March 24, 2016 – New Mexico State Investment Council, as Trustee, Administrator, and Custodian of the Land Grant Permanent Fund, and the Severance Tax Permanent Fund and State of New Mexico ex rel. Frank Foy, Suzanne Foy, and John Casey v. Daniel Weinstein, Vicky L. Schiff, William Howell, and Marvin Rosen and Gary Bland, et al. (consolidated with) New Mexico State Investment Council, as Trustee, Administrator, and Custodian of the Land Grant Permanent Fund, and the Severance Tax Permanent Fund and State of New Mexico ex rel. Frank Foy, Suzanne Foy, and John Casey v. Saul Meyer and Renaissance Private Equity Partners, LP, d/b/a Aldus Equity Partners, LP, and Gary Bland, et al. (consolidated with) New Mexico State Investment Council, as Trustee, Administrator, and Custodian of the Land Grant Permanent Fund, and the Severance Tax Permanent Fund and State of New Mexico ex rel. Frank Foy, Suzanne Foy, and John Casey v. Elliot Broidy and Gary Bland, et al., Nos. 33,787, 34,042 & 34,077

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: ___________
Filing Date: 	March 24, 2016
NOS. 33,787, 34,042 & 34,077 (Consolidated)
NEW MEXICO STATE INVESTMENT
COUNCIL, as Trustee, Administrator, and
Custodian of the LAND GRANT PERMANENT
FUND and the SEVERANCE TAX PERMANENT
FUND,
Plaintiff-Appellee,
and
STATE OF NEW MEXICO ex rel. FRANK
FOY, SUZANNE FOY, and JOHN CASEY,
Plaintiffs-Intervenors-Appellants,
v.
DANIEL WEINSTEIN, VICKY L. SCHIFF,
WILLIAM HOWELL, and MARVIN ROSEN,
Defendants-Appellees.
and
GARY BLAND, et al.,
Defendants.

(Consolidated with)
NEW MEXICO STATE INVESTMENT
COUNCIL, as Trustee, Administrator, and
Custodian of the LAND GRANT PERMANENT
FUND and the SEVERANCE TAX PERMANENT
FUND,
Plaintiff-Appellee,
and
STATE OF NEW MEXICO ex rel. FRANK
FOY, SUZANNE FOY, and JOHN CASEY,
Plaintiffs-Intervenors-Appellants,
v.
SAUL MEYER and RENAISSANCE PRIVATE
EQUITY PARTNERS, LP, d/b/a ALDUS EQUITY
PARTNERS, LP,
Defendants-Appellees,
and
GARY BLAND, et al.,
Defendants.

(Consolidated with)
NEW MEXICO STATE INVESTMENT
COUNCIL as Trustee, Administrator, and
Custodian of the LAND GRANT PERMANENT
FUND and the SEVERANCE TAX PERMANENT
FUND,
Plaintiff-Appellee,
and
STATE OF NEW MEXICO ex rel. FRANK
FOY, SUZANNE FOY, and JOHN CASEY,
Plaintiffs-Intervenors-Appellants,
v.
ELLIOT BROIDY,
Defendant-Appellee,
and
GARY BLAND, et al.,
Defendants.
APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY
Sarah M. Singleton, District Judge
New Mexico State Investment Council
Bruce A. Brown, Special Assistant Attorney General
Santa Fe, NM

Day Pitney LLP
Kenneth W. Ritt, Special Assistant Attorney General
Stamford, CT
for Plaintiff-Appellee
Victor R. Marshall & Associates, P.C.
Victor R. Marshall
Albuquerque, NM
for Appellants
Scheuer Yost & Patterson
Mel E. Yost
Santa Fe, NM
White & Case LLP
Owen C. Pell
Joshua D. Weedman
New York, NY
for Defendant-Appellee Rosen
Butt Thornton & Baehr PC
Rodney L. Schlagel
Emily A. Franke
Albuquerque, NM
for Defendant-Appellee Howell
Sommer, Udall, Sutin, Hardwick & Hyatt, PA
Eric M. Sommer
Santa Fe, NM
for Defendants-Appellees Weinstein and Schiff

Daniel Yohalem
Santa Fe, NM
for Amici Curiae New Mexico Foundation for
Open Government and New Mexico Press Association

OPINION
BUSTAMANTE, Judge.
{1} 	Intervenors Frank Foy, Suzanne Foy, and John Casey (Appellants) appeal the
district court’s approval of settlements between the New Mexico State Investment
Council (NMSIC) and three sets of defendants. Having consolidated the three appeals,
we consider whether the district court’s approval of the settlements was consistent
with the Fraud Against Taxpayers Act and whether NMSIC’s Litigation Committee
complied with the Open Meetings Act, among other arguments. We affirm the district
court’s approval of the settlements.
BACKGROUND
{2} 	Most of the following facts are derived from the district court’s findings of fact.
Appellants do not specifically challenge any of these findings. “An unchallenged
finding of the trial court is binding on appeal.” Seipert v. Johnson, 2003-NMCA-119,
¶ 26, 134 N.M. 394, 77 P.3d 298; see Rule 12-213(A)(4) NMRA (“The argument shall
set forth a specific attack on any finding, or such finding shall be deemed
conclusive.”).
A. 	The Parties
{3} 	Appellants are qui tam plaintiffs in two actions filed in 2008 and 2009 under
the New Mexico Fraud Against Taxpayers Act (FATA), NMSA 1978, §§ 44-9-1 to -

2
14 (2007, as amended through 2015). State ex rel. Frank C. Foy v. Vanderbilt Capital
Advisors, LLC, No. D-101-CV-2008-1895 (Vanderbilt); State ex rel. Frank C. Foy v.
Austin Capital Mgmt. Ltd., No. D-101-CV-2009-1189 (Austin). Foy is the former
chief investment officer at New Mexico’s Educational Retirement Board (ERB).
{4} 	NMSIC is a state agency that serves as trustee of, and is responsible for
investing, among other funds, the Land Grant Permanent Fund and the Severance Tax
Permanent Fund, which are established under the New Mexico Constitution for the
benefit of citizens of New Mexico. N.M. Const. art VIII, § 10, art. XII, §§ 2, 7; NMSA
1978, §§ 6-8-2 to -7 (1957, as amended through 2015); NMSA 1978, § 7-27-3.1
(1983).
{5} 	The defendants in the present suit are three groups of individuals and entities
alleged to have engaged in misconduct related to NMSIC’s management of the funds.
Each of the three groups is named and discussed in more detail below. For ease of
reference we refer to the defendants collectively as Defendants.
B. 	The Qui Tam Actions
{6} 	We begin with a discussion of the Appellants’ qui tam actions under FATA
because they form the backdrop against which we consider the three cases now before
us. Section 44-9-5(A) of FATA permits the filing of a “qui tam action,” which is “an
action . . . that allows a private person to sue for a penalty, part of which the

3
government will receive.” State ex rel. Foy v. Austin Capital Mgmt., Ltd. (Austin II),
2015-NMSC-025, ¶ 3, 355 P.3d 1 (alterations, internal quotation marks, and citation
omitted). A qui tam plaintiff is required to serve the complaint and a disclosure of
supporting evidence under seal to the attorney general, who “may intervene and
proceed with the action within sixty days after receiving the complaint and the
material evidence and information.” Section 44-9-5(C). If the attorney general
declines to intervene in the action, the qui tam plaintiff may proceed with the action.
Section 44-9-5(D). “Notwithstanding [these] provisions . . . , the attorney general or
political subdivision may elect to pursue the state’s or political subdivision’s claim
through any alternate remedy available” and “[a] finding of fact or conclusion of law
made in the other proceeding that has become final shall be conclusive on all parties
to an action under [FATA].” Section 44-9-6(H). If the attorney general initiates an
alternate proceeding, “the qui tam plaintiff shall have the same rights in such a
proceeding as the qui tam plaintiff would have had if the action had continued
pursuant to [FATA].” Id. As to the qui tam action, the state or political subdivision
may choose to settle the action “notwithstanding any objection by the qui tam plaintiff
if the court determines, after a hearing providing the qui tam plaintiff an opportunity
to present evidence, that the proposed settlement is fair, adequate[,] and reasonable
under all of the circumstances.” Section 44-9-6(C).

1In 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. IA-
3043, 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
{7} 	In their qui tam actions, Appellants alleged that Vanderbilt Capital Advisors,
LLC and Austin Capital Management, Ltd., as well as other defendants, made false
claims to the ERB and to NMSIC about the risks associated with, and performance of,
certain financial instruments and hedge funds. They also alleged that there was “pay-
to-play”1 at the ERB and NMSIC.
{8} 	Vanderbilt and Austin were heard by two different judges. Judge Pfeffer,
presiding over Vanderbilt, dismissed some of the Appellants’ claims on the ground
that retroactive application of FATA to conduct occurring before its effective date
would violate the ex post facto clauses in both the United States and New Mexico
Constitutions. U.S. Const. art. 1, § 10; N.M. Const. art. II, § 19. Judge Pope entered
a similar order in Austin. This Court declined to hear an interlocutory appeal in
Vanderbilt, but later allowed an interlocutory appeal of this issue in Austin and
affirmed. See State ex rel. Foy v. Austin Capital Mgmt., Ltd. (Austin I), 2013-NMCA-
043, ¶¶ 1, 3, 297 P.3d 357.

5
{9} 	At the time the district court approved the settlements in the cases now before
us, the Supreme Court had granted certiorari but had not yet decided the question. In
June 2015 the Supreme Court reversed, holding that the treble damages available
under FATA “are predominantly compensatory [and] do not violate the ex post facto
clause[s] and may be awarded for conduct occurring prior to the effective date of
FATA.” Austin II, 2015-NMSC-025, ¶ 44. It also held that, as to the civil penalties
available under FATA, “[i]t is . . . conceivable that the amount awarded in civil
penalties could be punitive in effect, particularly if the trial judge awards the
maximum [of] $10,000 per violation” and that, consequently, “[i]t is not practical to
make that determination without knowing the actual amount assessed with full
briefing on appeal addressed to a specific dollar figure.” Id. ¶ 49. Hence, the Supreme
Court declined to decide “whether the civil penalties awarded under FATA are
punitive and violate ex post facto principles until there is a definitive amount
awarded.” Id.
C. 	NMSIC’s Plan and the Present Suit
{10} 	While the Appellants’ qui tam actions were proceeding as just described,
NMSIC developed its own plan to recover from those involved in pay-to-play
schemes, including some of the defendants in Vanderbilt and Austin. NMSIC is
pursuing recovery using theories of liability other than FATA, focusing first on

6
individuals 	involved 	in 	the 	schemes. 	Using 	information 	gleaned 	from 	these
individuals, NMSIC plans to pursue the entities involved. NMSIC anticipates greater
recoveries from the entities than from individual defendants.
{11} 	Consistent with this plan, NMSIC took several actions. First, it declined to
intervene in Appellants’ qui tam suits and moved to dismiss the pay-to-play claims
involving NMSIC—but only those claims—from Vanderbilt and Austin. See § 44-9-
6(B) (“The state or political subdivision may seek to dismiss the action for good cause
notwithstanding the objections of the qui tam plaintiff if the qui tam plaintiff has been
notified of the filing of the motion and the court has provided the qui tam plaintiff
with an opportunity to oppose the motion and to present evidence at a hearing.”). The
motions to dismiss did not address Appellants’ claims regarding nondisclosure of
investment risks in Vanderbilt and Austin, nor did they address the claims of pay-to-
play at the ERB. NMSIC’s motion to dismiss the pay-to-play claims from Vanderbilt
were granted. It appears that as of June 2015 the district court had not yet ruled on the
motion to dismiss these claims from Austin.
{12} 	Second, because it wanted to pursue recovery for pay-to-play in NMSIC’s
investment process through non-FATA claims, NMSIC initiated the present suit,
alleging breach of fiduciary duty, aiding and abetting breach of fiduciary duty, breach
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
named in Austin. The district court granted Appellants’ motion to intervene. See Rule
1-024 NMRA.
{13} 	The parties agree that the present suit is an “alternate remedy” under FATA and
that, therefore, Appellants are entitled to the same rights in this suit as they enjoy in
Austin, including the right to a hearing on the fairness, adequacy, and reasonableness
of settlements. See § 44-9-6(C).
{14} 	Third, NMSIC adopted a Recovery Litigation Settlement Policy (Settlement
Policy). The Settlement Policy, which is discussed in more detail below, also created
a Litigation Committee with the power to “actively participate in settlement
negotiations, as appropriate, with the authority of [NMSIC] for settlement resolution
and related decisions.” Over objection by Appellants, the district court adopted a
discovery plan meant to facilitate settlement discussions. Under this plan, only
discovery essential for settlement discussions was permitted.
{15} 	Pursuant to the Settlement Policy and the district court’s discovery plan, Day
Pitney LLP, a firm engaged by NMSIC, initiated settlement negotiations with some
of the defendants, all of whom are represented by experienced attorneys. It also began
an investigation of the possible recoveries against individuals and entities. As part of
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 data
from twenty-two NMSIC employees, (4) 70,000 paper documents from NMSIC, (5)
complete images of NMSIC file and email servers, (6) sixty-eight server backup tapes,
(7) complete copies of server folders used by NMSIC employees to store investment-
related documents through December 2010, (8) updated email files for NMSIC
employees through December 2010, (9) server home directories for twenty-two
NMSIC employees, (10) email files for email addresses used by NMSIC investment
groups, and (11) audio recordings of NMSIC and subcommittee meetings. Its
document review was facilitated by e-discovery techniques of predictive coding,
concept grouping, near-duplication detection, and email threading. Day Pitney also
conducted interviews with twenty-three individuals, including over a dozen NMSIC
employees. Discovery was obtained from NMSIC, the SEC, and third parties, as well
as from some of the defendants.
D. 	The Path to the Present Appeals
{16} 	Each of the three cases now on appeal took similar but slightly different routes
through the district court. We begin with the district court’s review of the settlements
with the Weinstein Defendants because (1) of the settlements now on appeal, they
were the first approved, and (2) the procedures adopted by the district court for
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
court considered the settlement agreements.
1. 	The Weinstein Defendants
{17} 	In April 2013 NMSIC reached settlement agreements with Daniel Weinstein,
Vicky L. Schiff, Marvin Rosen, and William Howell (the Weinstein Defendants). In
these agreements, the Weinstein Defendants agreed to provide information and answer
questions about pay-to-play practices at NMSIC, make themselves available to do so,
execute affidavits truthfully setting forth their knowledge of such practices, appear
without subpoena to provide testimony at depositions or at other civil actions NMSIC
may initiate, and appear without subpoena at trial. The Weinstein Defendants agreed
to payments to NMSIC ranging from $100,000 to $300,000. In return, NMSIC agreed
to release these Defendants from any claim “arising out of or relating to the
investments by NMSIC.” Importantly, the district court found that NMSIC’s release
“does not cover claims relating to [the] ERB.” The settlement agreements were
executed by a member of NMSIC’s Litigation Committee.
{18} 	On April 18, 2013, NMSIC moved for the district court’s approval of the
settlements and dismissal of the Weinstein Defendants. See § 44-9-6(C) (“The state
. . . may settle the action with the defendant notwithstanding any objection by the qui
tam plaintiff if the court determines, after a hearing providing the qui tam plaintiff an

10
opportunity to present evidence, that the proposed settlement is fair, adequate[,] and
reasonable under all of the circumstances.”). Appellants filed an objection to the
settlements, but did not argue that the settlements were unfair, inadequate, or
unreasonable, and did not request an evidentiary hearing. At a hearing on July 15,
2013, Appellants first challenged the fairness, adequacy, and reasonableness of the
settlements and requested an evidentiary hearing, claiming that they had “enough of
the things that [they] put together independently that” a hearing was appropriate. The
district court ordered Appellants to submit a memorandum within two weeks stating
the grounds for their objections and identifying supporting evidence. It also ordered
NMSIC to prepare an order memorializing its oral orders. But Appellants did not file
a memorandum as directed by the district court. Instead, Appellants filed objections
to the proposed order prepared by NMSIC and requested a stay in the proceedings
pending the Supreme Court’s decision in Austin II. The district court denied the
motion to stay the proceedings and Appellants’ objections to the proposed order.
{19} 	In August 2013 the district court scheduled an evidentiary hearing for
November 25 and 26, 2013, on Appellants’ objections to the settlements. On
September 1, 2013, the district court entered an order defining the procedures for
briefing and other issues related to Appellants’ objections to the settlements. We refer
to this order as the Settlement Process Order. Appellants were required to file “a

11
memorandum that sets forth the basis for their position that the proposed settlements
. . . are not fair, adequate[,] and reasonable under all [of] the circumstances and
identifies the evidence upon which they will rely at the hearing.” The order noted that
Appellants must overcome a presumption that the settlements are fair, adequate, and
reasonable. It also set out factors under which the fairness and adequacy of the
settlements 	would 	be 	assessed. 	Finally, 	the 	order 	mandated 	that 	a 	similar
memorandum would be required for all future motions for dismissal based on
settlement with other defendants.
{20} 	When Appellants failed to file the required memorandum by the date set by the
district court, NMSIC moved to dismiss the Weinstein Defendants without a hearing.
The district court denied NMSIC’s motion and extended the deadline for Appellants’
memorandum by approximately two weeks. Although Appellants filed a memorandum
by this later deadline, it did not address the specific points listed by the district court’s
order.
{21} 	On November 1, 2013, Appellants represented at a motion hearing that they had
evidence to support their opposition to the settlements but argued that they needed
information about gains and losses on particular investments that NMSIC had
withheld from them for years. Appellants argued that they needed to see the figures
for “cash out, cash in.” Counsel for Appellants stated that they “want[ed] to ask

2Although 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.”).
12
somebody from [NMSIC], . . . , what was the gain or loss on this particular
investment.” Approximately two weeks later, NMSIC served a response to the
Appellants’ oral discovery request that provided 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. 2
{22} 	At the November 25-26, 2013, evidentiary hearing, NMSIC presented the
testimony of six witnesses by affidavit and direct testimony. These witnesses included
a member of the Litigation Committee and a Day Pitney attorney, as well as the four
Weinstein Defendants. After the witnesses attested that their affidavits were an
accurate representation of their testimony and provided the foundation for exhibits,
Appellants were afforded an opportunity to cross-examine them. Appellants did not
testify, nor did they present evidence related to the investment loss information they
had requested.

13
{23} 	After the hearing, the district court entered seventy-three findings of fact and
forty-nine conclusions of law. In a subsequent order, it granted NMSIC’s motion to
dismiss the Weinstein Defendants. The findings of fact and conclusions of law are
discussed more fully in the context of Appellants’ arguments on appeal.
2. 	The Meyer Defendants
{24} 	A few months after reaching agreement with the Weinstein Defendants, NMSIC
reached a settlement agreement with Saul Meyer and Renaissance Private Equity
Partners, LP, d/b/a Aldus Equity Partners, LP (the Meyer Defendants) in July 2013.
The provisions of this settlement agreement substantially mirrored those with the
Weinstein Defendants. This settlement agreement also was signed by a member of the
Litigation Committee.
{25} 	NMSIC moved for approval of the settlement with the Meyer Defendants on
January 10, 2014. The motion included the settlement agreement and sworn financial
statements from the Meyer Defendants. Appellants filed a response to the motion
objecting to the settlement and requesting an evidentiary hearing. The district court
held a two-hour hearing on June 19, 2014, on NMSIC’s motion to dismiss and
Appellants’ motion for an evidentiary hearing, and ruled that Appellants had failed to
file a memorandum consistent with the Settlement Process Order. No evidence was
presented at this hearing.

14
{26} 	Roughly a month later, the district court granted the motion to dismiss the
Meyer Defendants noting that “[Appellants] were given the opportunity to identify the
evidence they would present in opposition to the settlement[s but] indicated at the .
. . hearing that they had no evidence to present in opposition to the settlement.” It
therefore concluded that an evidentiary hearing was unnecessary and denied
Appellants’ motion. The district court acknowledged Appellants’ argument that
further discovery was necessary to obtain evidence to support their position but
concluded that Appellants were not entitled to full discovery because “[t]he extent of
discovery appropriate in connection with a settlement approval hearing is limited to
whether the settlement is fair, adequate, and reasonable.” It concluded, “[the Meyer]
Defendants have admitted liability, have agreed to cooperate with [NMSIC], and have
demonstrated that they have limited financial means[,]” and found that the settlements
were fair, adequate, and reasonable. The Meyer Defendants were dismissed.
3. 	The Broidy Defendants
{27} 	Elliott Broidy (Broidy) was the founder and chairman of Markstone Capital
Group, LLC (Markstone) (collectively, the Broidy Defendants). NMSIC alleged that
Broidy secured an investment from NMSIC in Markstone’s private equity fund by
making undisclosed and illegal quid pro quo payments to another defendant, thereby
aiding other defendants in breaching their fiduciary duties to NMSIC. In June 2014

15
NMSIC and Markstone reached a settlement agreement. In exchange for a payment
of $1,000,000 by Markstone, NMSIC released Markstone and Broidy from “any and
all claims . . . arising out of, [or] in connection with, or relating to any activities
by . . . Markstone [and Broidy] . . . with respect to . . . NMSIC . . . , including
NMSIC’s investments in the Markstone Fund.” The agreement with the Broidy
Defendants did not require Broidy or Markstone to cooperate in NMSIC’s civil
actions against other defendants. This agreement was signed by Governor Susana
Martinez as Chair of NMSIC. See § 6-8-2(B) (stating that the chair of NMSIC shall
be the Governor).
{28} 	Shortly thereafter, NMSIC filed a motion to dismiss the Broidy Defendants
asserting that Appellants had no standing to object to the dismissal because they had
not named Broidy or Markstone in their qui tam actions. Nevertheless, Appellants
filed a response to the motion to dismiss stating their objections to the settlement. The
district court decided that no hearing was necessary because the cases on which
Appellants relied to establish standing to challenge the Broidy Defendants’ dismissal
were all distinguishable, and because Appellants’ objections to the settlement had
been previously rejected and Appellants presented no new reasons to change the
district court’s decision. NMSIC’s motion to dismiss Broidy was granted.

3Appellants argue before this Court that Day Pitney “has disqualifying conflicts
of interest.” We decline to address this issue because it was never considered in the
first instance by the district court. Appellants’ motions to supplement the record on
appeal related to this argument are denied.
16
{29} 	Appellants now appeal the district court’s approval of the settlements and
dismissal of the Weinstein Defendants, the Meyer Defendants, and Defendant Broidy
from NMSIC’s suit.
DISCUSSION
A. 	Preliminary Matters3
1. 	Finality
{30} 	To the extent that Appellants argue that the district court’s orders dismissing
the Defendants were not final appealable orders, we disagree. See Rule 1-054(B)(2)
NMRA. Appellants argue that the orders are not final because they “do[] not
adjudicate all issues relating to these . . . [D]efendants, because [they] do[] not
adjudicate the [twenty-five] to [thirty percent] share of the settlement [that] goes to
[Appellants], or the amount of attorney fees [that will be] paid by these [D]efendants.”
Appellants’ argument is based on NMSA 1978, Section 44-9-7 (2015), which sets out
how a qui tam plaintiff may be compensated when the state prevails in a FATA action.
Section 44-9-7(A)-(C) guides how much a qui tam plaintiff may recover. Section 44-
9-7(D) provides that “[a]ny award to a qui tam plaintiff shall be paid out of the
proceeds of the action or settlement, if any. The qui tam plaintiff shall also receive an

17
amount for reasonable expenses incurred in the action plus reasonable attorney fees
that shall be paid by the defendant.”
{31} 	Here, Appellants never filed a motion for the statutory award and attorney fees,
and the district court did not hold a hearing on these issues. The orders dismissing
Defendants do not address the statutory award or attorney fees. We disagree with
Appellants that the pendency of these issues renders the dismissal orders non-final for
two reasons.
{32} 	First, the language of FATA itself contemplates resolution of the merits of the
action before determination of the qui tam plaintiff’s award and attorney fees. Section
44-9-7 provides for such awards when the state “prevails in the action” and when
there are “proceeds of the action or settlement.” This language indicates that
calculation of the qui tam plaintiff’s award is subsequent to and supplementary to
adjudication of the merits of the action or resolution by settlement. See Valley
Improvement Ass’n v. Hartford Accident & Indem. Co., 1993-NMSC-061, ¶ 11, 116
N.M. 426, 863 P.2d 1047 (distinguishing between attorney fees that are an integral
part of compensatory damages and attorney fees that are “analogous to costs” and thus
“supplementary to relief on the merits”).
{33} 	Second, our Supreme Court has held that “[w]here a postjudgment request, such
as one for attorney[] fees, raises issues ‘collateral to’ and ‘separate from’ the decision

18
on the merits, such a request will not destroy the finality of the decision[.]” Kelly Inn
No. 102, Inc. v. Kapnison, 1992-NMSC-005, ¶ 21, 113 N.M. 231, 824 P.2d 1033.
Here, by approving the settlements and dismissing Defendants, the district court’s
orders 	“declare[d] 	the 	rights 	and 	liabilities 	of 	the 	parties 	to 	the 	underlying
controversy,” i.e., the settlement amounts and terms. Id. Any determination as to the
Appellants’ proper share of the settlement amount and attorney fees “will not alter[,]
. . . moot or revise” the district court’s approval of the rights and liabilities set out in
the settlement agreements. Id. Hence, the proceedings to determine Appellants’ share
of the settlements are “collateral to” and “separate from” the approval of the
settlements. Id.
2. 	Jurisdictional Limits
{34} 	Appellants also argue briefly that the district court acted beyond its jurisdiction
in approving the settlements (1) because the settlements released Defendants from the
FATA claims in Austin, which was presided over by another judge, and (2) because
those claims could not be released while the Austin case was stayed pending appeal.
For the most part, Appellants provide no authority for these contentions or to support
their argument that the district court’s jurisdiction here is limited by proceedings in
an entirely separate case. Generally, this Court will not consider propositions that are

19
unsupported by citation to authority. ITT Educ. Servs., Inc. v. Taxation & Revenue
Dep’t, 1998-NMCA-078, ¶ 10, 125 N.M. 244, 959 P.2d 969.
{35} 	In any case, we are unpersuaded that the district court exceeded its jurisdiction.
There is no dispute that the district court had jurisdiction over this case. The fact that
a decision in this case may have an impact on another pending proceeding does not
diminish its jurisdiction here. Indeed, Section 44-9-6(H) states that “[a] finding of fact
or conclusion of law made in the other proceeding that has become final shall be
conclusive on all parties to an action under [FATA].” Thus, this provision appears to
contemplate the disposal of claims in a qui tam action by decisions rendered in an
alternate remedy proceeding. See In re Pharm. Indus. Average Wholesale Price Litig.,
892 F. Supp. 2d 341, 343-45 (D. Mass. 2012) (recognizing that a settlement agreement
in a separate qui tam action may extinguish a qui tam plaintiff’s claims and holding
that such a settlement was an “alternate remedy” under Section 3730(c)(5) of the False
Claims Act (FCA), 31 U.S.C. §§ 3729–3733 (2012)).
3. 	Violation of Stay
{36} 	Appellants also argue that the stay was violated because the district court
released the FATA claims before the Supreme Court had a chance to rule on the
constitutional/retroactivity issue in Austin II and that, consequently, the Supreme
Court’s authority was “usurp[ed].” But the district court assumed that FATA was

20
constitutional, an assumption that favored Appellants’ position because, generally
speaking, the longer the period of alleged misconduct, the weaker the settlements
appear. Conversely, if the Supreme Court had decided that the retroactivity provision
of FATA was unconstitutional, then the period encompassing the alleged misconduct
would have been shorter, which would have weighed in favor of the adequacy of the
settlements and against Appellants’ position. We conclude that the district court
properly assessed the settlements in light of the pending appeals in Austin and did not
usurp the Supreme Court’s authority.
B. 	Appellants Do Not Have Standing to Challenge the Dismissal of Defendant
Broidy
{37} 	The district court held that Appellants did not have standing to challenge the
settlement with the Broidy Defendants because they were not named as defendants in
Appellants’ qui tam actions. The district court reasoned that, because Appellants’
rights in the present action stem solely from their rights in their qui tam actions,
Appellants’ failure to name the Broidy Defendants there means that they had no rights
as to them here.
{38} 	Although Appellants appealed the district court’s decision and dismissal of the
Broidy Defendants, they did not address the legal principles of standing in their brief
in chief nor specifically argue that the district court’s ruling was incorrect. Nor did
they address this issue in their reply brief even after NMSIC raised it in its answer

4The 2013 amendments to the OMA were effective June 14, 2013, after some
of the settlements were signed by the Litigation Committee. The 2013 amendments
do not alter our analysis.
21
brief. “In this circumstance, such a failure to respond constitutes a concession on the
matter.” Delta Automatic Sys., Inc. v. Bingham, 1999-NMCA-029, ¶ 31, 126 N.M.
717, 974 P.2d 1174. “This Court has no duty to search the record or research the law
to ‘defend’ in a civil case a party that fails to defend itself on an issue.” Id. This issue
having been waived, we turn to Appellants’ substantive arguments as to the district
court’s approval of the settlements with the Weinstein and Meyer Defendants.
C. 	Appellants’ Substantive Arguments as to the Weinstein and Meyer
Defendants
{39} 	In these two appeals, Appellants raise the same four arguments. First, they
maintain that the district court erred in limiting discovery before approving the
settlements. Second, they argue that the district court’s rulings violate FATA. Third,
they argue that NMSIC violated the Open Meetings Act (OMA), NMSA 1978, §§ 10-
15-1 to -4 (1974, as amended through 2013),4 the Inspection of Public Records Act
(IPRA), NMSA 1978, §§ 14-2-1 to -12 (1947, as amended through 2013), and the
statute governing NMSIC, Section 6-8-2. Finally, Appellants contend that the district
court erred in ruling that they lacked standing to raise issues related to alleged
conflicts of interest of the former attorney general, Gary King, and his staff. We
address the first two arguments together, then the third and fourth in turn.

22
1. 	The District Court Did Not Abuse its Discretion as to Discovery nor
Violate FATA
{40} 	Appellants argue that the district court erred when it “refused to allow
discovery” and “refused to allow the [Appellants] to take any depositions . . . [o]r to
propound any interrogatories . . . [o]r to serve any requests for production.” In
essence, they maintain that they were denied the opportunity to present evidence that
the settlements were unfair and unreasonable—an opportunity to which they are
entitled by statute—because they were unduly limited in their ability to propound
discovery. See § 44-9-6(C). “Although the rules favor the allowance of liberal pretrial
discovery, the trial court is vested with discretion in determining whether to limit
discovery.” DeTevis v. Aragon, 1986-NMCA-105, ¶ 10, 104 N.M. 793, 727 P.2d 558
(citation omitted). Hence, “[a] trial court’s ruling limiting discovery is subject to
reversal only upon a showing of an abuse of discretion.” Id.
{41} 	We begin by addressing Appellants’ argument that, because of the differences
between FATA and the FCA, it is inappropriate to rely on federal cases construing the
FCA in construing FATA. They point to San Juan Agricultural Water Users Ass’n v.
KNME-TV, in which the Supreme Court stated that “[t]he differences in substantive
text and legislative purposes [between a federal statute and a New Mexico statute]
make the application of federal . . . law inappropriate when construing [that New
Mexico statute].” 2011-NMSC-011, ¶ 38, 150 N.M. 64, 257 P.3d 884. We therefore

23
consider whether differences between the FCA and FATA make federal case law
inapposite.
{42} 	Our courts have recognized that “FATA closely tracks the longstanding federal
[FCA]” and that “cases construing FATA’s federal analogue, the [FCA], [are] helpful
in understanding the context and purpose of FATA.” Austin II, 2015-NMSC-025,
¶¶ 16, 25; see State ex rel. Peterson v. Aramark Corr. Servs., LLC, 2014-NMCA-036,
¶ 4, 321 P.3d 128 (recognizing that FATA is similar to the FCA). Appellants argue
that this principle is inapplicable because the differences between FATA and the FCA
indicate that the New Mexico Legislature intended to afford qui tam plaintiffs broader
protections than those provided under the FCA. They derive this idea from the fact
that, whereas the FCA permits settlement “after a hearing,” FATA permits settlement
“after a hearing providing the qui tam plaintiff an opportunity to present evidence.”
Compare 31 U.S.C. § 3730(c)(2)(B), with § 44-9-6(C) (emphasis added).
{43} 	Under the FCA, a qui tam plaintiff may request an evidentiary hearing, which
“should be granted only upon a showing by the [qui tam plaintiff] of ‘substantial and
particularized need.’ ” Claire M. Sylvia, The False Claims Act: Fraud Against the
Government § 11:127 (2d ed. 2015); see Ridenour v. Kaiser-Hill Co., 397 F.3d 925,
935 (10th Cir. 2005); Nasuti ex rel. United States v. Savage Farms, Inc., No. 12-
30121-GAO, 2014 WL 1327015, at *13 (D. Mass. Mar. 27, 2014) (order), aff’d, No.

5We note that Appellants relied on FCA cases in other contexts in the district
court and thus appear to recognize that FCA cases are useful to construe FATA when
the specific provisions at issue in the two statutes are similar.
24
14-1362, 2015 WL 9598315 (Mar. 12, 2015). Thus, the opportunity to present
evidence at a hearing is permissible under the FCA upon a sufficient showing, but
required under FATA. Federal case law addressing when an evidentiary hearing
should be granted is therefore likely inapposite to Section 44-9-6(C) of FATA. Once
granted, however, we see no reason why federal case law addressing the conduct of
the evidentiary hearing itself is inapplicable to evidentiary hearings under FATA. 5
{44} 	In addition to federal case law addressing the FCA, the law governing review
of class action settlements is also instructive here. In United States ex rel. Schweizer
v. Océ North America Inc., the court held that case law addressing the fairness,
adequacy, and reasonableness of class action settlements is analogous to the same
analysis under the FCA. 956 F. Supp. 2d 1, 10-11 (D.D.C. 2013); see Fed. R. Civ. P.
23(e)(2) (stating that class action settlements may be approved “only after a hearing
and on finding that it is fair, reasonable, and adequate”). This approach has been
adopted by other federal courts. See, e.g., United States ex rel. Nudelman v. Int’l
Rehab. Assocs., Inc., No. CIV A 00-1837, 2004 WL 1091032, at *1 n.1 (E.D. Pa. May
14, 2004) (order); United States ex rel. Resnick v. Weill Med. Coll. of Cornell Univ.,
No. 04 CIV 3088(WHP), 2009 WL 637137, at *2 (S.D.N.Y. Mar. 5, 2009).

25
{45} 	Similarly, in New Mexico, class action settlements are evaluated by the district
court for their fairness, adequacy, and reasonableness. See Rivera-Platte v. First
Colony Life Ins. Co., 2007-NMCA-158, ¶ 43, 143 N.M. 158, 173 P.3d 765 (stating
that the settlement proponents bear the burden of demonstrating that the settlement is
fair, adequate, and reasonable). Given the similarity between the standards for
approval of settlement of false claims actions and class actions, we look to class action
law for guidance on FATA settlement hearings.
{46} 	Having concluded that federal case law governing objections to settlements
under the FCA and case law on class action settlements is applicable, we next examine
that law. In Schweizer, the court considered whether a qui tam plaintiff “who objects
to a proposed [FCA] settlement reached between the government and the defendant
[is] entitled to full-blown discovery on her claims in order to prove that the settlement
[is] inadequate[.]” 956 F. Supp. 2d at 11. The court concluded that the hearing
required by statute “serves a . . . limited purpose of forcing the government to provide
some reasoning behind its decision to settle the case and giving the plaintiff-relators
an opportunity to direct the court’s attention to facts or allegations that would suggest
the settlement was not ‘fair, adequate[,] and reasonable under all the circumstances[.]’
” Id. Based on this limited purpose, it further concluded that “allowing full-blown
discovery as of right would risk transforming the [FCA settlement] hearing into a trial

26
on the merits of [the qui tam] plaintiff’s claims and the government’s estimations of
the litigation risks. It would put the cart before the horse, in essence making trial a
precondition of settlement.” Id. Although it held that there was no right to full
discovery, the court noted that limited discovery would be appropriate when “the
government has not adequately explained its reasoning behind the settlement.” Id.; see
United States ex rel. McCoy v. Cal. Med. Review, Inc., 133 F.R.D. 143, 149 (N.D. Cal.
1990) (stating that although a qui tam plaintiff is entitled “to discovery on the fairness
of the proposed settlement, the discovery must be limited to effectuate the goal of
allowing plaintiffs meaningful participation in the fairness hearing without unduly
burdening the United States or the defendants or causing unnecessary delay”); 5B Fed.
Proc., L. Ed. § 10:73 (2004) (“The qui tam plaintiffs may be allowed limited
discovery to enable them to play an active role in hearings on a proposed settlement
agreement.”); cf. 32B Am. Jur. 2d Federal Courts § 1870 (2016) (stating that “formal
discovery is not a prerequisite to the approval of a [class action] settlement as long as
the plaintiffs’ negotiators had access to sufficient information regarding the facts of
the case, and if the terms of the settlement are fair, the court may reasonably conclude
that counsel performed adequately in obtaining a working knowledge of the case”).

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.
27
{47} 	The Schweizer holding is paralleled in Rivera-Platte,6 in which this Court
considered whether “the settlement process was unfair because [the objectors’] . . .
requests for discovery were denied.” 2007-NMCA-158, ¶ 52. We rejected the
objectors’ argument that “informal” discovery was inadequate to permit the court to
evaluate the settlement, id. ¶ 49, and that they had “an absolute right to discovery.”
Id. ¶ 94 (internal quotation marks and citation omitted). Instead, we stated that
informal discovery is appropriate so long as it is sufficient “to fairly evaluate the
merits of [the d]efendants’ positions during settlement negotiations.” Id. ¶ 49. We also
noted that “[o]ne of the major reasons courts encourage settlement is to reduce the cost
of litigation” and that because settlement is “an extra judicial process, informality in
the discovery of information is desired.” Id. ¶ 51 (internal quotation marks and
citation omitted). Although in Rivera-Platte we reversed the district court’s denial of
discovery, we held that “the district court would not have abused its discretion in
denying discovery if it had sufficient information before it to determine whether to

28
approve the settlement.” Id. ¶ 95; accord Hershey v. ExxonMobil Oil Corp., No. 07-
1300-JTM, 2012 WL 4758040, at *2 (D. Kan. Oct. 5, 2012) (stating that “[t]he
fundamental question is whether the district [court] has sufficient facts before [it] to
intelligently approve or disapprove the settlement” (internal quotation marks and
citation omitted)).
{48} 	Consistent with these principles, the district court here properly concluded that
“[Appellants] are not entitled to conduct or complete full-blown discovery prior to
proposed settlement approval.” Hence, we reject Appellants’ contention that the
district court violated FATA by limiting discovery before settlement.
{49} 	We turn next to Appellants’ arguments that the way the district court limited
discovery unduly hindered their ability to challenge the settlements contrary to FATA.
Appellants argue that they were improperly denied any discovery. They also argue
that the district court improperly ruled that damages calculations were not important
for evaluation of the settlements and therefore denied their request for discovery as
to damages. Neither of these contentions is supported by the record.
{50} 	Contrary to their statement that they were denied all discovery, we note that
Appellants were provided with all of the discovery obtained by NMSIC from
Defendants, as well as the “cash out, cash in” data they requested from NMSIC
(discussed further below). In addition, Appellants conceded in the district court that

29
they had received all of the discovery they requested from NMSIC, and the district
court entered an order stating that Appellants were entitled to receive any further
materials that were produced to NMSIC counsel by Defendants. In addition, the
district court ordered that “basic documents relating to the transactions at issue in this
case” must be produced by Defendants to both NMSIC and Appellants. The district
court also ordered that personal financial information for Defendants should be
produced to Appellants. Finally, the district court ordered that “each [D]efendant shall
provide to [Appellants] . . . a copy of any insurance agreement under which an
insurance business may be liable to satisfy all or part of a possible judgment in this
suit or to indemnify or reimburse any defendant for payments made to satisfy any
judgment in this suit.”
{51} 	Given the production of the above described discovery, we understand
Appellants’ argument to be that their other specific requests for discovery were
improperly denied. Appellants requested “the name and . . . address . . . of each
individual likely to have discoverable information” about the case; copies of “all
documents, electronically stored information, and tangible things that the disclosing
party” might “use to support its claims or defenses”; “a computation of each category
of damages claimed by the disclosing party”; and a “copy of any insurance agreement
under which an insurance business may be liable to satisfy all or part of a possible

30
judgment.” They argued below and on appeal that these four requests “track[] the list
in Rule 1-026(B)(3) [NMRA]” and in its federal counterpart, Fed. R. Civ. P.
26(a)(1)(A), and that this information is “part of the minimal due diligence and
competence that is required in every case.” In addition, they asked Defendants to
“describe all communications between you and any of the other parties to this
lawsuit,” “[p]rovide a copy of all documents, electronically stored information, and
tangible things that record or reflect any [such] communications,” and “[p]rovide a
copy of all documents, electronically stored information, and tangible things relating
to the transactions giving rise to this lawsuit.”
{52} 	Defendants objected to these requests and some sought protective orders. The
district court issued an order preventing Appellants from promulgating the requested
discovery on Defendants, with the exception of the materials discussed in paragraph
50. In its oral remarks, the district court stated that “[it did] not believe that due
diligence requires answers to the mandatory . . . disclosures” in Rule 1-026(B)(3) and
that the answers to those requests were not necessary for it to evaluate the settlements.
{53} 	We conclude that the district court did not abuse its discretion in limiting
Appellants’ discovery as it did. In the Settlement Process Order, the district court
notified Appellants that they must demonstrate that

31
(1) there is a low risk of . . . failing to establish liability against [the]
[s]ettling [d]efendants under FATA,
(2) there is a low risk of . . . failing to establish damages against [the
settling defendants] under FATA,
(3) the settlement amounts are not within the range of reasonableness in
light of the best possible recovery[,] and
(4) the settlement amounts are not within the range of reasonableness in
light of all . . . the attendant risks of litigation.
{54} 	Appellants did not demonstrate to the district court, and do not demonstrate on
appeal, how their broad discovery requests were related to the factors the district court
considered to assess the settlements. As discussed above, in the months leading up to
the evidentiary hearing on the settlements with the Weinstein Defendants, Appellants
were given multiple opportunities to present the evidence they claimed they already
had and to state why the settlements were not fair, adequate, or reasonable. In
addition, when they identified “cash out, cash in” data as critical to their objections,
that information was provided. Considering the stage of the proceedings, the amount
of discovery produced to Appellants, Appellants’ multiple opportunities to present
evidence they claimed to have, and Appellants’ opportunity to cross-examine the
witnesses presented by NMSIC, it was within the district court’s discretion to curb
Appellants’ discovery.

32
{55} 	Appellants next argue that the district court erred by ruling that calculation of
damages was not important to evaluation of the settlements. They glean this argument
from an exchange at a motion hearing after Appellants stated that they wanted “all
documents relating to the various investments” in order “to do a real calculation with
admissible evidence as to what the loss or gain . . . might be on a particular
investment.” They stated that “the best way of doing that is cash out, cash in.”
Counsel for Appellants: 	So there is complexity there. And without
simply having had discovery, we don’t have
that information.
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.
Counsel for Appellants: 	I want the facts, Your Honor.
Court:I understand you want the facts, but that’s not important for
settlement purposes.
. . . .
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.
Court:I don’t think you need to know that at this stage.
{56} 	Appellants misinterpret the district court’s ruling. The district court did not
decide that calculation of damages was irrelevant to the fairness, adequacy, and

33
reasonableness of the settlements: it ruled that it was not critical to evaluation of the
settlements that Appellants have the information on which NMSIC’s damages
calculations were based, so long as NMSIC could demonstrate to the district court that
it adequately considered the potential damages. See Hershey, 2012 WL 4758040, at
*2 (stating that “[t]he fundamental question is whether the district [court] has
sufficient facts before [it] to intelligently approve or disapprove the settlement.”
(internal quotation marks and citation omitted)).
{57} 	Furthermore, Appellants’ contention that the district court did not consider the
potential damages is contradicted by the record. The district court made several
findings of fact related to potential damages. Additionally, in its conclusions of law,
the district court noted that assessment of the settlement included examination of “the
range of reasonableness of the settlement fund in light of the best possible recovery.”
It further concluded that NMSIC had conducted sufficient discovery to “fairly
evaluate the . . . range of [best] possible recovery.” In other conclusions, the district
court 	considered 	the 	“complexity 	of 	establishing 	damages,” 	recognized 	that
Appellants estimated damages to be in excess of $300,000,000 based on investment
losses, and contemplated the possible types of damages available under FATA. These
findings and conclusions indicate that the district court properly considered damages
in its assessment of the settlements.

34
{58} 	Appellants also argue that the district court deprived them of their rights under
FATA, specifically the “right to [Appellants’] reward and attorney fees, the right to
intervene and participate as a party in the alternate action, and the right to present
evidence in the alternate action.” But Appellants were permitted to intervene as parties
and, as already discussed, were permitted to present evidence at the fairness hearing.
Because the propriety of the settlements is on appeal, Appellants’ right to a reward
and attorney fees has yet to be litigated. Thus, Appellants have not been deprived of
these rights.
{59} 	Appellants’ general arguments that the district court violated FATA by “rubber-
stamping” the settlements are unpersuasive. As discussed above, the district court
requested memoranda on Appellants’ opposition to the settlements multiple times,
held several hearings, and conducted a two-day evidentiary hearing. It issued seventy-
three detailed findings of fact. In its evaluation, the district court indulged several
presumptions 	in 	Appellants’ 	favor. 	For 	example, 	although 	the 	issue 	of 	the
constitutionality of FATA’s retroactivity provision was on appeal to the Supreme
Court, the district court assumed that it was constitutional. In spite of its reservations
about whether Appellants had a right to object to settlements with defendants on
whom process was not served in their qui tam actions, it also presumed that
Appellants had a right to object to those settlements. Moreover, although Appellants

35
“ha[d] 	not 	articulated 	a 	viable 	FATA 	claim 	against 	any 	of 	the 	[Weinstein]
Defendants,” the district court nevertheless assumed that Appellants might yet do so
and therefore assumed they had a right to object to settlements with those defendants.
The district court did not “rubber-stamp” the settlement agreements.
{60} 	Finally, Appellants argue that the district court violated NMSA 1978, Section
6-8-24 (2011). This statute provides that “[n]othing in this 2011 act shall prejudice or
impair the rights of a qui tam plaintiff pursuant to [FATA].” Since we have
determined that Appellants’ rights under FATA were not infringed, we further
conclude that no violation of Section 6-8-24 occurred. Appellants also make several
statements that because of the inadequate discovery “the proposed settlement amounts
are grossly inadequate.” Other than these statements, however, Appellants do not
challenge the district court’s factual findings or conclusions as to adequacy, fairness,
or reasonableness, which involved a number of findings and conclusions on the
settling defendants’ resources, the likelihood of success at trial, and the role of the
settlements 	in 	the 	State’s 	litigation 	plan, 	among 	others. 	In 	the 	absence 	of
particularized challenges to these findings and conclusions, we do not address
Appellants’ general assertions that the settlements are inadequate. See Rule 12-
213(A)(4) (stating that “[t]he argument shall set forth a specific attack on any finding,
or such finding shall be deemed conclusive”).

36
{61} 	We conclude that the district court did not abuse its discretion in limiting
discovery, nor did it fail to adequately assess the settlements. In addition, we discern
no violation of FATA by the district court.
2. 	The Settlement Agreements are Valid as of May 2015
{62} 	Appellants, 	together 	with 	Amici 	New 	Mexico 	Foundation 	for 	Open
Government (NMFOG) and New Mexico Press Association, argue that the settlements
are void for three reasons. First, NMSIC did not have the power to delegate authority
to settle with Defendants to the Litigation Committee. Second, even if settlement
authority was properly delegated, the Litigation Committee was a public body subject
to the requirements of the OMA and failed to comply with those requirements. Section
10-5-1. Third, the Litigation Committee was improperly constituted because it did not
conform with NMSIC’s settlement policy or Section 6-8-2(B), which states that “[a]ll
actions of the [NMSIC] shall be by majority vote, and a majority of the members shall
constitute a quorum.”
{63} 	Appellants made these arguments in the district court as well. The district court
disagreed and held that NMSIC properly delegated settlement authority to the
Litigation Committee and that the OMA does not require litigation decisions,
including settlement decisions, to be made in a public meeting. See § 10-15-1(H)(7)
(excluding “meetings subject to the attorney-client privilege pertaining to threatened

37
or pending litigation in which the public body is or may become a participant” from
the scope of the OMA). In reaching this conclusion, the district court relied in part on
the fact that NMSIC delegated authority to the Litigation Committee in its Settlement
Policy, which was voted on and approved by NMSIC at a public meeting.
{64} 	NMSIC’s position on appeal is multifaceted. First, NMSIC argues that
Appellants “implicitly conceded” that delegation of settlement authority to the
Litigation Committee was proper, and thus the issue is not preserved for appeal. Next,
it argues that “the actions of the Litigation Committee are the very type of attorney-
client privileged litigation decision-making exempted by [the] OMA.” In addition, it
argues that “[e]ven if the Litigation Committee were subject to the OMA, the
processes followed here satisfied [the] OMA’s purposes and therefore did not violate
[the] OMA.” Finally, it maintains that any violation of the OMA was cured by
NMSIC’s ratification of the settlements in a properly-noticed public meeting held in
May 2015, approximately thirty months after the Litigation Committee approved the
first settlements, and that, therefore, this issue is moot.
{65} 	We begin by addressing NMSIC’s preservation and mootness arguments. The
district court’s conclusion that the issue of whether settlement authority was properly
delegated was “implicitly conceded” is based on a pleading in which Appellants
argued that there were no records of such a delegation and requested that any records

38
of delegation be produced. But Appellants also stated in that pleading that “a blanket
delegation [of settlement authority] to the [state investment officer] . . . would be in
derogation 	of 	the 	statutory 	and 	fiduciary 	obligations 	of 	[NMSIC] 	members
themselves” and that decisions about “settlement of actual or potential litigation . . .
must be made by the . . . [NMSIC] itself, by vote.” By making these arguments,
Appellants sufficiently apprised the district court of their contention that the authority
to settle litigation rests solely with NMSIC. Thus, this argument was sufficiently
preserved for appeal.
{66} 	As to NMSIC’s argument that this Court need not address Appellants’
arguments as to the OMA because the May 2015 meeting cured any OMA violations,
we disagree. Even if an issue is moot as between the parties, we may address it if it
is an issue “of substantial public interest, and capable of repetition, yet evading
review.” Howell v. Heim, 1994-NMSC-103, ¶ 7, 118 N.M. 500, 882 P.2d 541 (internal
quotation marks and citation omitted). The present matter satisfies both of these
criteria. In promulgating the OMA, the New Mexico Legislature has evinced a strong
interest in transparency in government and agency compliance with the OMA is an
issue of substantial public interest. Furthermore, the problems in NMSIC’s processes
here are capable of repetition by it and other agencies. See Paragon Found., Inc. v.
State Livestock Bd., 2006-NMCA-004, ¶ 10, 138 N.M. 761, 126 P.3d 577 (stating that

39
“the implication of the OMA is an important policy issue that is likely to occur again
if the issue is not directly addressed” and examining the OMA issues even though the
matter was moot).
{67} 	We move on to the parties’ substantive arguments, which present a series of
questions. First, are the actions of the Litigation Committee void, because either (1)
NMSIC improperly delegated authority to settle with Defendants, or (2) the Litigation
Committee failed to comply with the OMA? Second, did the May 2015 meeting cure
any improper delegation or violation of the OMA such that the settlements are now
valid?
a. 	Actions of the Litigation Committee Were Void
{68} 	As to the first question, we agree with Appellants and Amici that the Litigation
Committee’s actions were void because the Committee did not have the authority to
settle with Defendants. In addition, even if settlement authority was properly
delegated, the Litigation Committee’s meetings did not comply with the OMA and
hence were invalid. We address the delegation issue first.
{69} 	In pertinent part, the Settlement Policy states that the Litigation Committee
“may actively participate in settlement negotiations, as appropriate, with the authority
of the [NMSIC] for settlement resolution and related decisions.” It also states that “the
authority to settle legal matters rests not with the [State Investment Officer] but with

40
[NMSIC’s L]itigation [C]ommittee.” The Settlement Policy specifies that the
Litigation Committee “shall be comprised of at least three [NMSIC] members” and
permits the Governor’s general counsel to serve on the committee. Pursuant to the
Settlement Policy, a Litigation Committee consisting of two NMSIC members and the
Governor’s general counsel met “seven or eight” times to discuss the settlement
negotiations with Defendants. The Litigation Committee approved the settlement
agreements with Defendants without obtaining a vote on the final decision by NMSIC.
These settlement agreements were signed on behalf of NMSIC by Litigation
Committee members.
{70} 	As a creature of statute, NMSIC functions solely within the powers granted by
the Legislature. Chalamidas v. Envtl. Improvement Div., 1984-NMCA-109, ¶ 13, 102
N.M. 63, 691 P.2d 64. NMSIC’s powers are limited by Section 6-8-2(B) and Section
6-8-7(A) and (E). Under Section 6-8-2(B), “[a]ll actions of the council shall be by
majority vote, and a majority of the members shall constitute a quorum.” (Emphasis
added). The only mention of NMSIC’s ability to delegate its responsibilities states that
“[t]he [NMSIC] may delegate administrative and investment-related functions to the
state investment officer.” Section 6-8-7(A). Section 6-8-7(E) provides that NMSIC
may “form and use committees,” but only to “study and make recommendations to
[NMSIC].” Notwithstanding the Settlement Policy, these provisions do not permit

7Since we conclude that the Litigation Committee did not have the authority to
act on the settlements, we need not address whether it was properly constituted.
8Given our resolution of the delegation issue we could perhaps avoid discussion
of the OMA issues. We have determined to give the OMA issues full consideration
because they are squarely presented and because it is important to fill out our OMA
law as it applies to policy-making subcommittees of public entities.
41
NMSIC to delegate authority to settle litigation to a committee. Indeed, read together,
they prohibit such delegation. 	Cf. Kerr-McGee Nuclear Corp. v. N.M. Envtl.
Improvement Bd., 1981-NMCA-044, ¶ 52, 97 N.M. 88, 637 P.2d 38 (stating that
“[a]dministrative bodies and officers cannot delegate power, authority and functions
which under the law may be exercised only by them, which are quasi-judicial in
character, or which require[] the exercise of judgment”). Because the Litigation
Committee did not have the authority to do so, its approval of the settlements in 2013
and 2014 was without any binding effect.7
b. 	Litigation Committee Was Subject to the OMA
{71} 	Even if NMSIC’s delegation of settlement authority to the Litigation Committee
had been proper, the Litigation Committee violated the OMA’s requirements for
closed meetings. Hence, its actions are void for that reason as well. We explain.8
{72} 	The OMA embodies the Legislature’s declaration that “[the] public policy of
this state [is] that all persons are entitled to the greatest possible information regarding
the affairs of government and the official acts of those officers and employees who

42
represent them.” Section 10-15-1(A). In keeping with this policy, we construe the
OMA’s provisions broadly and their exceptions narrowly. Cf. State ex rel. Toomey v.
City of Truth or Consequences, 2012-NMCA-104, ¶ 22, 287 P.3d 364 (“We
emphasize, however, that [the] IPRA should be construed broadly to effectuate its
purposes, and courts should avoid narrow definitions that would defeat the intent of
the Legislature.”); see also NMSA 1978, § 14-2-5 (1993) (stating that, under the
IPRA, “it is declared to be the public policy of this state, that all persons are entitled
to the greatest possible information regarding the affairs of government and the
official acts of public officers and employees[,]” which is nearly identical to the policy
declaration in the OMA).
{73} 	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].
Section 10-15-1(B) (emphasis added).
{74} 	We conclude that this provision applied to the Litigation Committee because
the Litigation Committee was intended to be a “policy[-]making body” and its

9We 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)).
43
meetings were for the purpose of taking an action within the authority of NMSIC.9
NMSIC, which is unquestionably subject to the OMA, attempted to delegate its
authority to take action on the settlements to the Committee. It is patently contrary to
the OMA’s purpose to permit a public body to avoid the OMA’s requirements simply

44
by delegating its responsibilities to a smaller body. Indeed, Section 10-15-1(B) states
that “[n]o public meeting once convened that is otherwise required to be open
pursuant to the [OMA] shall be closed or dissolved into small groups or committees
for the purpose of permitting the closing of the meeting.” We agree with a 1990
Advisory Opinion by the then-Attorney General that “it is the nature of the act
performed by the committee, not its makeup or proximity to the final decision, which
determines whether an advisory committee is subject to open meetings statutes.” N.M.
Att’y Gen. Op. 90-27 (1990). The current Attorney General’s Open Meetings Act
Compliance Guide echoes this thinking, stating,
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.
p. 9 (8th ed. 2015) http://www.nmag.gov/oma-and-ipra-nm-sunshine-laws.aspx.
{75} 	In Paragon Foundation, Inc., this Court considered whether the acts of an
individual on behalf of a public agency were subject to the OMA. 2006-NMCA-004,
¶¶ 2-3. After a federal district court ordered the plaintiffs to remove their livestock
from United States Forest Services land, the Forest Service and the executive director
of the New Mexico Livestock Board (Board) entered into a memorandum of

45
understanding (MOU) governing how the livestock would be removed. Id. The
plaintiffs filed suit, alleging that the MOU violated the OMA because “no public
meeting of the Board was held and a majority of the Board did not approve or
authorize the MOU before the MOU was executed by” the executive director. Id. ¶ 4.
The Board moved for summary judgment on the ground that the MOU was not voted
on or executed by a quorum of the Board and that, because the Board did not so act,
the OMA did not apply. Id. ¶ 5. The district court granted the motion for summary
judgment. Id. ¶ 7.
{76} 	On appeal, we affirmed. Relying on Section 10-15-1(B), quoted above, we held
that “[u]nder the law, if a quorum of the Board members did not act on the MOU, the
OMA was inapplicable, there was no OMA violation, and summary judgment was
proper.” Paragon Found., Inc., 2006-NMCA-004, ¶¶ 12, 13. We also noted that the
executive director’s “largely unilateral action [in signing the MOU was] non-binding
and meaningless, as he can only act pursuant to those powers delineated in the Code.”
Id. ¶ 24.
{77} 	Importantly, we noted that the executive director “did not have the authority or
approval of the Board to enter into the MOU” and that the “MOU was not approved
or authorized by a quorum of the Board in public or private meetings.” Id. ¶¶ 15, 16.
We repeatedly reiterated the fact that members of the Board had limited or no

10At the time of the Ogden decision, the litigation exception was Section 10-15-
1(E)(5).
46
knowledge of the MOU before it was signed, and that some members were “surprised”
when presented with it after its execution. Id. ¶¶ 17-22. These facts clearly distinguish
Paragon Foundation, Inc. from the present matter. Unlike in that case, here, NMSIC
unanimously approved the Settlement Policy, purportedly giving the Litigation
Committee authority to act on its behalf. See Signed Minutes, pg. 5-7, NMSIC
M e e t i n g 	J u n e 	2 6 , 	2 0 1 2 , 	a v a i l a b l e 	a t
http://www.sic.state.nm.us/uploads/FileLinks/39153cc7c39a496c823e7a6fdba7dad
6/6_26_12_SIC_SIGNED_MINUTES.pdf. It is clear that NMSIC fully endorsed the
actions of the Litigation Committee and intended it to take action that would be
subject to the OMA if acted on by the full NMSIC.
c. 	Litigation Committee Actions Were Subject to the OMA
{78} 	Having determined that the Litigation Committee was a body subject to the
OMA, we turn to whether the Litigation Committee’s actions were subject to the
OMA. NMSIC relies on Board of County Commissioners v. Ogden to argue that the
Litigation Committee’s approval of the settlements falls within an exception to the
OMA. 1994-NMCA-010, 117 N.M. 181, 870 P.2d 143. The focus of the Ogden
opinion is on construction of Section 10-15-1(H)(7) (the litigation exception),10 which
states that “meetings subject to the attorney-client privilege pertaining to threatened

47
or pending litigation in which the public body is or may become a participant” are not
subject to the OMA. Ogden, 1994-NMCA-010, ¶ 13. There, the issue was whether the
“threatened or pending litigation” exception included the Board of Commissioners’
decision to sue the defendants. 	Id. 	The Court concluded “that ‘pending’ or
‘threatened’ litigation can include litigation that the public body may initiate and legal
disputes that have not yet reached the courts” and that “under [this exception], [the
Board of Commissioners] could properly discuss and decide to file suit against [the
d]efendants in a closed session.” Id. ¶¶ 15-16.
{79} 	More pertinent to our purposes is the Court’s rejection of the argument that
“even if [the Board of Commissioners was] allowed to obtain legal advice in closed
session, [it] was required to make its decision to sue [the d]efendants in an open
meeting.” Id. ¶ 17. We reasoned that, unlike some of the other exceptions, the
litigation exception “does not require that a decision regarding litigation be made in
an open meeting.” Id.; see, e.g., § 10-15-1(H)(6) (actual approval of certain purchases
must be made in open meeting).
{80} 	Amici argue that the holding in Ogden has been overruled by the Board of
Commissioners of Doña Ana County v. Las Cruces Sun-News, in which this Court
stated that “settlement agreements entered into between parties are outside the
privilege” addressed by the litigation exception. 2003-NMCA-102, ¶ 25, 134 N.M.

48
283, 76 P.3d 36, overruled on other grounds by Republican Party of N.M. v. N.M.
Taxation & Revenue Dep’t, 2012-NMSC-026, ¶ 16, 283 P.3d 853. But the focus of
that case was on whether executed settlement agreements involving a public entity
were subject to public disclosure under the IPRA. Id. ¶¶ 1, 25. The holding that
settlement agreements are disclosable under the IPRA does not contradict the Ogden
holding that the decision to settle may be made in a closed meeting. Based on Ogden,
we conclude that the district court did not err in holding that the OMA was not
violated by the Litigation Committee’s approval of the settlement agreements in
private meetings.
{81} 	However, the district court’s analysis did not go far enough because other
provisions of the OMA were violated. For instance, Section 10-15-1(I)(1) states that
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 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.
{82} 	Section 10-15-1(I)(2) provides that when the decision to hold a closed session
is not made in a public meeting, “the closed meeting shall not be held until public
notice, appropriate under the circumstances, stating the specific provision of the law
authorizing the closed meeting and stating with reasonable specificity the subject to

49
be discussed is given to the members and to the general public.” Finally, Section 10-
15-1(J) states that
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.
{83} 	The parties do not direct us to evidence in the record that NMSIC and the
Litigation Committee complied with these requirements. Thus, these provisions of the
OMA were violated and the Litigation Committee’s approval of the settlement
agreements was invalid.
d. 	May 2015 Meeting Cured OMA Violations
{84} 	The final question is whether the settlement agreements became valid when
nine of the eleven members of NMSIC voted to approve them in May 2015. Assuming
NMSIC has the power to enter into such agreements, we conclude that the May 2015
vote rectified the delegation issue.
{85} 	We also conclude that the May 2015 meeting cured the OMA violations.
“[P]rocedural defects in [compliance with the OMA] may be cured by taking prompt
corrective action.” Kleinberg v. Bd. of Educ. of Albuquerque Pub. Sch., 1988-NMCA-
014, ¶ 30, 107 N.M. 38, 751 P.2d 722. Previous cases have affirmed the cure of the
OMA violations where the curing actions were taken four days later, see id. ¶ 15, and

50
eleven months later. See Palenick v. City of Rio Rancho, 2012-NMCA-018, ¶ 1, 270
P.3d 1281, rev’d on other grounds by, 2013-NMSC-029, 306 P.3d 447. Here, the
curing meeting occurred thirty months after the first settlement was approved by the
Litigation Committee. Although thirty months stretches the bounds of “prompt”
remedial action as contemplated in Kleinberg, we conclude that it was sufficient to
remedy the Litigation Committee’s improper action because “the legislature did not
intend to unduly burden the appropriate exercise of governmental decision-making
and ability to act.” 1988-NMCA-014, ¶ 31. “To rule otherwise would improperly
elevate form over substance” and wreak havoc on a process already fraught with
complexity. Id. Most importantly, the May 2015 meeting was preceded by proper
notice to the public, included a public agenda and was open to the public, NMSIC
members publicly voted on the settlements, and minutes of the meeting were
published 	online. 	See 	http://www.sic.state.nm.us/state-investment-council.aspx
(providing access to NMSIC meeting calendar, and agendas and minutes of NMSIC
meetings) (last visited Mar. 17, 2016). The purpose of the OMA was thus achieved
by this public meeting. See Kleinberg, 1988-NMCA-014, ¶ 31 (concluding that an
OMA violation was cured where “[t]he local board, in affording [the plaintiff] a full
and fair hearing in compliance with due process guarantees, and ultimately, in taking

51
a public vote and openly announcing its decision in a forum where the interested
public could observe the action, carried out the intent and purpose of the [OMA]”).
{86} 	We recognize that our holding could be seen as stretching the notion of prompt
remedial action beyond the breaking point, effectively giving license to public
agencies to flout OMA standards without penalty. We caution strongly against any
such reading and emphasize that our decision to not invalidate the settlements is
driven by the fact that they were subjected to reasonable and appropriate review by
the district court. That independent review—which we have approved—provides us
assurance that the public fisc has been protected. Without the presence of judicial
review we would not be tolerant of the delay seen here. In addition, we are confident
that our ruling as to the reach and effect of the OMA in situations such as we review
here will result in suitable caution by public agencies of all stripes. 	To the extent
public agencies fail to meet their obligations under the OMA, the public—including
Amici—will have strong authority to enforce compliance.
{87} 	We also emphasize that the ratification of the settlements at the May 2015
meeting does not operate retroactively to make the settlement agreements valid as of
the date they were originally signed. See Palenick, 2012-NMCA-018, ¶ 9 (stating that
“no authority in New Mexico supports the [defendant’s] attempt to retroactively make

52
the prior invalid action valid and effective as of the date it was taken”). The settlement
agreements became valid only at the May 2015 meeting.
{88} 	Given this holding, the district court considered and approved settlements that
were void at the time. The question arises whether this requires that the entire matter
be remanded for reconsideration. We conclude that remand for what would be a
hearing of form only is not in the best interests of the public, the courts, or the parties.
The district court approved the settlements on their merits. We have found no error
in its process or final decision, with the exception of the delegation and the OMA
issues. These issues do not speak to the merits of the settlements. Requiring
reconsideration of the substance of the settlements would serve no purpose at this
point.
e. 	No IPRA Violation Shown by Appellants
{89} 	Finally, in the course of their arguments, Appellants also make several
references to violations of the IPRA and argue that the settlement agreements were
“kept secret for months.” The district court concluded that “[t]here is no evidence of
any attempt to shield these settlements from the IPRA. Moreover, the [s]ettlement
[a]greements have been publicly filed in this action and the [district c]ourt has held
a public hearing about them.” We agree with the district court. The IPRA provides for
public access to records; it does not require public entities to provide records in the

53
absence of a request for them. See NMSA 1978, § 14-2-8(A) (2009) (stating the
procedures for requesting public records). On appeal, Appellants do not argue that
they requested records from NMSIC and were denied. See NMSA 1978, § 14-2-
12(A)(2) (1993) (stating that “[a]n action to enforce the [IPRA] may be brought
by . . . a person whose written request has been denied”). Appellants have failed to
demonstrate that the IPRA was violated here.
{90} 	In sum, the Litigation Committee did not have the authority to settle with
Defendants here and we reverse the district court’s conclusion to the contrary. We also
hold that the Litigation Committee meetings violated the OMA’s notice and
documentation requirements. However, the settlement agreements were validated
when they were approved by NMSIC in an open meeting in May 2015. We affirm the
district court’s conclusion that Appellants have not shown a violation of the IPRA.
3. 	The District Court did not Err in Denying Appellants’ Motion to
Disqualify the Attorney General’s Office
{91} 	Finally, Appellants argue that the district court erred in dismissing their motion
to disqualify former Attorney General, Gary King, for conflicts of interest involving
representation by his office of NMSIC. They maintain that the district court
erroneously ruled that they lacked standing to raise these issues. In fact, the district
court rejected Appellants’ motion on its merits as to two of their three allegations.

54
{92} 	As to the third allegation, the district court ruled that Appellants lacked standing
to move for disqualification of the Attorney General’s office based on the fact that a
member of that office had served as counsel to NMSIC. Generally speaking, “only a
current or former client has standing to move for disqualification of counsel based on
an alleged conflict of interest.” Eric C. Surette, Annotation, Standing of Person, Other
than Former Client, to Seek Disqualification of Attorney in Civil Action, 72 A.L.R. 6th
563 § 2 (2012); cf. Sanchez v. Siemens Transmission Sys., 1991-NMCA-028, ¶ 36,
112 N.M. 236, 814 P.2d 104 (stating that “[t]o the extent that employer[/respondent]
attempts to raise [a conflict of interest between the petitioner and her attorney] on
claimant’s[/petitioner’s] behalf, however, we fail to see how employer has standing”),
rev’d in part on other grounds by, 1991-NMSC-093, 112 N.M. 533, 817 P.2d 726.
However, a nonclient party may have standing to move for disqualification when “the
nonclient establishes that the conflict prejudices or injures the nonclient’s own rights.”
Surette, supra, at § 2; cf. Evink v. Pekin Ins. Co., 460 N.E.2d 1211, 1214 (Ill. App. Ct.
1984) (stating that the “plaintiffs would have no standing to challenge [the] defense
counsel’s ability to represent [two defendants] without some showing that this
representation adversely affects their interests”).
{93} 	Here, the district court held a hearing on Appellants’ motion to disqualify. After
the hearing, it concluded that Appellants did not have standing to challenge a conflict

55
of interest between the Attorney General’s office and NMSIC. We infer from this
ruling that the district court determined that Appellants failed to demonstrate that their
interests were sufficiently adversely affected by the alleged conflict of interest to
overcome the general rule. Neither a transcript of the hearing nor a CD recording of
it is in the record on appeal. In the absence of a transcript or CD, we presume the
district court’s ruling is supported by the evidence. Michaluk v. Burke, 1987-NMCA-
044, ¶ 25, 105 N.M. 670, 735 P.2d 1176 (“Where the record on appeal is incomplete,
the ruling of the trial court is presumed to be supported by the evidence.”); see
Sandoval v. Baker Hughes Oilfield Operations, Inc., 2009-NMCA-095, ¶ 65, 146
N.M. 853, 215 P.3d 791 (“It is the duty of the appellant to provide a record adequate
to review the issues on appeal.”). We conclude that the district court did not err in
denying Appellants’ motion.
CONCLUSION
{94} 	Although we reverse the district court’s ruling as to the delegation of settlement
authority to NMSIC’s Litigation Committee and its conclusion that the OMA was not
violated, we conclude that the settlements are now valid because they have been
approved by NMSIC at a public meeting. We discern no error in the district court’s
other rulings. We therefore affirm the district court’s approval of the settlements with
the Weinstein, Meyer, and Broidy Defendants.

56
{95} 	IT IS SO ORDERED.
__________________________________
MICHAEL D. BUSTAMANTE, Judge
WE CONCUR:
___________________________________
MICHAEL D. VIGIL, Chief Judge
___________________________________
M. MONICA ZAMORA, Judge