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Calculating and predicting damages in a False Claims Act (“FCA”) case could be a daunting process for essentially the most seasoned FCA practitioners. In actual fact, even judges presiding over years of litigation and weeks of trial can get it fallacious by tens of hundreds of thousands of {dollars}.
Final week, the US District Court docket for the District of Columbia issued an Order and corresponding Memorandum Opinion granting partly and denying partly a movement from the US to amend and complement the courtroom’s findings of info and conclusions of legislation following a bench trial that concluded in March 2022. United States ex rel. Morsell v. Gen Digital (f/okay/a Symantec Company), Case No. 1:12-cv-00800 (Jan. 16, 2024) (Dkt. Nos. 374-75).
The courtroom printed its preliminary findings in January 2023, getting into a partial judgment in favor of the US within the quantity of $1,229,950 in damages and penalties. In that preliminary ruling, the courtroom famous that Symantec had knowingly violated the FCA by failing to tell the Common Providers Administration (“GSA”) about transactions that ought to have triggered a worth discount clause within the governing contract. Though clear on legal responsibility, the courtroom acknowledged its lack of ability to discern damages with any diploma of certainty and that any damages evaluation can be as dependable as “pulling a quantity out of skinny air.” Id. at 5. Given the shortage of readability, the courtroom “adopted a ballpark (and certainly exceptionally conservative) estimate to function a baseline” for damages and awarded the US $1,068,950.16 in treble damages together with penalties totaling $231,000. Id. at 6-7.
In its amended filings, the courtroom reiterated its preliminary place on legal responsibility; however acknowledged that it had erred in its calculations of each damages and penalties. Id. at 10. After accepting the evaluation provided by the US in post-trial briefing, the courtroom elevated the damages discovering to $16,121,696.04 and its evaluation of civil penalties to $36,872,000. Id. at 29. To place this in perspective, the courtroom’s revised calculations resulted in a quantity that was greater than 40 occasions bigger than its preliminary evaluation.
This ruling demonstrates how troublesome it may be to evaluate damages in an FCA case. Counsel should learn greater than tea leaves to foretell damages in an FCA case. They need to: (1) perceive the skilled analyses from the respective events; (2) articulate a complete, understandable, and compelling method to calculating damages; and (3) pivot to various approaches when it turns into clear that the actual fact finder will not be shopping for the preliminary pitch.
For extra info on calculating damages, please contact the professionals listed under.
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