Capabilities
Government Contracts

False Claims Act Defense

With high stakes of treble damages, mandatory penalties, and potential collateral consequences such as exclusion, suspension or debarment, companies turn to Arnold & Porter for our insights and extensive experience in False Claims Act compliance, investigations, negotiations and defense. We represent global leaders in diverse industries including healthcare, pharmaceuticals, medical devices, defense, aerospace, accounting, information technology, financial services, telecommunications, energy, and insurance.

We have been involved in some of the highest profile civil and criminal fraud and False Claims Act cases brought by the federal government or state attorneys general offices. Our veteran team includes the former Attorney General for the District of Columbia, former lawyers from the Department of Justice (DOJ) and US Attorney's offices with years of experience in False Claims Act matters, together with former lawyers from the Department of Defense, Department of Health and Human Services, Food and Drug Administration, Environmental Protection Agency, Securities Exchange Commission, Department of Energy, and experienced defense counsel who vigorously defend companies by anticipating, strategically responding to, and litigating government enforcement actions.

We routinely work with companies to minimize False Claims Act exposure by tailoring compliance programs to the organization's specific need. We conduct risk reviews and develop company business ethics codes and compliance programs in order to mitigate risk and demonstrate a company's present responsibility as a government contractor. We regularly provide training for legal departments and business employees.

Recognizing that civil investigations are often accompanied by parallel criminal investigations, we coordinate strategy and response, to both the criminal and civil matters. Our white collar attorneys frequently obtain favorable results with prosecutors either to decline prosecution or to enter into non-prosecution or deferred prosecution agreements.

Companies frequently defend matters at both the federal and state or local levels, often simultaneously. Our substantial experience in state Attorney General investigations and litigation allows us to coordinate effective, efficient responses to investigations or litigation in multiple jurisdictions.

As a result of our in-depth knowledge of the underlying industries, as well as the statutory and regulatory framework in False Claims Act cases, we have a successful track record persuading the government not to intervene, or negotiating fair settlements with the government or relator efficiently and with minimal business disruption. If the case proceeds to litigation, we are adept at obtaining dismissals or achieving favorable results at trial and on appeal.

  • Obtained multiple dismissals of FCA actions during the past five years for the single largest logistics contractor supporting the US military in Iraq and Afghanistan in federal district courts nationwide, including Eastern District of Virginia, District of Columbia, and Central District of Illinois.
  • Representing companies across industry sectors in False Claims Act matters, including investigation and advocacy before the Department of Justice on intervention and successfully defending companies in both non-intervened relator qui tam actions and intervened cases brought by the DOJ.
  • Won dismissal in 2015 of non-intervened qui tam alleging false claims regarding a government contractor's provision of air charter services for personnel into the Middle East. The court found that the relator had failed to allege fraud and granted relator leave to replead; relator chose not to replead and the case was dismissed.
  • Won a landmark ruling in 2014 in DC Circuit relating to privilege governing internal investigations in connection with an FCA case.
  • After an 11-day trial in the Court of Federal Claims in 2011, won a total victory against the government in a prominent fraud case; the fraud rulings have been affirmed on appeal.
  • Government contractor in a $1.4 billion fraud trial against the United States that resulted in judgment for the government contractor on all but one claim, which resulted in a low value negotiated settlement.
  • Global supplier of communications and security products in qui tam action regarding its dealings with a government customer that resulted in favorable settlement at a small fraction of the United States’ original damages claim.
  • Government contractor in qui tam action and successfully obtained two writs of mandamus vindicating the contractor’s claim of attorney-client privilege over materials created during an internal investigation led by company lawyers; subsequently won summary judgment on all counts.
  • Government contractor in qui tam action in which, after dismissal by trial court and reversal by circuit court, the Supreme Court ruled 9-0 in favor of contractor that Wartime Suspension of Limitations Act does not suspend statute of limitation for civil fraud actions, including those brought under the False Claims Act.
  • Government contractor in False Claims Act case brought by the government alleging violations of Truth in Negotiations Act in price negotiations for alleged failure to disclose current cost or pricing data and claiming damages of potentially upwards of $400 million.
  • Global supplier of telecommunications products in qui tam action regarding its provision of services to schools and libraries under the federal E-Rate program; although the district court denied a motion to dismiss, the Fifth Circuit reversed and held on an issue of first impression that funds from the E-Rate program are not “provided by” the United States for purposes of the False Claims Act.
  • Obtained dismissal of qui tam against a government contractor on grounds that alleged contractual deficiencies alone do not create False Claims Act liability; the Fourth Circuit affirmed the dismissal in a published opinion that has been cited in countless False Claims Act cases since.
  • Successfully defended a government contractor in qui tam action where a relator sought more than $600 million in damages and penalties; relator voluntarily dismissed the suit after the team won a parallel contract interpretation suit against the Army in which the Army adopted the contractor’s interpretation of the contract, which preempted relator’s claims.
  • Individual in a large mortgage FCA case brought by DOJ in which the individual was charged with violating FIRREA by making false statements and certifications to the Department of Housing and Urban Development.
  • Won summary judgment in this non-intervened qui tam regarding morale, welfare, and recreation services; affirmed on appeal in first post-Escobar case in DC Circuit.
  • After meetings and written advocacy, persuaded the government not to intervene in this qui tam suit regarding the handling of government property during the war in Iraq; after the government declined to intervene, the relator dismissed the case.
  • Technology services company in resolving for a nominal payment a DOJ investigation into alleged mischarging related to inflated labor qualifications, including alleged falsified resumes.
  • Aerospace company in convincing the Department of Justice not to intervene in a qui tam case and in persuading the relator to drop the case prior to our filing a motion to dismiss.
  • Commercial item services contractor in False Claims Act matter involving a US Navy contract.
  • Technology company in a defective specification-related qui tam claim against the US Navy.
  • FORTUNE 100 information technology company in negotiating successful resolution of criminal and civil fraud and False Claims Act allegations concerning cost mischarging under a DoD computer networking contract.
  • Large technology services provider in two civil False Claims Act matters, one of which was a qui tam case. The DOJ declined to pursue both cases, and in the qui tam case, the relator dropped the matter without litigation.
  • Technology services company in a DOJ criminal investigation into alleged Anti-Kickback Act and Procurement Integrity Act violations related to activities in Southwest Asia. The government declined to prosecute the company on either matter.
  • Computer company in conducting an international internal investigation, assisted with voluntary disclosure, and obtained favorable settlement of False Claims Act liability.
  • Technology services company in a lengthy federal investigation and now is defending CSC in an unprecedented civil action alleging violations of the federal and New York False Claims Acts filed by the Office of the United States Attorney for the Southern District of New York and by the New York Attorney General.
  • Aircraft maintenance contractor that allegedly failed to perform required tests after repairing aircraft.
  • DoD contractor that allegedly allowed Russian nationals employed by a subcontractor to perform software work on a project for an intelligence agency. The FCA case was settled on favorable terms, and the federal prosecutors concluded that the client and its employees had no criminal liability.
  • Technology services company in settling for a nominal payment a DOJ investigation into a former subsidiary’s alleged failure to conduct testing of aircraft engines as required by the contract.
  • DoD contractor whose employees, based in Afghanistan, accepted kickbacks in choosing housing and security services. The case was resolved with payment of minimal FCA penalties.
  • Government contractor accused of falsely certifying that the combat helmets its subcontractor produced met ballistic test requirements. The case was settled on favorable terms.
  • Industrial gases company in a False Claims Act case; successfully litigated a multi-billion claim against an energy company, twice in district court and on appeal to the circuit and Supreme Courts.

Perspectives

Why Escobar Materiality Rule Applies To California FCA
California Law360, Government Contracts Law360, Real Estate Law360, Transportation Law360
The Ninth Circuit in Rose Prunes the Thorns from Escobar's Rigorous and Demanding Materiality Requirement
Advisory
DOJ Announces $3.7 Billion in FY2017 False Claims Act Recoveries
Advisory
False Claims Act Materiality Standard Applied to Dismiss Implied Certification Claims (pdf)
Government Contracting Law Report, Vol. 3, No. 7
After Escobar, When Will Government Knowledge + Payment = 'Not Material'? (pdf)
The Bloomberg BNA Daily Report for Executives
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