use USPS to send certified mail. But it doesn't stop me from harboring resentment. Often when I mail a letter I intentionally leave off the zip code in an act of defiance. 



Doctor Falsetti said:


> Hard to not see the damage the USPS brand suffered. They are forever associated with long lines and apathetic employees. almost as bad as the department of motor vehicles.


FIXED.


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## Doctor Falsetti (Sep 24, 2010)

Local Hero said:


> They are forever associated with long lines and apathetic employees


Not to question your vast legal experience but could you point out the statue that allows for contractual obligations to be ignored if one side has long lines and apathetic employees? Does this apply to all contracts of just those with USPS? How long does the line have to be for the anti-doping clause to be invalidated?


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## spade2you (May 12, 2009)

Fine, they should try to take Lance for every penny he has. That way they can avoid bankrupcy by one more week or so.


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## badge118 (Dec 26, 2002)

Bluenote said:


> It's a tough one. Hard to say if the Government is throwing everything and the kitchen sink into a lawsuit to strengthen their bargaining position.
> 
> Clearly, if LA thought the whole thing was garbage, he wouldn't be negotiating with them at all.
> 
> ...


This would be my guess. The USPS went to GREAT lengths during the sponsorship to Justify it by showing marketing analysis that "proved" the sponsorship dollars gave a good return on investment. So now the Justice Department will essentially have to say "the USPS used creative accounting to prove it."

I think he would be negotiating for a few reasons.

1. Legacy. He wants to salvage SOMETHING.
2. Cost/benefit analysis. Lets say he does win on this count. How much would it financially cost him to do so?
3. Judges and Juries are NOT emotionless. I will give an example I have personally experienced more than once. Prosecution offers defendant a 4-6 year deal. Judge makes clear to defense "if you go to trial on this case and your defendant is found guilty on anything expect the max, so take the deal." Defendant goes to trial anyway, is found guilty of the lesser charges. Judge sentences defendant to jail on consecutive NOT concurrent sentences...so he does 5-10 instead of 4-6. 
Juries can be even worse. Just look at the Apple vs Samsung case (civil same as this). In every other country in the world the best that Apple has pulled off is split decisions. In the US they won, in large part due to the fact that the jury literally slept through complicated testimony and found in favor of a US company with good PR.

Civil cases SUCK because the burden of proof is so much lower than in a criminal case. It gives juries and judges much more wiggle room to nail the defendant and less wiggle room for the defendant to mount a successful appeal beyond arguing an over blown penalty.


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## badge118 (Dec 26, 2002)

Doctor Falsetti said:


> Nope
> 
> USPS to Drop Lance Armstrong Sponsorship
> 
> ...



One issue. The basis of the OIG report was not an indictment of the cycling sponsorship and rather of USPS management of sponsorship in total. If you read the entire report https://www.uspsoig.gov/foia_files/oe-ar-03-003.pdf and not the bit on About.com. A large portion of the sponsorship issues had to do with the OIG questioning different revenue numbers and values the USPS used to track.

SO really it comes down to your standard gov't BS, which side had more political motivation and whose numbers do you believe.

I am NOT saying btw that the OIG was wrong, only that it is NOT as clear cut as you make it out to be.

Just to save reading.... here were the actual core issues in the OIG report



> Does the Postal Service need sponsorships given their
> statutory monopoly over First-Class Mail?
> • Two objectives of the Pro-Cycling team sponsorship
> were to increase revenue and sales of Postal Service’s
> ...


Also elsewhere in the report it notes the benefits (or lack there of) regarding domestic profits. As the USPS stated specifically this sponsorship was an attempt to increase international competitiveness with international shippers, we come back to number 1 and 2 above. In this case the OIG essentially states that the 



> The Pro-Cycling team sponsorship had goals and
> objectives; however, they were not always measured to
> determine achievement.


and



> The Postal Service was unable to fully validate over
> $130 million in revenue claimed from two5
> sponsorships.
> Based on interviews with sales representatives and national
> ...


SO somewhere in their investigation the USPS did state their was 18 million in revenue. The OIG disagreed with their methodology. This is hardly as clear cut a sign of damage as you infer.

The report actually makes for rather interesting reading and shows just how complicated this claim is going to be.

Here is an article btw that notes the USPS commissioned studies, not just Tailwind.

Lance Armstrong investment pays off for USPS - The Denver Post

So it gets even murkier. The USPS going out of their way to disprove a 2003 OIG report...and then trying to only use an OIG report that complains mostly about mismanagement and argues about which formulas are appropriate? This is not clear cut damage proof sorry.


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## Doctor Falsetti (Sep 24, 2010)

badge118 said:


> The USPS went to GREAT lengths during the sponsorship to Justify it by showing marketing analysis that "proved" the sponsorship dollars gave a good return on investment.


Not exactly. In 2003 USPS performed an internal audit and it was very negative about the management of the sponsorship. They could prove little positive return. In desperation they invented the $103 million in exposure number with numbers invented by Stapleton 

Regardless the anti doping clauses were added in order to avoid the mess they have now.


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## Doctor Falsetti (Sep 24, 2010)

badge118 said:


> This is not clear cut damage proof sorry.


Most of the damages came later. 

Also, this is not just about damages but also misleading the USPS to enrich themselves. 

You can read the full document here
United States v. Tailwind Sports, Lance Armstrong


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## badge118 (Dec 26, 2002)

Doctor Falsetti said:


> Not exactly. In 2003 USPS performed an internal audit and it was very negative about the management of the sponsorship. They could prove little positive return. In desperation they invented the $103 million in exposure number with numbers invented by Stapleton
> 
> Regardless the anti doping clauses were added in order to avoid the mess they have now.


And after that report the USPS commissioned reports to show the money was well spent...see more detailed post on the topic and the Denver Post article.


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## badge118 (Dec 26, 2002)

Doctor Falsetti said:


> Most of the damages came later.
> 
> Also, this is not just about damages but also misleading the USPS to enrich themselves.
> 
> ...


That is not the same as what is noted in the OP and that is all I am addressing. The OP is stating that the fraud occurred essentially due to the fact that the money given did not have a return and that this was a knowing act. after the 2003 OIG report which largely says "there is not hard proof profit was made" the USPS commissioned a story saying money was made.


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## Doctor Falsetti (Sep 24, 2010)

badge118 said:


> That is not the same as what is noted in the OP and that is all I am addressing. The OP is stating that the fraud occurred essentially due to the fact that the money given did not have a return and that this was a knowing act. after the 2003 OIG report which largely says "there is not hard proof profit was made" the USPS commissioned a story saying money was made.


Agreed, the Fed document shows that it is much more then this. It is an interesting read. It appears much of the case is not based on if USPS made money or not but if Johan, Lance, and others made money because they lied to USPS. If USPS made a return may not even factor into the equation.


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## Bluenote (Oct 28, 2012)

We do a few contracts with the Government. 

We have to do all the carp...err.... things they spell out in the contract. If we suddenly decided to not do our work to their standards, not meet our deadlines, not provide required documents - I imagine that they could withold payment, fire us, etc... 

I don't necessarily think you need to prove damages to say 'hey, you didn't live up to this contract, so I'm not paying you.' (Or paying in full).

Lets say, for example, someone goes to the Doctor for a check up. They get the bill. But they subsequently discover - the guy isn't actually a Doctor. He's a fraud. The patient wasn't 'hurt' by the fake check up - it's just not what he thought he was getting. So he sues for his money back. 

We buy stuff all the time with a certain understanding. If products are misrepresented, we can get a refund. Take that guys biography that turned out to be fake. He had to pay refunds. Now no one gets hurt by reading a book. 

I've read news articles that say Armstrong will win and I've read ones that say he will loose. Given his personality, I don't think he would negotiate, if there wasn't a fair risk of loosing.


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## Local Hero (Jul 8, 2010)

Doctor Falsetti said:


> [nonsense]


Can you explain how the anti-doping clause is related to a claim for unjust enrichment?

Also, if USPS's reputation is damaged, when did this injury occur?


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## Doctor Falsetti (Sep 24, 2010)

Local Hero said:


> Nonsense


You may want to read the document I linked. 

Lance, and his buddies, agreed to provide a service to the US government. The government spelled out clearly the way this service should be rendered. Lance ignored this, lied about the methods they used, and pocketed the $$$. 

It is not unusual for the government, or private industry, to spell out parameters of HOW a service or product is provided. Apparel companies have their contractors sign agreements that insure that child labor is not used. The government often has contractors agree to use a specific amount of female/minority/veteran owned business. 

The Tailwind agreement clearly spells out HOW they needed to provide the service the Government paid for. Tailwind ignored this, and lied about ignoring it, so they could get $$$....unjustly


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## badge118 (Dec 26, 2002)

Doctor Falsetti said:


> Agreed, the Fed document shows that it is much more then this. It is an interesting read. It appears much of the case is not based on if USPS made money or not but if Johan, Lance, and others made money because they lied to USPS. If USPS made a return may not even factor into the equation.


Oh I am sure they have other issues they can pursue. It is simply the singular concept that LA, John et al, obtained profit via a fraud that resulted in a financial loss to the USPS that I have issue with and believe would be hard to prove.

I have not been able to find the contract on line but if the contract with the USPS had things like morals clauses, things specifically mentioning doping etc., of course they have other issues they can pursue

This is why I think the Feds are using the kitchen sink method. Even if in the end no loss is proved thanks to the USPS commissioning a study to cover their collective asses in 2005, all the additional dirt such a charge would let them get on the record becomes an albatross that hangs around the defendant's collective necks and makes the judge and/or jury, more likely to go for the max penalties on the issues that they do find proven.


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## Doctor Falsetti (Sep 24, 2010)

badge118 said:


> I have not been able to find the contract on line but if the contract with the USPS had things like morals clauses, things specifically mentioning doping etc., of course they have other issues they can pursue


Yes, they had a morals clause and very specific anti -doping wording as well. Here are a few good articles

Details of Lance Armstrong sponsorship by United States Postal Service revealed - ESPN

Lance Armstrong Hires Famous S.F. Attorney, New USPS Sponsorship Details Emerge - San Francisco - News - The Snitch


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## David Loving (Jun 13, 2008)

What is the statute of limitations? Does it begin to run when the fraud is discovered? or when it should have been known?


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## Bluenote (Oct 28, 2012)

David Loving said:


> What is the statute of limitations? Does it begin to run when the fraud is discovered? or when it should have been known?


There was a pretty good discussion of that and other issues surrounding the case. 

It's on page 4 and beyond, past all the personal carp. 

http://forums.roadbikereview.com/do...-whistleblower-suit-300379-4.html#post4272603


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## badge118 (Dec 26, 2002)

David Loving said:


> What is the statute of limitations? Does it begin to run when the fraud is discovered? or when it should have been known?


I believe the correct case is largely covered under false claims, so,,,,,



> The False Claims Act defines the statute of limitations in Title 31 §3731(b). For a false claims action, which includes whistleblower actions, a lawsuit may not be filed more than six years after the date of false claim, more than three years after the appropriate federal official was informed of the fraud, and not more than 10 years after the fraud was committed.


In this case it would thus be with in the SOL because it is dependent on the initial file (Landis) not when the DOJ decides to join.


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## David Loving (Jun 13, 2008)

Are they suing LA because they consider the USPS money he got a false claim?


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## badge118 (Dec 26, 2002)

David Loving said:


> Are they suing LA because they consider the USPS money he got a false claim?


This is an odd case. It would be covered via the whistleblower bit. The DoJ did not start this case. Under the false claims act any US citizen, in this case Landis, can file a false claim case as a Whistleblower. The DoJ then looks at the case and decides if they will "assist" the Whistleblower. In this case they did decide to step in.

They also have other things involved according to their latest press release but the genesis of the case is Landis and his Whistleblower status.


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## David Loving (Jun 13, 2008)

Yes, but that does not have anything to do with filing a false claim, does it? I'm thinking it may be too late to go after LA - so far as limitations goes. Not that he should get away with anything, but seems like whistle blowing tipped the fraud off to the government. How long has the whistleblower suit been pending?


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## Local Hero (Jul 8, 2010)

Doctor Falsetti said:


> misleading the USPS to enrich themselves.





Doctor Falsetti said:


> Tailwind ignored this, and lied about ignoring it, so they could get $$$....unjustly


The misleading and deception is more akin to fraud, breach of contract, et cetera. It does not sound like unjust enrichment on its face. To prove that theory they must show the elements of unjust enrichment, which I quoted earlier in the threads. Using the words _unjust_ and _enrich_ to describe behavior doesn't cut it. 

There's a famous example of unjust enrichment. There was a walking museum tour -- people would pay to hear the guide speak. A man joined the tour and listened without paying. He even signed the guest book. Let's revisit the elements: 

_Unjust enrichment has three elements. First, the plaintiff must have provided the defendant with something of value while expecting compensation in return. Second, the defendant must have acknowledged, accepted, and benefited from whatever the plaintiff provided. Third, the plaintiff must show that it would be inequitable or Unconscionable for the defendant to enjoy the benefit of the plaintiff's actions without paying for it. _

Applying the law (elements) to the facts: 

Element 1) the plaintiff must have provided the defendant with something of value while expecting compensation in return. In our example the tour guide gave information during the walking tour. He expected everyone to pay; the defendant did not pay. 

Element 2) the defendant must have acknowledged, accepted, and benefited from whatever the plaintiff provided. In our example the defendant followed the tour and listened to the guide. He acknowledged it all by signing the guest book. 

Element 3) the plaintiff must show that it would be inequitable or Unconscionable for the defendant to enjoy the benefit of the plaintiff's actions without paying for it. In our example we have a tour guide who presumably makes a living (or at least gives up his own time) providing tours; the others in the tour paid for the service. We cannot expect him to ask people to pay and then allow freeloading lurkers. 

The conclusion: All three elements are met. We have unjust enrichment. 


*Can we do the same applying the unjust enrichment elements to the USPS/Armstrong facts? *


Again, failing to follow every letter of a contract is breach of contract. There could be fraud, deception, or other creative legal theories. But unjust enrichment? 
I'll admit that I could not be bothered to read all of the links. Perhaps the DOJ's case is good and it specifies the elements of unjust enrichment. I don't know. But based on what I've seen in a few article it does not look like it. 

I'd be happy to see this the DOJ case spelled out.


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## badge118 (Dec 26, 2002)

David Loving said:


> Yes, but that does not have anything to do with filing a false claim, does it? I'm thinking it may be too late to go after LA - so far as limitations goes. Not that he should get away with anything, but seems like whistle blowing tipped the fraud off to the government. How long has the whistleblower suit been pending?


The Whistleblower suit started like 2 years ago and Whistleblower cases are actually covered under the false claims act. The False claims act is a VERY broad statute.


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## badge118 (Dec 26, 2002)

Local Hero said:


> The misleading and deception is more akin to fraud, breach of contract, et cetera. It does not sound like unjust enrichment on its face. To prove that theory they must show the elements of unjust enrichment, which I quoted earlier in the threads. Using the words _unjust_ and _enrich_ to describe behavior doesn't cut it.
> 
> There's a famous example of unjust enrichment. There was a walking museum tour -- people would pay to hear the guide speak. A man joined the tour and listened without paying. He even signed the guest book. Let's revisit the elements:
> 
> ...


I actually wonder if the simple act of violating a contract provision...such as "thou shalt not dope" is enough for a false claim now. I looked up the statute as written...here is the most appropriate clauses in this case...

1. Knowingly presenting, or causing to be presented a false claim for payment or approval;
2. Knowingly making, using, or causing to be made or used, a false record or statement material to a false or fraudulent claim.

So if you say "pay me I did not dope" and you did dope... didn't you make a false claim. Now most often it would be X money for Y product BUT that specific language seems lacking in the statute from what I can see.


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## Bluenote (Oct 28, 2012)

badge118 said:


> I actually wonder if the simple act of violating a contract provision...such as "thou shalt not dope" is enough for a false claim now. I looked up the statute as written...here is the most appropriate clauses in this case...
> 
> 1. Knowingly presenting, or causing to be presented a false claim for payment or approval;
> 2. Knowingly making, using, or causing to be made or used, a false record or statement material to a false or fraudulent claim.
> ...


Though if a judge decided the case totally in Armstrong's favor, it potentially opens up Government contractors to breaking all kinds of agreements with no penalty. 

Everything I've read says both sides have some reasonable arguments. But any settlement or decision will most likely wind up somewhere in the middle.


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## badge118 (Dec 26, 2002)

Yeah. I think the Armstrong Argument will be "in 2005 the USPS showed a study that they made money from the sponsorship. They did not lose money so no false claim was made." The Feds will say "the contract states the win had to be done clean, Armstrong did not run clean but claimed he did, that was a statement in support of a flas claim, namely racing clean."


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## Local Hero (Jul 8, 2010)

badge118 said:


> I actually wonder if the simple act of violating a contract provision...such as "thou shalt not dope" is enough for a false claim now. I looked up the statute as written...here is the most appropriate clauses in this case...
> 
> 1. Knowingly presenting, or causing to be presented a false claim for payment or approval;
> 2. Knowingly making, using, or causing to be made or used, a false record or statement material to a false or fraudulent claim.
> ...





Bluenote said:


> Though if a judge decided the case totally in Armstrong's favor, it potentially opens up Government contractors to breaking all kinds of agreements with no penalty.


This is not the first time a government contractor knowingly failed to meet a contractual obligation. It can't be. 

But it's almost 8pm and I don't have time or energy to do any legal research


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## badge118 (Dec 26, 2002)

Local Hero said:


> This is not the first time a government contractor knowingly failed to meet a contractual obligation. It can't be.
> 
> But it's almost 8pm and I don't have time or energy to do any legal research


There is a difference between failing to meet an obligation and first actively saying "fff that contractual obligation" followed by actively lying repeatedly in order to obscure.


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## Doctor Falsetti (Sep 24, 2010)

Local Hero said:


> I'll admit that I could not be bothered to read all of the links. Perhaps the DOJ's case is good and it specifies the elements of unjust enrichment. I don't know. But based on what I've seen in a few article it does not look like it.
> 
> I'd be happy to see this the DOJ case spelled out.


You can read the DOJ case here. It is good and it is spelled out
United States v. Tailwind Sports, Lance Armstrong

The USPS agreement spelled exactly how Tailwind should deliver their services. Lance and his buddies ignored this part of the agreement, lied about it, so they could get $$$


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## Local Hero (Jul 8, 2010)

Thanks. 

I question this paragraph: 









"no value"?


If I were Armstrong I would argue that the breach was not material. 




Do we have a copy of the USPS & Tailwind contract?


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## Local Hero (Jul 8, 2010)

Lawyers have an old saying. 

_If you don't have the facts, argue the law. 
If you don't have the law, argue the facts. 
If you don't have either, bang your fists on the table._ 


The justice department certainly has the facts here. But do they have the law?


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## badge118 (Dec 26, 2002)

Local Hero said:


> Thanks.
> 
> I question this paragraph:
> 
> ...


Not trying to be rude but the document Doc linked sets forth a factual basis. In number 4 it says "material breaches" this means that there is a specific clause that was violated. Typically the defense argues that there was no such material breach. In this case they can not because LA confessed to it on Oprah.

The one accusation that will be tough I think is number 5. There they say the doping undermined the USPS causing a loss on the part of the USPS. In 2005 the USPS commissioned a study that they made money. To prove this they would have to make a causal connection between a later drop of revenue and the bad publicity the doping brought. That would be a PITA imo so arguing that they were unjustly enriched is gonna be tough. As I understand it to be "unjustly enriched" under current case law means the unjust made money while promising a return and KNOWING the person giving the money would not make said return.

That said it would not be the first time a prosecution applied a charge they saw as having small chance of success as I noted previously in this thread.


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## Local Hero (Jul 8, 2010)

Yes, I saw the clauses in the contract. 

Does a specific clause make the breach material?


A contract can say "5000 bricks, delivered by truck to 123 street, on 1/1/14" -- delivering the bricks by train is not a material breach.

Here's a better example: _Suppose a homeowner hires a contractor to install new plumbing and insists that the pipes, which will ultimately be hidden behind the walls, must be red. The contractor instead uses blue pipes that function just as well. Although the contractor breached the literal terms of the contract, the homeowner cannot ask a court to order the contractor to replace the blue pipes with red pipes. The homeowner can only recover the amount of his or her actual damages. In this instance, this is the difference in value between red pipe and blue pipe. Since the color of a pipe does not affect its function, the difference in value is zero. Therefore, no damages have been incurred and the homeowner would receive nothing. (See Jacob & Youngs v. Kent.)_
Breach of contract - Wikipedia, the free encyclopedia


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## badge118 (Dec 26, 2002)

Local Hero said:


> Yes, I saw the clauses in the contract.
> 
> Does a specific clause make the breach material?
> 
> ...


Yes and you could NOT claim that as a material breach in such a brief before the court. When one says "material breach"...."through the use of doping products" the use of doping products MUST be a material breach. In this case the USPS used to be able to show as part of their advertising pictures of LA as the winner of the TdF. Just like Trek did, Carmichael Training Systems etc. Now those wins are gone due to the doping. As such they have lost value in their investment.... oh dang... just realized that is likely the basis of the loss argument. interesting.

Look at it like an assault arrest. To present to the court a charge of assault I have to first be able to prove that an assault actually occurred. Now the defense can argue it was self defense, mistaken identity etc. however to get to the trial stage I must be able to prove that A. a crime WAS committed and B. the defendant more than likely committed said crime.

The same logic applies here. to be blunt... suck it up a material breach did occur, normally it would be a matter of proving that Armstrong either doped and/or was part of a doping conspiracy, not that the doping was a material breach. He admitted to it on National TV so he proved it for them. He is fff'd.


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## Local Hero (Jul 8, 2010)

badge118 said:


> Yes and you could NOT claim that as a material breach in such a brief before the court. When one says "material breach"...."through the use of doping products" the use of doping products MUST be a material breach. In this case the USPS used to be able to show as part of their advertising pictures of LA as the winner of the TdF. Just like Trek did, Carmichael Training Systems etc. Now those wins are gone due to the doping. As such they have lost value in their investment.... oh dang... just realized that is likely the basis of the loss argument. interesting.


OK, I think the discussion of winning is a confusing overlap with SCA. And the USPS contract sponsored Armstrong to race (but not specifically to win). 

I understand false claims. I'm still struggling with the material breach aspect. Of course there are multiple ways to breach a contract, from de minimus, minor, major, to material. 

Putting a specific clause in the home-building contract, ie "construction workers will not drink while building this house" does not necessarily create a material breach if a worker is later found to have been drunk while on the job. A material breach would be not building the house or building a barn instead of a house. 

Again, this is what I would argue as Armstrong. It's one of the the first things I would argue. In arguendo I would dig in my heels when up against USPS's claim that the sponsorship had "no value" and claims for damages (which butts up against whether the breach was material). And I continue to question the claim for unjust enrichment. DOJ's complaint does not specify the elements. They have the facts on their side but the law appears lacking.


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## Doctor Falsetti (Sep 24, 2010)

Local Hero said:


> Thanks.
> 
> I question this paragraph:
> 
> ...


"Non-Conforming" 

Here is the USPS contract
USPS Sponsership Agreement


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## badge118 (Dec 26, 2002)

In this case however we have contract terms that changed. USPS gave more money AFTER the wins. Wins that were used to increase the case pay out, wins that were claimed to be clean and wins that are now stripped. If you do not see this as a material breach I don't know what to say. Also a construction worker would certainly be in material breach if he was found drunk at the site under your example because that intoxication creates a greater risk of injury and or death, thus greater exposure under State Workers Compensation laws.


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## badge118 (Dec 26, 2002)

The important part of the contract is page 4. Paragraph 7.

In that paragraph it states the requirements of the Company to enforce that the riders obey the rules of the UCI etc. and specifically notes drug use. In this case the contention is that the company did not only refuse to enforce that the riders did so BUT actually created and organized the conspiracy to break said rules. 

So this is not only an issue of individual riders doping and not getting fired but an issue of the Team itself facilitating the doping.


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## Local Hero (Jul 8, 2010)

Thanks for the link to the contract.


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## Local Hero (Jul 8, 2010)

pages 2 and 3










&


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