N.M. State Inv. Council v. Weinstein
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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 2 Opinion Number: ___________ 3 Filing Date: April 28, 2016 4 NOS. 33,787, 34,042 & 34,077 (Consolidated) 5 6 7 8 9 NEW MEXICO STATE INVESTMENT COUNCIL, as Trustee, Administrator, and Custodian of the LAND GRANT PERMANENT FUND and the SEVERANCE TAX PERMANENT FUND, 10 Plaintiff-Appellee, 11 and 12 STATE OF NEW MEXICO ex rel. FRANK 13 FOY, SUZANNE FOY, and JOHN CASEY, 14 Plaintiffs-Intervenors-Appellants, 15 v. 16 DANIEL WEINSTEIN, VICKY L. SCHIFF, 17 WILLIAM HOWELL, and MARVIN ROSEN, 18 Defendants-Appellees. 19 and 20 GARY BLAND, et al., 21 Defendants. 1 (Consolidated with) 2 3 4 5 6 NEW MEXICO STATE INVESTMENT COUNCIL, as Trustee, Administrator, and Custodian of the LAND GRANT PERMANENT FUND and the SEVERANCE TAX PERMANENT FUND, 7 Plaintiff-Appellee, 8 and 9 STATE OF NEW MEXICO ex rel. FRANK 10 FOY, SUZANNE FOY, and JOHN CASEY, 11 Plaintiffs-Intervenors-Appellants, 12 v. 13 SAUL MEYER and RENAISSANCE PRIVATE 14 EQUITY PARTNERS, LP, d/b/a ALDUS EQUITY 15 PARTNERS, LP, 16 Defendants-Appellees, 17 and 18 GARY BLAND, et al., 19 Defendants. 1 (Consolidated with) 2 3 4 5 6 NEW MEXICO STATE INVESTMENT COUNCIL as Trustee, Administrator, and Custodian of the LAND GRANT PERMANENT FUND and the SEVERANCE TAX PERMANENT FUND, 7 Plaintiff-Appellee, 8 and 9 STATE OF NEW MEXICO ex rel. FRANK 10 FOY, SUZANNE FOY, and JOHN CASEY, 11 Plaintiffs-Intervenors-Appellants, 12 v. 13 ELLIOT BROIDY, 14 Defendant-Appellee, 15 and 16 GARY BLAND, et al., 17 Defendants. 18 APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY 19 Sarah M. Singleton, District Judge 20 New Mexico State Investment Council 21 Bruce A. Brown, Special Assistant Attorney General 22 Santa Fe, NM 1 Day Pitney LLP 2 Kenneth W. Ritt, Special Assistant Attorney General 3 Stamford, CT 4 for Plaintiff-Appellee 5 Victor R. Marshall & Associates, P.C. 6 Victor R. Marshall 7 Albuquerque, NM 8 for Appellants 9 Scheuer Yost & Patterson 10 Mel E. Yost 11 Santa Fe, NM 12 13 14 15 White & Case LLP Owen C. Pell Joshua D. Weedman New York, NY 16 for Defendant-Appellee Rosen 17 18 19 20 Butt Thornton & Baehr PC Rodney L. Schlagel Emily A. Franke Albuquerque, NM 21 for Defendant-Appellee Howell 22 Sommer, Udall, Sutin, Hardwick & Hyatt, PA 23 Eric M. Sommer 24 Santa Fe, NM 25 for Defendants-Appellees Weinstein and Schiff 1 Daniel Yohalem 2 Santa Fe, NM 3 for Amici Curiae New Mexico Foundation for 4 Open Government and New Mexico Press Association 1 OPINION 2 BUSTAMANTE, Judge. 3 {1} Appellants’ motion for rehearing is denied. The opinion filed in this case on 4 March 24, 2016, is withdrawn and this Opinion is substituted in its place. 5 {2} Intervenors Frank Foy, Suzanne Foy, and John Casey (Appellants) appeal the 6 district court’s approval of settlements between the New Mexico State Investment 7 Council (NMSIC) and three sets of defendants. Having consolidated the three 8 appeals, we consider whether the district court’s approval of the settlements was 9 consistent with the Fraud Against Taxpayers Act and whether NMSIC’s Litigation 10 Committee complied with the Open Meetings Act, among other arguments. We affirm 11 the district court’s approval of the settlements. 12 BACKGROUND 13 {3} Most of the following facts are derived from the district court’s findings of fact. 14 Appellants do not specifically challenge any of these findings. “An unchallenged 15 finding of the trial court is binding on appeal.” Seipert v. Johnson, 2003-NMCA-119, 16 ¶ 26, 134 N.M. 394, 77 P.3d 298; see Rule 12-213(A)(4) NMRA (“The argument 17 shall set forth a specific attack on any finding, or such finding shall be deemed 18 conclusive.”). 1 A. The Parties 2 Appellants are qui tam plaintiffs in two actions filed in 2008 and 2009 under {4} 3 the New Mexico Fraud Against Taxpayers Act (FATA), NMSA 1978, §§ 44-9-1 to 4 14 (2007, as amended through 2015). State ex rel. Frank C. Foy v. Vanderbilt Capital 5 Advisors, LLC, No. D-101-CV-2008-1895 (Vanderbilt); State ex rel. Frank C. Foy 6 v. Austin Capital Mgmt. Ltd., No. D-101-CV-2009-1189 (Austin). Foy is the former 7 chief investment officer at New Mexico’s Educational Retirement Board (ERB). 8 {5} NMSIC is a state agency that serves as trustee of, and is responsible for 9 investing, among other funds, the Land Grant Permanent Fund and the Severance Tax 10 Permanent Fund, which are established under the New Mexico Constitution for the 11 benefit of citizens of New Mexico. N.M. Const. art VIII, § 10, art. XII, §§ 2, 7; 12 NMSA 1978, §§ 6-8-2 to -7 (1957, as amended through 2015); NMSA 1978, § 7-2713 3.1 (1983). 14 {6} The defendants in the present suit are three groups of individuals and entities 15 alleged to have engaged in misconduct related to NMSIC’s management of the funds. 16 Each of the three groups is named and discussed in more detail below. For ease of 17 reference we refer to the defendants collectively as Defendants. 2 1 B. The Qui Tam Actions 2 We begin with a discussion of the Appellants’ qui tam actions under FATA {7} 3 because they form the backdrop against which we consider the three cases now before 4 us. Section 44-9-5(A) of FATA permits the filing of a “qui tam action,” which is “an 5 action . . . that allows a private person to sue for a penalty, part of which the 6 government will receive.” State ex rel. Foy v. Austin Capital Mgmt., Ltd. (Austin II), 7 2015-NMSC-025, ¶ 3, 355 P.3d 1 (alterations, internal quotation marks, and citation 8 omitted). A qui tam plaintiff is required to serve the complaint and a disclosure of 9 supporting evidence under seal to the attorney general, who “may intervene and 10 proceed with the action within sixty days after receiving the complaint and the 11 material evidence and information.” Section 44-9-5(C). If the attorney general 12 declines to intervene in the action, the qui tam plaintiff may proceed with the action. 13 Section 44-9-5(D). “Notwithstanding [these] provisions . . . , the attorney general or 14 political subdivision may elect to pursue the state’s or political subdivision’s claim 15 through any alternate remedy available” and “[a] finding of fact or conclusion of law 16 made in the other proceeding that has become final shall be conclusive on all parties 17 to an action under [FATA].” Section 44-9-6(H). If the attorney general initiates an 18 alternate proceeding, “the qui tam plaintiff shall have the same rights in such a 19 proceeding as the qui tam plaintiff would have had if the action had continued 3 1 pursuant to [FATA].” Id. As to the qui tam action, the state or political subdivision 2 may choose to settle the action “notwithstanding any objection by the qui tam 3 plaintiff if the court determines, after a hearing providing the qui tam plaintiff an 4 opportunity to present evidence, that the proposed settlement is fair, adequate[,] and 5 reasonable under all of the circumstances.” Section 44-9-6(C). 6 {8} In their qui tam actions, Appellants alleged that Vanderbilt Capital Advisors, 7 LLC and Austin Capital Management, Ltd., as well as other defendants, made false 8 claims to the ERB and to NMSIC about the risks associated with, and performance 9 of, certain financial instruments and hedge funds. They also alleged that there was 10 “pay-to-play”1 at the ERB and NMSIC. 11 {9} Vanderbilt and Austin were heard by two different judges. Judge Pfeffer, 12 presiding over Vanderbilt, dismissed some of the Appellants’ claims on the ground 13 that retroactive application of FATA to conduct occurring before its effective date 14 would violate the ex post facto clauses in both the United States and New Mexico 15 16 17 18 19 20 21 22 1 In an announcement of 2010 rules addressing the practices, the Securities and Exchange Commission (SEC) stated that “pay-to-play” practices involve “[e]lected officials who allow political contributions to play a role in the management of [public pension plan] assets and who use these assets to reward contributors” and “investment advisers that seek to influence government officials’ awards of advisory contracts by making or soliciting political contributions to those officials.” See Release No. IA3043, Political Contributions by Certain Investment Advisers p. 6 (July 1, 2010) https://www.sec.gov/rules/final/2010/ia-3043.pdf; see 17 CFR 275.206(4)-5 (2012). 4 1 Constitutions. U.S. Const. art. 1, § 10; N.M. Const. art. II, § 19. Judge Pope entered 2 a similar order in Austin. This Court declined to hear an interlocutory appeal in 3 Vanderbilt, but later allowed an interlocutory appeal of this issue in Austin and 4 affirmed. See State ex rel. Foy v. Austin Capital Mgmt., Ltd. (Austin I), 2013-NMCA5 043, ¶¶ 1, 3, 297 P.3d 357. 6 {10} At the time the district court approved the settlements in the cases now before 7 us, the Supreme Court had granted certiorari but had not yet decided the question. In 8 June 2015 the Supreme Court reversed, holding that the treble damages available 9 under FATA “are predominantly compensatory [and] do not violate the ex post facto 10 clause[s] and may be awarded for conduct occurring prior to the effective date of 11 FATA.” Austin II, 2015-NMSC-025, ¶ 44. It also held that, as to the civil penalties 12 available under FATA, “[i]t is . . . conceivable that the amount awarded in civil 13 penalties could be punitive in effect, particularly if the trial judge awards the 14 maximum [of] $10,000 per violation” and that, consequently, “[i]t is not practical to 15 make that determination without knowing the actual amount assessed with full 16 briefing on appeal addressed to a specific dollar figure.” Id. ¶ 49. Hence, the Supreme 17 Court declined to decide “whether the civil penalties awarded under FATA are 18 punitive and violate ex post facto principles until there is a definitive amount 19 awarded.” Id. 5 1 C. NMSIC’s Plan and the Present Suit 2 While the Appellants’ qui tam actions were proceeding as just described, {11} 3 NMSIC developed its own plan to recover from those involved in pay-to-play 4 schemes, including some of the defendants in Vanderbilt and Austin. NMSIC is 5 pursuing recovery using theories of liability other than FATA, focusing first on 6 individuals involved in the schemes. Using information gleaned from these 7 individuals, NMSIC plans to pursue the entities involved. NMSIC anticipates greater 8 recoveries from the entities than from individual defendants. 9 {12} Consistent with this plan, NMSIC took several actions. First, it declined to 10 intervene in Appellants’ qui tam suits and moved to dismiss the pay-to-play claims 11 involving NMSIC—but only those claims—from Vanderbilt and Austin. See § 44-912 6(B) (“The state or political subdivision may seek to dismiss the action for good 13 cause notwithstanding the objections of the qui tam plaintiff if the qui tam plaintiff 14 has been notified of the filing of the motion and the court has provided the qui tam 15 plaintiff with an opportunity to oppose the motion and to present evidence at a 16 hearing.”). The motions to dismiss did not address Appellants’ claims regarding 17 nondisclosure of investment risks in Vanderbilt and Austin, nor did they address the 18 claims of pay-to-play at the ERB. NMSIC’s motion to dismiss the pay-to-play claims 6 1 from Vanderbilt were granted. It appears that as of June 2015 the district court had 2 not yet ruled on the motion to dismiss these claims from Austin. 3 {13} Second, because it wanted to pursue recovery for pay-to-play in NMSIC’s 4 investment process through non-FATA claims, NMSIC initiated the present suit, 5 alleging breach of fiduciary duty, aiding and abetting breach of fiduciary duty, breach 6 of contract, and unjust enrichment. Although the present suit involves different claims 7 than those in Austin, fifteen of the seventeen named defendants in this suit are also 8 named in Austin. The district court granted Appellants’ motion to intervene. See Rule 9 1-024 NMRA. 10 {14} The parties agree that the present suit is an “alternate remedy” under FATA and 11 that, therefore, Appellants are entitled to the same rights in this suit as they enjoy in 12 Austin, including the right to a hearing on the fairness, adequacy, and reasonableness 13 of settlements. See § 44-9-6(C). 14 {15} Third, NMSIC adopted a Recovery Litigation Settlement Policy (Settlement 15 Policy). The Settlement Policy, which is discussed in more detail below, also created 16 a Litigation Committee with the power to “actively participate in settlement 17 negotiations, as appropriate, with the authority of [NMSIC] for settlement resolution 18 and related decisions.” Over objection by Appellants, the district court adopted a 7 1 discovery plan meant to facilitate settlement discussions. Under this plan, only 2 discovery essential for settlement discussions was permitted. 3 {16} Pursuant to the Settlement Policy and the district court’s discovery plan, Day 4 Pitney LLP, a firm engaged by NMSIC, initiated settlement negotiations with some 5 of the defendants, all of whom are represented by experienced attorneys. It also began 6 an investigation of the possible recoveries against individuals and entities. As part of 7 this investigation, Day Pitney reviewed (1) over 2.5 million pages of documents from 8 the SEC, (2) 130,000 pages of documents from third parties, (3) desktop or laptop 9 data from twenty-two NMSIC employees, (4) 70,000 paper documents from NMSIC, 10 (5) complete images of NMSIC file and email servers, (6) sixty-eight server backup 11 tapes, (7) complete copies of server folders used by NMSIC employees to store 12 investment-related documents through December 2010, (8) updated email files for 13 NMSIC employees through December 2010, (9) server home directories for twenty14 two NMSIC employees, (10) email files for email addresses used by NMSIC 15 investment groups, and (11) audio recordings of NMSIC and subcommittee meetings. 16 Its document review was facilitated by e-discovery techniques of predictive coding, 17 concept grouping, near-duplication detection, and email threading. Day Pitney also 18 conducted interviews with twenty-three individuals, including over a dozen NMSIC 8 1 employees. Discovery was obtained from NMSIC, the SEC, and third parties, as well 2 as from some of the defendants. 3 D. The Path to the Present Appeals 4 Each of the three cases now on appeal took similar but slightly different routes {17} 5 through the district court. We begin with the district court’s review of the settlements 6 with the Weinstein Defendants because (1) of the settlements now on appeal, they 7 were the first approved, and (2) the procedures adopted by the district court for 8 considering these settlements set the stage for its consideration of the subsequent 9 settlements. The cases on appeal are also discussed in the order in which the district 10 court considered the settlement agreements. 11 1. The Weinstein Defendants 12 In April 2013 NMSIC reached settlement agreements with Daniel Weinstein, {18} 13 Vicky L. Schiff, Marvin Rosen, and William Howell (the Weinstein Defendants). In 14 these agreements, the Weinstein Defendants agreed to provide information and 15 answer questions about pay-to-play practices at NMSIC, make themselves available 16 to do so, execute affidavits truthfully setting forth their knowledge of such practices, 17 appear without subpoena to provide testimony at depositions or at other civil actions 18 NMSIC may initiate, and appear without subpoena at trial. The Weinstein Defendants 19 agreed to payments to NMSIC ranging from $100,000 to $300,000. In return, NMSIC 9 1 agreed to release these Defendants from any claim “arising out of or relating to the 2 investments by NMSIC.” Importantly, the district court found that NMSIC’s release 3 “does not cover claims relating to [the] ERB.” The settlement agreements were 4 executed by a member of NMSIC’s Litigation Committee. 5 {19} On April 18, 2013, NMSIC moved for the district court’s approval of the 6 settlements and dismissal of the Weinstein Defendants. See § 44-9-6(C) (“The state 7 . . . may settle the action with the defendant notwithstanding any objection by the qui 8 tam plaintiff if the court determines, after a hearing providing the qui tam plaintiff an 9 opportunity to present evidence, that the proposed settlement is fair, adequate[,] and 10 reasonable under all of the circumstances.”). Appellants filed an objection to the 11 settlements, but did not argue that the settlements were unfair, inadequate, or 12 unreasonable, and did not request an evidentiary hearing. At a hearing on July 15, 13 2013, Appellants first challenged the fairness, adequacy, and reasonableness of the 14 settlements and requested an evidentiary hearing, claiming that they had “enough of 15 the things that [they] put together independently that” a hearing was appropriate. The 16 district court ordered Appellants to submit a memorandum within two weeks stating 17 the grounds for their objections and identifying supporting evidence. It also ordered 18 NMSIC to prepare an order memorializing its oral orders. But Appellants did not file 19 a memorandum as directed by the district court. Instead, Appellants filed objections 10 1 to the proposed order prepared by NMSIC and requested a stay in the proceedings 2 pending the Supreme Court’s decision in Austin II. The district court denied the 3 motion to stay the proceedings and Appellants’ objections to the proposed order. 4 {20} In August 2013 the district court scheduled an evidentiary hearing for 5 November 25 and 26, 2013, on Appellants’ objections to the settlements. On 6 September 1, 2013, the district court entered an order defining the procedures for 7 briefing and other issues related to Appellants’ objections to the settlements. We refer 8 to this order as the Settlement Process Order. Appellants were required to file “a 9 memorandum that sets forth the basis for their position that the proposed settlements 10 . . . are not fair, adequate[,] and reasonable under all [of] the circumstances and 11 identifies the evidence upon which they will rely at the hearing.” The order noted that 12 Appellants must overcome a presumption that the settlements are fair, adequate, and 13 reasonable. It also set out factors under which the fairness and adequacy of the 14 settlements would be assessed. Finally, the order mandated that a similar 15 memorandum would be required for all future motions for dismissal based on 16 settlement with other defendants. 17 {21} When Appellants failed to file the required memorandum by the date set by the 18 district court, NMSIC moved to dismiss the Weinstein Defendants without a hearing. 19 The district court denied NMSIC’s motion and extended the deadline for Appellants’ 11 1 memorandum by approximately two weeks. Although Appellants filed a 2 memorandum by this later deadline, it did not address the specific points listed by the 3 district court’s order. 4 {22} On November 1, 2013, Appellants represented at a motion hearing that they 5 had evidence to support their opposition to the settlements but argued that they 6 needed information about gains and losses on particular investments that NMSIC had 7 withheld from them for years. Appellants argued that they needed to see the figures 8 for “cash out, cash in.” Counsel for Appellants stated that they “want[ed] to ask 9 somebody from [NMSIC], . . . , what was the gain or loss on this particular 10 investment.” Approximately two weeks later, NMSIC served a response to the 11 Appellants’ oral discovery request that provided gain and loss information on all 12 thirteen of the investments associated with the Weinstein Defendants, together with 13 a chart showing “cash in, cash out,” and, where applicable, residual values.2 14 15 16 17 18 19 20 21 22 23 24 2 Although Appellants maintain on appeal that they never received this information, the district court found that “NMSIC served a response to [Appellants’] oral discovery request that provided current . . . gain and loss information on all [thirteen] of the investments associated with the [Weinstein] Defendants, together with a chart showing cash in, cash out, and, where applicable, residual values.” We defer to this finding because it is supported by the record. See Phelps Dodge Corp. v. N.M. Emp’t Sec. Dep’t, 1983-NMSC-068, ¶ 8, 100 N.M. 246, 669 P.2d 255 (“If . . . substantial evidence [to support a finding] appears in the record, the district court’s findings will not be disturbed.”). In a motion for rehearing, Appellants point out that, in later proceedings relating to settlement with another defendant, the district court found that NMSIC had failed to provide documents elucidating the data as ordered. 12 1 {23} At the November 25-26, 2013, evidentiary hearing, NMSIC presented the 2 testimony of six witnesses by affidavit and direct testimony. These witnesses included 3 a member of the Litigation Committee and a Day Pitney attorney, as well as the four 4 Weinstein Defendants. After the witnesses attested that their affidavits were an 5 accurate representation of their testimony and provided the foundation for exhibits, 6 Appellants were afforded an opportunity to cross-examine them. Appellants did not 7 testify, nor did they present evidence related to the investment loss information they 8 had requested. 9 {24} After the hearing, the district court entered seventy-three findings of fact and 10 forty-nine conclusions of law. In a subsequent order, it granted NMSIC’s motion to 11 dismiss the Weinstein Defendants. The findings of fact and conclusions of law are 12 discussed more fully in the context of Appellants’ arguments on appeal. 13 2. The Meyer Defendants 14 A few months after reaching agreement with the Weinstein Defendants, {25} 15 NMSIC reached a settlement agreement with Saul Meyer and Renaissance Private 16 17 18 19 20 21 However, the district court also found that NMSIC’s “failure to produce did not prevent the consideration of the reasonableness of the settlement [with that defendant].” Although they point to NMSIC’s failure to produce these documents, Appellants do not demonstrate that the failure prevented the district court from considering the reasonableness of the settlements with the Weinstein, Meyer, or Broidy Defendants either. 13 1 Equity Partners, LP, d/b/a Aldus Equity Partners, LP (the Meyer Defendants) in July 2 2013. The provisions of this settlement agreement substantially mirrored those with 3 the Weinstein Defendants. This settlement agreement also was signed by a member 4 of the Litigation Committee. 5 {26} NMSIC moved for approval of the settlement with the Meyer Defendants on 6 January 10, 2014. The motion included the settlement agreement and sworn financial 7 statements from the Meyer Defendants. Appellants filed a response to the motion 8 objecting to the settlement and requesting an evidentiary hearing. The district court 9 held a two-hour hearing on June 19, 2014, on NMSIC’s motion to dismiss and 10 Appellants’ motion for an evidentiary hearing, and ruled that Appellants had failed 11 to file a memorandum consistent with the Settlement Process Order. No evidence was 12 presented at this hearing. 13 {27} Roughly a month later, the district court granted the motion to dismiss the 14 Meyer Defendants noting that “[Appellants] were given the opportunity to identify 15 the evidence they would present in opposition to the settlement[s but] indicated at the 16 . . . hearing that they had no evidence to present in opposition to the settlement.” It 17 therefore concluded that an evidentiary hearing was unnecessary and denied 18 Appellants’ motion. The district court acknowledged Appellants’ argument that 19 further discovery was necessary to obtain evidence to support their position but 14 1 concluded that Appellants were not entitled to full discovery because “[t]he extent of 2 discovery appropriate in connection with a settlement approval hearing is limited to 3 whether the settlement is fair, adequate, and reasonable.” It concluded, “[the Meyer] 4 Defendants have admitted liability, have agreed to cooperate with [NMSIC], and have 5 demonstrated that they have limited financial means[,]” and found that the settlements 6 were fair, adequate, and reasonable. The Meyer Defendants were dismissed. 7 3. The Broidy Defendants 8 Elliott Broidy (Broidy) was the founder and chairman of Markstone Capital {28} 9 Group, LLC (Markstone) (collectively, the Broidy Defendants). NMSIC alleged that 10 Broidy secured an investment from NMSIC in Markstone’s private equity fund by 11 making undisclosed and illegal quid pro quo payments to another defendant, thereby 12 aiding other defendants in breaching their fiduciary duties to NMSIC. In June 2014 13 NMSIC and Markstone reached a settlement agreement. In exchange for a payment 14 of $1,000,000 by Markstone, NMSIC released Markstone and Broidy from “any and 15 all claims . . . arising out of, [or] in connection with, or relating to any activities 16 by . . . Markstone [and Broidy] . . . with respect to . . . NMSIC . . . , including 17 NMSIC’s investments in the Markstone Fund.” The agreement with the Broidy 18 Defendants did not require Broidy or Markstone to cooperate in NMSIC’s civil 19 actions against other defendants. This agreement was signed by Governor Susana 15 1 Martinez as Chair of NMSIC. See § 6-8-2(B) (stating that the chair of NMSIC shall 2 be the Governor). 3 {29} Shortly thereafter, NMSIC filed a motion to dismiss the Broidy Defendants 4 asserting that Appellants had no standing to object to the dismissal because they had 5 not named Broidy or Markstone in their qui tam actions. Nevertheless, Appellants 6 filed a response to the motion to dismiss stating their objections to the settlement. The 7 district court decided that no hearing was necessary because the cases on which 8 Appellants relied to establish standing to challenge the Broidy Defendants’ dismissal 9 were all distinguishable, and because Appellants’ objections to the settlement had 10 been previously rejected and Appellants presented no new reasons to change the 11 district court’s decision. NMSIC’s motion to dismiss Broidy was granted. 12 {30} Appellants now appeal the district court’s approval of the settlements and 13 dismissal of the Weinstein Defendants, the Meyer Defendants, and Defendant Broidy 14 from NMSIC’s suit. 15 DISCUSSION 16 A. Preliminary Matters3 3 17 Appellants argue before this Court that Day Pitney “has disqualifying conflicts 18 of interest.” We decline to address this issue because it was never considered in the 19 first instance by the district court. Appellants’ motions to supplement the record on 20 appeal related to this argument are denied. 16 1 1. Finality 2 To the extent that Appellants argue that the district court’s orders dismissing {31} 3 the Defendants were not final appealable orders, we disagree. See Rule 1-054(B)(2) 4 NMRA. Appellants argue that the orders are not final because they “do[] not 5 adjudicate all issues relating to these . . . [D]efendants, because [they] do[] not 6 adjudicate the [twenty-five] to [thirty percent] share of the settlement [that] goes to 7 [Appellants], or the amount of attorney fees [that will be] paid by these 8 [D]efendants.” Appellants’ argument is based on NMSA 1978, Section 44-9-7 (2015), 9 which sets out how a qui tam plaintiff may be compensated when the state prevails 10 in a FATA action. Section 44-9-7(A)-(C) guides how much a qui tam plaintiff may 11 recover. Section 44-9-7(D) provides that “[a]ny award to a qui tam plaintiff shall be 12 paid out of the proceeds of the action or settlement, if any. The qui tam plaintiff shall 13 also receive an amount for reasonable expenses incurred in the action plus reasonable 14 attorney fees that shall be paid by the defendant.” 15 {32} Here, Appellants never filed a motion for the statutory award and attorney fees, 16 and the district court did not hold a hearing on these issues. The orders dismissing 17 Defendants do not address the statutory award or attorney fees. We disagree with 18 Appellants that the pendency of these issues renders the dismissal orders non-final 19 for two reasons. 17 1 {33} First, the language of FATA itself contemplates resolution of the merits of the 2 action before determination of the qui tam plaintiff’s award and attorney fees. Section 3 44-9-7 provides for such awards when the state “prevails in the action” and when 4 there are “proceeds of the action or settlement.” This language indicates that 5 calculation of the qui tam plaintiff’s award is subsequent to and supplementary to 6 adjudication of the merits of the action or resolution by settlement. See Valley 7 Improvement Ass’n v. Hartford Accident & Indem. Co., 1993-NMSC-061, ¶ 11, 116 8 N.M. 426, 863 P.2d 1047 (distinguishing between attorney fees that are an integral 9 part of compensatory damages and attorney fees that are “analogous to costs” and 10 thus “supplementary to relief on the merits”). 11 {34} Second, our Supreme Court has held that “[w]here a postjudgment request, 12 such as one for attorney[] fees, raises issues ‘collateral to’ and ‘separate from’ the 13 decision on the merits, such a request will not destroy the finality of the decision[.]” 14 Kelly Inn No. 102, Inc. v. Kapnison, 1992-NMSC-005, ¶ 21, 113 N.M. 231, 824 P.2d 15 1033. Here, by approving the settlements and dismissing Defendants, the district 16 court’s orders “declare[d] the rights and liabilities of the parties to the underlying 17 controversy,” i.e., the settlement amounts and terms. Id. Any determination as to the 18 Appellants’ proper share of the settlement amount and attorney fees “will not alter[,] 19 . . . moot or revise” the district court’s approval of the rights and liabilities set out in 18 1 the settlement agreements. Id. Hence, the proceedings to determine Appellants’ share 2 of the settlements are “collateral to” and “separate from” the approval of the 3 settlements. Id. 4 2. Jurisdictional Limits 5 Appellants also argue briefly that the district court acted beyond its jurisdiction {35} 6 in approving the settlements (1) because the settlements released Defendants from the 7 FATA claims in Austin, which was presided over by another judge, and (2) because 8 those claims could not be released while the Austin case was stayed pending appeal. 9 For the most part, Appellants provide no authority for these contentions or to support 10 their argument that the district court’s jurisdiction here is limited by proceedings in 11 an entirely separate case. Generally, this Court will not consider propositions that are 12 unsupported by citation to authority. ITT Educ. Servs., Inc. v. Taxation & Revenue 13 Dep’t, 1998-NMCA-078, ¶ 10, 125 N.M. 244, 959 P.2d 969. 14 {36} In any case, we are unpersuaded that the district court exceeded its jurisdiction. 15 There is no dispute that the district court had jurisdiction over this case. The fact that 16 a decision in this case may have an impact on another pending proceeding does not 17 diminish its jurisdiction here. Indeed, Section 44-9-6(H) states that “[a] finding of fact 18 or conclusion of law made in the other proceeding that has become final shall be 19 conclusive on all parties to an action under [FATA].” Thus, this provision appears to 19 1 contemplate the disposal of claims in a qui tam action by decisions rendered in an 2 alternate remedy proceeding. See In re Pharm. Indus. Average Wholesale Price Litig., 3 892 F. Supp. 2d 341, 343-45 (D. Mass. 2012) (recognizing that a settlement 4 agreement in a separate qui tam action may extinguish a qui tam plaintiff’s claims and 5 holding that such a settlement was an “alternate remedy” under Section 3730(c)(5) 6 of the False Claims Act (FCA), 31 U.S.C. §§ 3729–3733 (2012)). 7 3. Violation of Stay 8 Appellants also argue that the stay was violated because the district court {37} 9 released the FATA claims before the Supreme Court had a chance to rule on the 10 constitutional/retroactivity issue in Austin II and that, consequently, the Supreme 11 Court’s authority was “usurp[ed].” But the district court assumed that FATA was 12 constitutional, an assumption that favored Appellants’ position because, generally 13 speaking, the longer the period of alleged misconduct, the weaker the settlements 14 appear. Conversely, if the Supreme Court had decided that the retroactivity provision 15 of FATA was unconstitutional, then the period encompassing the alleged misconduct 16 would have been shorter, which would have weighed in favor of the adequacy of the 17 settlements and against Appellants’ position. We conclude that the district court 18 properly assessed the settlements in light of the pending appeals in Austin and did not 19 usurp the Supreme Court’s authority. 20 1 B. 2 Appellants Do Not Have Standing to Challenge the Dismissal of Defendant Broidy 3 The district court held that Appellants did not have standing to challenge the {38} 4 settlement with the Broidy Defendants because they were not named as defendants 5 in Appellants’ qui tam actions. The district court reasoned that, because Appellants’ 6 rights in the present action stem solely from their rights in their qui tam actions, 7 Appellants’ failure to name the Broidy Defendants there means that they had no rights 8 as to them here. 9 {39} Although Appellants appealed the district court’s decision and dismissal of the 10 Broidy Defendants, they did not address the legal principles of standing in their brief 11 in chief nor specifically argue that the district court’s ruling was incorrect. Nor did 12 they address this issue in their reply brief even after NMSIC raised it in its answer 13 brief. “In this circumstance, such a failure to respond constitutes a concession on the 14 matter.” Delta Automatic Sys., Inc. v. Bingham, 1999-NMCA-029, ¶ 31, 126 N.M. 15 717, 974 P.2d 1174. “This Court has no duty to search the record or research the law 16 to ‘defend’ in a civil case a party that fails to defend itself on an issue.” Id. This issue 17 having been waived, we turn to Appellants’ substantive arguments as to the district 18 court’s approval of the settlements with the Weinstein and Meyer Defendants. 21 1 C. 2 Appellants’ Substantive Arguments as to the Weinstein and Meyer Defendants 3 In these two appeals, Appellants raise the same four arguments. First, they {40} 4 maintain that the district court erred in limiting discovery before approving the 5 settlements. Second, they argue that the district court’s rulings violate FATA. Third, 6 they argue that NMSIC violated the Open Meetings Act (OMA), NMSA 1978, §§ 107 15-1 to -4 (1974, as amended through 2013),4 the Inspection of Public Records Act 8 (IPRA), NMSA 1978, §§ 14-2-1 to -12 (1947, as amended through 2013), and the 9 statute governing NMSIC, Section 6-8-2. Finally, Appellants contend that the district 10 court erred in ruling that they lacked standing to raise issues related to alleged 11 conflicts of interest of the former attorney general, Gary King, and his staff. We 12 address the first two arguments together, then the third and fourth in turn. 13 1. 14 The District Court Did Not Abuse its Discretion as to Discovery nor Violate FATA 15 Appellants argue that the district court erred when it “refused to allow {41} 16 discovery” and “refused to allow the [Appellants] to take any depositions . . . [o]r to 17 propound any interrogatories . . . [o]r to serve any requests for production.” In 18 essence, they maintain that they were denied the opportunity to present evidence that 4 19 The 2013 amendments to the OMA were effective June 14, 2013, after some 20 of the settlements were signed by the Litigation Committee. The 2013 amendments 21 do not alter our analysis. 22 1 the settlements were unfair and unreasonable—an opportunity to which they are 2 entitled by statute—because they were unduly limited in their ability to propound 3 discovery. See § 44-9-6(C). “Although the rules favor the allowance of liberal pretrial 4 discovery, the trial court is vested with discretion in determining whether to limit 5 discovery.” DeTevis v. Aragon, 1986-NMCA-105, ¶ 10, 104 N.M. 793, 727 P.2d 558 6 (citation omitted). Hence, “[a] trial court’s ruling limiting discovery is subject to 7 reversal only upon a showing of an abuse of discretion.” Id. 8 {42} We begin by addressing Appellants’ argument that, because of the differences 9 between FATA and the FCA, it is inappropriate to rely on federal cases construing 10 the FCA in construing FATA. They point to San Juan Agricultural Water Users 11 Ass’n v. KNME-TV, in which the Supreme Court stated that “[t]he differences in 12 substantive text and legislative purposes [between a federal statute and a New Mexico 13 statute] make the application of federal . . . law inappropriate when construing [that 14 New Mexico statute].” 2011-NMSC-011, ¶ 38, 150 N.M. 64, 257 P.3d 884. We 15 therefore consider whether differences between the FCA and FATA make federal 16 case law inapposite. 17 {43} Our courts have recognized that “FATA closely tracks the longstanding federal 18 [FCA]” and that “cases construing FATA’s federal analogue, the [FCA], [are] helpful 19 in understanding the context and purpose of FATA.” Austin II, 2015-NMSC-025, 23 1 ¶¶ 16, 25; see State ex rel. Peterson v. Aramark Corr. Servs., LLC, 2014-NMCA-036, 2 ¶ 4, 321 P.3d 128 (recognizing that FATA is similar to the FCA). Appellants argue 3 that this principle is inapplicable because the differences between FATA and the FCA 4 indicate that the New Mexico Legislature intended to afford qui tam plaintiffs broader 5 protections than those provided under the FCA. They derive this idea from the fact 6 that, whereas the FCA permits settlement “after a hearing,” FATA permits settlement 7 “after a hearing providing the qui tam plaintiff an opportunity to present evidence.” 8 Compare 31 U.S.C. § 3730(c)(2)(B), with § 44-9-6(C) (emphasis added). 9 {44} Under the FCA, a qui tam plaintiff may request an evidentiary hearing, which 10 “should be granted only upon a showing by the [qui tam plaintiff] of ‘substantial and 11 particularized need.’ ” Claire M. Sylvia, The False Claims Act: Fraud Against the 12 Government § 11:127 (2d ed. 2015); see Ridenour v. Kaiser-Hill Co., 397 F.3d 925, 13 935 (10th Cir. 2005); Nasuti ex rel. United States v. Savage Farms, Inc., No. 1214 30121-GAO, 2014 WL 1327015, at *13 (D. Mass. Mar. 27, 2014) (order), aff’d, No. 15 14-1362, 2015 WL 9598315 (Mar. 12, 2015). Thus, the opportunity to present 16 evidence at a hearing is permissible under the FCA upon a sufficient showing, but 17 required under FATA. Federal case law addressing when an evidentiary hearing 18 should be granted is therefore likely inapposite to Section 44-9-6(C) of FATA. Once 24 1 granted, however, we see no reason why federal case law addressing the conduct of 2 the evidentiary hearing itself is inapplicable to evidentiary hearings under FATA.5 3 {45} In addition to federal case law addressing the FCA, the law governing review 4 of class action settlements is also instructive here. In United States ex rel. Schweizer 5 v. Océ North America Inc., the court held that case law addressing the fairness, 6 adequacy, and reasonableness of class action settlements is analogous to the same 7 analysis under the FCA. 956 F. Supp. 2d 1, 10-11 (D.D.C. 2013); see Fed. R. Civ. P. 8 23(e)(2) (stating that class action settlements may be approved “only after a hearing 9 and on finding that it is fair, reasonable, and adequate”). This approach has been 10 adopted by other federal courts. See, e.g., United States ex rel. Nudelman v. Int’l 11 Rehab. Assocs., Inc., No. CIV A 00-1837, 2004 WL 1091032, at *1 n.1 (E.D. Pa. May 12 14, 2004) (order); United States ex rel. Resnick v. Weill Med. Coll. of Cornell Univ., 13 No. 04 CIV 3088(WHP), 2009 WL 637137, at *2 (S.D.N.Y. Mar. 5, 2009). 14 {46} Similarly, in New Mexico, class action settlements are evaluated by the district 15 court for their fairness, adequacy, and reasonableness. See Rivera-Platte v. First 16 Colony Life Ins. Co., 2007-NMCA-158, ¶ 43, 143 N.M. 158, 173 P.3d 765 (stating 17 that the settlement proponents bear the burden of demonstrating that the settlement 5 18 We note that Appellants relied on FCA cases in other contexts in the district 19 court and thus appear to recognize that FCA cases are useful to construe FATA when 20 the specific provisions at issue in the two statutes are similar. 25 1 is fair, adequate, and reasonable). Given the similarity between the standards for 2 approval of settlement of false claims actions and class actions, we look to class 3 action law for guidance on FATA settlement hearings. 4 {47} Having concluded that federal case law governing objections to settlements 5 under the FCA and case law on class action settlements is applicable, we next 6 examine that law. In Schweizer, the court considered whether a qui tam plaintiff “who 7 objects to a proposed [FCA] settlement reached between the government and the 8 defendant [is] entitled to full-blown discovery on her claims in order to prove that the 9 settlement [is] inadequate[.]” 956 F. Supp. 2d at 11. The court concluded that the 10 hearing required by statute “serves a . . . limited purpose of forcing the government 11 to provide some reasoning behind its decision to settle the case and giving the 12 plaintiff-relators an opportunity to direct the court’s attention to facts or allegations 13 that would suggest the settlement was not ‘fair, adequate[,] and reasonable under all 14 the circumstances[.]’ ” Id. Based on this limited purpose, it further concluded that 15 “allowing full-blown discovery as of right would risk transforming the [FCA 16 settlement] hearing into a trial on the merits of [the qui tam] plaintiff’s claims and the 17 government’s estimations of the litigation risks. It would put the cart before the horse, 18 in essence making trial a precondition of settlement.” Id. Although it held that there 19 was no right to full discovery, the court noted that limited discovery would be 26 1 appropriate when “the government has not adequately explained its reasoning behind 2 the settlement.” Id.; see United States ex rel. McCoy v. Cal. Med. Review, Inc., 133 3 F.R.D. 143, 149 (N.D. Cal. 1990) (stating that although a qui tam plaintiff is entitled 4 “to discovery on the fairness of the proposed settlement, the discovery must be 5 limited to effectuate the goal of allowing plaintiffs meaningful participation in the 6 fairness hearing without unduly burdening the United States or the defendants or 7 causing unnecessary delay”); 5B Fed. Proc., L. Ed. § 10:73 (2004) (“The qui tam 8 plaintiffs may be allowed limited discovery to enable them to play an active role in 9 hearings on a proposed settlement agreement.”); cf. 32B Am. Jur. 2d Federal Courts 10 § 1870 (2016) (stating that “formal discovery is not a prerequisite to the approval of 11 a [class action] settlement as long as the plaintiffs’ negotiators had access to sufficient 12 information regarding the facts of the case, and if the terms of the settlement are fair, 13 the court may reasonably conclude that counsel performed adequately in obtaining 14 a working knowledge of the case”). 27 1 {48} The Schweizer holding is paralleled in Rivera-Platte,6 in which this Court 2 considered whether “the settlement process was unfair because [the objectors’] . . . 3 requests for discovery were denied.” 2007-NMCA-158, ¶ 52. We rejected the 4 objectors’ argument that “informal” discovery was inadequate to permit the court to 5 evaluate the settlement, id. ¶ 49, and that they had “an absolute right to discovery.” 6 Id. ¶ 94 (internal quotation marks and citation omitted). Instead, we stated that 7 informal discovery is appropriate so long as it is sufficient “to fairly evaluate the 8 merits of [the d]efendants’ positions during settlement negotiations.” Id. ¶ 49. We 9 also noted that “[o]ne of the major reasons courts encourage settlement is to reduce 10 the cost of litigation” and that because settlement is “an extra judicial process, 11 informality in the discovery of information is desired.” Id. ¶ 51 (internal quotation 12 marks and citation omitted). Although in Rivera-Platte we reversed the district 13 court’s denial of discovery, we held that “the district court would not have abused its 14 15 16 17 18 19 20 21 22 23 6 Appellants argue that Rivera-Platte cannot be relied upon because the Supreme Court deemed it of no “force or effect” after all the parties “[sought] to implement the district court’s [f]inal [o]rder in the interest of achieving a class-wide settlement.” Platte v. First Colony Life Ins. Co., 2008-NMSC-058, ¶¶ 6, 8, 145 N.M. 77, 194 P.3d 108. Although this Court’s order was deemed of no force or effect as to the parties, the legal propositions set out in the Opinion remain precedential and have been cited in other cases, including by our Supreme Court. See, e.g., Davis v. Devon Energy Corp., 2009-NMSC-048, ¶ 38, 147 N.M. 157, 218 P.3d 75; Atherton v. Gopin, 2012-NMCA-023, ¶ 7, 272 P.3d 700; State v. Pacheco, 2008-NMCA-131, ¶ 34, 145 N.M. 40, 193 P.3d 587. 28 1 discretion in denying discovery if it had sufficient information before it to determine 2 whether to approve the settlement.” Id. ¶ 95; accord Hershey v. ExxonMobil Oil 3 Corp., No. 07-1300-JTM, 2012 WL 4758040, at *2 (D. Kan. Oct. 5, 2012) (stating 4 that “[t]he fundamental question is whether the district [court] has sufficient facts 5 before [it] to intelligently approve or disapprove the settlement” (internal quotation 6 marks and citation omitted)). 7 {49} Consistent with these principles, the district court here properly concluded that 8 “[Appellants] are not entitled to conduct or complete full-blown discovery prior to 9 proposed settlement approval.” Hence, we reject Appellants’ contention that the 10 district court violated FATA by limiting discovery before settlement. 11 {50} We turn next to Appellants’ arguments that the way the district court limited 12 discovery unduly hindered their ability to challenge the settlements contrary to 13 FATA. Appellants argue that they were improperly denied any discovery. They also 14 argue that the district court improperly ruled that damages calculations were not 15 important for evaluation of the settlements and therefore denied their request for 16 discovery as to damages. Neither of these contentions is supported by the record. 17 {51} Contrary to their statement that they were denied all discovery, we note that 18 Appellants were provided with all of the discovery obtained by NMSIC from 19 Defendants. Also, Appellants conceded in the district court that they had received 29 1 some discovery from NMSIC, that they were “satisifed” with NMSIC’s response, and 2 that there was “no dispute with the [q]ui [t]am [p]laintiffs and [NMSIC] with [how] 3 they have responded to discovery,” and the district court entered an order stating that 4 Appellants were entitled to receive any further materials that were produced to 5 NMSIC counsel by Defendants. In addition, the district court ordered that “basic 6 documents relating to the transactions at issue in this case” must be produced by 7 Defendants to both NMSIC and Appellants. The district court also ordered that 8 personal financial information for Defendants should be produced to Appellants. 9 Finally, the district court ordered that “each [D]efendant shall provide to [Appellants] 10 . . . a copy of any insurance agreement under which an insurance business may be 11 liable to satisfy all or part of a possible judgment in this suit or to indemnify or 12 reimburse any defendant for payments made to satisfy any judgment in this suit.” 13 {52} Given the production of the above described discovery, we understand 14 Appellants’ argument to be that their other specific requests for discovery were 15 improperly denied. Appellants requested “the name and . . . address . . . of each 16 individual likely to have discoverable information” about the case; copies of “all 17 documents, electronically stored information, and tangible things that the disclosing 18 party” might “use to support its claims or defenses”; “a computation of each category 19 of damages claimed by the disclosing party”; and a “copy of any insurance agreement 30 1 under which an insurance business may be liable to satisfy all or part of a possible 2 judgment.” They argued below and on appeal that these four requests “track[] the list 3 in Rule 1-026(B)(3) [NMRA]” and in its federal counterpart, Fed. R. Civ. P. 4 26(a)(1)(A), and that this information is “part of the minimal due diligence and 5 competence that is required in every case.” In addition, they asked Defendants to 6 “describe all communications between you and any of the other parties to this 7 lawsuit,” “[p]rovide a copy of all documents, electronically stored information, and 8 tangible things that record or reflect any [such] communications,” and “[p]rovide a 9 copy of all documents, electronically stored information, and tangible things relating 10 to the transactions giving rise to this lawsuit.” 11 {53} Defendants objected to these requests and some sought protective orders. The 12 district court issued an order preventing Appellants from promulgating the requested 13 discovery on Defendants, with the exception of the materials discussed in paragraph 14 50. In its oral remarks, the district court stated that “[it did] not believe that due 15 diligence requires answers to the mandatory . . . disclosures” in Rule 1-026(B)(3) and 16 that the answers to those requests were not necessary for it to evaluate the 17 settlements. 31 1 {54} We conclude that the district court did not abuse its discretion in limiting 2 Appellants’ discovery as it did. In the Settlement Process Order, the district court 3 notified Appellants that they must demonstrate that 4 5 (1) there is a low risk of . . . failing to establish liability against [the] [s]ettling [d]efendants under FATA, 6 7 (2) there is a low risk of . . . failing to establish damages against [the settling defendants] under FATA, 8 9 (3) the settlement amounts are not within the range of reasonableness in light of the best possible recovery[,] and 10 11 (4) the settlement amounts are not within the range of reasonableness in light of all . . . the attendant risks of litigation. 12 {55} Appellants did not demonstrate to the district court, and do not demonstrate on 13 appeal, how their broad discovery requests were related to the factors the district 14 court considered to assess the settlements. As discussed above, in the months leading 15 up to the evidentiary hearing on the settlements with the Weinstein Defendants, 16 Appellants were given multiple opportunities to present the evidence they claimed 17 they already had and to state why the settlements were not fair, adequate, or 18 reasonable. Considering the stage of the proceedings, the amount of discovery 19 produced to Appellants, Appellants’ multiple opportunities to present evidence they 20 claimed to have, and Appellants’ opportunity to cross-examine the witnesses 32 1 presented by NMSIC, it was within the district court’s discretion to curb Appellants’ 2 discovery. 3 {56} Appellants next argue that the district court erred by ruling that calculation of 4 damages was not important to evaluation of the settlements. They glean this argument 5 from an exchange at a motion hearing after Appellants stated that they wanted “all 6 documents relating to the various investments” in order “to do a real calculation with 7 admissible evidence as to what the loss or gain . . . might be on a particular 8 investment.” They stated that “the best way of doing that is cash out, cash in.” 9 10 11 Counsel for Appellants: So there is complexity there. And without simply having had discovery, we don’t have that information. 12 13 14 15 Court: 16 Counsel for Appellants: I want the facts, Your Honor. 17 18 19 Court: 20 21 22 23 Counsel for Appellants: I want to ask somebody from the [NMSIC], . . . what was the gain or loss on this particular investment. We don’t know that information. 24 Court: Mr. Marshall, to me, the issue at this hearing is not whether you had the ability to make that calculation now, but . . . whether somebody who is making the decision to settle considered those facts. I understand you want the facts, but that’s not important for settlement purposes. .... I don’t think you need to know that at this stage. 33 1 {57} Appellants misinterpret the district court’s ruling. The district court did not 2 decide that calculation of damages was irrelevant to the fairness, adequacy, and 3 reasonableness of the settlements: it ruled that it was not critical to evaluation of the 4 settlements that Appellants have the information on which NMSIC’s damages 5 calculations were based, so long as NMSIC could demonstrate to the district court 6 that it adequately considered the potential damages. See Hershey, 2012 WL 4758040, 7 at *2 (stating that “[t]he fundamental question is whether the district [court] has 8 sufficient facts before [it] to intelligently approve or disapprove the settlement.” 9 (internal quotation marks and citation omitted)). 10 {58} Furthermore, Appellants’ contention that the district court did not consider the 11 potential damages is contradicted by the record. The district court made several 12 findings of fact related to potential damages. Additionally, in its conclusions of law, 13 the district court noted that assessment of the settlement included examination of “the 14 range of reasonableness of the settlement fund in light of the best possible recovery.” 15 It further concluded that NMSIC had conducted sufficient discovery to “fairly 16 evaluate the . . . range of [best] possible recovery.” In other conclusions, the district 17 court considered the “complexity of establishing damages,” recognized that 18 Appellants estimated damages to be in excess of $300,000,000 based on investment 19 losses, and contemplated the possible types of damages available under FATA. These 34 1 findings and conclusions indicate that the district court properly considered damages 2 in its assessment of the settlements. 3 {59} Appellants also argue that the district court deprived them of their rights under 4 FATA, specifically the “right to [Appellants’] reward and attorney fees, the right to 5 intervene and participate as a party in the alternate action, and the right to present 6 evidence in the alternate action.” But Appellants were permitted to intervene as 7 parties and, as already discussed, were permitted to present evidence at the fairness 8 hearing. Because the propriety of the settlements is on appeal, Appellants’ right to a 9 reward and attorney fees has yet to be litigated. Thus, Appellants have not been 10 deprived of these rights. 11 {60} Appellants’ general arguments that the district court violated FATA by 12 “rubber-stamping” the settlements are unpersuasive. As discussed above, the district 13 court requested memoranda on Appellants’ opposition to the settlements multiple 14 times, held several hearings, and conducted a two-day evidentiary hearing. It issued 15 seventy-three detailed findings of fact. In its evaluation, the district court indulged 16 several presumptions in Appellants’ favor. For example, although the issue of the 17 constitutionality of FATA’s retroactivity provision was on appeal to the Supreme 18 Court, the district court assumed that it was constitutional. In spite of its reservations 19 about whether Appellants had a right to object to settlements with defendants on 35 1 whom process was not served in their qui tam actions, it also presumed that 2 Appellants had a right to object to those settlements. Moreover, although Appellants 3 “ha[d] not articulated a viable FATA claim against any of the [Weinstein] 4 Defendants,” the district court nevertheless assumed that Appellants might yet do so 5 and therefore assumed they had a right to object to settlements with those defendants. 6 The district court did not “rubber-stamp” the settlement agreements. 7 {61} Finally, Appellants argue that the district court violated NMSA 1978, Section 8 6-8-24 (2011). This statute provides that “[n]othing in this 2011 act shall prejudice 9 or impair the rights of a qui tam plaintiff pursuant to [FATA].” Since we have 10 determined that Appellants’ rights under FATA were not infringed, we further 11 conclude that no violation of Section 6-8-24 occurred. Appellants also make several 12 statements that because of the inadequate discovery “the proposed settlement amounts 13 are grossly inadequate.” Other than these statements, however, Appellants do not 14 challenge the district court’s factual findings or conclusions as to adequacy, fairness, 15 or reasonableness, which involved a number of findings and conclusions on the 16 settling defendants’ resources, the likelihood of success at trial, and the role of the 17 settlements in the State’s litigation plan, among others. In the absence of 18 particularized challenges to these findings and conclusions, we do not address 19 Appellants’ general assertions that the settlements are inadequate. See Rule 12- 36 1 213(A)(4) (stating that “[t]he argument shall set forth a specific attack on any finding, 2 or such finding shall be deemed conclusive”). 3 {62} We conclude that the district court did not abuse its discretion in limiting 4 discovery, nor did it fail to adequately assess the settlements. In addition, we discern 5 no violation of FATA by the district court. 6 2. The Settlement Agreements are Valid as of May 2015 7 Appellants, together with Amici New Mexico Foundation for Open {63} 8 Government (NMFOG) and New Mexico Press Association, argue that the 9 settlements are void for three reasons. First, NMSIC did not have the power to 10 delegate authority to settle with Defendants to the Litigation Committee. Second, 11 even if settlement authority was properly delegated, the Litigation Committee was a 12 public body subject to the requirements of the OMA and failed to comply with those 13 requirements. Section 10-5-1. Third, the Litigation Committee was improperly 14 constituted because it did not conform with NMSIC’s settlement policy or Section 615 8-2(B), which states that “[a]ll actions of the [NMSIC] shall be by majority vote, and 16 a majority of the members shall constitute a quorum.” 17 {64} Appellants made these arguments in the district court as well. The district court 18 disagreed and held that NMSIC properly delegated settlement authority to the 19 Litigation Committee and that the OMA does not require litigation decisions, 37 1 including settlement decisions, to be made in a public meeting. See § 10-15-1(H)(7) 2 (excluding “meetings subject to the attorney-client privilege pertaining to threatened 3 or pending litigation in which the public body is or may become a participant” from 4 the scope of the OMA). In reaching this conclusion, the district court relied in part on 5 the fact that NMSIC delegated authority to the Litigation Committee in its Settlement 6 Policy, which was voted on and approved by NMSIC at a public meeting. 7 {65} NMSIC’s position on appeal is multifaceted. First, NMSIC argues that 8 Appellants “implicitly conceded” that delegation of settlement authority to the 9 Litigation Committee was proper, and thus the issue is not preserved for appeal. Next, 10 it argues that “the actions of the Litigation Committee are the very type of attorney11 client privileged litigation decision-making exempted by [the] OMA.” In addition, it 12 argues that “[e]ven if the Litigation Committee were subject to the OMA, the 13 processes followed here satisfied [the] OMA’s purposes and therefore did not violate 14 [the] OMA.” Finally, it maintains that any violation of the OMA was cured by 15 NMSIC’s ratification of the settlements in a properly-noticed public meeting held in 16 May 2015, approximately thirty months after the Litigation Committee approved the 17 first settlements, and that, therefore, this issue is moot. 18 {66} We begin by addressing NMSIC’s preservation and mootness arguments. The 19 district court’s conclusion that the issue of whether settlement authority was properly 38 1 delegated was “implicitly conceded” is based on a pleading in which Appellants 2 argued that there were no records of such a delegation and requested that any records 3 of delegation be produced. But Appellants also stated in that pleading that “a blanket 4 delegation [of settlement authority] to the [state investment officer] . . . would be in 5 derogation of the statutory and fiduciary obligations of [NMSIC] members 6 themselves” and that decisions about “settlement of actual or potential litigation . . . 7 must be made by the . . . [NMSIC] itself, by vote.” By making these arguments, 8 Appellants sufficiently apprised the district court of their contention that the authority 9 to settle litigation rests solely with NMSIC. Thus, this argument was sufficiently 10 preserved for appeal. 11 {67} As to NMSIC’s argument that this Court need not address Appellants’ 12 arguments as to the OMA because the May 2015 meeting cured any OMA violations, 13 we disagree. Even if an issue is moot as between the parties, we may address it if it 14 is an issue “of substantial public interest, and capable of repetition, yet evading 15 review.” Howell v. Heim, 1994-NMSC-103, ¶ 7, 118 N.M. 500, 882 P.2d 541 16 (internal quotation marks and citation omitted). The present matter satisfies both of 17 these criteria. In promulgating the OMA, the New Mexico Legislature has evinced 18 a strong interest in transparency in government and agency compliance with the OMA 19 is an issue of substantial public interest. Furthermore, the problems in NMSIC’s 39 1 processes here are capable of repetition by it and other agencies. See Paragon Found., 2 Inc. v. State Livestock Bd., 2006-NMCA-004, ¶ 10, 138 N.M. 761, 126 P.3d 577 3 (stating that “the implication of the OMA is an important policy issue that is likely 4 to occur again if the issue is not directly addressed” and examining the OMA issues 5 even though the matter was moot). 6 {68} We move on to the parties’ substantive arguments, which present a series of 7 questions. First, are the actions of the Litigation Committee void, because either (1) 8 NMSIC improperly delegated authority to settle with Defendants, or (2) the Litigation 9 Committee failed to comply with the OMA? Second, did the May 2015 meeting cure 10 any improper delegation or violation of the OMA such that the settlements are now 11 valid? 12 a. Actions of the Litigation Committee Were Void 13 As to the first question, we agree with Appellants and Amici that the Litigation {69} 14 Committee’s actions were void because the Committee did not have the authority to 15 settle with Defendants. In addition, even if settlement authority was properly 16 delegated, the Litigation Committee’s meetings did not comply with the OMA and 17 hence were invalid. We address the delegation issue first. 18 {70} In pertinent part, the Settlement Policy states that the Litigation Committee 19 “may actively participate in settlement negotiations, as appropriate, with the authority 40 1 of the [NMSIC] for settlement resolution and related decisions.” It also states that 2 “the authority to settle legal matters rests not with the [State Investment Officer] but 3 with [NMSIC’s L]itigation [C]ommittee.” The Settlement Policy specifies that the 4 Litigation Committee “shall be comprised of at least three [NMSIC] members” and 5 permits the Governor’s general counsel to serve on the committee. Pursuant to the 6 Settlement Policy, a Litigation Committee consisting of two NMSIC members and 7 the Governor’s general counsel met “seven or eight” times to discuss the settlement 8 negotiations with Defendants. The Litigation Committee approved the settlement 9 agreements with Defendants without obtaining a vote on the final decision by 10 NMSIC. These settlement agreements were signed on behalf of NMSIC by Litigation 11 Committee members. 12 {71} As a creature of statute, NMSIC functions solely within the powers granted by 13 the Legislature. Chalamidas v. Envtl. Improvement Div., 1984-NMCA-109, ¶ 13, 102 14 N.M. 63, 691 P.2d 64. NMSIC’s powers are limited by Section 6-8-2(B) and Section 15 6-8-7(A) and (E). Under Section 6-8-2(B), “[a]ll actions of the council shall be by 16 majority vote, and a majority of the members shall constitute a quorum.” (Emphasis 17 added). The only mention of NMSIC’s ability to delegate its responsibilities states 18 that “[t]he [NMSIC] may delegate administrative and investment-related functions 19 to the state investment officer.” Section 6-8-7(A). Section 6-8-7(E) provides that 41 1 NMSIC may “form and use committees,” but only to “study and make 2 recommendations to [NMSIC].” Notwithstanding the Settlement Policy, these 3 provisions do not permit NMSIC to delegate authority to settle litigation to a 4 committee. Indeed, read together, they prohibit such delegation. Cf. Kerr-McGee 5 Nuclear Corp. v. N.M. Envtl. Improvement Bd., 1981-NMCA-044, ¶ 52, 97 N.M. 88, 6 637 P.2d 38 (stating that “[a]dministrative bodies and officers cannot delegate power, 7 authority and functions which under the law may be exercised only by them, which 8 are quasi-judicial in character, or which require[] the exercise of judgment”). Because 9 the Litigation Committee did not have the authority to do so, its approval of the 10 settlements in 2013 and 2014 was without any binding effect.7 11 b. Litigation Committee Was Subject to the OMA 12 Even if NMSIC’s delegation of settlement authority to the Litigation {72} 13 Committee had been proper, the Litigation Committee violated the OMA’s 14 requirements for closed meetings. Hence, its actions are void for that reason as well. 15 We explain.8 7 16 Since we conclude that the Litigation Committee did not have the authority 17 to act on the settlements, we need not address whether it was properly constituted. 8 17 Given our resolution of the delegation issue we could perhaps avoid 18 discussion of the OMA issues. We have determined to give the OMA issues full 19 consideration because they are squarely presented and because it is important to fill 20 out our OMA law as it applies to policy-making subcommittees of public entities. 42 1 {73} The OMA embodies the Legislature’s declaration that “[the] public policy of 2 this state [is] that all persons are entitled to the greatest possible information 3 regarding the affairs of government and the official acts of those officers and 4 employees who represent them.” Section 10-15-1(A). In keeping with this policy, we 5 construe the OMA’s provisions broadly and their exceptions narrowly. Cf. State ex 6 rel. Toomey v. City of Truth or Consequences, 2012-NMCA-104, ¶ 22, 287 P.3d 364 7 (“We emphasize, however, that [the] IPRA should be construed broadly to effectuate 8 its purposes, and courts should avoid narrow definitions that would defeat the intent 9 of the Legislature.”); see also NMSA 1978, § 14-2-5 (1993) (stating that, under the 10 IPRA, “it is declared to be the public policy of this state, that all persons are entitled 11 to the greatest possible information regarding the affairs of government and the 12 official acts of public officers and employees[,]” which is nearly identical to the 13 policy declaration in the OMA). 14 15 16 17 18 19 20 21 22 {74} The OMA provides that All meetings of a quorum of members of any board, commission, administrative adjudicatory body or other policy[-]making body of any state agency . . . , held for the purpose of formulating public policy, . . . discussing public business or taking any action within the authority of or the delegated authority of any board, commission or other policy[]making body are declared to be public meetings open to the public at all times, except as otherwise provided in the constitution of New Mexico or the [OMA]. 23 Section 10-15-1(B) (emphasis added). 43 1 {75} We conclude that this provision applied to the Litigation Committee because 2 the Litigation Committee was intended to be a “policy[-]making body” and its 3 meetings were for the purpose of taking an action within the authority of NMSIC.9 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 15 16 17 18 19 20 21 22 23 24 9 We note that there is nothing in the statutes governing NMSIC explicitly indicating that it has the authority to settle litigation either. Compare NMSA 1978, §§ 6-8-1 to -24 (1957, as amended through 2015), with NMSA 1978, § 58-24-5(A) (1983) (stating that the Industrial and Agricultural Finance Authority “shall have all the powers necessary or convenient to carry out and effectuate the purposes and provisions of the Industrial and Agricultural Finance Authority Act, including, . . . the power . . . to sue and be sued”), and NMSA 1978, § 72-14-21 (1955) (stating that the Interstate Stream Commission “shall have power to institute in any of the courts of this state, or in any other state, or in any of the federal courts of this state or any other state, any actions, suits and special proceedings necessary to enable it to acquire, own and hold title to lands for dam sites,” and other sites), and NMSA 1978, § 36-1-19(B) (1985) (stating that “a board of county commissioners may contract with private counsel for legal assistance to or representation of the county” and that “[s]uch private counsel shall have the same powers of compromise, satisfaction or release in civil proceedings as are held by district attorneys”). NMSIC states in its brief that the power to settle litigation is vested in the Attorney General and that the Attorney General delegated such power to NMSIC or to NMSIC’s counsel, but conceded at oral argument that the record does not reflect such delegation. See § 36-1-19 and NMSA 1978, § 36-1-22 (1875-1876) (stating that the Attorney General represents the state and that the Attorney General has the authority to settle matters involving the state). Moreover, the settlement agreements were signed by members of the Litigation Committee or the Governor, not the New Mexico Attorney General’s Office or NMSIC counsel. Other than this brief statement, both parties predicate their arguments on the assumption that NMSIC has settlement authority. We therefore do not address this issue further and assume for the purposes of this opinion that NMSIC had authority to settle with the defendants. In re Doe, 1982-NMSC-099, ¶ 3, 98 N.M. 540, 650 P.2d 824 (stating that “courts risk overlooking important facts or legal considerations when they take it upon themselves to raise, argue, and decide legal questions overlooked by the lawyers who tailor the case to fit within their legal theories.” (alteration, internal quotation marks, and citation omitted)). 44 1 NMSIC, which is unquestionably subject to the OMA, attempted to delegate its 2 authority to take action on the settlements to the Committee. It is patently contrary to 3 the OMA’s purpose to permit a public body to avoid the OMA’s requirements simply 4 by delegating its responsibilities to a smaller body. Indeed, Section 10-15-1(B) states 5 that “[n]o public meeting once convened that is otherwise required to be open 6 pursuant to the [OMA] shall be closed or dissolved into small groups or committees 7 for the purpose of permitting the closing of the meeting.” We agree with a 1990 8 Advisory Opinion by the then-Attorney General that “it is the nature of the act 9 performed by the committee, not its makeup or proximity to the final decision, which 10 determines whether an advisory committee is subject to open meetings statutes.” 11 N.M. Att’y Gen. Op. 90-27 (1990). The current Attorney General’s Open Meetings 12 Act Compliance Guide echoes this thinking, stating, 13 14 15 16 17 18 19 even a non-statutory committee appointed by a public body may constitute a “policy[-]making body” subject to the [OMA] if it makes any decisions on behalf of, formulates recommendations that are binding in any legal or practical way on, or otherwise establishes policy for the public body. A public body may not evade its obligations under the [OMA] by delegating its responsibilities for making decisions and taking final action to a committee. 20 p. 9 (8th ed. 2015) http://www.nmag.gov/oma-and-ipra-nm-sunshine-laws.aspx. 21 {76} In Paragon Foundation, Inc., this Court considered whether the acts of an 22 individual on behalf of a public agency were subject to the OMA. 2006-NMCA-004, 45 1 ¶¶ 2-3. After a federal district court ordered the plaintiffs to remove their livestock 2 from United States Forest Services land, the Forest Service and the executive director 3 of the New Mexico Livestock Board (Board) entered into a memorandum of 4 understanding (MOU) governing how the livestock would be removed. Id. The 5 plaintiffs filed suit, alleging that the MOU violated the OMA because “no public 6 meeting of the Board was held and a majority of the Board did not approve or 7 authorize the MOU before the MOU was executed by” the executive director. Id. ¶ 4. 8 The Board moved for summary judgment on the ground that the MOU was not voted 9 on or executed by a quorum of the Board and that, because the Board did not so act, 10 the OMA did not apply. Id. ¶ 5. The district court granted the motion for summary 11 judgment. Id. ¶ 7. 12 {77} On appeal, we affirmed. Relying on Section 10-15-1(B), quoted above, we held 13 that “[u]nder the law, if a quorum of the Board members did not act on the MOU, the 14 OMA was inapplicable, there was no OMA violation, and summary judgment was 15 proper.” Paragon Found., Inc., 2006-NMCA-004, ¶¶ 12, 13. We also noted that the 16 executive director’s “largely unilateral action [in signing the MOU was] non-binding 17 and meaningless, as he can only act pursuant to those powers delineated in the Code.” 18 Id. ¶ 24. 46 1 {78} Importantly, we noted that the executive director “did not have the authority 2 or approval of the Board to enter into the MOU” and that the “MOU was not 3 approved or authorized by a quorum of the Board in public or private meetings.” Id. 4 ¶¶ 15, 16. We repeatedly reiterated the fact that members of the Board had limited or 5 no knowledge of the MOU before it was signed, and that some members were 6 “surprised” when presented with it after its execution. Id. ¶¶ 17-22. These facts 7 clearly distinguish Paragon Foundation, Inc. from the present matter. Unlike in that 8 case, here, NMSIC unanimously approved the Settlement Policy, purportedly giving 9 the Litigation Committee authority to act on its behalf. See Signed Minutes, pg. 5-7, 10 N M S I C Meeting June 26, 2012, available at 11 http://www.sic.state.nm.us/uploads/FileLinks/39153cc7c39a496c823e7a6fdba7da 12 d6/6_26_12_SIC_SIGNED_MINUTES.pdf. It is clear that NMSIC fully endorsed the 13 actions of the Litigation Committee and intended it to take action that would be 14 subject to the OMA if acted on by the full NMSIC. 15 c. Litigation Committee Actions Were Subject to the OMA 16 Having determined that the Litigation Committee was a body subject to the {79} 17 OMA, we turn to whether the Litigation Committee’s actions were subject to the 18 OMA. NMSIC relies on Board of County Commissioners v. Ogden to argue that the 19 Litigation Committee’s approval of the settlements falls within an exception to the 47 1 OMA. 1994-NMCA-010, 117 N.M. 181, 870 P.2d 143. The focus of the Ogden 2 opinion is on construction of Section 10-15-1(H)(7) (the litigation exception),10 which 3 states that “meetings subject to the attorney-client privilege pertaining to threatened 4 or pending litigation in which the public body is or may become a participant” are not 5 subject to the OMA. Ogden, 1994-NMCA-010, ¶ 13. There, the issue was whether 6 the “threatened or pending litigation” exception included the Board of 7 Commissioners’ decision to sue the defendants. Id. The Court concluded “that 8 ‘pending’ or ‘threatened’ litigation can include litigation that the public body may 9 initiate and legal disputes that have not yet reached the courts” and that “under [this 10 exception], [the Board of Commissioners] could properly discuss and decide to file 11 suit against [the d]efendants in a closed session.” Id. ¶¶ 15-16. 12 {80} More pertinent to our purposes is the Court’s rejection of the argument that 13 “even if [the Board of Commissioners was] allowed to obtain legal advice in closed 14 session, [it] was required to make its decision to sue [the d]efendants in an open 15 meeting.” Id. ¶ 17. We reasoned that, unlike some of the other exceptions, the 16 litigation exception “does not require that a decision regarding litigation be made in 10 17 At the time of the Ogden decision, the litigation exception was Section 10-1518 1(E)(5). 48 1 an open meeting.” Id.; see, e.g., § 10-15-1(H)(6) (actual approval of certain purchases 2 must be made in open meeting). 3 {81} Amici argue that the holding in Ogden has been overruled by the Board of 4 Commissioners of Doña Ana County v. Las Cruces Sun-News, in which this Court 5 stated that “settlement agreements entered into between parties are outside the 6 privilege” addressed by the litigation exception. 2003-NMCA-102, ¶ 25, 134 N.M. 7 283, 76 P.3d 36, overruled on other grounds by Republican Party of N.M. v. N.M. 8 Taxation & Revenue Dep’t, 2012-NMSC-026, ¶ 16, 283 P.3d 853. But the focus of 9 that case was on whether executed settlement agreements involving a public entity 10 were subject to public disclosure under the IPRA. Id. ¶¶ 1, 25. The holding that 11 settlement agreements are disclosable under the IPRA does not contradict the Ogden 12 holding that the decision to settle may be made in a closed meeting. Based on Ogden, 13 we conclude that the district court did not err in holding that the OMA was not 14 violated by the Litigation Committee’s approval of the settlement agreements in 15 private meetings. 16 {82} However, the district court’s analysis did not go far enough because other 17 provisions of the OMA were violated. For instance, Section 10-15-1(I)(1) states that 18 19 20 21 if [the decision to hold a closed session is] made in an open meeting, [it] shall be approved by a majority vote of a quorum of the policy[-]making body; the authority for the closure and the subject to be discussed shall be stated with reasonable specificity in the motion calling for the vote 49 1 2 3 on a closed meeting; the vote shall be taken in an open meeting; and the vote of each individual member shall be recorded in the minutes. {83} Section 10-15-1(I)(2) provides that when the decision to hold a closed session 4 is not made in a public meeting, “the closed meeting shall not be held until public 5 notice, appropriate under the circumstances, stating the specific provision of the law 6 authorizing the closed meeting and stating with reasonable specificity the subject to 7 be discussed is given to the members and to the general public.” Finally, Section 108 15-1(J) states that 9 10 11 12 13 14 15 the minutes of the open meeting that was closed or the minutes of the next open meeting if the closed meeting was separately scheduled shall state that the matters discussed in the closed meeting were limited only to those specified in the motion for closure or in the notice of the separate closed meeting. This statement shall be approved by the public body . . . as part of the minutes. {84} The parties do not direct us to evidence in the record that NMSIC and the 16 Litigation Committee complied with these requirements. Thus, these provisions of the 17 OMA were violated and the Litigation Committee’s approval of the settlement 18 agreements was invalid. 19 d. May 2015 Meeting Cured OMA Violations 20 The final question is whether the settlement agreements became valid when {85} 21 nine of the eleven members of NMSIC voted to approve them in May 2015. 50 1 Assuming NMSIC has the power to enter into such agreements, we conclude that the 2 May 2015 vote rectified the delegation issue. 3 {86} We also conclude that the May 2015 meeting cured the OMA violations. 4 “[P]rocedural defects in [compliance with the OMA] may be cured by taking prompt 5 corrective action.” Kleinberg v. Bd. of Educ. of Albuquerque Pub. Sch., 1988-NMCA6 014, ¶ 30, 107 N.M. 38, 751 P.2d 722. Previous cases have affirmed the cure of the 7 OMA violations where the curing actions were taken four days later, see id. ¶ 15, and 8 eleven months later. See Palenick v. City of Rio Rancho, 2012-NMCA-018, ¶ 1, 270 9 P.3d 1281, rev’d on other grounds by, 2013-NMSC-029, 306 P.3d 447. Here, the 10 curing meeting occurred thirty months after the first settlement was approved by the 11 Litigation Committee. Although thirty months stretches the bounds of “prompt” 12 remedial action as contemplated in Kleinberg, we conclude that it was sufficient to 13 remedy the Litigation Committee’s improper action because “the legislature did not 14 intend to unduly burden the appropriate exercise of governmental decision-making 15 and ability to act.” 1988-NMCA-014, ¶ 31. “To rule otherwise would improperly 16 elevate form over substance” and wreak havoc on a process already fraught with 17 complexity. Id. Most importantly, the May 2015 meeting was preceded by proper 18 notice to the public, included a public agenda and was open to the public, NMSIC 19 members publicly voted on the settlements, and minutes of the meeting were 51 1 published online. See http://www.sic.state.nm.us/state-investment-council.aspx 2 (providing access to NMSIC meeting calendar, and agendas and minutes of NMSIC 3 meetings) (last visited Mar. 17, 2016). The purpose of the OMA was thus achieved 4 by this public meeting. See Kleinberg, 1988-NMCA-014, ¶ 31 (concluding that an 5 OMA violation was cured where “[t]he local board, in affording [the plaintiff] a full 6 and fair hearing in compliance with due process guarantees, and ultimately, in taking 7 a public vote and openly announcing its decision in a forum where the interested 8 public could observe the action, carried out the intent and purpose of the [OMA]”). 9 {87} We recognize that our holding could be seen as stretching the notion of prompt 10 remedial action beyond the breaking point, effectively giving license to public 11 agencies to flout OMA standards without penalty. We caution strongly against any 12 such reading and emphasize that our decision to not invalidate the settlements is 13 driven by the fact that they were subjected to reasonable and appropriate review by 14 the district court. That independent review—which we have approved—provides us 15 assurance that the public fisc has been protected. Without the presence of judicial 16 review we would not be tolerant of the delay seen here. In addition, we are confident 17 that our ruling as to the reach and effect of the OMA in situations such as we review 18 here will result in suitable caution by public agencies of all stripes. To the extent 52 1 public agencies fail to meet their obligations under the OMA, the public—including 2 Amici—will have strong authority to enforce compliance. 3 {88} We also emphasize that the ratification of the settlements at the May 2015 4 meeting does not operate retroactively to make the settlement agreements valid as of 5 the date they were originally signed. See Palenick, 2012-NMCA-018, ¶ 9 (stating that 6 “no authority in New Mexico supports the [defendant’s] attempt to retroactively make 7 the prior invalid action valid and effective as of the date it was taken”). The 8 settlement agreements became valid only at the May 2015 meeting. 9 {89} Given this holding, the district court considered and approved settlements that 10 were void at the time. The question arises whether this requires that the entire matter 11 be remanded for reconsideration. We conclude that remand for what would be a 12 hearing of form only is not in the best interests of the public, the courts, or the parties. 13 The district court approved the settlements on their merits. We have found no error 14 in its process or final decision, with the exception of the delegation and the OMA 15 issues. These issues do not speak to the merits of the settlements. Requiring 16 reconsideration of the substance of the settlements would serve no purpose at this 17 point. 53 1 e. No IPRA Violation Shown by Appellants 2 Finally, in the course of their arguments, Appellants also make several {90} 3 references to violations of the IPRA and argue that the settlement agreements were 4 “kept secret for months.” The district court concluded that “[t]here is no evidence of 5 any attempt to shield these settlements from the IPRA. Moreover, the [s]ettlement 6 [a]greements have been publicly filed in this action and the [district c]ourt has held 7 a public hearing about them.” We agree with the district court. The IPRA provides 8 for public access to records; it does not require public entities to provide records in 9 the absence of a request for them. See NMSA 1978, § 14-2-8(A) (2009) (stating the 10 procedures for requesting public records). On appeal, Appellants do not argue that 11 they requested records from NMSIC and were denied. See NMSA 1978, § 14-212 12(A)(2) (1993) (stating that “[a]n action to enforce the [IPRA] may be brought 13 by . . . a person whose written request has been denied”). Appellants have failed to 14 demonstrate that the IPRA was violated here. 15 {91} In sum, the Litigation Committee did not have the authority to settle with 16 Defendants here and we reverse the district court’s conclusion to the contrary. We 17 also hold that the Litigation Committee meetings violated the OMA’s notice and 18 documentation requirements. However, the settlement agreements were validated 54 1 when they were approved by NMSIC in an open meeting in May 2015. We affirm the 2 district court’s conclusion that Appellants have not shown a violation of the IPRA. 3 3. 4 The District Court did not Err in Denying Appellants’ Motion to Disqualify the Attorney General’s Office 5 Finally, Appellants argue that the district court erred in dismissing their motion {92} 6 to disqualify former Attorney General, Gary King, for conflicts of interest involving 7 representation by his office of NMSIC. They maintain that the district court 8 erroneously ruled that they lacked standing to raise these issues. In fact, the district 9 court rejected Appellants’ motion on its merits as to two of their three allegations. 10 {93} As to the third allegation, the district court ruled that Appellants lacked 11 standing to move for disqualification of the Attorney General’s office based on the 12 fact that a member of that office had served as counsel to NMSIC. Generally 13 speaking, “only a current or former client has standing to move for disqualification 14 of counsel based on an alleged conflict of interest.” Eric C. Surette, Annotation, 15 Standing of Person, Other than Former Client, to Seek Disqualification of Attorney 16 in Civil Action, 72 A.L.R. 6th 563 § 2 (2012); cf. Sanchez v. Siemens Transmission 17 Sys., 1991-NMCA-028, ¶ 36, 112 N.M. 236, 814 P.2d 104 (stating that “[t]o the 18 extent that employer[/respondent] attempts to raise [a conflict of interest between the 19 petitioner and her attorney] on claimant’s[/petitioner’s] behalf, however, we fail to 20 see how employer has standing”), rev’d in part on other grounds by, 1991-NMSC55 1 093, 112 N.M. 533, 817 P.2d 726. However, a nonclient party may have standing to 2 move for disqualification when “the nonclient establishes that the conflict prejudices 3 or injures the nonclient’s own rights.” Surette, supra, at § 2; cf. Evink v. Pekin Ins. 4 Co., 460 N.E.2d 1211, 1214 (Ill. App. Ct. 1984) (stating that the “plaintiffs would 5 have no standing to challenge [the] defense counsel’s ability to represent [two 6 defendants] without some showing that this representation adversely affects their 7 interests”). 8 {94} Here, the district court held a hearing on Appellants’ motion to disqualify. 9 After the hearing, it concluded that Appellants did not have standing to challenge a 10 conflict of interest between the Attorney General’s office and NMSIC. We infer from 11 this ruling that the district court determined that Appellants failed to demonstrate that 12 their interests were sufficiently adversely affected by the alleged conflict of interest 13 to overcome the general rule. Neither a transcript of the hearing nor a CD recording 14 of it is in the record on appeal. In the absence of a transcript or CD, we presume the 15 district court’s ruling is supported by the evidence. Michaluk v. Burke, 1987-NMCA16 044, ¶ 25, 105 N.M. 670, 735 P.2d 1176 (“Where the record on appeal is incomplete, 17 the ruling of the trial court is presumed to be supported by the evidence.”); see 18 Sandoval v. Baker Hughes Oilfield Operations, Inc., 2009-NMCA-095, ¶ 65, 146 19 N.M. 853, 215 P.3d 791 (“It is the duty of the appellant to provide a record adequate 56 1 to review the issues on appeal.”). We conclude that the district court did not err in 2 denying Appellants’ motion. 3 CONCLUSION 4 {95} Although we reverse the district court’s ruling as to the delegation of 5 settlement authority to NMSIC’s Litigation Committee and its conclusion that the 6 OMA was not violated, we conclude that the settlements are now valid because they 7 have been approved by NMSIC at a public meeting. We discern no error in the district 8 court’s other rulings. We therefore affirm the district court’s approval of the 9 settlements with the Weinstein, Meyer, and Broidy Defendants. 10 {96} IT IS SO ORDERED. 11 12 13 __________________________________ MICHAEL D. BUSTAMANTE, Judge 14 WE CONCUR: 15 ___________________________________ 16 MICHAEL E. VIGIL, Chief Judge 17 ___________________________________ 18 M. MONICA ZAMORA, Judge 57
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