Author Archives: Breana Ware

Breana Ware

Breana Ware is an associate in the firm’s Construction & Government Contracts Group.

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Fifth Circuit Ruling Shows Government’s Actions Are Key Under Escobar

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Government contractors continue to closely follow the impact of the U.S. Supreme Court’s landmark False Claims Act decision in Universal Health v. U.S. ex rel Escobar. Most recently, in U.S. ex rel Harman v. Trinity Industries, the Fifth Circuit considered the heightened standard whistleblowers must meet under Escobar to prove materiality if the government continued to pay claims despite its knowledge of misconduct allegations. In Trinity Industries, Trinity, a manufacturing company and government contractor, appealed the denial of its motion for judgment as a matter of law. The underlying [...]Read more

Circuit Court Signals Potential Impacts of Escobar

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Lower courts have begun grappling with the implications of the U.S. Supreme Court’s decision in Universal Health Services, Inc. v. United States ex rel. Escobar. In U.S. ex rel. Sheet Metal Workers International Association v. Horning Investments, LLC, a union filed a qui tam lawsuit against Horning Investments, LLC. Horning, a roofing company, was acting as a subcontractor for a construction project for the U.S. Department of Veterans Affairs. The union claimed that Horning violated the False Claims Act by failing to pay union workers in accordance with the Davis-Bacon Act. Under the Davis-Bacon [...]Read more

Law360 Publishes Article on Kingdomware by Jeff Belkin and Breana Ware

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On June 21, 2016, Law360 published the article “High Court Boosts Veterans Contracts in Kingdomware” written by Jeff Belkin and Breana Ware. In this article, Jeff and Breana discuss the issues at hand in the recent unanimous decision for the U.S. Supreme Court in Kingdomware Technologies Inc. v. United States, No. 14-916. As indicated by Jeff and Breana, this ruling will have a significant impact on the U.S. Department of Veterans Affairs’ procurement process; on current and future protests before the Government Accountability Office regarding the VA’s use, or nonuse, of the Rule of Two; [...]Read more

The Supreme Court Weighs In on the Implied Certification Theory of False Claims Act Liability

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The Supreme Court has handed the Department of Justice and qui tam relators a bigger hammer to wield against government contractors with its opinion in Universal Health Services, Inc. v. United States ex rel. Escobar, confirming the viability of the implied certification theory of False Claims Act (FCA) liability. In this case, the relators filed a qui tam action alleging that a provider of mental-health services in Massachusetts violated the FCA when it submitted Medicaid reimbursement claims that included representations about the services provided, but failed to disclose that the service [...]Read more

Is the False Claims Act Becoming a Catch-All Penalty for Any and Every Contractual Breach?

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A recent Department of Justice (DOJ) settlement announcement suggests that the government intends to continue to use the False Claims Act (FCA), rather than more traditional breach of contract or tort claims or regulatory authority, to administer its contracts. On March 7, 2016, the DOJ announced its $3 million settlement with ArmorSource LLC to resolve FCA allegations against the company. ArmorSource contracted with the U.S. Army in 2006 to provide ballistic helmets for combat. In 2010, the Army recalled the helmets after rounds of failed ballistic safety tests. The government alleged that from [...]Read more

Supreme Court to Rule on the Implied Certification Theory

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The U.S. Supreme Court has scheduled oral arguments in a case that will have significant implications for cases brought under the False Claims Act (FCA). In Universal Health Services v. United States ex rel. Escobar, No. 15-7, the Court will hear argument on two important questions. First, whether the “implied certification” theory of legal falsity is viable under the FCA, a question on which the circuit courts of appeal are divided. If the Court concludes the implied certification theory is viable, then the second issue it will consider is whether government contractors’ reimbursement claims [...]Read more

Andy Howard and Jessica Sharron on “The False Claims Act: Recent Trends and Hot Topics” – A Webinar

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On January 27, 2016, Alston & Bird’s Andy Howard and Jessica Sharron presented a live webinar titled “The False Claims Act: Recent Trends and Hot Topics” in connection with Lorman Education Services. In this 90-minute session, the attorneys covered recent developments in False Claims Act (FCA) law; the state of attorney-client privilege in FCA whistleblower (“qui tam”) lawsuits; the growing use of civil investigative demands (CIDs) and how to survive CID audits and investigations, workforce training, and FCA claim mitigation techniques; and the disagreement in various federal appeals [...]Read more

Federal Agencies Cannot Immunize Themselves with Short Termination Windows in Contracts

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In Springfield Parcel C, LLC v. United States, 124 Fed. Cl. 163 (Ct. Fed. Cl. 2015), the U.S. Court of Federal Claims considered the post-award protest of a contract by an unsuccessful offeror. The unsuccessful offeror was protesting the award of a real estate contract to lease new headquarters for the Transportation Security Administration (TSA) offered by the U.S. General Services Administration (GSA). The protestor, Springfield Parcel C, LLC, sought an injunction of the award to Eisenhower Real Estate Holdings, LLC, on the basis that the GSA’s award was unlawful. Springfield, Eisenhower, and [...]Read more

Reasonable Interpretations of Statutes May Prevent Liability Under the False Claims Act

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As a recent case from the District of Columbia Circuit demonstrates, the knowledge requirement of the False Claims Act (FCA) often creates the largest impediment for those looking to hold defendants liable for their false certifications to the government. In United States ex. rel. Purcell v. MWI Corp., No. 14-5210, 2015 WL 7597536 (D.C. Cir. Nov. 24, 2015), the United States brought a civil action under the FCA against MWI Corporation. The government alleged that MWI made false certifications to the Export-Import Bank to secure loans for financing the sale of water pumps to Nigeria. Under the terms [...]Read more