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False Claims Act Statistics, News & Analysis

Short, Sweet, and Unambiguous: Ninth Circuit Cites Safeco and Finds Objectively Reasonable Interpretation of the ITAR Precludes Knowledge

Last week, we discussed developing FCA precedent on liability premised on violations of ambiguous contractual or legal obligations with a focus on the Eleventh Circuit’s Lincare decision. Today, we follow up on that with a look at a recent Ninth Circuit decision affirming a 2015 decision by the District Court for the District of Arizona dismissing a qui tam complaint alleging microelectronic manufacturer Microsemi Corporation and its subsidiary White Electronic Designs Corporation (“WEDC”) violated the FCA by falsely certifying compliance with the International Traffic in Arms Regulations (“ITAR”), which prohibit exporting controlled information without a license.

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Specific Representations and Half-Truths Need Not Apply: D.C. District Court Finds Knowingly Billing at "Significantly Higher than Reasonable" Costs Sufficient for Implied False Certification

In a decision many in the defense bar will argue was wrongly decided, the U.S. District Court for the District of Columbia in U.S. v. DynCorp Int’l LLC ruled that knowingly billing for unreasonable costs can serve as the basis for an implied certification claim under the FCA. The court took an expansive view of implied certification that departs from the Supreme Court’s guidance in Escobar and, we would argue, sidesteps the rigorous materiality requirements emphasized by the Court.

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Armor Manufacturers (Mostly) Deflect FCA Claims Again Post-Escobar: District Court Finds Implied, Extra-Contractual Duties Not Bargained For and Thus Not Material

In related cases U.S. ex. rel. Westrick v. Second Chance Body Armor, Inc. and U.S. v. Toyobo Company, Ltd., the D.C. district court recently determined on a motion to reconsider post-Escobar that implied “extra-contractual” requirements, not included in the language of the contract with the government, may nevertheless form the basis of an implied certification claim. No. 1:07-cv-01144 (D.D.C. Mar. 31, 2017). But, the court found that since the government in Westrick and Toyobo presented no evidence that it in fact contracted or bargained for the alleged extra-contractual obligations, the obligations were not material to payment and affirmed its previous grant of summary judgment for defendants on their FCA claims based on a violation of those obligations.

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Ding, Dong, the Case is Dead – Which Old Case, the Barko Case

This spring’s winter blast may dampen this year’s cherry blossoms but didn’t dim the spirits of your friends at LLB, especially those who represented KBR in the long-running Barko qui tam case. Huddled indoors on Tuesday, we received an unexpected, but welcome glimmer of sunshine. Over three years after the motion was filed, the district court issued a more than 60-page decision granting summary judgment for KBR. United States ex rel. Barko v. Halliburton Co., et al., No. 05-cv-1276. Judge Royce Lamberth, who penned the decision, is the third district judge to sit on this case since its inception a dozen years ago, having inherited the case (and then-pending summary judgment motion) from Judge James Gwin, who had in turn taken over the case from Judge Emmet Sullivan at the motion to dismiss stage. This non-intervened case, filed under seal in 2005, alleged that KBR violated the FCA in a number of ways, including by accepting kickbacks, rigging subcontractor bids, and billing the government for duplicative or poorly performed work under the LOGCAP cost reimbursement contract under which KBR provided logistical support to the U.S. military during the conflicts in Iraq and Afghanistan.

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False Claims Act Cert. Monitor: Second Circuit Case Remanded for Escobar, Three Other FCA Cert. Petitions Denied

On Tuesday, the Supreme Court granted the relators’ petition for certiorari, vacated the judgment below, and remanded (“GVR’d”) in Bishop v. Wells Fargo & Co., No. 16-578, with instructions for the Second Circuit to reconsider its decision in light of the Supreme Court’s decision in Escobar.  As we explained last November, the Second Circuit, following its precedent in Mikes v. Straus, 274 F.3d 687 (2d Cir. 2001), had concluded that a general certification of compliance with banking regulations was not an express certification  of compliance with a specific statute, and that because the relevant regulations did not state that compliance was a precondition of payment they could not form the basis of an implied certification  FCA claim.

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