Expert Witness Testimony: Often the Critical Component for a Successful Case
If your company is facing litigation, especially in high-stakes cases, one of the first questions you and your counsel should address is whether the testimony of an expert witness might be helpful, or even essential, to your case. Expert witness testimony comes into play, as stated in Federal Rule of Civil Procedure 702, whenever “the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue.” Whether . . . Read More
Judge v. Jury – Considerations for the Corporate Litigant When Making that Important Decision
The Seventh Amendment to the U. S. Constitution guarantees the right to a trial by jury in most federal court civil cases involving money damages. And while the constitution does not extend this right to the states, most have laws or constitutional provisions preserving the right to trial by jury in civil matters that exceed a threshold monetary amount. When a company is suing, or has been sued, for money damages, the important question of whether to have the case . . . Read More
DOJ Doubles Penalties for Violation of the False Claims Act
By Ambi Biggs The Department of Justice (“DOJ”) has issued an interim final rule that dramatically increases the dollar amount for civil penalties that can be assessed against an entity or individual who violates the False Claims Act (“FCA”). Under the FCA, 31 U.S.C. § 3729, et seq., anyone who knowingly presents a “false or fraudulent” claim to the government for payment or approval or knowingly makes or uses a false record or statement material to a false or fraudulent claim . . . Read More
The Corporate Designee in Commercial Litigation – the Voice That Binds the Company
A corporate entity is regarded by the law as a “person” for purposes of standing to sue and be sued, but an organization, whether corporation, partnership, governmental organization, or other entity, can act only through its officers, directors or other agents. Accordingly, when a corporate entity becomes a party to a lawsuit, whether as a plaintiff or as a defendant, it will undoubtedly be required, at some point, to provide testimony at deposition in the course of the discovery phase . . . Read More
VA Required to put Veterans First in Kingdomware Supreme Court Decision
In a big win for veteran-owned small businesses, the Supreme Court today ruled unanimously in favor of Kingdomware Technologies, Inc., in its case against the Department of Veterans Affairs (“VA”). Kingdomware had brought suit challenging the VA’s failure to set aside an order under the Federal Supply Schedule (“FSS”) for veteran-owned small businesses. In the ensuing litigation, the VA took the position that it was not required to reserve FSS orders for SDVOSBs or VOSBs because the mandates of the . . . Read More
Drafting Indemnification Provisions to Address Common Issues
By Ambi Biggs Corporate bylaws and operating agreements often contain provisions that provide for indemnification to directors, officers and in some cases employees and agents who become parties to litigation, arbitration or investigations by reason of their service with the corporation. By shifting responsibility for liability that may arise from actions taken in their roles as officers and directors from the individuals to the company, indemnification provisions can ease potential corporate officers’ minds and induce them to fill necessary roles . . . Read More
U.S. Supreme Court’s Upcoming Ruling on False Claims Act Case May Have Major Impact on Government Contractors
By Ambi Biggs The U.S. Supreme Court is set to hear oral arguments next month in a False Claims Act (“FCA”) case that could significantly broaden the scope of the statute and resolve a split among the U.S. Circuit Courts. If the Supreme Court were to rule in favor of an implied theory of certification, government contractors across the country could be held liable for violating the FCA by breaching regulations and contractual provisions to which they never certified that . . . Read More
Preserving the Attorney-Client Privilege when Conducting an Internal Investigation
You may recall that, back in July 2014, we advised that the D.C. Circuit Court of Appeals had overturned a D.C. District Court decision in a False Claims Act case that required the results of an internal investigation, which the investigating company had asserted were protected by the attorney-client privilege, to be turned over to the whistleblower’s counsel. The trial court had supported its decision against the application of the privilege by, among other things, pointing out that the employees that had been interviewed—by non-attorneys—had not been told that the interview was being conducted for the purpose of obtaining or providing legal . . . Read More
Proposed Changes to Federal Rules of Civil Procedure for ESI
By Ambi Biggs With the widespread use of electronic communication methods, discovery is often the most onerous, time-consuming and costly aspects of litigation. Case law has established that a party has a duty to preserve information when litigation is reasonably anticipated, so litigants’ discovery duties begin before the complaint has even been filed in court. Failure to preserve information, including electronically stored information (“ESI”), can lead to sanctions ranging from instructing a jury that it may draw an adverse inference . . . Read More
Ninth Circuit Eases Ability for Whistleblowers to Bring Qui Tam Actions
In an important development under False Claims Act (“FCA”) case law, the U.S. Court of Appeals for the Ninth Circuit has expressly abrogated former precedent limiting the ability of whistleblowers to recover funds reimbursed to the Federal Government under the FCA to a greater degree than in many other circuits. The case is United States ex rel. Hartpence v. Kinetic Concepts, Inc., No. 12-55386 (9th Cir. July 7, 2015). Generally, the FCA prohibits the knowing submission to the Federal Government . . . Read More