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Qui Tam 2020 is the third annual conference of the Federal Bar Association's Qui Tam Section, for which TELG's Scott Oswald serves as chair. The two-day event will tackle some of the hottest topics in False Claims Act litigation, with panels featuring attorneys from both sides of the aisle, along with government prosecutors, agency representatives, and subject-matter experts.
Here Scott discusses emerging trends under the FCA with Cleveland Lawrence III of Mehri & Skalet, who'll be leading a panel on the topic on Day One of the conference.
This video interview by TELG managing principal R. Scott Oswald was published by The Employment Law Group, P.C. on December 10, 2019.
Qui Tam 2020 Panel Preview: Emerging Trends under the False Claims Act
» Click here for registration and full details on Qui Tam 2020
(Transcribed and edited lightly by The Employment Law Group)
R. Scott Oswald: [Addressing camera] I am here with Cleveland Lawrence III. Cleveland is the co-chair of the whistleblower practice at Mehri & Skalet, and we are here with him to talk about his panel at this year’s Qui Tam Conference — the Federal Bar’s Qui Tam Section annual conference on February 27-28, 2020.
[Turning to Lawrence] Cleve, tell us a little bit about your panel.
Cleveland Lawrence III: Sure, Scott. We are going to be focusing on emerging trends in False Claims Act litigation. [We’ll be] trying to put our finger on the pulse of what’s going to be coming down the pike, and preparing everyone — both the government and especially whistleblowers — for the types of cases that we expect.
Oswald: So give me an example of an emerging trend we might hear about during the panel.
Lawrence: We have started to see the beginnings of more cases involving antitrust violations, and bid-rigging, and collusive price-fixing, and things like that as a basis for False Claims Act liability and —
Oswald: Why is that a false claim?
Lawrence: Well, it depends on what kinds of certifications are required to be made to the government. Certainly in the context of a bid-rigging or some kind of collusive pricing where the government is being victimized, that would seem to be a relatively straightforward false claim on the government’s funds. Certainly, had the government known that the prices were not proper, it would not have wanted to pay those players.
Oswald: The government wouldn’t come in — wouldn’t want to accept the claim from the very beginning?
Lawrence: Absolutely. That’s the theory.
Oswald: So in those kind of cases under the False Claims Act, how do damages work? For a case where there might be price-fixing or bid-rigging from the very start?
Lawrence: Well, the most aggressive and certainly the theory that I enjoy the most is a fraudulent inducement theory of liability, where the theory would be that the entirety of the contract is null and void because the government never would have entered into that agreement had it known that the bid was rigged or something like that. In those types of cases, the government has even argued that the entire value of the contract then can be the measure of damages — because not only was the actual money wasted, but the purpose of the government’s process was frustrated [by] someone [who] was claiming eligibility for something that they should never have been eligible for.
Oswald: Give me another emerging trend that maybe is off the beaten path, that if I’m in the audience I might hear about.
Lawrence: Sure. Another trend that I think we are going to see more and more of, especially in today’s world of trade war, will be an extension of government procurement cases that are largely based on falsifications of things like country of origin, or violations of the Trade Agreements Act or the Buy America Act. We’ve seen the uprising of those sentiments with this administration, and all of these massive tariffs that are being placed on goods being imported into the country. Some of those [levies] will be passed along to consumers but a lot of companies will try to find ways those around those tariffs and avoid having them collected by the government. So those are going to be False Claims Act cases coming down the pike.
[This applies] in the area, I think, of cybersecurity as well. We’ve seen examples of some cases on the edges of the False Claims Act involving cybersecurity, especially with the trade war and the hypersensitivity about software, and where it comes from, and what kind of access it gives to potential hackers or others. Cybersecurity, I think, is really on everyone’s mind.
Oswald: So in those cases the government contractor — what? Is making representations to the United States about its own cybersecurity? Is that what’s going on?
Lawrence: Or about products that it’s providing to the government to keep our information safe, and [about] the origins of those goods, or software, or things of that nature. Certainly, if we knew that software was coming from China, we would probably feel different about whether we should buy it or not.
Oswald: Tell us a little about your panelists. Who’s going to be on the panel?
Lawrence: Sure — I have a great group. On the relators’ bar side we have Eric Havian, who is a partner at Constantine Canon, a longtime qui tam attorney. And he’s going to, I think, explore some of those antitrust issues and some of the other types of cases that are a little more novel that he and the partners at his firm are bringing. We also have John McKnight, who is a leader at the Sanford Heisler Sharp firm. He has a lot of experience in the government procurement realm and can talk a lot about some of those Trade Agreements Act and Buy America Act frauds that that we discussed a little bit. On the defense side we have Marcia Madsen, who’s one of the most knowledgeable defense lawyers in government contracting, and certainly in the FCA and qui tam world, and a frequent speaker on panels like these. We’re expecting to add a government representative to the panel as well, but I think we’re off to a really great start.
Oswald: Cleve, thank you.
Lawrence: Great to be with you, Scott. Thanks.
Oswald: [Addressing camera] And we look forward to seeing each of you on February 27-28, 2020. You can register on the Federal Bar Web site at fedbar.org.
NOTE: Since this interview was recorded, Mr. Lawrence’s panel has added its government representative — Rebecca Tinio, deputy chief of the civil frauds division at the U.S. Attorney’s Office for the Southern District of New York.