Calculating and predicting damages in a False Claims Act (“FCA”) case could be a daunting job for probably the most seasoned FCA practitioners. Actually, even judges presiding over years of litigation and weeks of trial can get it incorrect by tens of thousands and thousands of {dollars}.
Final week, america District Courtroom for the District of Columbia issued an Order and corresponding Memorandum Opinion granting partly and denying partly a movement from america to amend and complement the courtroom’s findings of details and conclusions of regulation 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 revealed its preliminary findings in January 2023, coming into a partial judgment in favor of america 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 Normal Companies 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 incapability to discern damages with any diploma of certainty and that any damages evaluation could 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 america $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 supplied by america 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 instances bigger than its preliminary evaluation.
This ruling demonstrates how tough 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 strategy to calculating damages; and (3) pivot to various approaches when it turns into clear that the actual fact finder shouldn’t be shopping for the preliminary pitch.
For extra data on calculating damages, please contact the professionals listed under.
