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Eastern District of Texas Awards Relator $218 Million Despite Fifth Circuit Caution That Claims Not Likely Material or Based on False Certifications

The Eastern District of Texas confirmed a jury verdict holding highway-guardrail manufacturer Trinity Industries liable for False Claims Act violations on June 9, 2015, resulting in a judgment of over $680 million against the company.  Out of the $663 million in damages and penalties, the court awarded the relator a 30 percent share of the recovery, citing the government’s decision not to intervene in the case, and awarded almost $19 million in attorneys’ fees and expenses.  All told, the relator was awarded over $218 million.  The case is likely to be appealed based on Trinity’s arguments that the claims were not legally false because of retroactive government approval of the guardrails in question.  The district court’s opinion is notable both due to the interesting appellate issues it presents, and the large recovery awarded to the relator.

The federal government, through the Federal Highway Administration (FHWA), reimburses state transportation departments for certain highway construction expenses.  In order to be eligible for reimbursement, guardrails must be crash-tested and accepted by the FHWA.  Defendant Trinity had obtained such acceptance for its ET-Plus units in 1999.  In 2005, Trinity then modified the design of the ET-Plus units.  The relator alleged, and the jury agreed, that Trinity did not disclose these modifications to the approved guardrails.  The relator, a small competitor of Trinity’s, alleged that the modifications made the guardrails unsafe.

Based on the failure to disclose the modifications, the jury found that Trinity falsely certified that the modified guardrails were FHWA crash-tested and approved.  In its post-trial motion for judgment as a matter of law, Trinity’s primary argument was that the reimbursement claims could not be false because the FHWA determined in 2014 that the modified guardrail was eligible for reimbursement. The FHWA’s June 2014 letter, issued shortly before trial, stated that the modified guardrail complied with safety standards and was therefore fully eligible in the past, present and future for federal reimbursement.  In other words, regardless of whether the changes to the units were disclosed in 2005 or thereafter, the FHWA determined retroactively that the modified guardrails met reimbursement standards.

The Eastern District of Texas, however, found that the FHWA’s June 2014 letter “merely recites Trinity’s representations” that the modified guardrail was crash-tested in 2005, and stated that “Plaintiff introduced substantial and often uncontroverted evidence that … Trinity failed to disclose any of those modifications to the FHWA at any time prior to 2012.”  The court discounted the FHWA letter because “the FHWA did not participate into any investigation into the modification of the ET-Plus or the veracity of Trinity’s claims that the ET-Plus was eligible for federal reimbursement until after the jury rendered its verdict.”  Thus, the court found that the FHWA letter was insufficient to contradict the evidence at trial that “Trinity withheld material information regarding the ET-Plus units, concealed substantial modifications to the standard ET-Plus unit that was tested and originally approved by the FHWA, and falsely certified that the ET-Plus units were compliant.”

In a press release, Trinity announced [...]

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Defense Attorneys’ Billing Records Irrelevant in Determining Relator’s Attorneys’ Fees

On March 20, 2015, the Eastern District of California ruled in United States ex rel. Doe v. Biotronik, Inc., that defendant Biotronik Inc.’s attorneys did not have to turn over their billing records to the relator and his counsel, who sought those records claiming they were relevant to prove the reasonableness of their own fees.  No. 2:09-cv-3617-KJM-EFB, 2015 WL 1291371 (E.D. Cal. Mar. 20, 2015).  The False Claims Act (FCA) entitles successful relators to “receive an amount for reasonable expenses . . . plus reasonable attorneys’ fees and costs.” 31 U.S.C. § 3730(d).

The complaint in Biotronik alleged violations of the FCA based on kickbacks and off-label uses and billing.  The United States intervened and effected a settlement.  The parties agreed that the relator was entitled to fees and costs — at issue was whether discovery of defense attorneys’ fees and billing records was relevant to determining the reasonableness of relator’s attorneys’ fees.

The Ninth Circuit uses the lodestar method in analyzing attorneys’ fees, and has held that comparing the hours of the prevailing and losing parties is “a useful guide.”  Democratic Party of Washington State v. Reed, 388 F.3d 1281, 1287 (9th Cir. 2004).  The Biotronik court explained that the standard for reasonable attorneys’ fees is based on “how many hours were reasonably expended on the litigation, and then multiply those hours by the prevailing local rate for an attorney of the skill required to perform the litigation.”

The court ruled that while Biotronik’s attorneys had to provide their hourly rates, as those were “part of the universe of data from which one would determine the range for rates charged in this district by experienced and qualified attorneys to litigate cases of this nature,” they did not have to share their billing records for the litigation.  This was because Biotronik did not contest the reasonableness of the number of hours the relator’s lawyers spent on any particular task.  Instead, Biotronik claimed that the relator was unable to collect fees for (1) any time that was vaguely described or block-billed; and (2) any time spent on issues on which the relator did not prevail (as defined by reference to the settlement agreement).  The court found that, absent an argument that the time the relator’s counsel spent was unreasonable, “comparing the amount of time [defense counsel] spent on this case or on any particular tasks has no bearing on the pending fee petitions.”

This case is notable against a landscape where legal fees incurred by FCA defendants are increasingly under scrutiny.  FCA defendants face fee-related litigation, or face media demands in states with open records laws that enable journalists to obtain defense counsel billing data.  While Biotronik has no impact on the latter category, it underscores the fact that, depending on the position of a challenge to a relator’s fees, billing records reflecting attorneys’ fees incurred by FCA defendants may be deemed irrelevant.