Sidley is pleased to welcome Jack W. Pirozzolo, former First Assistant United States Attorney for the District of Massachusetts, as a partner in Sidley’s Boston office and member of the firm’s White Collar: Government Litigation & Investigations practice. Prior to joining Sidley, Mr. Pirozzolo served for more than 10 years in the U.S. Attorney’s Office, first as an Assistant U.S. Attorney and then, since late 2009, as the First Assistant U.S. Attorney. As First Assistant, Mr. Pirozzolo was a principal litigator for the United States in the District of Massachusetts overseeing hundreds of criminal and civil matters handled by the U.S. Attorney’s Office, including matters of national and international significance, such as the investigation, apprehension and still ongoing prosecution of the Boston Marathon Bombing defendant, Djokhar Tsarnaev; the apprehension and prosecution of James J. “Whitey” Bulger; and the largest healthcare fraud resolution in U.S. history. While First Assistant, Mr. Pirozzolo also directly prosecuted various matters involving white collar offenses. He attended the University of Chicago Law School, where he was Comment Editor of the University of Chicago Law Review, graduated with honors and was elected to the Order of the Coif. He also clerked for Chief Judge Sandra L. Lynch on the United States Court of Appeals for First Circuit and Judge Edward R. Becker on the United States Court of Appeals for the Third Circuit.
Posted by Kimberly Dunne and Brent Nichols
A recent decision by the California Court of Appeal could significantly expand liability for government contactors under the California False Claims Act (“CFCA”). See San Francisco Unified School Dist. ex rel Contreras v. First Student, Inc., No. A136986, Cal. Court. App. (1st Dist. Mar. 11, 2014). In Contreras, the Court held that a “vendor impliedly certifies compliance with express contractual requirements when it bills a public agency for providing goods or services,” even when the vendor has not expressly represented that it is in contractual compliance. Under the rule articulated in Contreras, once a relator has established a false implied certification, he or she need only show that the false certification was “material” to the government’s payment decision and that the defendant acted with scienter (i.e., knowledge or reckless disregard). This decision represents a substantial departure from jurisprudence holding that a breach of contract in and of itself does not give rise to liability under the federal FCA.
In Contreras, a school district contracted with First Student to provide transportation services. The contract required First Student to use school buses that were in “excellent” condition and complied with federal and state safety regulations, and to conduct regular maintenance inspections in accordance with government regulations. Relators alleged that defendant violated these contractual terms by using buses with low tire treads and worn brake lines, and by failing to perform the required inspections. Over the course of several years, First Student submitted monthly invoices, but notably these invoices did not expressly certify compliance with contractual terms. The school district eventually became aware of some maintenance problems, but ultimately renewed its contract with First Student and the State did not intervene in the suit. The trial court granted First Student’s motion for summary judgment, finding that there was no triable issue as to materiality because the district was aware of the issues and still renewed its contract.
The Court of Appeal reversed. After making clear that CFCA should be given “the broadest possible construction,” the Court found that each of First Student’s invoices impliedly certified compliance with contractual terms and that the non-compliance was material because the “alleged falsities were material as a matter of common sense.” The Court rejected defendant’s argument that the invoices could not be material because the district renewed its contract with First Student after learning of the issues. Instead, the Court’s materiality analysis “focused on the potential effect of the false statement when made, not on the actual effect of the false statement when discovered.” Here, even though the district paid First Student’s invoices and renewed its contract, the Court found there was a factual dispute as to whether the implied false certifications—at the time they were made—would have had a “natural tendency” to influence the district’s payment decision.
Overall, this decision blurs the line between breach of contract and CFCA liability, and suggests that a mere knowing breach of a material contractual term may form the basis of a CFCA claim.