Motion For Mediation Via — United States of America, ex rel. Bryan Quesenberry v. Passive Income Advisors, LLC, and Gena Lofton (caption as it appears on this document; see Source Caveats for a docket-wide caption discrepancy)

Source document: Motion For Mediation Via; document type: Plaintiff's unopposed motion for mediation via videoconference and request for attendance exception.

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BRETT A. SHUMATE
Assistant Attorney General
Civil Division

JAMIE ANN YAVELBERG
COLIN M. HUNTLEY
JARED S. WIESNER (District of Columbia Bar No. 976856)
PATRICK T. O’HARE (Texas Bar No. 24131554)
Attorneys, Civil Division
United States Department of Justice
P.O. Box 261
Ben Franklin Station
Washington, DC 20044
Phone: 202-353-1274
Fax: 202-541-0280
jared.s.wiesner2@usdoj.gov

Attorneys for the United States

UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

United States of America ex rel.
Bryan Quesenberry,
                          Plaintiffs,
v.
Passive Income Advisors, LLC, and
Gena Lofton,
                           Defendants.

Case No. 2:20-cv-01537-RFB-MDC

PLAINTIFF UNITED STATES OF
AMERICA’S UNOPPOSED
MOTION FOR MEDIATION VIA
VIDEOCONFERENCE AND
REQUEST FOR ATTENDANCE
EXCEPTION

On September 11, 2025, the Court set a settlement conference in this case for 9:00
a.m. on November 14, 2025 in person (the “Mediation”).  (ECF No. 67 at 1.)  The Court
required that any party “may file and serve a motion or stipulation requesting remote
appearance no later than three (3) weeks prior to the mediation and must show good cause
for remote appearance.”  (ECF No. 67 at 2.)  The Court additionally required that “an
officer or representative with binding authority to settle this matter up to the full amount of
the claim . . . must attend the mediation unless the Court enters an order granting a request
for exception.”  (ECF No. 67 at 1–2.)
Case 2:20-cv-01537-RFB-MDC     Document 69     Filed 09/30/25     Page 1 of 8

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Plaintiff United States of America submits this unopposed motion to hold the
Mediation via videoconference and unopposed request for an exception to the Court’s
requirement that an officer with binding settlement authority be present for the Mediation.
I. UNOPPOSED MOTION FOR MEDIATION VIA VIDEOCONFERENCE

The United States requests that the Court permit all parties to attend the Mediation
remotely via Zoom or by a platform convenient for the Court.  Counsel for the United States
has conferred with counsel for Defendants, who agree that remote attendance will benefit all
parties. 1

Good cause exists for the Mediation to be held remotely.  All parties have agreed to
remote appearance, including the United States, Defendants, and Relator.  Appearance in-
person for the Mediation would impose unnecessary travel costs on counsel for the United
States, who would be required to travel from Washington, D.C., on counsel for Defendants
and Defendants’ representative, who would be required to travel from California, and on
Relator.  Defendants also state that Ms. Lofton is currently recovering from surgery and that
travel would be extremely difficult.  The parties have held productive conferences via
telephone and videoconference and are confident that the Mediation will be equally
productive remotely.  Remote appearance would conserve the resources of the parties and of
the Court.  Accordingly, the Court should grant the United States’ unopposed motion for
mediation via videoconference.  A proposed order is attached to this motion.

1 Counsel for Defendants has informed the undersigned counsel for the United States that
Carolyn L. Oliver of Watson & Associates, LLC will soon be making an appearance on behalf
of Defendants in this case.  It is the United States’ understanding that Ms. Oliver will take
over as lead counsel, and the undersigned counsel conferred with Ms. Oliver in advance of
filing this motion.
Case 2:20-cv-01537-RFB-MDC     Document 69     Filed 09/30/25     Page 2 of 8

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II. UNOPPOSED REQUEST FOR ATTENDANCE EXCEPTION

The United States additionally requests that the Court waive the requirement that a
representative of the United States with “binding authority to settle this matter . . . be
present for the duration of the mediation.”  (ECF No. 67 at 1.)  Defendants are unopposed
to this request.  The United States requests that the Court permit the United States to
participate in the settlement conference only through the attendance of Department of
Justice Trial Attorneys Jared S. Wiesner and Patrick T. O’Hare in accordance with
Department of Justice regulations2 and the impracticability—if not impossibility—of
requiring high-ranking Department of Justice officials to be present during settlement
conferences in litigation involving the United States.  The Trial Attorneys will have
authority to make a settlement recommendation but will need to seek approval from
supervisors with settlement authority and agency concurrence in the event the parties reach
an agreement in principle.  In general, trial attorneys’ recommendations with respect to a
settlement are given great weight.

The Attorney General directs the conduct of litigation to which the United States or
an agency is a party.  28 U.S.C. § 516.  By regulation, the Attorney General has delegated
full settlement authority only to the Deputy Attorney General, the Associate Attorney
General, and the Assistant Attorneys General who head the litigating divisions of the
Department of Justice.  28 C.F.R. § 0.160–0.161 (2025).  The United States regularly
participates in settlement conferences through its lead trial attorneys.  It is the lead trial

2 Deputy Director Colin M. Huntley of the Department of Justice’s Civil Division,
Commercial Litigation Branch, who has supervisory responsibility over this case for the
Commercial Litigation Branch, will be available by telephone during the settlement
conference.
Case 2:20-cv-01537-RFB-MDC     Document 69     Filed 09/30/25     Page 3 of 8

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attorneys who can engage most effectively in settlement discussions because they are in the
best position to evaluate the case and fully explore settlement options.

The Assistant Attorney General for the Civil Division has redelegated settlement
authority “of claims asserted by the United States in all cases in which the gross amount of
the original claim does not exceed $10,000,000” to the “Branch, Office, and Staff Directors”
of the assigned components.  Civil Division Directive No. 1-15, 28 C.F.R. Part 0, Subpt. Y,
App.  The official with final settlement authority for this case is therefore the Director of the
Commercial Litigation Branch, Fraud Section, Jamie Ann Yavelberg.  To maintain effective
administration of the Department of Justice, such high-ranking Department officials as
Ms. Yavelberg are not present, as a matter of course, during the thousands of settlement
conferences scheduled each year in cases being handled by the Department of Justice.  See
United States v. Mendoza, 464 U.S. 154, 159 (1984) (“It is not open to serious dispute that the
Government is a party to a far greater number of cases on a nationwide basis than even the
most litigious private entity…”).
Ms. Yavelberg oversees a staff of over one hundred attorneys and other professionals
handling thousands of cases.  If officials such as her were required to be present during
settlement conferences in the many cases under their authority, the work of the Department
of Justice would be paralyzed.  See United States v. U.S. Dist. Court for N. Mariana Islands, 694
F.3d 1051, 1059 (9th Cir. 2012), as amended (Oct. 16, 2012) (“The Assistant Attorney
General is the lowest-ranking government official with authority to settle those claims under
the Department’s regulations.  For her to prepare for and appear at all settlement
conferences for all of those cases would be highly impractical, if not physically
impossible.”).
Case 2:20-cv-01537-RFB-MDC     Document 69     Filed 09/30/25     Page 4 of 8

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The Judicial Improvements Act of 1990 recognized that a representative of the
United States with full settlement authority may not be able to—and need not be required
to—be available during settlement conferences.  That Act authorizes the district court, in
formulating civil justice expense and delay reduction plans, to require “that, upon notice by
the court, representatives of the parties with authority to bind them in settlement discussions
be present or available by telephone during any settlement conference.” 28 U.S.C.
§ 473(b)(5).
Congress, however, specifically limited this authority to account for the special
circumstances of the Attorney General. The next subsection, 28 U.S.C. § 473(c), provides
that “[n]othing in a civil justice expense and delay reduction plan relating to the settlement
authority provisions of this section shall alter or conflict with the authority of the Attorney
General to conduct litigation on behalf of the United States, or any delegation of the
Attorney General.”  28 U.S.C. § 473(c); see also In re Towe, No. CV 93-137-BLG-JDS, 1994
WL 486862, at *4 n.6 (D. Mont. Mar. 23, 1994) (bankruptcy court’s order, which
“require[d] a government official with ultimate settlement authority to appear at the
settlement conference, conflict[ed] with the Judicial Improvements Act of 1990”).
The Senate Report of the Judicial Improvements Act explains:
[T]hose district courts that choose to [require the presence or availability of
representatives with full settlement authority] should account for the unique
situation of the Department of Justice. The Department does not delegate
broad settlement authority to all trial counsel, but instead reserves that
authority to senior officials in the United States Attorneys’ Offices or in the
litigating divisions in Washington. Clearly the Department cannot realistically send
officials with full settlement authority to each settlement conference.
S. Rep. No. 416, 101st Cong., 2d Sess. 58 (1990), reprinted in 1990 U.S.C.C.A.N. 6802, 6848
(emphasis added); see also U.S. Dist. Court for N. Mariana Islands, 694 F.3d at 1062 (“[T]he
district court abused its discretion in ordering a government representative with full
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settlement authority to appear in person for an initial settlement conference.”).  While
Congress supported judicial encouragement of settlements by requiring attendance of
representatives with settlement authority, it provided an exemption for the Department of
Justice in light of its unique position.
The Federal Rules of Civil Procedure also recognize the unique status of the
Department of Justice in settlement conferences. The Advisory Committee’s notes to
Rule 16(c)(9)3 of the Federal Rules of Civil Procedure specifically state that “in litigation in
which governmental agencies . . . are involved, there may be no one with on-the-spot
settlement authority, and the most that should be expected is access to a person who would
have a major role in submitting a recommendation to the body or board with ultimate
decision-making responsibility.”  Fed. R. Civ. P. 16(c)(9) advisory committee’s notes to
1993 amendment.
The Department of Justice’s longstanding policy of concentrating settlement
authority in senior officials serves a number of legitimate policy goals.  It affords high-level
review of the settlement recommendations by trial attorneys, ensuring that there is a record
of the justification for all settlements.  Further, it fosters uniformity of settlements across the
Department of Justice’s nationwide docket of cases.  And as a practical matter, officials with
settlement authority cannot be present during every mediation or settlement conference.
To reconcile the Department of Justice’s settlement authority policy with the United
States’ commitment to efficiently litigate and settle cases, the Department of Justice makes
every effort to expedite authorization of settlement recommendations, and the absence of

3 Rule 16(c) has been renumbered.  Rule 16(c)(1) now states, in relevant part:  “If appropriate,
the court may require that a party or its representative be present or reasonably available by
other means to consider possible settlement.”
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on-the-spot authority to accept a settlement offer will not impair the settlement process.  The
Trial Attorneys who will attend the settlement conference have primary responsibility for
litigating this case and negotiating any settlement, and they will be responsible for
submitting a settlement recommendation to the official who has the ultimate authority to
approve the settlement.
For the foregoing reasons, the United States respectfully requests that the Court
waive the requirement that the United States’ representatives at the settlement conference
have full authority to settle the matter, and permit the United States to participate in the
settlement conference through its Trial Attorneys, in accordance with Department of Justice
regulations and procedures.  A proposed order is attached to this request.
CONCLUSION

The United States respectfully requests that the Court grant its unopposed motion to
hold the Mediation set for November 14, 2025 virtually via Zoom or by a platform
convenient for the Court.

The United States additionally requests that the Court waive the requirement that a
representative of the United States with “binding authority to settle this matter . . . be
present for the duration of the mediation.”  (ECF No. 67 at 1.)
Respectfully submitted this 30th day of September, 2025.
BRETT A. SHUMATE
Assistant Attorney General
Civil Division

/s/ Patrick T. O’Hare

JAMIE ANN YAVELBERG
COLIN M. HUNTLEY
JARED S. WIESNER
PATRICK T. O’HARE
Attorneys, Civil Division
U.S. Department of Justice

Attorneys for the United States
Case 2:20-cv-01537-RFB-MDC     Document 69     Filed 09/30/25     Page 7 of 8

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CERTIFICATE OF SERVICE

 I hereby certify that on September 30, 2025, I electronically transmitted the within and
foregoing PLAINTIFF UNITED STATES OF AMERICA’S UNOPPOSED MOTION
FOR MEDIATION VIA VIDEOCONFERENCE AND REQUEST FOR ATTENDANCE
EXCEPTION to the Clerk’s Office using the CM/ECF System for filing and transmittal of a
Notice of Electronic Filing to all CM/ECF registrants listed as counsel in this case.

/s/ Patrick T. O’Hare

PATRICK T. O’HARE
Trial Attorney, Civil Division

Case 2:20-cv-01537-RFB-MDC     Document 69     Filed 09/30/25     Page 8 of 8

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