Another 9(b) loss for a relator

by bvernia | July 27th, 2009

On July 22, the Fourth Circuit issued an unpublished per curiam decision in U.S. ex rel. Elms v. Accenture LLP, affirming the dismissal of a qui tam complaint on particularly grounds under FRCP 9(b), but reversing the District Court’s dismissal of the relator’s FCA retaliatory discharge claim.

The relator, Elms, was a manager at Accenture, which had a cost-plus-fixed-fee contract with DOD for an experimental online voting system; one of the subcontractors was an Accenture affiliate, Avanade, which was billing the project on a “time and materials” basis.

Elms alleged that Accenture preferentially used Avanade employees in order to maximize profit, receiving rebates from the affiliate that were not disclosed to the US. After he complained about this to his supervisors, he was fired.

The Fourth Circuit, relying on U.S. ex rel. Harrison v. Westinghouse Savannah River Co., 176 F3d 776 (4th Cir. 1999), held that Elms’ allegations were conclusory, and that his failure to allege the specifics of any single credit or rebate fell short of the particularity 9(b) requires.

The Court nevertheless found that the relator did satsify the Rule 8 standard, which it found applicable to his retaliatory discharge claims.

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