On the heels of the recent Omnicare summary judgment ruling (covered in this blog) comes another scienter-based summary judgment victory for a False Claims Act (FCA) defendant in United States ex rel. Kirk v. Schindler Elevator Corp. On September 10, 2015, the U.S. District Court for the Southern District of New York granted summary judgment in favor of Schindler Elevator following over a decade of litigation, including a 2011 Supreme Court ruling regarding the FCA’s public disclosure bar (https://www.supremecourt.gov/opinions/10pdf/10-188.pdf).

The relator’s FCA case was based on the alleged failure of Schindler, his former employer, to comply with the Vietnam Era Veterans Readjustment Assistance Act (VEVRAA), 38 U.S.C. § 4212, and associated regulations. VEVRAA requires certain government contractors to submit annual reports, called “VETS-100” reports, providing information about the number of veterans employed by the contractor, based on data known to the contractor. The relator alleged that Schindler’s VETS-100 reports were false and that the company was reckless because it had no mechanism for counting veterans. While much of the court’s opinion discusses issues that are specific to contractors subject to VEVRAA, in rejecting the relator’s attempt to raise a genuine issue of material fact on scienter, the court made a number of determinations that are important for any FCA defendant:

First, the court rejected the relator’s argument that the alleged lack of a written procedure for tracking veteran status raised an issue of fact on recklessness. The court observed that the lack of a written process, particularly where none was required by the statute, was not proof of recklessness where the evidence demonstrated Schindler’s attempts to comply with VEVRAA in numerous ways. Thus, the lack of a written procedure for statutory or regulatory compliance cannot, on its own, establish scienter.

Second, in response to an expert opinion proffered by the relator concerning the inaccuracy of Schindler’s VETS-100 reports due to alleged underreporting of veterans, Schindler argued that certain veterans did not need to be included on the reports, relying upon a regulation providing guidance on which types of employees’ veteran status needed to be reported. While the relator disagreed with Schindler’s interpretation of the regulation, the court held that where there is legitimate disagreement over a regulation and the contractor acts in good faith, the contractor does not knowingly present a false claim. The court noted that the relator offered “not a single piece of evidence that Schindler knew its interpretation of the regulation was wrong and then knowingly submitted false VETS-100 reports.”

Third, the court held that e-mails in which employees remarked about inaccuracies in data and the need to correct it did not establish scienter. “[I]dentifying errors in data collection or recognizing the need for better quality control does not constitute ‘reckless disregard’ within the meaning of the FCA.”

Fourth, the relator’s use of two Schindler employees’ declarations (one of which was relator’s own declaration) testifying that they had never been asked by Schindler to identify their veteran status was insufficient to survive summary judgment, given the countervailing evidence [...]

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