TAFEF submitted amicus curiae brief in US ex rel., Paul J. Solomon, v. Lockheed Martin Corp. and Northrop Grumman Systems Corp. This brief was authored by TAFEF’s Director of Legal Education Jacklyn DeMar, and David Chizewer and Frederick R. Klein, both of Goldberg Kohn.
According to Law360, “While conducting audits for Northrop, Solomon discovered that Lockheed was shifting money from its management reserve budget — funds set aside for unanticipated work — to reduce cost overruns, which resulted in misrepresented cost estimates and performance reports filed with the government.”
However, the U.S. District Court for the Northern District of Texas ruled that Solomon’s case was precluded by the “public disclosure bar” of the False Claims Act, and that Solomon did not qualify as an original source of his claims. The court found that Solomon did not disclose his allegations to the government voluntarily as required by the FCA, because his employer’s contract with the government required it to disclose evidence of fraud under the contract.
The TAFEF brief argues that “Solomon is exactly the type of person that Congress wanted to encourage to come forward. He has unique abilities to assist the government in investigating his former employer's alleged fraud and in analyzing the appropriateness of Northrop's activities. He gained his knowledge through his own personal recognition of the possibility of wrongdoing, which he pursued through extensive effort and research to determine whether Northrop was defrauding the government. Moreover, he obtained his knowledge before any public disclosure, and he was the actual source of the information provided to the government.”
The brief emphasized that the district court’s ruling would have a wide-ranging negative impact on the ability of employees of government contractors to bring qui tam actions, and that the rule barring government employees from bringing such actions did not extend to private employees of government contractors.
If upheld this new precedent created by the district court “would frustrate the primary goal of the 1986 amendments: to encourage non-parasitic, whistleblowing relators.”
The authors went on to argue:
“The government cannot afford to rely simply on contractors' contractual obligations to be honest,” the group said. “This court should reject an interpretation of 'voluntarily provided' that is divorced not only from the reality of human behavior as typified by Solomon, but also from the FCA's statutory purpose.”