Relator loses GSA qui tam suit on particularity grounds, D.C. court rules

by Ben Vernia | January 19th, 2011

In a January 13 decision in U.S. ex rel. Folliard v. Hewlett-Packard Co., D.C. District Judge Richard Leon dismissed a whistleblower’s suit alleging that HP falsely labeled the country of origin on 38 products offered through its website to government purchasers.

According to Judge Leon:

In this case, as HP points out, realtor [sic] does not identify a single false claim submitted to the government for payment. While Folliard has alleged that HP “knowingly submitted, and caused to be submitted, false or fraudulent claims for payment and reimbursement by the United States Government,” and the United States has paid these false claims, he has failed to plead any facts supporting this bald recitation of the statute. Instead, Folliard merely argues that it is reasonable to infer that the government purchased at least some of the 38 products whose country of origin was misidentified, and that in selling these products HP caused a false claim to be submitted. But Folliard has not even alleged such a sale. To say the least, such speculative inferences are not sufficient to raise Folliard’s “right to relief above the speculative level,” as required by Twombly. 550 U.S. at 553.

(Citations to relator’s complaint omitted.) Judge Leon also rejected the whistleblower’s argument that he adequately pled the existence of a scheme to defraud, and that he should be permitted to take discovery in order to identify specific false claims.

The relator in the case lost similar claims against the tech reseller CDWG on first-to-file grounds in July, 2010.

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