United States Ex Rel. Folliard v. Government Acquisitions, Inc.
880 F. Supp. 2d 36
D.D.C.2012Background
- Folliard brings a FCA qui tam suit against GAI and Govplace over allegedly non-designated-country COOs for products sold to the government under GSA schedules.
- GAI allegedly sold six products (GH715AW) with COO from non-designated countries; GP allegedly sold ten such products.
- FERA 2009 amended FCA; pre- and post-May 20, 2009 presentment clauses govern Counts I and II respectively.
- Counts III and IV were previously dismissed; remaining issues focus on specific products and their COOs.
- The Court granted in part both motions for summary judgment; ordering focused discovery limitations and directing amended opposition limited to GH715AW and the listed GP products.
- Court requires evidence that a sale occurred for FCA liability; absence of sale defeats FCA claims so far as to the GH715AW product.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether GH715AW sales pre-May 20, 2009 support FCA liability | Folliard shows COOs and sales evidence; disputes sale status | GAI did not sell GH715AW; COO was Mexico or China not tied to alleged sale | No genuine issue; GAI never sold GH715AW; count as to GH715AW granted |
| Whether GP can be liable for five products based on distributor reliance (Ingram Micro) | GP’s reliance on distributor could satisfy knowing element; discovery needed | Reliance on distributor negates knowledge only if products were compliant | Summary judgment denied for five GP products pending focused discovery on reliance |
| Whether EY685AW open-market sale defeats TAA liability | Open-market sale still subject to COO considerations; discovery needed | Open-market sale not on Schedule; threshold may be exceeded; no discovery needed | Summary judgment proper as to EY685AW; open-market facts insufficient to defeat |
| Whether EV266AA (third-party sale) supports FCA liability | Third-party sale via New Tech could implicate GP | GP not responsible for third-party sale under teaming agreement | Summary judgment granted for EV266AA; no genuine issue as to GP liability |
| Whether Count II (post-FERA presentment) survives for any GP/GAI transactions | Post-FERA claims may be viable if transactions occurred after May 20, 2009 | All relevant transactions occurred before May 20, 2009 | Count II dismissed as to both defendants |
Key Cases Cited
- United States ex rel. Schwedt v. Planning Research Corp., 59 F.3d 196 (D.C. Cir. 1995) (three FCA elements; knowledge required for false claims)
- Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (Sup. Ct. 1986) (summary judgment standard; no genuine issue of material fact)
- Celotex Corp. v. Catrett, 477 U.S. 317 (Sup. Ct. 1986) (burden on movant to show absence of genuine disputes; Rule 56)
- Totten v. Bombardier Corp., 286 F.3d 542 (D.C. Cir. 2002) (TAA violation requires a sale for liability to accrue)
- Carpenter v. Fed. Nat’l Mortgage Ass’n, 174 F.3d 231 (D.C. Cir. 1999) (Rule 56(d) and discovery-related relief considerations)
- Graham v. Mukasey, 608 F. Supp. 2d 50 (D.D.C. 2009) (discovery timing and limits; 56(d) considerations)
- Costlow v. United States, 552 F.2d 560 (3d Cir. 1977) (outstanding discovery can bar premature summary judgment)
- Sames v. Gable, 732 F.2d 49 (3d Cir. 1984) (prematurity of summary judgment under unresolved discovery)
- Convertino v. DOJ, 2012 WL 2362591 (D.C. Cir. 2012) (Rule 56(d) affidavit requirements for discovery requests)
- Messina v. Krakower, 439 F.3d 762 (D.C. Cir. 2006) (affidavit specificity and discovery showing material to litigation)