United States Ex Rel. Folliard v. Hewlett-Packard Co.
272 F.R.D. 31
D.D.C.2011Background
- Folliard, a realtor, sues Hewlett-Packard under the False Claims Act in the District of Columbia.
- HP sold IT products to the U.S. government under NASA SEWP contracts NAS5-01139 and NNG07DAI7B.
- SEWP contracts are subject to the Trade Agreements Act; country of origin must be truthfully identified.
- Folliard alleges 38 HP products were misidentified as from designated countries, actually from China (non-designated).
- Folliard worked as a Strategic Account Executive at IPS, an authorized selling agent for HP on SEWP.
- Complaint alleges that misidentification caused false claims submitted to the government; government did not intervene.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the complaint pleads presentment of false claims | Folliard asserts presentment through government purchases. | Complaint lacks specific false claims, dates, content, and identifying individuals. | Counts I and II dismissed for failure to plead presentment and specifics. |
| Whether Counts I and II meet Rule 9(b) specificity | Purports a scheme with indicia of liability supporting inference of submission. | No identified purchases, claims, or content; speculation insufficient. | Counts I and II dismissed for failing Rule 9(b) specifics. |
| Whether Counts III and IV satisfy the pleading standard under FCA § 3729(a)(2) and (a)(1)(8) | Misrepresentation to obtain payment constitutes liability. | Requires detailed false statements with who/when; not provided. | Counts III and IV dismissed for lack of specificity and failure to allege concrete false statements. |
| Effect of FERA amendments on pleading requirements and retroactivity | FERA amendments broaden liability; should apply to pending claims. | Amendments not material to presentment; claims not adequately pleaded regardless. | Court holds amendments do not salvage pleading; claims dismissed. |
| Whether dismissal should be with prejudice | Discovery could reveal facts to plead properly. | Multiple opportunities to amend and discover; dismissal with prejudice appropriate. | Action dismissed with prejudice. |
Key Cases Cited
- Ashcroft v. Iqbal, 129 S. Ct. 1937 (U.S. 2009) (plausibility standard for pleading; rejecting conclusory assertions)
- Twombly, 550 U.S. 544 (U.S. 2007) (requirement that complaint states a claim plausible on its face)
- Allison Engine Co. v. United States ex rel. Sanders, 553 U.S. 662 (U.S. 2008) (distinguishes § 3729(a)(1) presentment from § 3729(a)(2) liability)
- Totten v. Bombardier Corp., 286 F.3d 542 (D.C. Cir. 2002) (particularity requirement for fraud claims under FCA)
- Martin-Baker Aircraft Co. v. United States ex rel. Williams, 389 F.3d 1251 (D.C. Cir. 2004) (Rule 9(b) particularity for fraud claims)