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Crowell & Moring has issued its seventh-annual “Litigation Forecast 2019: What Corporate Counsel Need to Know for the Coming Year.” 

The section focusing on government contracts, “Bid Protests Enter A Shifting Landscape,” provides an overview of how the process of protesting the awarding of a federal contract might dramatically change in 2019.

Also of interest to contractors, the article, “DOJ: Putting Limits On Guidance,” which outlines how The DOJ’s Brand Memo may give health care contractors a new avenue of defense in FCA litigation, but its interpretation is still unclear.

The Forecast further explores the developing legal, regulatory, and technology developments affecting a wide range of companies in twelve areas of law: antitrust, corporate, cybersecurity, e-discovery, environmental, government contracts, health care, intellectual property, international trade, labor and employment, torts, and white collar.

Be sure to follow the conversation on social media with #LitigationForecast.

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This week’s episode covers GSA schedule, cybersecurity, and FCA news, and is hosted by partners Peter Eyre and David Robbins. Crowell & Moring’s “Fastest 5 Minutes” is a biweekly podcast that provides a brief summary of significant government contracts legal and regulatory developments that no government contracts lawyer or executive should be without.

Listen: Crowell.com | PodBean | SoundCloud | iTunes 

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In this episode, hosts Mana Lombardo and Jason Crawford talk with Caroline Lee, Certified Fraud Examiner and Senior Manager with Deloitte Financial Advisory Services LLP, about the role that forensic investigators play in FCA cases. “Let’s Talk FCA” is Crowell & Moring’s podcast covering the latest developments with the False Claims Act.

Listen: Crowell.com | PodBean | SoundCloud | iTunes 

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In Universal Health Services, Inc. v. United States ex rel. Escobar, 136 S.Ct. 1989 (2016) (discussion by C&M attorneys here), the Supreme Court held that an implied false certification can be a basis for False Claims Act (FCA) liability, “at least where two conditions are satisfied:” (1) the claim makes specific representations about the goods or services provided and (2) the defendant’s failure to disclose noncompliance with material statutory, regulatory, or contractual requirements makes those representations misleading half-truths.  (Emphasis added).

Continue Reading Ninth Circuit’s Rose Decision Could be a Thorn in the Side of Relators (At Least for Now)

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This week’s episode covers debarment, defense spending, and FCA news, and is hosted by partners Peter Eyre and David Robbins. Crowell & Moring’s “Fastest 5 Minutes” is a biweekly podcast that provides a brief summary of significant government contracts legal and regulatory developments that no government contracts lawyer or executive should be without.

Listen: Crowell.com | PodBean | SoundCloud | iTunes 

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In this episode, hosts Mana Lombardo and Jason Crawford are joined by Tully McLaughlin, co-chair of the firm’s False Claims Act Practice, to discuss some of the unique considerations for trying False Claims Act cases. “Let’s Talk FCA” is Crowell & Moring’s podcast covering the latest developments with the False Claims Act.

Listen: Crowell.com | PodBean | SoundCloud | iTunes 

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“Let’s Talk FCA” is Crowell & Moring’s podcast covering the latest developments with the False Claims Act. In this episode, hosts Mana Lombardo and Jason Crawford interview Will Chang, a partner in the firm’s Health Care and White Collar & Regulatory Enforcement groups and a former trial attorney at the DOJ Criminal Division, Fraud Section, on health care fraud and FCA issues.

Listen: Crowell.com | PodBean | SoundCloud | iTunes 

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Are we experiencing a shift towards a higher bar for pursuing False Claims Act Cases?  Department of Justice guidelines may signal a new direction from the last two decades of DOJ FCA enforcement history through policies that reign in relators and articulate some boundaries for cases pursued by DOJ.  Meanwhile, Escobar progeny continues to develop  and refine the materiality requirement under the FCA.  Join us on May 17, 2018, at 8:30 AM Eastern, as Crowell & Moring attorneys Brian Tully McLaughlin, Mana Lombardo, Jason Crawford, and Nkechi Kanu lead a discussion highlighting recent developments impacting FCA investigation, enforcement, and litigation under the False Claims Act.  Specific topics include:

  • DOJ Enforcement Trends and Developments: What They Mean for Investigation and Litigation Strategy
  • The Continuing Emphasis on Materiality in the Wake of Escobar
  • Case developments and impacts

For more information and to register for OOPS, please click here.

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On March 22, 2018, an Indiana state trial court judge granted a motion to dismiss in State of Indiana ex. rel Harmeyer v. The Kroger Co. et al. Relator Harmeyer—an attorney and Kroger patron—alleged that the grocery chain knowingly failed to collect and remit state sales tax on hundreds of goods throughout the state.  Under Indiana law, the state’s gross retail tax does not apply to “food and food ingredients” but it does apply to candy, soft drinks, dietary supplements, and prepared foods.  Relator’s sixth amended complaint identified more than 1,400 food items that relator alleged were mischaracterized as tax-exempt based on the ingredients and food preparation.  For example, relator alleged that a protein bar should be classified as taxable candy rather than nontaxable food.  By classifying items as tax-exempt, relator alleged that the grocery chain cost the state millions of dollars in tax revenue each year.

The superior court judge dismissed relator’s complaint with prejudice holding that the complaint failed to meet the heightened pleading requirement of 9(b) because Harmeyer failed to allege the time, place, and method by which misrepresentations were made to the state.  The court also noted that Harmeyer, whose similar case against a grocer in another state had been dismissed, was not an employee of Kroger, had no inside knowledge of what took place within the company, and merely presumed, as he had in his other case, that the defendant’s characterization of the items as tax-exempt was false and done with reckless disregard of the truth.  While Harmeyer argued that the allegation of 1400 mischaracterizations was sufficient to plead recklessness, the court could not determine from the complaint whether this was a substantial percentage of the products sold by defendant and therefore could not presume recklessness from that number. The judge dismissed the case with prejudice, and the relator filed a notice of appeal on April 13.

Continue Reading Court Dismisses FCA Suit Alleging that Grocery Chain Failed to Collect Sales Tax

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On May 16, 2017, the Fourth Circuit issued a decision in United States ex rel. Omar Badr v. Triple Canopy, holding that the Government had properly alleged an implied certification claim under the standard articulated by the Supreme Court in Universal Health Servs. v. United States ex rel. Escobar, 136 S. Ct. 1989 (2016).  In the eleven months following the Supreme Court’s landmark ruling on the implied certification theory of liability, Escobar has been cited in nearly 100 court opinions. (Our recent Feature Comment in the Government Contractor highlights some of the key cases and developing trends).

In Badr, the relator alleges that a security contractor responsible for ensuring the safety of an air base in a combat zone employed Ugandan guards who were unable to meet the required marksmanship scores on a U.S. Army qualification course. According to the relator, Triple Canopy knowingly falsified marksmanship scorecards and presented claims to the government for payment for those guards.

Continue Reading It’s the Cover-Up That Gets You